The judge in the Java trial told Oracle late Wednesday that it can’t assert the patent that the Patent and Trademark Office just said was valid against Google.

It’s too late, he said, although the patent part of the case won’t start until next week or whenever the jury decides the trademark infringement part it’s been hearing since April 16.

Oracle just asked if it could assert the third patent late Tuesday.

The judge said Oracle agreed to drop infringement claims on patents the PTO rejected before the trial started provided they remain rejected at the start of the trial and that’s what happened. So Oracle’s plum out of luck.

His decision reads: “The reversal came a few days too late, for the trial had already started and the dismissals with prejudice had already become effective. Oracle’s argument that the patent ‘trial’ has not yet started is wrong. There was and is one trial with three phases. The trial started on April 16. This is not only the plain meaning of the term but any other interpretation would inject great prejudice given that the parties have relied on the issues to be tried and that reliance should not be turned on its head in mid-trial. Oracle will be required to stand by its word and live with the dismissal with prejudice.”

The PTO reconsidered its so-called “final” rejection of one of the Java patents that Oracle claimed Google infringed and decided that nine of the patents claims are perfectly valid.

Apparently Oracle got wind of the PTO’s change of mind late last week and rushed in Sunday to tell the court about it.

Conveniently, the claims upheld match Oracle’s to a “T” with a little to spare, and, as FOSS Patents pointed, there’s nothing quite like the teeth of a re-examined patent.

Google, of course, squawked but the way Oracle claimed it left it with the court, before the judge’s decision, it would only assert patents that weren’t rejected by the PTO.

The claims upheld are part of US Patent No 5,966,702 on a “method and apparatus for pre-processing and packaging class files” and include 1, 5-7, 11-13, 15 and 16. Oracle only charged Google on claims 1, 6-7, 12, 13, 15 and 16.

Oracle’s got two patents left out of the seven it started with. It can’t assert the newly validated patent in any new litigation because it withdrew it with prejudice.

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