On Friday, Judge William Alsup wrote that he's inclined to order both sides to mediate the case in front of a U.S. magistrate judge. He would order "top executive officers of both sides to be in attendance for one or two complete days."

At the start of the case, the court let the companies skip the court's mediation plan and use a private mediator instead. "The private mediation thus far has not succeeded," Judge Alsup said.

The companies can comment on the judge's proposal, including who would be the appropriate top executives, by noon on Sept. 7.

However, they that they will be able to settle the case. Google in a court filing in July, but never said it was actively pursuing one.

The companies are battling over the way Android handles Java applications. Oracle accuses Google of infringing on its Java patents and copyrights in Dalvik, the virtual machine in Android that runs Java applications.