"But if the patentee and the accused infringer are direct competitors, the damage done to the patentee by the infringement is more than just lost royalties -- it is lost market share, lost visibility in the market, et cetera," Daniels added. "These damages are hard to estimate. So the court cannot cure the damage done to the patentee. He is not made whole."

While Oracle has shown no indication it wants to settle before trial, the re-examination nonetheless "kind of gums up potential settlement talks," as Google can't withdraw its request to the USPTO, according to Daniels. "If Oracle settles the case, it still has to deal with re-examination."

Meanwhile, that asked for permission to file a request for summary judgment on Count VIII of Oracle's complaint, which relates to alleged Java copyright infringements by Android.

Google had argued that if any protected Oracle works are present in Android, .