Is it strike three for Google in their attempt to avoid a finding of willful infringement?

Willful infringement brings with it a potential awarding of treble damages and a higher likelihood of an injunction, and so Google is scrambling to keep out of evidence (in Oracle v. Google) anything that might indicate they knew they would be infringing Java patents if they continued down their chosen path in developing Android.

Bloomberg reports Judge Alsup has allowed into evidence a second incriminating email (unsent), this one prepared by a staffer for Google executive Andy Rubin. It’s called the “Lindholm draft,” and it is a response to an attempt to work around the Java code. The email stated all alternative programming they tried “sucked,” and that Google needs “to negotiate a license for Java.”

Strike one: the admission in the Daubert challenge

Strike two: the 2005 e-mail

Now, is it strike three? Apparently Judge Alsup thinks so; at a minimum he is using it to tighten screws to get Google to settle. Here’s Florian Mueller’s take:

“Judge Alsup attaches a great deal of importance to that particular document. The judge told Google, ‘you are going to be on the losing end of this document’ with ‘profound implications for a permanent injunction.’”

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