The jury deliberating the copyright claims in Oracle v. Google has handed up its most tantalizing note yet.
"What happens if we can't reach a unanimous decision and people are not budging?" one juror wanted to know Thursday after the third full day of deliberations.
A deadlocked jury would be bad news for Oracle, which still has a patent phase to try to this same 12-member panel. The damages phase, if infringement is found, also would be tried to the same jury.
The proposition of a hung jury seemed to catch Oracle lead counsel Michael Jacobs off guard.
"Your honor has vastly more experience in this situation than we do," Jacobs, of Morrison & Foerster, said when U.S. District Judge William Alsup asked both sides to weigh in. He suggested an Allen Charge, also known as a dynamite charge, where the court urges jurors to press on, might be necessary.
Google lead counsel Robert Van Nest of Keker & Van Nest told Alsup he should merely point them to a jury instruction explaining that the decision must be unanimous in this case.
Alsup didn't take the note as a declaration that the jury is deadlocked. "This is not the foreperson writing it. It doesn't say they are deadlocked. It says, 'what happens if'?'"
The idea of a hung jury prompted Alsup to work through what would happen if indeed they couldn't render a verdict on one or more of the four multi-part questions. The judge suggested the court should accept any partial verdict and then proceed with the same jury to the patent phase of the smartphone technology suit. The jury might even be able to resolve some of the copyright questions later, after hearing evidence in the next phases.
"I wouldn't see anything wrong with that," Alsup said.
Van Nest said that would raise Seventh Amendment issues. "Come on," Alsup said.
Both sides reserved further arguments until they had time to research the issue.
Just before jurors were to go home for the day, Alsup brought them into the courtroom and gave them a pep talk.
He used the d-word. "If you were to tell me that you were deadlocked, there are admonitions I could give to you that I would talk to the lawyers about first."
He told them they were dealing with hundreds of exhibits and many witnesses, and that it wasn't unusual for people to disagree. "This is not as simple as who ran a red light," he said.
He sent them home to "get a good night's rest," and said they should start fresh in the morning.
After they left the room, Alsup told counsel: "I guess no one will have a three-day weekend." Alsup had issued an order the day before notifying counsel that jurors could take Friday off, putting off the patent phase until Monday, if they rendered a verdict Thursday.
The note on what happens if they can't reach a unanimous decision was the eighth question from the jury. They had sent in other notes asking about Google's "fair use" defense, among other things. That led to some speculation that perhaps they had answered in Oracle's favor on an infringement question if they were struggling with affirmative defenses.
Deliberations resume at 8 a.m. The jury has indicated it would stop work at 1 p.m. Friday.