Oracle has failed to convince a San Francisco federal court that Google unfairly used its intellectual property in the Android smartphone operating system and a retrial may be necessary to resolve the matter.

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The ongoing legal dispute between the search giant and Oracle, which owns the Java software, centres around 37 application programming interfaces (APIs) which Google is accused of using unfairly and without paying licenses for.

While the 12 jurors agreed that Google had breached Java copyrights, they were deadlocked when it came to the pivotal question of whether Google's use of these Java APIs constituted "fair use" and, more fundamentally, Judge William Alsup must decide if APIs can be copyrighted at all.

If "fair use" is agreed on, then Oracle would receive no damages from Google. Oracle, a database company, acquired the rights to Java when it bought Sun Microsystems for $7.3bn (£4.6bn) in January 2010.

Bloomberg explains: "The legal doctrine of fair use states that anyone can use copyrighted work without consent of the owner under certain circumstances, such as for teaching, in news reporting and commentary or to advance the public interest by creating something new."

Judge Alsup has said that Google's defence of "fair use" will not be thrown out, and he believes that the dispute over fair use of the Java APIs may require a retrial, which would mean putting the case to another jury.

Larry Ellison
Oracle CEO and co-founder Larry Ellison arrives in court in September (credit: Reuters)

Intellectual property expert Florian Mueller said on his Foss Patents blog that "it will he helpful to see at some point in which respects the judge believes there's a genuine dispute of fact that needs to be put before a jury.

"Many observers of this lawsuit believe that there will be an appeal regardless of who wins or loses. They might both want to appeal if different parties win on different counts."

While the jury agreed that Google had infringed upon Oracle's 37 Java API's used in the Android operating system, they could not agree on whether Google's defence of "fair use" was acceptable or not.

This could all be irrelevant though, if Judge Alsup decides that APIs are not copyrightable and, according to ZDNet, "Alsup's line of questioning throughout the hearing hinted that he is leaning towards declaring that they are not."

An Oracle lawyer had previously told the court: "You can't just step on somebody's intellectual property because you have a good business reason for it."