"But if the patentee and the accused infringer are direct competitors, the damage done to the patentee by the infringement is more than just lost royalties -- it is lost market share, lost visibility in the market, et cetera," Daniels added. "These damages are hard to estimate. So the court cannot cure the damage done to the patentee. He is not made whole."
While Oracle has shown no indication it wants to settle before trial, the re-examination nonetheless "kind of gums up potential settlement talks," as Google can't withdraw its request to the USPTO, according to Daniels. "If Oracle settles the case, it still has to deal with re-examination."
Meanwhile, on Friday a judge denied a motion made this week by Google that asked for permission to file a request for summary judgment on Count VIII of Oracle's complaint, which relates to alleged Java copyright infringements by Android.
Google had argued that if any protected Oracle works are present in Android, they adhere to fair use standards.
Oracle filed a response in opposition to Google's motion on Friday, saying the copyright infringements it originally cited "represent only a snapshot of our case taken at the time they were submitted," and that discovery proceedings should reveal additional copyright violations.
U.S. District Court Judge William Alsup sided with Oracle in his ruling on Friday, but left it open for Google to renew its request "after a more complete evidentiary record has been developed through discovery."
Oracle and Google did not respond to requests for comment Friday.
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