Today, the US Supreme Court granted Google's petition to review its copyright case with Oracle involving Google’s use of Oracle's application program interface (API).
Google's petition states two issues: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
See SCOTUS blog for details.
Google used 37 API packages and 7,000 lines of code to make it easier for Java programmers to write applications for the Android operating system. Given Google's resources, maybe not the best decision given this protracted legal battle.
Many amicus briefs supporting Oracle's APIs are not copyrightable and/or Google is making fair use. On the other hand, the Federal government recommended the Supreme Court deny Google’s petition. Finally, the Federal Circuit held the APIs are copyrightable and Google use is not fair use, but the Supreme Court has a track record of not affirming the Federal Circuit. Some commentators believe this case may be heard in early 2020.
Copyright © 2019 Robert Moll. All rights reserved.
Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts
Friday, November 15, 2019
Tuesday, January 29, 2019
Supreme Court - Google Files Petition for Certiorari on Copyrightability and Fair Use of APIs
The Oracle v. Google API copyright dispute continues:
Note Oracle sued Google for alleged copyright and patent infringement in 2010.
Copyright © 2019 Robert Moll. All rights reserved.
Note Oracle sued Google for alleged copyright and patent infringement in 2010.
Copyright © 2019 Robert Moll. All rights reserved.
Friday, April 13, 2018
Harvard Journal of Law & Technology - Special Issue - Software Interface Copyright
The Harvard Journal of Law & Technology published a Special Issue - Software Interface Copyright worth reading if you are interested what certain academics think regarding copyright's role with respect to application programming interfaces (APIs). It also discusses fair use and relates to Oracle v. Google.
Copyright © 2018 Robert Moll. All rights reserved.
Copyright © 2018 Robert Moll. All rights reserved.
Thursday, May 26, 2016
Washington Post - Google Beats Oracle on Copyright, Defeating $9 Billion Claim
Today, Washington Post reports Google Beats Oracle on Copyright, Defeating $9 Billion Claim based on a jury verdict that Google made only fair use of Oracle's APIs in the Android operating system.
Congress states four factors determine if the fair use defense exists. The jury must consider: (1) the purpose and character of the accused use; (2) the nature of the copyrighted work; (3) the amount or substantiality of the part used in relation to the copyright work as a whole; and (4) the effect of the accused use on the potential market or value of the copyrighted work.
The Supreme Court has stated elsewhere that factor (4) is "undoubtedly the single most important element of fair use." Thus, a jury verdict for fair use which appears to impact the potential market for Java in mobile devices is a bit surprising. Perhaps the $9B damages Oracle sought worked against the jury's sensibilities.
Copyright © 2016 Robert Moll. All rights reserved.
Congress states four factors determine if the fair use defense exists. The jury must consider: (1) the purpose and character of the accused use; (2) the nature of the copyrighted work; (3) the amount or substantiality of the part used in relation to the copyright work as a whole; and (4) the effect of the accused use on the potential market or value of the copyrighted work.
The Supreme Court has stated elsewhere that factor (4) is "undoubtedly the single most important element of fair use." Thus, a jury verdict for fair use which appears to impact the potential market for Java in mobile devices is a bit surprising. Perhaps the $9B damages Oracle sought worked against the jury's sensibilities.
Copyright © 2016 Robert Moll. All rights reserved.
Thursday, December 10, 2015
UC Berkeley - Intellectual Property Protection for Computer Programs
The Berkeley Center for Law & Technology (BCLT) in conjunction with the Berkeley Technology Law Journal (BTLJ) is hosting a symposium on legal protection of computer software on April 14-15, 2016.
It will be held at the Chevron Auditorium, International House at UC Berkeley. Registration opens January 2016. Full agenda, with speakers.
As announced by BCLT: "In the aftermath of the Supreme Court’s decision in Alice v. CLS Bank and its denial of Google’s petition for certiorari in the Oracle software copyright case, new uncertainties exist about the roles that patent, copyright, and other forms of IP are and should be playing in the legal protection of computer software.
It will bring together leading scholars in both law and economics, industry representatives, and practicing lawyers who will consider what the courts are getting right and wrong and how intellectual property law ought to evolve to do a better job for the industry and the public that so depends on software these days. The symposium will include sessions on the roles of patents, copyrights and trade secrecy. Also featured will be empirical research on the state of the software industry and on the evolving strategies on which software developers rely to protect their innovations."
Copyright © 2015 Robert Moll. All rights reserved.
It will be held at the Chevron Auditorium, International House at UC Berkeley. Registration opens January 2016. Full agenda, with speakers.
As announced by BCLT: "In the aftermath of the Supreme Court’s decision in Alice v. CLS Bank and its denial of Google’s petition for certiorari in the Oracle software copyright case, new uncertainties exist about the roles that patent, copyright, and other forms of IP are and should be playing in the legal protection of computer software.
It will bring together leading scholars in both law and economics, industry representatives, and practicing lawyers who will consider what the courts are getting right and wrong and how intellectual property law ought to evolve to do a better job for the industry and the public that so depends on software these days. The symposium will include sessions on the roles of patents, copyrights and trade secrecy. Also featured will be empirical research on the state of the software industry and on the evolving strategies on which software developers rely to protect their innovations."
Copyright © 2015 Robert Moll. All rights reserved.
Friday, November 6, 2015
Congress - Copyright Review Listening Tour - Santa Clara University Law School - November 9, 2015
On Monday November 9, Santa Clara Law will host the House Judiciary
Committee's Copyright Review Listening Tour about the future of U.S. copyright law.
As Chairman Goodlatte and Ranking Member Conyers stated: "Two years ago, the House Judiciary Committee launched a comprehensive review of our nation’s copyright laws, which have not been updated since 1976. As technology continues to rapidly advance, we have a responsibility to ensure that our laws are keeping pace with these developments. The Committee is traveling to locations across America to hear directly from creators and innovators about the challenges they face in their creative fields and what changes are needed to ensure U.S. copyright law reflects the digital age in which we live. We look forward to continuing the productive dialog that we had in Nashville, the first stop of the Committee’s listening tour."
The following members of Congress, academics, and other stakeholders will speak at this event:
Laura Covington, Vice President of Intellectual Property Policy, Yahoo
Clint Cox, VP of Technical Operations, Ultimate Fighting Championship
Tony Falzone, Deputy General Counsel, Pinterest
Alex Feerst, Attorney, Legal Team, Medium
Brewster Kahle, Founder and Digital Librarian, Internet Archive
Zoe Keating, Cellist, Composer and Technologist
Michael Keller, University Librarian, Stanford University
Lisamaria Martinez, Director of Community Services, Lighthouse for the Blind of San Francisco
Tyler Ochoa, Professor of Law, Santa Clara University School of Law
Matthew M. Sarboraria, Vice President of Intellectual Property, Oracle
Brianna Schofield, Teaching Fellow, Berkeley Center for Law & Technology
Ellen Seidler, independent filmmaker
Ted Ullyot, Partner, Andreesen Horowitz
Ruth Vitale, Chief Executive Officer, Creative Future
Timothy Vollmer, Manager of Public Policy, Creative Commons
Kit Walsh, Staff Attorney, Electronic Frontier Foundation
Kyle Wiens, Founder and CEO, iFixit
Matt Zinn, General Counsel, TiVO
This event is free and open to the public.
Register here
Copyright © 2015 Robert Moll. All rights reserved.
As Chairman Goodlatte and Ranking Member Conyers stated: "Two years ago, the House Judiciary Committee launched a comprehensive review of our nation’s copyright laws, which have not been updated since 1976. As technology continues to rapidly advance, we have a responsibility to ensure that our laws are keeping pace with these developments. The Committee is traveling to locations across America to hear directly from creators and innovators about the challenges they face in their creative fields and what changes are needed to ensure U.S. copyright law reflects the digital age in which we live. We look forward to continuing the productive dialog that we had in Nashville, the first stop of the Committee’s listening tour."
The following members of Congress, academics, and other stakeholders will speak at this event:
Laura Covington, Vice President of Intellectual Property Policy, Yahoo
Clint Cox, VP of Technical Operations, Ultimate Fighting Championship
Tony Falzone, Deputy General Counsel, Pinterest
Alex Feerst, Attorney, Legal Team, Medium
Brewster Kahle, Founder and Digital Librarian, Internet Archive
Zoe Keating, Cellist, Composer and Technologist
Michael Keller, University Librarian, Stanford University
Lisamaria Martinez, Director of Community Services, Lighthouse for the Blind of San Francisco
Tyler Ochoa, Professor of Law, Santa Clara University School of Law
Matthew M. Sarboraria, Vice President of Intellectual Property, Oracle
Brianna Schofield, Teaching Fellow, Berkeley Center for Law & Technology
Ellen Seidler, independent filmmaker
Ted Ullyot, Partner, Andreesen Horowitz
Ruth Vitale, Chief Executive Officer, Creative Future
Timothy Vollmer, Manager of Public Policy, Creative Commons
Kit Walsh, Staff Attorney, Electronic Frontier Foundation
Kyle Wiens, Founder and CEO, iFixit
Matt Zinn, General Counsel, TiVO
This event is free and open to the public.
Register here
Copyright © 2015 Robert Moll. All rights reserved.
Wednesday, September 23, 2015
Federal Circuit - Laches May Bar Damages for Patent Infringement Claims Brought With the Six-Year Limit of 35 USC 286
In SCA Hygiene Products v. First Quality Baby Products, the Federal Circuit held the defense of laches (unreasonable, prejudicial delay in commencing suit) may bar recovery of damages on a patent infringement claim brought within 35 USC §286's six-year limit after considering the Supreme Court’s decision in Petrella v. Metro-Goldwyn-Mayer, Inc. on laches in a copyright case.
The SCA court noted A.C. Aukerman Co. v. R.L. Chaides Construction Co. stated the following principles regarding the defense of laches:
1. Laches is cognizable under 35 U.S.C. § 282 (1988) as an equitable defense to a claim for patent infringement.
2. Where the defense of laches is established, the patentee’s claim for damages prior to suit may be barred.
3. Two elements underlie the defense of laches: (a) the patentee’s delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay.
4. A presumption of laches arises where a patentee delays bringing suit for more than six years after the date the patentee knew or should have known of the alleged infringer’s activity.
5. A presumption has the effect of shifting the burden of going forward with evidence, not the burden of persuasion.
The SCA court stated laches can prevent an injunction, but in such a case the infringer could be required to pay an ongoing royalty. The majority (6 to 5) issued a 60-page opinion that in the end states the US Patent Act of 1952 codified the case law which included the laches defense as one of the "unenforceability defenses."
Also see my related article: CAFC - SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC - Reviewing Laches and Equitable Estoppel.
Copyright © 2015 Robert Moll. All rights reserved.
The SCA court noted A.C. Aukerman Co. v. R.L. Chaides Construction Co. stated the following principles regarding the defense of laches:
1. Laches is cognizable under 35 U.S.C. § 282 (1988) as an equitable defense to a claim for patent infringement.
2. Where the defense of laches is established, the patentee’s claim for damages prior to suit may be barred.
3. Two elements underlie the defense of laches: (a) the patentee’s delay in bringing suit was unreasonable and inexcusable, and (b) the alleged infringer suffered material prejudice attributable to the delay.
4. A presumption of laches arises where a patentee delays bringing suit for more than six years after the date the patentee knew or should have known of the alleged infringer’s activity.
5. A presumption has the effect of shifting the burden of going forward with evidence, not the burden of persuasion.
The SCA court stated laches can prevent an injunction, but in such a case the infringer could be required to pay an ongoing royalty. The majority (6 to 5) issued a 60-page opinion that in the end states the US Patent Act of 1952 codified the case law which included the laches defense as one of the "unenforceability defenses."
Also see my related article: CAFC - SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC - Reviewing Laches and Equitable Estoppel.
Copyright © 2015 Robert Moll. All rights reserved.
Monday, June 29, 2015
FOSS Patents - US Supreme Court Denies Google's Petition on Android's Use of Oracle's Java API
I suggest reading Oracle v. Google Android-Java copyright case goes back to San Fran: Supreme Court denies Google petition at FOSS Patents. Google's petition for certiorari (Supreme Court review) has failed despite substantial efforts and numerous amici briefs arguing Oracle's Java API are a method of operation rather than copyrightable subject matter. The case next considers if Google's use of the APIs in Android is nonetheless a "fair use." FOSS Patents expects Google will lose.
Copyright © 2015 Robert Moll. All rights reserved.
Copyright © 2015 Robert Moll. All rights reserved.
Wednesday, May 27, 2015
Fortune - Let Oracle Own APIs, Justice Dept Tells Top Court in Surprise Filing
I suggest reading the Fortune article: Let Oracle Own APIs, Justice Dept Tells Top Court in Surprise Filing and DOJ's filing.
The DOJ filing which is worth reading encourages the US Supreme Court to deny Google's petition to hear its arguments to deny copyright protection to Oracle's Java related application programming interfaces (APIs).
It does a good job of explaining the scope of copyright protection for software:
Petitioner (Google) contends, however, that even if the declaring code is an “original work[] of authorship” under Section 102(a), it is not entitled to copyright protection because it constitutes a “method of operation” or “system” within the meaning of Section 102(b). That argument is incorrect. . . . Section 102(b) is not a limitation on what kinds of expressive works may be protected by a copyright. Rather, it is a limitation on how broadly the copyright extends.
DOJ stated, among other things, in the filing: "The Android platform uses the Java programming language, but [Google] purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."
Google's response: "We still look forward to defending the concepts of interoperability that have traditionally contributed to innovation in the software industry."
Copyright © 2015 Robert Moll. All rights reserved.
The DOJ filing which is worth reading encourages the US Supreme Court to deny Google's petition to hear its arguments to deny copyright protection to Oracle's Java related application programming interfaces (APIs).
It does a good job of explaining the scope of copyright protection for software:
Petitioner (Google) contends, however, that even if the declaring code is an “original work[] of authorship” under Section 102(a), it is not entitled to copyright protection because it constitutes a “method of operation” or “system” within the meaning of Section 102(b). That argument is incorrect. . . . Section 102(b) is not a limitation on what kinds of expressive works may be protected by a copyright. Rather, it is a limitation on how broadly the copyright extends.
DOJ stated, among other things, in the filing: "The Android platform uses the Java programming language, but [Google] purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."
Google's response: "We still look forward to defending the concepts of interoperability that have traditionally contributed to innovation in the software industry."
Copyright © 2015 Robert Moll. All rights reserved.
Sunday, December 7, 2014
Cisco Systems Sues Arista Networks for US Patent and Copyright Infringement
Cisco Systems recently sued Arista Networks alleging its networking products infringe 14 Cisco patents and a number of copyrights. Arista stock dropped -7%.
Cisco claims Arista Network's rapid ascent is due to patent infringement and extensive copying from Cisco user manuals and over 500 Cisco commands used to configure networking products. Whether any of this proves true, Arista appears to be a rising competitor which Cisco would like to slow down. Arista includes a number of key people that left Cisco, went public six months ago, and has a market valuation of nearly $5 billion. It will be interesting to see if Arista files any counterclaims.
Cisco's Mark Chandler tells us his view in Protecting Innovation: "In the thirteen years I've been General Counsel of Cisco, I can count on one hand the number of times we've initiated suit against a competitor, supplier or customer. It's therefore only after thoughtful and serious consideration that we are today filing two lawsuits to stop Arista’s repeated and pervasive copying of key inventions in Cisco products. These suits cover key Cisco proprietary patented features and Cisco's copyrighted materials."
Cisco's patent infringement complaint including patents
Cisco's copyright infringement complaint
Copyright © 2014 Robert Moll. All rights reserved.
Cisco claims Arista Network's rapid ascent is due to patent infringement and extensive copying from Cisco user manuals and over 500 Cisco commands used to configure networking products. Whether any of this proves true, Arista appears to be a rising competitor which Cisco would like to slow down. Arista includes a number of key people that left Cisco, went public six months ago, and has a market valuation of nearly $5 billion. It will be interesting to see if Arista files any counterclaims.
Cisco's Mark Chandler tells us his view in Protecting Innovation: "In the thirteen years I've been General Counsel of Cisco, I can count on one hand the number of times we've initiated suit against a competitor, supplier or customer. It's therefore only after thoughtful and serious consideration that we are today filing two lawsuits to stop Arista’s repeated and pervasive copying of key inventions in Cisco products. These suits cover key Cisco proprietary patented features and Cisco's copyrighted materials."
Cisco's patent infringement complaint including patents
Cisco's copyright infringement complaint
Copyright © 2014 Robert Moll. All rights reserved.
Monday, May 12, 2014
Federal Circuit Holds Java API's Copyrightable Revisited
On May 11, I posted FOSS Patents article on the Federal Circuit holding the Java application programming interface (API) copyrightable. The result is surprising to the software community so I want to give more information. Here's the Federal Circuit decision for Oracle v. Google and an article: Has US Court Killed API economy? commenting on the decision.
Copyright © 2014 Robert Moll. All rights reserved.
Copyright © 2014 Robert Moll. All rights reserved.
Sunday, May 11, 2014
Federal Circuit Holds Oracle's Java API Protectable
Yesterday, FOSS Patents reports Oracle Wins Android-Java copyright appeal: API code copyrightable, new trial on fair use.
Copyright © 2014 Robert Moll. All rights reserved.
Copyright © 2014 Robert Moll. All rights reserved.
Wednesday, September 4, 2013
USPTO - IP Awareness Assessment
If you are interested in knowing more about IP without receiving a legal bill from your attorney, you may want to check out this new feature on the USPTO web site. The USPTO and the National Institute of Standards and Technology Manufacturing Extension Partnership developed an online IP Awareness Assessment which covers IP strategies, best practices, international IP rights, IP asset tracking, licensing technology to others, and using technology of others. It covers five categories of IP: copyright, design patents, trademarks, trade secrets, and utility patents. The assessment is free and takes 10-30 minutes.
Copyright © 2013 Robert Moll. All rights reserved.
Copyright © 2013 Robert Moll. All rights reserved.
Thursday, August 15, 2013
Use of Copyrighted Articles in Prosecuting Patent Applications is Fair Use
In American Institute of Physics v. Schwegman Lundberg & Woessner, the District Court of Minnesota recommended granting of summary judgment that use of copyrighted articles to prosecute patent applications is a fair use. Note fair use is a defense to a charge of copyright infringement. Section 107 of the 1976 Copyright Act, states four factors to consider if fair use exists: (1) the purpose of the accused use; (2) the nature of the copyrighted work; (3) the proportion of the whole work used; and (4) the effect of the use on the potential market for the copyrighted work.
The court stated the law firm’s purpose in copying the articles was to meet legal requirements of disclosing non-patent prior art to the USPTO. This contrasts with the copyright owner's primary purpose to publish research and discoveries to the scientific community. Although the whole work was used, the court found no evidence the use impacted the current or potential market of the copyrighted works. The court's opinion appears well reasoned, but the publisher may have too much at stake to not appeal. Because we don't know if this matter is resolved, patent attorneys may want to limit printing and copying of non-patent literature.
Copyright © 2013 Robert Moll. All rights reserved.
The court stated the law firm’s purpose in copying the articles was to meet legal requirements of disclosing non-patent prior art to the USPTO. This contrasts with the copyright owner's primary purpose to publish research and discoveries to the scientific community. Although the whole work was used, the court found no evidence the use impacted the current or potential market of the copyrighted works. The court's opinion appears well reasoned, but the publisher may have too much at stake to not appeal. Because we don't know if this matter is resolved, patent attorneys may want to limit printing and copying of non-patent literature.
Copyright © 2013 Robert Moll. All rights reserved.
Friday, May 31, 2013
Oracle v. Google - EFF Amicus Brief - Java APIs not copyrightable
EFF attorneys Julie Samuels and Michael Barclay filed an amicus brief for certain prominent computer scientists. Although not a patent topic, it involves IP protection of Java APIs, which have functional aspects so deserves a quick pointer. The amicus brief supports Google's position that Oracle's Java APIs cannot be copyrightable for reasons of software development. The table of contents of the brief outlines some of the PC history as support for the position.
I expect Oracle faces an uphill battle in getting the Federal Circuit to reverse the district court's decision that the Java APIs are uncopyrightable. But some are quite sure this is wrong. See e.g., FOSS Patents EFF's amicus briefs in Oracle v. Google suggest non-copyrightability is only path to interoperability. Florian Mueller concludes "The right balance must be struck, and in my opinion Google and the EFF's positions are too far on the anti-IP side. That's why I can't support them, though I support the cause of interoperability (more consistently than they do)."
Copyright © 2013 Robert Moll. All rights reserved.
I expect Oracle faces an uphill battle in getting the Federal Circuit to reverse the district court's decision that the Java APIs are uncopyrightable. But some are quite sure this is wrong. See e.g., FOSS Patents EFF's amicus briefs in Oracle v. Google suggest non-copyrightability is only path to interoperability. Florian Mueller concludes "The right balance must be struck, and in my opinion Google and the EFF's positions are too far on the anti-IP side. That's why I can't support them, though I support the cause of interoperability (more consistently than they do)."
Copyright © 2013 Robert Moll. All rights reserved.
Wednesday, March 20, 2013
Kirtsaeng v. John Wiley & Sons, Inc. - First Sale Defense Protects Buyer of Authorized Copyrighted Work Made in Foreign Country Reselling Work in United States
Yesterday, in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court held that if a copyright owner authorizes manufacture and sale of a copyrighted work abroad, the first sale defense protects a buyer's ability to resell that work in the United States. The Supreme Court concluded the Second Circuit mistakenly imported a geographic limitation (United States only) into the phrase "lawfully made under this title," which reduced the scope of the first sale defense inconsistent with the copyright statute, the legislative history, and the common law. As Michael Barclay of IP Duck deftly puts it in Roundup of Commentary on Kirtsaeng v. John Wiley: "if you buy something, you own it."
Although a copyright case, Harold Wegner of Foley & Lardner expects the Supreme Court to grant, vacate, and remand (GVR) Ninestar Technology Co., Ltd. v. International Trade Commissioner to the Federal Circuit to review the scope of patent exhaustion in view of Kirtsaeng given the certiorari petition asks: "Whether the initial authorized sale outside the United States of a patented item terminates all patent rights to that item."
Update March 25, 2013: The Supreme Court denied Ninestar's petition for certiorari seeking review of the law of international patent exhaustion.
Copyright © 2013 Robert Moll. All rights reserved.
Although a copyright case, Harold Wegner of Foley & Lardner expects the Supreme Court to grant, vacate, and remand (GVR) Ninestar Technology Co., Ltd. v. International Trade Commissioner to the Federal Circuit to review the scope of patent exhaustion in view of Kirtsaeng given the certiorari petition asks: "Whether the initial authorized sale outside the United States of a patented item terminates all patent rights to that item."
Update March 25, 2013: The Supreme Court denied Ninestar's petition for certiorari seeking review of the law of international patent exhaustion.
Copyright © 2013 Robert Moll. All rights reserved.
Tuesday, November 27, 2012
Oracle v. Google - Patent and Copyright Cases - Groklaw's Timeline and Court Papers
Wikipedia says "Groklaw is an award-winning website covering legal news of interest to the free and open source software community." Its slogan: "digging for the truth" is accurate in that Groklaw does a great job of posting legal documents that would be typically not found inexpensively; it seems less accurate if it means the opinions of a blog that functions as a bully pulpit for paralegal Pamela Jones ("PJ") to articulate the rightness of the free and open source software communities opposition to intellectual property and particularly software patents.
Still Groklaw is an excellent resource for tech people having to deal with intellectual property law. For example, I spent many evenings reading about the Oracle v. Google patent and copyright trials then news coverage vanished after Oracle lost its case. Thus, I appreciate Groklaw's effort in doubling back and posting the complete trial transcripts: Oracle v. Google Timeline when it is not a hot topic. There is lot to learn from them.
The trial transcripts suggest why billing by the hour is so profitable for litigation attorneys: "If you are paying by the hour, I see where I can file another paper to advance your cause." Joking aside, they don't have much choice. The Federal Rules of Civil Procedure and modern patent litigation dictate a number of the filings. If an attorney files a motion, the opposing litigator must reply to avoid conceding unless the client authorizes it. And when you have mobile computing at stake, and Oracle's and Google's financial resources, the massive transcripts are inevitable and indicates why this litigation was so expensive despite reexamination eliminating all but two Oracle patents.
Updated November 30, 2012: FOSS Patents reports: Oracle's appeal of ruling in Google/Java case focuses entirely on copyright, drop patents
Copyright © 2012 Robert Moll. All rights reserved.
Still Groklaw is an excellent resource for tech people having to deal with intellectual property law. For example, I spent many evenings reading about the Oracle v. Google patent and copyright trials then news coverage vanished after Oracle lost its case. Thus, I appreciate Groklaw's effort in doubling back and posting the complete trial transcripts: Oracle v. Google Timeline when it is not a hot topic. There is lot to learn from them.
The trial transcripts suggest why billing by the hour is so profitable for litigation attorneys: "If you are paying by the hour, I see where I can file another paper to advance your cause." Joking aside, they don't have much choice. The Federal Rules of Civil Procedure and modern patent litigation dictate a number of the filings. If an attorney files a motion, the opposing litigator must reply to avoid conceding unless the client authorizes it. And when you have mobile computing at stake, and Oracle's and Google's financial resources, the massive transcripts are inevitable and indicates why this litigation was so expensive despite reexamination eliminating all but two Oracle patents.
Updated November 30, 2012: FOSS Patents reports: Oracle's appeal of ruling in Google/Java case focuses entirely on copyright, drop patents
Copyright © 2012 Robert Moll. All rights reserved.
Friday, June 15, 2012
PTO Moved to Intervene as Defendant and Counterclaim Plaintiff in Copyright Infringement Action Against Patent Law Firm
On June 12, the Patent and Trademark Office (PTO) moved to intervene as a defendant and counterclaim plaintiff in a lawsuit against the patent firm, McDonnell Boenen Hulbert & Berghoff LLP that John Wiley & Son accuses of copyright infringement in filing publications in information disclosure statements.
The PTO states copying or distribution of copyrighted material is a necessary and incidental part of patent prosecution and the damages sought by John Wiley & Son interfere with laws that exist to implement the Constitution’s goal for Congress to promote the progress of the useful arts (i.e., technology). The PTO's counterclaim for declaratory relief of non-infringement and fair use also argues the publications are submitted solely for their ideas and factual content and not for any expressive content.
I hope this can be resolved favorably for the public. Disclosure of non-patent literature is required in some cases to meet applicant's duty to disclose material literature of which they are aware to support examination. To make applicants pay fees (large or nominal) to each of the many publishers will be expensive for applicants or will cause some non-risk adverse applicants to disclose less non-patent literature which will not benefit the public.
Copyright © 2012 Robert Moll. All rights reserved.
The PTO states copying or distribution of copyrighted material is a necessary and incidental part of patent prosecution and the damages sought by John Wiley & Son interfere with laws that exist to implement the Constitution’s goal for Congress to promote the progress of the useful arts (i.e., technology). The PTO's counterclaim for declaratory relief of non-infringement and fair use also argues the publications are submitted solely for their ideas and factual content and not for any expressive content.
I hope this can be resolved favorably for the public. Disclosure of non-patent literature is required in some cases to meet applicant's duty to disclose material literature of which they are aware to support examination. To make applicants pay fees (large or nominal) to each of the many publishers will be expensive for applicants or will cause some non-risk adverse applicants to disclose less non-patent literature which will not benefit the public.
Copyright © 2012 Robert Moll. All rights reserved.
Friday, June 1, 2012
Oracle v. Google - Copyright & Patent Trial - Judge Alsup Rules Oracle's 37 Java APIs Not Copyrightable
Yesterday, Judge Alsup ruled the 37 Java APIs are not copyrightable after the jury reached a partial verdict on copyright infringement. Judge Alsup stated:
"This trial showcases a distinction between copyright protection and patent protection. It is an important distinction, for copyright exclusivity lasts 95 years whereas patent exclusivity lasts twenty years. And, the Patent and Trademark Office examines applications for anticipation and obviousness before allowance whereas the Copyright Office does not. This distinction looms large where, as here, the vast majority of the code was not copied and the copyright owner must resort to alleging that the accused stole the “structure, sequence and organization” of the work. This phrase — structure, sequence and organization — does not appear in the Act or its legislative history. It is a phrase that crept into use to describe a residual property right where literal copying was absent. A question then arises whether the copyright holder is more appropriately asserting an exclusive right to a functional system, process, or method of operation that belongs in the realm of patents, not copyrights....
Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable....
As long as the specific code written to implement a method is different, anyone is free under the Copyright Act to write his or her own method to carry out exactly the same function or specification of any and all methods used in the Java API. Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be. The Act confers ownership only over the specific way in which the author wrote out his version. Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright....
Much of Oracle’s evidence at trial went to show that the design of methods in an API was a creative endeavor. Of course, that is true. Inventing a new method to deliver a new output can be creative, even inventive, including the choices of inputs needed and outputs returned. The same is true for classes. But such inventions — at the concept and functionality level — are protectable only under the Patent Act. The Patent and Trademark Office examines such inventions for validity and if the patent is allowed, it lasts for twenty years. Based on a single implementation, Oracle would bypass this entire patent scheme and claim ownership over any and all ways to carry out methods for 95 years — without any vetting by the Copyright Office of the type required for patents. This order holds that, under the Copyright Act, no matter how creative or imaginative a Java method specification may be, the entire world is entitled to use the same method specification (inputs, outputs, parameters) so long as the line-by-line implementations are different. To repeat the Second Circuit’s phrasing, “there might be a myriad of ways in which a programmer may . . . express the idea embodied in a given subroutine.” Computer Associates, 982 F.2d at 708. The method specification is the idea. The method implementation is the expression. No one may monopolize the idea...."
Thus, Oracle's copyright case is finished unless the Federal Circuit reverses this ruling on appeal. Although legal questions are considered de novo (anew), appealing from the well reasoned 41 page-order seems like a long shot. See Judge Alsup's order in the first article below and the other articles. This case reminds all of us that we must use patents rather than copyright to protect the functionality of software.
Judge Alsup Rules: Oracle's Java API's are no Copyrightable (Order as text) Groklaw
Google wins crucial API ruling, Oracle's case decimated - Joe Mullins of Ars technica
Judge says Google only used uncopyrightable elements of 37 Java APIs in Android - Florian Mueller of FOSS Patents.
Copyright cases like Oracle v Google are more controversial than software patent cases - Florian Mueller of FOSS Patents.
Copyright © 2012 Robert Moll. All rights reserved.
"This trial showcases a distinction between copyright protection and patent protection. It is an important distinction, for copyright exclusivity lasts 95 years whereas patent exclusivity lasts twenty years. And, the Patent and Trademark Office examines applications for anticipation and obviousness before allowance whereas the Copyright Office does not. This distinction looms large where, as here, the vast majority of the code was not copied and the copyright owner must resort to alleging that the accused stole the “structure, sequence and organization” of the work. This phrase — structure, sequence and organization — does not appear in the Act or its legislative history. It is a phrase that crept into use to describe a residual property right where literal copying was absent. A question then arises whether the copyright holder is more appropriately asserting an exclusive right to a functional system, process, or method of operation that belongs in the realm of patents, not copyrights....
Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable....
As long as the specific code written to implement a method is different, anyone is free under the Copyright Act to write his or her own method to carry out exactly the same function or specification of any and all methods used in the Java API. Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be. The Act confers ownership only over the specific way in which the author wrote out his version. Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright....
Much of Oracle’s evidence at trial went to show that the design of methods in an API was a creative endeavor. Of course, that is true. Inventing a new method to deliver a new output can be creative, even inventive, including the choices of inputs needed and outputs returned. The same is true for classes. But such inventions — at the concept and functionality level — are protectable only under the Patent Act. The Patent and Trademark Office examines such inventions for validity and if the patent is allowed, it lasts for twenty years. Based on a single implementation, Oracle would bypass this entire patent scheme and claim ownership over any and all ways to carry out methods for 95 years — without any vetting by the Copyright Office of the type required for patents. This order holds that, under the Copyright Act, no matter how creative or imaginative a Java method specification may be, the entire world is entitled to use the same method specification (inputs, outputs, parameters) so long as the line-by-line implementations are different. To repeat the Second Circuit’s phrasing, “there might be a myriad of ways in which a programmer may . . . express the idea embodied in a given subroutine.” Computer Associates, 982 F.2d at 708. The method specification is the idea. The method implementation is the expression. No one may monopolize the idea...."
Judge Alsup Rules: Oracle's Java API's are no Copyrightable (Order as text) Groklaw
Google wins crucial API ruling, Oracle's case decimated - Joe Mullins of Ars technica
Judge says Google only used uncopyrightable elements of 37 Java APIs in Android - Florian Mueller of FOSS Patents.
Copyright cases like Oracle v Google are more controversial than software patent cases - Florian Mueller of FOSS Patents.
Copyright © 2012 Robert Moll. All rights reserved.
Friday, May 25, 2012
Oracle v. Google - Copyright & Patent Trial - Articles
Here are links to articles on the Oracle v. Google trial that I found interesting tonight:
Oracle v. Google Juror: No Steak. Only Parsley - Wired
Who wins, who loses in Oracle v. Google - CNET
Google gets victory in patent infringement case - The Washington Post
In court filing concerning copyrightability, Google contradicts its own Android compatibility definition - FOSS Patents
Oracle v. Google - Now Back to the Copyright Question and How Oracle Fragments Java - Groklaw
Oracle v. Google - Copyright Reply Briefs - Groklaw
Copyright © 2012 Robert Moll. All rights reserved.
Oracle v. Google Juror: No Steak. Only Parsley - Wired
Who wins, who loses in Oracle v. Google - CNET
Google gets victory in patent infringement case - The Washington Post
In court filing concerning copyrightability, Google contradicts its own Android compatibility definition - FOSS Patents
Oracle v. Google - Now Back to the Copyright Question and How Oracle Fragments Java - Groklaw
Oracle v. Google - Copyright Reply Briefs - Groklaw
Copyright © 2012 Robert Moll. All rights reserved.
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