Jurors in a high-profile court battle between Google and Oracle struggled Thursday to agree on whether the Internet giant infringed software copyrights in Android software.
US District Court Judge William Alsup summoned the 12-member jury to the courtroom after getting a note from a juror who wanted to know what the panel should do if "we can't reach a unanimous decision and people are not budging."
"If you were to tell me you were deadlocked, there are admonitions that I could give you," Alsup told jurors.
If it turns out jurors can't reach consensus as required by law for a verdict, the judge planned to move on to a patent infringement phase of the trial and leave the undecided counts in the case to be retried in the future.
"We would just have some unfinished business if that were to occur," Alsup told the jury before giving the panel a pep talk and sending the jurors home before renewing deliberations early Friday.
"Maybe in the middle of the night you will wake up and say 'I have it...'see things in a different light."
With the jury out of the courtroom, Alsup told the rival teams of attorneys to be ready to argue first thing on Friday how, if at all, to proceed if the jury deadlocks.
"My view would be to take what we can get and move on to the patent phase," Alsup said, suggesting that the court accept a partial verdict if jurors have agreed on any of the four counts at issue in the copyright case.
A mistrial that derails the entire trial would be in Google's interest, since Oracle wants big money damages for the use of Java code and "application programming interfaces" in Android software for mobile gadgets.
Alsup ordered Google to clarify how much money has been made or lost on the mobile gadget software.
While jurors deliberated, Oracle lawyers challenged a Google document indicating that Android expenses more than wiped out the "product contribution" to revenue through 2010 and well into 2011.
"We are talking about huge numbers here," Alsup said while considering whether jurors should be able to rely on the document in the event of a damages phase in the trial.
"If the jury finds liability, $600 million could turn on whether the jury believes these numbers are good."
Alsup gave Google until Monday to provide reliable accounting paperwork itemizing how Android profit-and-loss figures were calculated and wanted the person handling the numbers deposed.
"If that was the way it was done in the actual course of business, fine, that can go before the jury," the judge said of the financial figures.
If Android is shown to have been a money loser for Google, there would be no profits to "disgorge" as demanded by Oracle, he noted.
The trial is being conducted in separate phases to address copyright and then patent infringement accusations by Oracle. The patent portion is set to begin on Monday, unless the jury has not finished deliberations on copyright.
Oracle accuses Google of infringing on Java computer programming language patents and copyrights Oracle obtained when it bought Java inventor Sun Microsystems in a $7.4 billion deal brokered in 2009.
Google has denied the claims and said it believes mobile phone makers and other users of its open-source Android operating system are entitled to use the Java technology in dispute.
The Internet titan unveiled the free Android operating system two years before Oracle bought Sun.
Protecting and profiting from Java software technology were prime reasons for Oracle's decision in 2009 to buy Sun, according to evidence presented at trial.
Part of the Google defense is that Oracle couldn't figure out a way into the smartphone market and is thus trying to leech off of Android's success by pressing claims regarding Java software that Sun made publicly available.