Google filed for a new trial today in its ongoing case with Oracle over copyright infringement in their Android OS.
Earlier this week the jury reached a partial verdict, determining that Google did indeed infringe on Oracle's Java copyrights.
However, the jury did not reach a decision on whether or not Google's infringement of the Java API in Android constituted fair use.
Google wants another shot
Google called for a mistrial, filing for a new trial to take place since a complete verdict was not reached.
"Under settled Supreme Court and Ninth Circuit law, the jury's failure to reach a verdict concerning both halves of this indivisible question requires a new trial concerning both questions," read a brief Google submitted with the request for a new trial.
Oracle filed its own proposals, requesting the judge to make a determination on fair use in the absence of jury consensus.
"Without some action by the Court and/or the parties, the trial cannot proceed to a final verdict with this jury," Oracle said.
However, the company wishes to not drag out the issue with a second trial, saying, "presenting the case to a second jury would be expensive, time-consuming and duplicative, and may impose a substantial additional delay."
Judge may make final decision not jury
Google's request for a new trial may force Judge William Alsup, who is presiding over the case, to rule on the issue of fair use.
That may turn out in Google's favor according to Michael Risch, associate professor of law at Villanova University.
"I think that the court will have no choice but to hold that the collection of API names is uncopyrightable – at least at this level of abstraction and claimed infringement," Risch wrote .
"My prediction is that Judge Alsup will say that the collection of names is not copyrightable, or at the very least usage of the API in this manner is fair use as a matter of law."
Meanwhile, the trial continues as it entered discussion of patents this week. Judge Aslup is expected to respond Google's request for a mistrial this week.