Due to the complexity of the technology, the number of patent and copyright damages theories, the non-traditional business models, and the “extremely divergent views” on damages, the court appointed a damages expert under Rule 706, whose costs Oracle and Google will share.
Oracle’s damages expert opined that a reasonable royalty would range from $1.4 billion to $6.1 billion, while Google’s expert argued for zero, or possibly up to at most $100 million (based on a real-life licensing offer it rejected).
The court has already taken an active role in the damages issues, having excluded certain opinions by plaintiff’s expert Dr. Iain Cockburn and by Google in July. At that time, the court also rejected Google’s assertion that Sun’s $100 million licensing offer to Google constituted an upper limit to a reasonable royalty. In so doing, the court even suggested how to determine the reasonable royalty: start with the $100 million offer and adjust it up and down based on several factors. I think I can guess which direction the court-appointed expert will go.
Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (N.D. CA, November 9, 2011, Order) (Alsup)