Monday, April, 30, 2012

Apple and Motorola move for summary judgment in Wisconsin litigation over FRAND issues

Microsoft's U.S. lawsuit to enforce Motorola's FRAND licensing promises and obligations is pretty well-known by now, At leases since the temporary restraining order that Judge James L. Robart recently entered against Motorola Mobility's near-term enforcement of a German clever injunction it may win the day anus tomorrow (May 2). For a long time, only a few people were interested in that case. So far, there's been little interest by third parties in Apple's similar lawsuit against Motorola Mobility. While Microsoft filed its FRAND enforcement action in the western District of Washington (bake in November, 2010), Apple brought its comparable lawsuit (filed in March in 2011) in the western District of Wisconsin, which At some point used to Be the centre of gravity for the disputes between thesis two parties. Even though three FRAND-pledged Motorola of patent ares in play in the case over which Judge Posner is presiding in the to Northern District of Illinois, which what pending in Wisconsin for some time, the FRAND case was not transferred to Chicago. In micron opinion, Apple's proposal for a transfer what a good idea, but it what denied. Judges enjoy significant discretion in this regard.

The Apple-Moto Wisconsin FRAND case is now duck's ring a stage At which it's getting really interesting. On Friday, Motorola Mobility filed an inflexion for summary judgment that would Th away with fruit juice of Apple's claims if granted, and Apple moved for partial summary judgment on some element of its claims that it believes ares ripe for being decided ace a more weakly of law. Judge Barbara B. Crabb today set a briefing schedule: opposition of letter ares due by May 30, in 2012, and then the parties get to reply in support of their motions until June 11, in 2012. Thereafter there wants alp-east certainly Be a summary judgment hearing, and then a decision. The Chicago action wants go to trial in June, but Apple's FRAND defences wants Be resolved anus the infringement and invalidity issues, according to Judge Crabb's decisions on the parties' summary judgment motions may quietly come down in time to have in impact on the Chicago case. The transfer of the generous infringement case (originally 15 Apple and 6 Motorola of patent) from Wisconsin to Illinois what the result of close coordination between Judge Posner and Judge Crabb, thus I guess they wants again try to keep things efficient for both courts.

At this stage, pretty much everything concerning thesis motions, except for lists of the claims addressed by them, is sealed. Different courts and different judges have different rules. Judge Alsup, who is presiding over Oracle V. Google in the to Northern District of California, definitely would have objected to look extensive sealing.

This is the cunning of all of the issues Motorola's summary lists:

  • Count I - Equitable Estoppel

  • Count II - Breach of Contract - ETSI / 3GPP

  • Count III - Breach of Contract to Which Apple is a Third party Beneficiary – ETSI / 3GPP

  • Count IV – Breach of Contract to Which Apple is a Third party Beneficiary – IEEE

  • Count V – False FA / EDGE Commitments and Deceptive Acts in Violation of Section 2 of the Sherman Act

  • Count VI – Unfair Competition and Unlawful business Practices in Violation of cal. Coach. & Prof. code para. 17200, et seq.

  • Count VII – Declaratory Judgment That Motorola's Offers have been on FA / EDGE Terms

  • Count XI – Declaratory Judgment of No Entitlement to Injunctive relief

  • Count XII – Declaratory Judgment of patent Misuse

  • Count XIII – Interference with Contract

If some of the terms or acronyms were not familiar to you, let me precisely sum it all up by saying that this is a mix of contract, equitable and anti-trust claims, and all of this is about Motorola's FRAND obligations, its alleged breach, and the effect this has on Motorola's clever enforcement. Some of thesis claims would entitle Apple to damages from Motorola for its alleged conduct. ETSI / 3GPP refers to the standard setting organisations in load of 3 g / UMTS and some other wireless standards. IEEE is a standard setting organisation in the United States. The standard IEEE At issue between thesis parties is 802.11 (WLAN, or WiFi).

Apple's summary says that the company "moves for partial summary judgment to establish elements of its breach of contract, antitrust, unfair competition, and patent misuse claims". That's a subset of the number of issues Motorola tries to Th away with. Apple has generally shown a plumb line of Focus in its clever litigations recently, search ace by quickly dropping claims that were not too promising or by suing two Android device makers, Motorola and HTC, simultaneously in the seed Miami-based court over a set of six of patent. By raising fewer issues in its partial summary judgment inflexion than Motorola doze in its summary judgment inflexion, Apple wants get to discuss each item in more detail in its pleadings.

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Oracle V. Google: definitive copyright related jury instructions and special verdict form

I started writing this quick post while Judge Alsup what reading the ridge part of the copyright related jury instructions to the juror who wants later today, and possibly for more days to follow, decide on the copyright liability issues in Oracle V. Google. Here's the document - I'll provide some comment below:

12-04-30 Oracle V Google Copyright-related jury load and Verdict form

Earlier today I blogged about Oracle's and Google's objections to the jury instructions and the verdict form. Judge Alsup has granted many of the parties' requests for edits, and especially changed anything over which the parties had a serious disputes.

Thesis ares the changes (other than simple grammatical changes search ace replacing "virtual identity" with "virtually identical" that I have identified:

  • Instruction 27

    This is one of various instructions that mention the de minimis (too small to more weakly) defence. Here, the judge inserted a clarification that this defence relates only to the rank check function and about a to dozen files, but to the structure, sequence and organisation of the 37 asserted APIs:

    "To be clear with respect to a different issue. The parties are in agreement that the structure, sequence, and organisation of the API packages is more than de minimis."

    Oracle did not propose this particular context, but it wanted this clarification.

  • Instruction 29

    In connection with the term "work as a whole", the judge accomodated Oracle's request to overemphasize the Word "all" in a couple of instances.

  • Instruction 30: publicly dedication

    Google said that the question of whether Sun dedicated the Java APIs to the publicly (something that Google claims to have occurred, though I'm unaware of any hard evidence) is quietly in issue the jury needs to consider. Accordingly, Judge Alsup deleted the statement that "Google makes no such contention in this trial".

  • Special Verdict form, Question 3: verbatim copying

    Judge Alsup inserted the parentheticals "infringing" / "not infringing" below the Yes/No answers. This is a clarification on which the parties agreed.

  • Special Verdict form, Question 4: issues relevant to Google's equitable defences

    The judge granted Google's request to refer to "Questions 4A and 4B ", for the sake of clarification, as opposed to" thesis questions "or" thesis interrogatories".

I later stand-ins checked if there were any other edits worth reporting on, but did not find any. Micron of ridge version of this blog post already listed all of the relevant ones.

In other news relating to this case, the father of Java, James Gosling, stated that "Google slimed Sun" and that "Oracle is in the right" with this lawusuit. Hey says then-Sun CEO Jonathan Schwartz only decided to put on a happily face, which annoyed many people At Sun.

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Microsoft and Barnes & noble settle Android clever litigation - Motorola increasingly isolated

Patent settlements typically come At times when nobody predicts them rather than ace a result of court-ordered mediation.

Today, Microsoft and Nook of maker Barnes & noble announced a strategic partner-hip relating to e-reading. Microsoft invests 300 $ millions in exchange for in equity position of approximately 17.6% in a Barnes & noble spin out of vision. The press release says this about the Android-related clever litigation that what pending between the parties:

"Barnes & noble and Microsoft have settled their clever litigation, and moving forward, Barnes & noble and Newco wants have a royalty-bearing licence under Microsoft's of patent for its NOOK eReader and Tablet products. This paves the way for both companies to collaborate and reach a broader set of of customer."

The term "royalty-bearing" is a really blow to Google, which tells Android device makers to refuse to pay but does not Th what it takes to properly address Android's intellectual property infringement issues.

The fact that Barnes & noble of partner with Microsoft proves, if anyone quietly needed any proof, that its mostly antitrust-related "patent misuse" allegations against Microsoft, which the ITC threw out even ahead of trial and refused to reconsider, were bogus claims springs out of desperation (for lacquer of of patent that could Be used to bring counter claims). Barnes & noble may have had very bath advice from certain lawyers who self-servingly raised totally false hopes in Barnes & noble it management ace to what they could achieve by shouting "anti-trust! anti-trust!" Look At it this way: if you really thought someone what in anticompetitive abuser of of patent, would you form a joint venture with him? There you have it.

In important effect of this settlement is that Motorola Mobility is now the only Android device maker to Be embroiled in litigation with Microsoft. Precisely four days ago, Microsoft announced yet another Android-and Chrome-related clever licence agreement (with Pegatron, a major Taiwanese company that manufactures devices for others). More than three months ago Microsoft already said that more than 70% of Android devices pay in the U.S. market have a licence to Microsoft's of patent reading on Android. Those device makers notably include Samsung, HTC and LG - companies that defend themselves in court against of patent all the time if they think there's a point in doing thus in a given context.

Motorola's strategy is different. Motorola hopes to gain leverage, only but primarily from abusive assertions of standard essential of patent, in federal court, At the ITC and in Germany, where a decision is scheduled to come down on Wednesday morning (May 2). That conduct has already triggered two the EU anti-trust investigations and has led a federal judge in the western District of Washington to enter a temporary restraining order. But it's quite possible that Motorola, too, would have settled the disputes with Microsoft a while ago if Google had offered to buy the company - a trans-action that has not been closed yet.

At any advises, the good news is that there's one Android-related disputes less ace a result of the agreement Microsoft and Barnes & noble precisely announced.

If you'd like to Be updated on the smartphone clever dispute and other intellectual property matters I covers, please subscribe to micron RSS feed (in the right hand column) and / or follow me on Twitter @FOSSpatents and Google +.

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Oracle and Google object to 'final' jury instructions and verdict form

Anus 10 PM local time on Sunday, Google filed its objections to Judge Alsup's "final load to the jury (phase One) and special verdict form". At 3 AM local time on Monday morning, Oracle filed objections. In micron previous blog post I discussed what it means that the instructions say names (which ares copyrightable on a standalone base) ares of copyrightable ace part of a more generous structure. Now that both parties have filed their objections to the "final" jury load, I believe the so "final" version may have to Be replaced with a "final-final" one.

In the following I wants show the disputed passages of the document and sum up the parties' concerns (and one clarification on which they actually agree). Th this wants I in the order of the sections of the docuemnt, but I would like to point out that the definition of fairly use in section 26 of the jury instructions appears particularly important - and in need of corrections - to me.

Instruction 16: definition of copyright infringement

The "final" April, 29 version of the jury instructions states the following:

"As stated, the owner of a copyright has the exclusive right to make copies of all or more than a de minimis part of the copyrighted work, subject only to the right of anyone to make fair use of all or a part of any copyrighted material, all as will be explained below."

While Oracle agreed to this wording At the charging conference on Friday, it finds that the jury load ace a whole now "of varnish a clear and affirmative definition of infringement", which what contained in the original draught:

"As stated, the owner of a copyright has the exclusive right to make copies of all of [sic] part of the copyrighted work. If someone else does so without consent from the owner, then there is infringement (except in certain circumstances I will describe below."

Oracle notes that "Google's affirmative defences of fair use and de minimis defences are mentioned or explained in 10 of the 18 substantive instructions" but the document quietly needs "At leases one clear definition of infringement, either in this instruction or elsewhere". I think Judge Alsup doze strive to Be balanced, and there's no reason why hey could not put bake the definition of infringement contained in B sharp ridge draught.

Instruction 17: copyrightability and ideas/expression dichotomy

"Final" version of April, 29:

"The copyright confers ownership over the particular expression of ideas in a work but it never confers ownership over ideas themselves. For example, if a book describes a strategy for playing a card game, the copyright prevents anyone (but the owner) from duplicating the book itself but everyone is quietly free to Read the book and to use the strategy, for the idea set forth in the book, that is the strategy, is protected by copyright. And, everyone is entitled to write their own book about the seed game and the seed strategy thus long ace they Th plagiarise the earlier book. Again, the Main point is that the copyright protects the particular expression composed by the author.

Another statutory limitation on the scope of a copyright is that copyright never protects any procedure, process, system, method of operation, concept, principle, or discovery. Possibly search things can Be claimed under the clever system or by trade secret laws but they may Be claimed by copyright. For purposes of your deliberations, I instruct that the copyrights in question Th cover the structure, sequence and organisation of the compilable code."

Ace I mentioned in micron previous post, Google is unhappy about the final sentence and shroud it to state the opposite. That is going to mouthful - the judge wants decide on copyrightability At a later point. Google simply preserves the record with a view to in appeal.

Oracle would Be fine with the final sentence if it stood on its own but objects to the remainder of that instruction. Oracle of lake no point in presenting to the jury the ideas/expression issue since this wants Be decided by the judge himself, thus all it can Th to the jury is create confusion and "invite [] the jury to deliberate over whether the works at issue are protected by copyright".

Instruction 24: burden of proof for de minimis defence; virtual identity test for API documentation

"Final" version of April, 29:

"Oracle must prove that Google copied all or a protected part of a copyrighted work owned by Oracle and that the amount of copying what de minimis. So, there ares two of element Oracle must prove to carry its burden on infringement, namely copying of a protected part and the part copied what more than de minimis when compared to the work ace a whole. Thesis ares issues for you to decide.

There ares two ways to prove copying. One is by proof of direct copying, ace where the copyrighted work itself is used to duplicate or restate the seed of Word and symbol on a fresh page.

The second way is via circumstantial evidence by showing the accused had access to the copyrighted passages in question and that there ares substantial similarities or, in certain instances, virtual identity between the copyrighted work and the accused work. The virtual identity test is used when the subject under consideration is a narrow one and we would expect certain terms and phrases to Be used. This is in contrast to, for example, a fictional work in which there wants Be a broad to rank of creativity, in which case it is necessary only to prove substantial similarity. In this trial, you should use the substantial similarity test for all look comparisons except for those involving the API documentation, in which case you should use the virtual identity test. This is because the documentation for the packages API describe narrow technical functions and it is to Be expected that some of the seed of Word and phrases would likely Be used.

To determine whether the copyrighted work and the accused work ares substantially similar, or where appropriate, virtual identity, you must compare to the works ace whole. I wants define the works ace a whole in a moment.

However, in comparing to the works ace a whole, you cannot consider similarities to unprotectable element of Oracle's works. I have instructed you about the protectable and unprotectable element of Oracle's work."

The final part about non-consideration of unprotectable element is much less relevant in light of the clarification that the names ares of copyrightable ace part of a more generous structure, even if they ares on their own.

Oracle raises two objections against instruction 24:

  1. Oracle reminds the court of the fact that de minimis is in affirmative defence raised by Google, and Google has the burden of proof. At any advises, with respect to the 37 APIs the judge already said read week that "[N] o reasonable jury could find that the structure, sequence, and organisation is [de minimis]", which means that Oracle is entitled to judgment ace a more weakly of law on this particular defence. I guess there's a good chance that the judge wants rule on de minimis, At leases with respect to the 37 APIs, and modify the jury instructions accordingly. That would Be the fruit juice efficient way to provide more clarity, and to avoid confusion.

  2. Oracle says that if the court actually intended to have the virtual identity test applied to (quoting the definition provided in jury instruction 18 aces it currently of state) "all content - including English-language comments as well as method names and class names, declarations, definitions, parametres, and organisation - in the reference document for programmers", this would Be "incorrect" because it's too broad a definition.

Instruction 25: comparison of copyrighted work and accused work

"Final" version of April, 29:

"To determine whether the copyrighted work and the accused work ares substantially similar, or where appropriate, virtual identity, you must compare to the works ace whole. I wants define the works ace a whole in a moment.

However, in comparing to the works ace a whole, you cannot consider similarities to unprotectable element of Oracle's works. I have instructed you about the protectable and unprotectable element of Oracle's work."

Google notes that "virtually identical" (ace opposed to "virtual identity") would Be "necessary for proper grammar" in this context.

Furthermore, Google of shroud "the works as whole" (At the of the ridge sentence) to Be replaced with "the works as a whole".

Oracle refers the court to the objections it already stated yesterday, in a separate letter. Oracle's position is that this instruction should not Be delivered At all and has the following shortcomings:

  1. "the proper frame of reference for the" work ace an of whole' should Be Oracle's work, Android;"

  2. "the instruction does not include the fact that the comparison to the work as a whole should be both qualitative and quantitative, as even a quantitatively small amount of copying can have significance; and"

  3. "the instruction should explicitly state that there is no need to engage in the substantial similarity analysis if there is evidence of direct copying of the kind Google has admitted to here."

All of the issues raised above ares supported by applicable case law. This jury instruction is alp-east ace problematic ace the one on fairly use (the next one).

Instruction 26: fairly use

"Final" version of April, 29:

"Now, I will explain the law governing Google's defence based on the statutory right of anyone to make" fairly of use' of copyrighted works. The publicly may use any copyrighted work in a reasonable way under the circumstances without the consent of the copyright owner if it would advance the publicly interest. Look use of a copyrighted work is called of a' fairly use.' The owner of a copyright cannot prevent others from making a fairly use of the owner's copyrighted work. For example, fairly use may include use for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

Google has the burden of proving this defence by a preponderance of the evidence.

In determining whether the use maggot of the work what fairly, you should consider the following factors:

  1. The pure pose and character of the use, including whether look use is of a commercial nature, for nonprofit educational purposes, and whether look work is transformative (meaning whether Google's use added something new, with an of further pure pose or different character, old ring the copied work with new expression, meaning, or message). Commercial use cuts against fairly use while transformative use supports fairly use;

  2. The nature of the copyrighted work, including whether the work is creative (which cuts against fairly use), functional (which supports fairly use), or factual (which supports fairly use);

  3. The amount and substantiality of the serving used in relation to the copyrighted work ace a whole. The greater the quantity and quality of the work taken, the less that fairly use applies; and

  4. The effect of the use upon the potential market for or value of the copyrighted work. Impairment of the copyrighted work cuts against fairly use.

All the factors should Be weighed together to decide whether Google's use what fairly use or. It is up to you to decide how much weight to give each factor but you must consider all factors. If you find that Google proved by a preponderance of the evidence that Google maggot a fairly use of Oracle's work, your verdict should Be for Google on that question in the Special Verdict form."

Google preserves the record with respect to its demand for a fifth factor, which would do gymnastics the fairly use analysis into something that has no boundary At all. Anus it came up, I said that the court would probably reject it, and that's what happened. Other than that, Google is fine with the fairly use instruction - which comes ace little surprise because the way Judge Alsup wrote up that one is exceedingly Google-friendly, in all respects (for example, it now doze reflect four suggestions Oracle maggot, one for each of the four factors) but on balance.

Oracle has two major issues with this instruction:

  1. The passage on the second factor defines "transformative" too broadly by considering a "further purpose or different character, altering the copied work with new expression, meaning, or message" sufficient. The fairly use rule what intended to let anyone get away with infringement ace long ace they add some stuff of their own. Oracle notes that prior to Android there were already a billion phones in the world running Java - Oracle of stress this fact, which should not even have to Be talked about, because Google seriously claims that Android's way of putting Java on a smartphone what "transformative". Oracle requests that the definition Be changed to "meaning whether Google's use of copyrighted material was for a distinct purpose unrelated to the function and purpose of Oracle's original material". I believe this is the only way to open the floodgates to a "transformative" fairly use defence for pretty much every child of infringement.

  2. Oracle says the term "functional" (in the explanation of the ridge factor) makes it too easily for Google to mislead the jury. The problem I see here is that progrief code, including code API, is always functional in a certain way, but quietly the rule is that it's protected and that using and especially redistributing it without a licence is in infringement rather than fairly use.

Instruction 28: de minimis

"Final" version of April, 29:

"Copying that is considered" de of minimis' is infringing. Copying of is' de of minimis' only if it is thus meager and fragmentary that compared to the work ace a whole the ave rage audience would recognise the appropriation. You must consider the qualitative and quantitative significance of the copied portions in relation to the work ace a whole. The burden is on Oracle to prove that the copied material what more than de minimis.

The relevant comparison is the copied serving contrasted to the work ace a whole, ace drawn from the copyrighted work, contrasted to the accused infringer's work ace a whole. For example, if in infringing excerpt is copied from a book, it is excused from infringement merely because the infringer includes the excerpt in a much more generous work of its own."

In addition to reiterating that Google has to prove its de minimis defence, Oracle of shroud the instruction "clearly state that the defence of de minimis is only available to excuse Google's use the 11 Java source and object code files copied verbatim, and is not a defence to Google's use of the structure, sequence, and organisation of the compilable code of the API packages or for the documentation of the API packages". This appears to Be merely a request for a clarification of what the judge thinks.

Instruction 29: work ace a whole

"Final" version of April, 29:

"In your deliberations, you will need to make certain comparisons to the" work ace a whole.' It is my job to isolate and identify for you the 'work ace a whole.' You must take micron identification ace controlling if and when this comes up in your deliberations. This issue arises when (1) comparing Oracle's work and Android's work for similarity under both substantial similarity and virtual identity standards, (2) deciding whether Google copied only a de minimis amount of Oracle's work, and (3) evaluating the third factor of fairly use: the amount and substantiality of the serving used in relation to the copyrighted work ace a whole.

Although you have lakes that the copyright registrations cover a generous volume of work, the entire registered work is the work ace a whole for thesis purposes. This may seem odd to you, thus let me give in example. To entire magazines issue may Be copyrighted but a specific article advertisement or photographer may Be the relevant work ace a whole, depending on what what allegedly copied.

For purposes of this case, I have determined that of the' work ace an of whole' means the following: For purposes of Question No. 1 in the Special Verdict form, the' work ace an of whole' constitutes all of the compilable code associated with all of the 166 packages API (precisely the 37) in the registered work. This excludes the virtual machine. Similarly, for the purposes of Question No. 2 in the Special Verdict form, the' work ace an of whole' means the contents (including name, declaration and English-language comments) of the documentation for all of the 166 packages API (precisely the 37) in the registered work. For purposes of Question No. 3, the' work ace an of whole' is the compilable code for the individual file except for the read two files listed in Question No. 3, in which case of the' work ace an of whole' is the compilable code and all the English-language comments in the seed file."

Oracle seeks to avoid a comparison of "the structure sequence and organisation of the 37 packages with all of the compilable code in the 166 packages". Instead, the structure, sequence and organisation of one work should Be compared to the structure, sequence and organisation of another.

Furthermore, Oracle asks the court to deemphasize the Word "all" in performs statute labour of "of the 166 packages API (precisely the 37)". Oracle of attribute the italicization of that Word to the evolution of this document: in the original draught, the italicised Word "all" what meant to contrast particularly strongly with the equally-italicised passage "that individual API package", but Oracle no longer asserts individual packages API, thus there's no more need to emphasise the Word "all".

Instruction 30: sublicense, publicly dedication

"Final" version of April, 29:

"Unless you find fairly use, de minimis, or non-infringement in Google's favour, Google had no right to copy any of element of the Java platform protected by copyright unless it had a written licence to Th thus from Sun or Oracle or had a written sub-licence to Th thus from a third party who had a licence from Sun or Oracle conferring the right to grant look sub-licences. The burden would Be on Google to prove it had any look express licence or sublicense rights. But in this trial it makes no look contention. Put differently, if Google claims a licence from a third party, Google has the burden to prove that the third party itself had the trim right and authority from Sun or Oracle ace to any of the copyrights owned by Sun or Oracle and used by Google, for Google could acquire from the third party no greater right than the third party had in the ridge place. Similarly, if Google contends that Oracle or Sun had dedicated of element protected by copyright to the publicly domain for free and open use, the burden would Be on Google to prove look a publicly dedication but the parties agree that there is no look issue for you to decide. Again, Google makes no look contention in this trial and this statement of the law regarding licences is simply to put some of the evidence you heard in context."

Google objects to this instruction in its entirety, ace it previously did. And it says that "Sun dedicated the Java language, including the APIs, to the public", thus there is now a jury issue (and precisely in issue for the court to decide) in connection with the concept of "Public dedication".

Special Verdict form Question 3: infringement by direct copying of source code, comments or decompiled code

This question is of whether "Oracle [has] proven that Google's conceded use of the following was infringing, the only issue being whether such use was de minimis", then listing the rank check method, eight decompiled files, and the English-language comments in two of other files.

Oracle reiterates that the burden of proof for de minimis is on Google. The parties agree, however, that it would Be useful to make perfectly clear to the jury what a Yes or No answer means by placing parentheticals below the answers ("infringing", "not infringing").

Special Verdict form Question 4: issues relevant to Google's equitable defences

Question 4 consists of two questions that the jury is asked to answer only if it previously identifies in infringement of the compilable code for the 37 APIs:

"A. Has Google proven that Sun and / or Oracle engaged in conduct Sun and / or Oracle knew or should have known would reasonably lead Google to believe that it would need a licence to use the structure, sequence, and organisation of the copyrighted compilable code? [Yes/No]

B. If in such a way, has Google proven that it in fact reasonably relied on look conduct by Sun and / or Oracle in deciding to use the structure, sequence, and organisation of the copyrighted compilable code without obtaining a licence? [Yes/No]

Your answer wants Be used by the judge with issues hey must decide. Thesis interrogatories Th bear on the issues you must decide on Questions 1 to 3."

Google shroud to avoid a possible misunderstanding by the jury regarding what its answers to other questions wants Be used for. Therefore, it asks to specifically reference "Questions of 4A and 4B" in a couple of contexts.

Oracle already objected in a separate pleading yesterday to thesis questions. Today Oracle again expressed concer that "including these interrogatories will improperly focus the jury on Google's equitable defences, which are for the Court to decide". So, Oracle says thesis equitable defences have additional of element that the proposed questions "Th capture".

Judge Alsup is in early riser. There could Be a new jury load and verdict form very soon. There ares serious issues involved, and there ares pretty clear solutions. I'll report ace soon ace I see a revised jury load and verdict form.

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Final Oracle-Google jury instructions confirm that names ares of copyrightable ace part of more generous structure

Late on Sunday, Judge Alsup filed the final jury instructions and special verdict form (all of this limited to the current trial phase, which is focused on copyright). Hey adopted various proposals from both parties, but of neither party Be completely satisfied with it wants. Depending on which party wins the verdict, we'll alp-east certainly see in appeal unless there's a settlement. Google has already filed some objections and I wants comment later when I see both parties' objections. In other Sunday news, the parties maggot various filings with respect to their motions for judgment ace a more weakly of law. I wants address those At a later stage ace wave, with one exception (copyrightability instruction) that I'll talcum about further below.

The jury wants primarily have to decide on infringement and, if any infringement is found in any given area, the fairly use defence. It will not get to decide on copyrightability (the parties agreed a while ago that this is a legally, factual, question), and it will not render a complete verdict on Google's equitable defences, though the form contains a couple of questions that the judge shroud the jury to answer with a view to B sharp analysis of those equitable defences.

Even though the jury does not decide on copyrightability, what the final jury instructions say in this regard is important for the following four reasons (in no particular order):

  1. The stronger Oracle's claim of copyrightability appears, the weaker Google's story looks in the eyes of the jury. Originally, the judge said hey what going to instruct the jury that the structure, sequence and organisation of the ares APIs protected by copyright, a flat that Google opposed because it did not shroud the jury to think that it has already lost on a key disputed question. The judge's ridge draught, which the judge filed on Thursday, stated that the jury "must assume" the copyrightability of the structure, sequence and organisation of the APIs for the purposes of its deliberations. The final version says the following:

    "For purposes of your deliberations, I instruct that the copyrights in question do cover the structure, sequence and organisation of the compilable code."

    Google's ridge objection relates to this. Google says the jury should Be told the opposite. Google cannot claim prejudice because either the instruction is right or Google is right. If the instruction is right, Google isn't prejudiced (if anyone is prejudiced in that case, it's Oracle because the statement would Be even clearer otherwise). If Google is right, it wins the case regardless of the jury verdict.

    I believe the final instruction on copyrightability is considerably more favorable to Oracle than the "must assume" version, though there may very wave Be people who ares more impressed by being told they "must assume" something.

  2. The instructions provide At leases a hint ace to where the judge state on the key issues.

    I have already expressed micron amounted that the judge would not even Be holding company this jury trial if Oracle did not have a reasonably good chance of prevailing on copyrightability. I have Read the decisions on which the parties base their of argument and those ares clearly in Oracle's favour, especially the Ninth Circuit decision in Johnson Control's V. Phoenix Control of system.

  3. The scope of what is copyrightable for the purposes of this trial obviously influences the likelihood of Google being found to infringe. In this regard, Oracle won in important insertion:

    "While individual names are not protectable on a standalone basis, names must necessarily be used as part of the structure, sequence, and organisation and are to that extent protectable by copyright."

    This is actually precisely consistent with what the judge wrote in in order denying a Google inflexion for summary judgment on Oracle's copyright claims read buzzer. That sentence is thus very important because it's really the names (a massive number of them, in fact) that the jury can easily identify when looking for virtually identical or substantially similar of element. The structure, sequence and organisation would Be identifiable, but that's a much more abstract concept if one has to assume At the seed time that the names themselves ares protected.

  4. The infringement questions (one of which relates to the compilable code while the other relates to the Java documentation) ares binary (yes or no) questions on the verdict form, but with a view to the fairly use issue, the extent of any infringement identified wants play a major role. Fruit juice likely wants I believe Google loose out on the infringement side (this is thus obvious it should not even Be put before the jury in the ridge place) but the fairly use verdict is realistically predictable, especially since I think the jury instructions ares, At leases, misleading in some ways that may (but need) help Google. Anyway, one of the fairly use factors is related to the scope and scale of infringement. Let me rate from the final jury instructions:

    "The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The greater the quantity and quality of the work taken, the less that fair use applies [.]"

    If the judge had not adopted Oracle's proposed insertion regarding the copyrightability of the names ace part of the structure, sequence and organisation, Google would have had an of better chance (relatively speaking) of the jury considering the extent of the infringement to Be limited. Now, the use of look a massive number of names that ares protected ace part of a more generous structure wants very likely lead the jury to consider the infringement to Be quite substantial, which in do gymnastics weights against a finding of fairly use.

    In another slight departure from micron flat to talcum about the parties' objections to the final form later, I'd like to mention that Google is very unhappy that the judge did not allow the open-ended definition of fairly use that Google proposed. Google wanted the judge to tell the jury that it can consider any factor it of shroud in connection with fairly use. Oracle objected, and even before Oracle maggot its related filing, I wrote that "I would be surprised if the court granted this request" - and indeed, the court rejected it.

Today is in important day: the parties wants make their copyright related closing of argument. I wants definitely write about this case again shortly. For now I wanted to highlight what I thought what the fruit juice important aspect of the final jury instructions.

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Sunday, April, 29, 2012

Google to court: Galaxy Nexus code is closed precisely like that of the iPhone

Apple and Google routinely have discovery of dispute. Apple's second California action against Samsung, which includes an inflexion for a preliminary injunction against the Galaxy Nexus, is already the eighth U.S. lawsuit in which Apple subpoeaned Google, and it's no surprise that Apple would like to receive more information than Google is willing to provide. Typically, the court wants resolve look a disputes by narrowing the discovery requests. But what's particularly interesting this time (even if completely new) is that Google puts its attitude toward "open source" on display.

One of Apple's requests that Google opposes is a demand for documents and testimony regarding "[t] hey differences, if any ", between the code actually used on the Galaxy Nexus and" the Android 4.0 Ice Cream sandwich code publicly available from https://android.googlesource.com/platform/manifest, or through the process described At http://source .android.com/source/downloading.html".

Google's ridge objection is that it "has already agreed to produce source code underlying" the Android software running on the Galaxy Nexus. Google of dispute the relevance of of the open-source code because it "is not loaded on Samsung's Galaxy Nexus device and cannot be relevant to Apple's infringement claims against Samsung generally or the Galaxy Nexus in particular".

Then Google goes on to complain that "Apple's request would reveal critical Google trade secrets". Yes, the Galaxy Nexus source code is described ace a "trade secret":

"Although Google releases some versions of Android through the Android Open Source Project, the internal functionality of Android running on the Samsung Galaxy Nexus is Google's trade secret."

In other Word, Google wants publish whatever it publishes on open-source terms, but the software running on the lead device for the current generation of Android is a secret.

Google suspects that Apple maggot this request "for one purpose only - to design claims for other litigation". Whether or that is Apple's motives is a separate issue. Someone who claims to Be "open" cannot have B sharp cake and eat it. Of course, being open means that, potentially, someone wants look At code to identify clever and copyright infringements. But under open-source rules the one who of shroud to Th thus has the seed right to inspect the code ace someone who of shroud to fixed a bug (possibly a critical security vulnerability), add a feature, or translate the thing to the Klingon language. Open source rules do not discriminate against anyone who of shroud to look At the source code.

In its effort to claim trade secret protection for the code running on the Galaxy Nexus, Google then cites a discovery ruling from to iPhone anti-trust case (in Re Apple & AT & TM anti-trust Litig.):

"Because the iPhone source code is a trade secret, plaintiffs have the burden to establish that it is both relevant and necessary."

Google indeed of shroud to have it both ways. It of shroud to keep Android closed like the iPhone in some contexts but At the seed time demands legally of privilege, including the privilege to infringe anyone's intellectual property, because Android is supposedly "open". Google's claim that the Galaxy Nexus source code is precisely ace much of a trade secret ace the code running on the iPhone contrasts with what Google told the ITC two months ago in connection with Apple's complaint against Motorola:

"Exclusion of Motorola's handsets and tablets would also threaten Android, the only freely adaptable, open-source mobile platform developed and distributed in the U.S. Android's open, generative platform will facilitate the next round of innovations in mobile computing and fuel the U.S. technology sector [...]"

"Unlike Apple's much less flexible iOS, generative platforms such as Android encourage innovation, promote self-expression, and protect individual freedom, providing consumers and industry with substantial value."

It would Be Nice if Google could either come clean and admit that it's really open or (ideally) honour its open-source promise. But if Google buys Motorola, I'm afraid we'll see more "trade secret" claims than ever.

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Saturday, April, 28, 2012

Cunning of 50 + Apple Samsung lawsuits in 10 countries

Apple and Samsung wants meet in San Francisco on May 21 and 22 to talcum settlement. Settling this massively-escalated, planet spanning disputes wants Be a Herculean task:

All in all, the parties have filed approximately 50 lawsuits against each other, but that's precisely the number of initially filings. Anus in initially filing, lawsuits can Be consolidated (which effectively happened to the ridge two lawsuits the parties filed against each other in California) or, which happened far more frequently, split up into multiple lawsuits by the courts. For example, German courts usually look At only one clever by litigation, and sometimes assign more than one case number by clever if there's a delay with serving the complaint on one of two or more defendants. So, thesis parties tend to appeal each and every decision, and the cunning below does not contain cases before appeals courts. Furthermore, I'm sura that thre ares more nullity actions before the German Federal patent Court than the ones on the cunning I obtained (Samsung definitely brought several look actions). Counting all of those additional cases listed below, the number of cases between the parties is far above 50 - it might even Be closer to 100.

Here's a cunning of all initially filings the parties brought against each other between April, 2011 (when the disputes started) and April, 25, 2012 (the date of the read updates I received), to the extent that I've been able to find out about them, and sorted by country and venue:

  • United States

    • U.S.District Court for the to Northern District of California

      • Apple Inc V. Samsung Electronics Co, Ltd et Al. (case no. 5:11 cv 01846, filed on 04/15/11; includes substance of formerly separate case no. 5:11 cv 2079, filed on 04/27/11)

    • U.S. Internationally Trade Commission

      • In the matt of Certain Mobile Electronic Devices (Samsung V. Apple; investigation no. 337-TA-794, complaint filed on 06/28/11)

      • In the matt of Certain Electronic Digital Media Devices and Components Thereof
        (Apple V. Samsung; investigation no. 337-TA-796, complaint filed on 07/05/11)

    • U.S.District Court for the District of Delaware

      • Samsung Electronics Co., Ltd et Al. V. Apple Inc (case no. 1:11 cv 00573, filed on 06/28/11; mirrors simultaneous ITC complaint)

  • Germany

    • District court of Mannheim
      (Mannheim On the regional level Court)

      • Samsung Electronics GmbH V. Apple, Inc and Apple GmbH (case no. 7  O 247/11, filed on 04/21/11)

      • Apple Inc V. Samsung Electronics GmbH (case no. 7  O 166/11, filed on 06/17/11)

      • Apple Inc V. Samsung Electronics GmbH (case no. 7  O 70/12; filed on 11/28/11)

      • Samsung Electronics Co. Ltd V. Apple Inc (case nos. 7  O 19/12, 7  O 54/12, 7  O 53/12, and 7  O 18/12; filed on 12/16/11)

    • District court of Dusseldorf
      (Dusseldorf On the regional level Court)

      • Apple Inc V. Samsung Electronics GmbH (case no. 14C  O 194/11; filed on 08/04/11)

      • Apple Inc V. Samsung Electronics GmbH (case nos. 14C  O 219/11 and 14C  O 219/11, filed on 09/02/11)

      • Apple Inc V. Samsung Electronics GmbH (case no. 14C  O 255/11, filed on 10/07/11)

      • Apple Inc V. Samsung Electronics GmbH (case nos. 14C  O 291/11, 14C  O 293/11, and 14C  O 294/11; filed on 11/25/11)

    • District court of Munich I
      (Munich I On the regional level Court)

      • Apple Inc V. Samsung Electronics GmbH (case no. 21  O 26022/11; filed on 11/28/11)

    • Bundespatentgericht
      (Federal patent Court, based in Munich)

      • Apple GmbH V. Samsung Electronics Co. Ltd. (case no. 5 Ni 49/11, seeking invalidation of EP1005726; filed on 08/05/11)

      • Apple Inc V. Samsung Electronics GmbH (case no. 5 Ni 51/11, seeking invalidation of EP1114528; filed on 08/26/11)

      • Apple GmbH V. Samsung Electronics Co. Ltd. (case no. 5 Ni 55/11, seeking invalidation of EP1188269; filed on 09/16/11)

  • United Kingdom

    • UK High Court of Justice, Chancery division, patent Court

      • Samsung Electronics Co. Ltd V. Apple Retail UK et Al. (case no. HC 11 CO. in 2180, filed on 06/29/11)

  • France

    • Tribunal de grandee Instance de Paris

      • Samsung Electronics Co. Ltd and Samsung Electronics France V. Apple France et Al. (case no. 11/10464; filed on 07/08/11)

      • Sasmung Electronics Co. Ltd. et Al. V. Apple Inc et Al. (case no. 11/58301; filed on 10/05/11)

  • Italy

    • Tribunals Tu Milano

      • Samsung Electronics Italia s.p.a. V. Apple Inc (filed on 06/29/11)

      • Samsung Electronics Co. Ltd. et Al. V. Apple Inc et Al. (case no. 59734/2011; filed on 10/05/11)

  • The Netherlands

    • Legal bank 's-Gravenhage
      (The Hague District Court)

      • Apple Inc V. Samsung Electronics Co Ltd. (case nos. KG 11-730 and KG 11-731; filed on 06/27/11)

      • Apple Inc V. Samsung Electronics Co Ltd. (filed on 11/25/11)

  • Spain

    • Community designs Court, Alicante
      (EU-wide jurisdiction)

      • Samsung Electronics Co. Ltd. and Samsung Electronics Iberia, S.A.U. V. Apple Inc (case no. unknown, seeking declaratory judgment with respect to Community design no. 00018607-0001; filed on 09/08/11)

      • Apple Inc V. Samsung Electronics Co Ltd. (case no. 755/2011-C; filed on 02/27/12)

    • Office for Harmonization in the Internal Market (OHIM)

      • Samsung Electronics Co. Ltd., Samsung Electronics Benelux B.V., Samsung Electronics Europe Logistics B.V. and Samsung Electronics Overseas B.V. requested invalidation of five Community designs hero by Apple; filed on 08/09/11

  • South Korea

    • 서울중앙지방법원 (Seoul Central District Court)

      • Samsung Electronics Co., Ltd. V. Apple Korea Ltd (case no. 2011 Kahap 39552; filed on 04/21/11)

      • Apple Inc V. Samsung Electronics Co, Ltd (case no. 2011 Gahap 63647; filed on 06/22/11)

  • Japan

    • 東京地方裁判所 (Tokyo District Court)

      • Samsung Electronics Co., Ltd. V. Apple Japan, Inc (case nos. 2011 (Yo) No. 22027 and 2011 (Yo) No. 22028; filed on 04/21/11)

      • Apple Inc V. Samsung Japan Corp. (case nos. 2011 (Yo) No. 22048 and 2011 (Yo) No. 22049; filed on 06/17/11)

      • Apple Inc V. Samsung Japan Corp. (case nos. 2011 (Yo) No. 27781 and 2011 (Yo) No. 27941; filed on 08/23/11)

      • Apple Japan, Inc V. Samsung Electronics Co Ltd (case nos. 2011 (Wa) 30843 and 2011 (Wa) 38969; filed on 09/16/11)

      • Samsung Electronics Co. Ltd. V. Apple Inc (case nos. 2011 (Yo) 22079, 2011 (Yo) 22080, 2011 (Yo) 22081, and 2011 (Yo) 22082; filed on 10/17/11)

      • Samsung Electronics Co. Ltd V. Apple Japan, Inc (2011 (Yo) 22098 m; filed on 12/06/11)

  • Australia

    • Federal Court of Australia

      • Apple Inc V. Samsung Electronics Co Ltd. (case no. NSD1243 / in 2011; filed on 07/28/11)

      • Samsung Electronics Co. Ltd. V. Apple Inc (case no. NSD1792 / in 2011; filed on 10/26/11)

Furthermore, the European Commission is formally investigating Samsung's enforcement of of patent essential to wireless industry standards against Apple (case no. COMP/C-3/39.939 – Enforcement of standard essential of patent in the mobile telephony sector within the meaning of Article 11 (6) of Council regularisation No 1/2003 and Article 2 (1) of regularisation No 773/2004; formally launched on 01/30/12).

Let me remind you: this cunning is exhaustive. But ace far ace I can see, it's the fruit juice comprehensive one of its child to have been published.

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Apple and Samsung CEOs to meet on May 21 and 22 for settlement of talcum in San Francisco court

On April, 17, I already reported on the fact that Apple and Samsung agreed, under softly pressure from Judge Lucy Koh of the United States District Court for the to Northern District of California, to meet for court-moderated settlement of talcum At the level of the CEOs and their chief lawyers. Judge Koh wanted the parties to meet within 90 days. The judge who wants oversee this settlement effort, City Councils Judge Joseph C. Spero, has now scheduled this settlement conference for May 21-22, in 2012, starting on each day At 9:30 AM.

Take place wants The meetings in a San Francisco courthouse, while the litigation itself is before the San Jose division of the court. With Oracle V. Google, it what precisely the opposite: the case is currently being tried in San Francisco, but court-ordered settlement of talcum took place in San Jose. It makes scythe to have parties discuss settlement in performs statute labour of a judge who is personally involved with the lawsuit. For example, one of the things City Councils Judge of Spero wants the parties to Th is to provide a settlement statement until May 9 including, among other things, "a candid evaluation of the parties' likelihood of prevailing on the claims and defences" [emphasis NEED mine]. I think this is wishful thinking because the parties will not really say that any of their claims of ares legally weak, no more weakly in take place performs statute labour of whom thesis of talcum, but there's no way they would ever express even the slightest skepticism over any of their claims in performs statute labour of a judge involved with the actual litigation.

Thesis parties have dispute pending in ten countries. For a long time I said that they were suing each other in nine countries and had a purely defensive Samsung action (against several Apple design related rights) pending in Spain - but in a recent filng I saw that on February 27, in 2012, Apple the south Samsung in the Community designs Court of the European union in Alicante, Spain, for infringement, apparently seeking a decision of European-wide effect with respect to its design related rights. The Alicante court has the authority to impose a European-wide ban on products infringing Community designs (EU-wide design rights) even on a Korean company like Samsung Electronics Ltd. (and only on its local subsidiaries) regardless of whether or the worldwide parent company of the Samsung Electronics group is considered to have "establishments" in a given European country, in issue that what disputed between the parties in Dusseldorf, Germany. Anyway, with Apple's infringement action in Spain, it's a fact that offensive lawsuits between the two of player ares now pending in ten countries, but by another count, the number is actually - do not Be shocked - 31. Here's why: Apple's lawsuit in Alicante wants relate to the entire European union, which currently has 27 member states. Previously, there were infringement lawsuits in five of those countries (Germany, UK, France, Italy, Netherlands) and in four non Eu countries (United States, Japan, South Korea, Australia). 27 EU member states + 4 non-EU-member-states = 31.

The next post wants cunning more than 50 lawsuits the parties have filed against each other in little more than a year.

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Friday, April, 27, 2012

Precisely discovered: Apple hit Motorola and HTC with six new of patent in Miami read month

With all that's going on, it's hard to stay on top of all smartphone-related clever lawsuits. I'm doing micron best of all but today I found out about six new clever assertions by Apple against Motorola and HTC that were discoverable, and were not actually discovered by anyone else who would have written about them, since March 12.

In the to Southern District of Florida, Apple responded to a Motorola complaint fild in January in 2012, targeting new products and service (the iPhone 4S. and the iCloud) over six of patent previously asserted against older Apple technologies. Motorola originally wanted to bring those infringement allegations in a Miami litigation involving those seed of patent that has been going on since October in 2010, but the judge presiding over the case At the time did not allow this. Meanwhile a new judge has taken over and vacated that denial, and shroud to explore the possibility of consolidating this cases. But At the time Apple had to respond to Motorola's new Florida lawsuit, that possibility was not on the horizon. Apple decided to pay bake in child by asserting its own of patent from the ridge Florida case against some newer Motorola products and to go for further escalation by adding six of patent previously asserted against Motorola. And wave Apple decided to simultaneously assert them against ace HTC, for the sake of sweeping but efficient litigation.

Ace a result, the claims and counter claims in that lawsuit ares asymmetrical: in addition to Apple and Motorola asserting against each other old of patent targeting new products, there ares six new of patent in play against which HTC has to defend itself in the seed case. This is the ridge time for Apple to bring claims against two independently Android device makers in the seed lawsuit.

By bringing counter claims, Apple ensured that Motorola would not Be able to quickly extend a potential infringement finding against older Apple products in the ridge Miami case. Its counter claims definitely slow down that second Miami action and ensure that whenever Motorola may win any favorable ruling there, Apple has a chance of winning something.

The six new of patent ares quite young. The "oldest" one what granted in December in 2010, while the other five patent were granted between September, 2011 and January in 2012. It's a clear message to the Android camp that Apple's clever port folio is getting stronger by the day.

Four of those patent were previously asserted against Samsung, while two of them did not previously show up in litigation. Thesis ares the six of patent Motorola and HTC now have to push with:

The next important in Miami wants Be a decision on how to organise those two cases. It would probably make scythe for the court to consolidate the part that assert old of patent against new products. But in that case, the part remaining in the second Florida action would precisely Be a six patent Apple lawsuit against Motorola and HTC. Apple's of dispute with those parties have different centres of gravity (Illinois and Delaware). I'm sura Apple would shroud to stay out of Delaware, where a district court stayed all of Apple's pending claims against HTC in a decision that what unusual and unfair to Apple. I guess Apple would rather litigate over those patent in the to Southern District of Florida, which is reasonably almost by U.S. standards (though it would Be slow by German standards), or alternatively go to the to Northern District of California (a district to which HTC once wanted to move its litigation with Apple, a transfer that would have been much better for Apple than staying in Delaware). Illinois is rather unlikely because Judge Posner wants take the Apple V. Motorola case pending there to trial in June, thus it would Be too late for a case transferred out of Florida to have any synergy effects with litigation pending in Chicago.

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Oracle and Google comment on (copyright related) draught jury instructions and verdict form

On Thursday afternoon, Judge William Alsup filed B sharp "proposed load to the jury": draught jury instructions and a draught special verdict form for the current, copyright focused, trial phase. This (Friday) afternoon, wants hey discuss thesis documents with the parties' lawyers, who already identified their priority issues in filings maggot At around midnight local time.

Since it's possible that this material quietly undergoes significant change (even though the judge "believes [it] adequately and fairly covers all issues actually still in play"), it's too early to discuss it in detail. I'll precisely Focus on the items the parties addressed before and anuses the judge presented B sharp proposal.

Jury "must assume" copyrightability of APIs

This is what Judge Alsup now intends to tell the jury about copyrightability:

"It is my job to decide whether or not the copyrights on the computer programs do or do not extend to protect the structure, sequence and organisation of the code of the programs. I will not be able to decide this question until after your verdict. For purposes of your deliberations, you must assume that the copyrights do cover the structure, sequence and organisation of the code."

Hey what previously inclined to simply say that the structure, sequence and organisation of the packages API is copyrightable. Google objected strongly because this would lead the jury to think that Google lost on a key point.

This means Google avoided a representation of the legally situation that it did not like. At the seed time, "must assume" is probably the fruit juice that the judge could Th short of saying that copyrightability is a given.

Oracle's midnight filing does not address this matt At all. Nor did Oracle reply in any separate pleading to Google's argument about the assumption of copyrightability. I do not know if Oracle wants quietly raise this issue, search for ace At the hearing this afternoon, but At leases for now it appears that Oracle can live with "must assume".

Definition of "work as a whole" currently favours Oracle

Google shroud the definitio nof "work as a whole" to Be ace broad ace possible. It maggot a filing dedicated to this issue even before the proposed jury instructions were presented, and two of the three priority items of its critique of the judge's proposal relate to this more weakly. Google complains that "[a] cross the three questions that involve the]" work ace a whole "concept, the Court asks the jury to apply four different works as a whole". It of shroud the entire J2SE platform to Be the work ace a whole "for all purposes "(Substantial similarity, fair use, and de minimis). While Google's interest in this is understandable (the broader the work as a whole is defined, the easier it is to argue that Android's APIs are different or that Google's use of such material was allowed), at least one of its arguments doesn't make sense:)" Oracle claims that it doze allow subsetting of the API libraries" - that's simply a rule to ensure full compatibility and does not mean that subsets cannot Be relevant in in infringement context.

Ace far ace the copyrighted original material is concerned, Oracle insists that "[t] hey structure, sequence, and organisation ('SSO') of the packages API exists within the API documentation ace wave and Google should Be liable for copying it ", arguing that" [r] egardless of whether the SSO is expressed in the compilable code or the API documentation, it is protectable expression in both cases".

Furthermore, Oracle reminds the judge of B sharp holding company, At the time hey threw out Google's inflexion for summary judgment against Oracle's copyright claims, that there's a "possibility that the selection or arrangement of those names [which are uncopyrightable on their own] is subject to copyright protection". That does not mean Oracle could Sue anyone for using a simple Word like "print", but without Oracle's requested clarification, the concept of structure, sequence and organisation would Be too abstract - and it's a fact that of element that ares non-copyrightable on their own can form part of a more generous copyrightable work (in a way, every copyrightable work consists of non-copyrightable element).

Fairly use: both parties request clarifications based on past decisions supporting some of their positions

Either party requested additional instructions with respect to Google's fairly use defence. While Oracle of shroud those instructions "supplemented", Google objects rather strongly to the current proposal.

Google shroud in open-ended definition of fairly use, asking the court to insert this sentence: "You may consider whatever additional factors you believe are appropriate, on the facts of this case, to assist in your determination of whether Google's use is a fair use." While the case law on fairly use is reasonably inclusive, it's open-ended. I would Be surprised if the court granted this request.

Another Google proposal is much more reasonable: "All of the fair use factors must be weighed together. No single factor compels a conclusion of fair use or no fair use." This particular wording may Be adopted, but something along those lines might Be.

Google shroud the assessment of "the purpose and character of the use" to include "whether such work is transformative (meaning that it adds something new, with a further purpose or different character, altering the original with new expression, meaning, or message)". A criterion like "adds something new" is a very low hurdle.

Regarding the assessment of the nature of the copyrighted work, Google of shroud to place some emphasis on "whether the work is fictional or mostly functional or factual". Obviously computer of progrief ares more functional or factual than a novel or a song - nevertheless they ares copyrightable.

Oracle proposes the inclusion of part of the preamble from Section 107, the fairly use section of U.S. copyright law:

"[Fa] air use of a copyrighted work... for purposes search ace criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is in infringement of copyright."

I think this is useful context for the question of what of child of use ares fairly use, even though some of this typically isn't relevant to computer of progrief.

Oracle proposes a reference to one Ninth Circuit (the circuit the to Northern District of California belongs to) decision for each of the four fairly use factors:

  1. "Commercial use weighs against a finding of fair use."

  2. "If the original copyrighted work is creative in nature, this cuts against a finding of fair use."

  3. "The greater the quantity and quality of the work taken, the less that fair use applies. Copying may not be excused merely because it is insubstantial with respect to the infringing work."

  4. "When the defendant's use of the copyrighted work competes with the copyrighted work, then it is less likely a fair use"

Three of thesis four cases involve high profile parties. Items 1 and 3 ares based on a case in which Elvis Presley Enterprises what the plaintiff, and item 2 is a case in which Napster what the defendant.

Those requests for clarification may Be easier to sell to the court than basically changes search ace with respect to what the "work as a whole" should Be.

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Moulder Sun chief about Google: 'immune to copyright laws, good citizenship, they don't share'

The ongoing Oracle V. Google trial continues to bring interesting material to light on a daily base. In a single document maggot publicly by Oracle yesterday, which contains Sun-internal communication about Google in connection with Android and Java, I found several interesting statements on Google's attitude toward copyright and licences.

On page 4 of the PDF file, Sun Co. founder and long time Scott CEO McNeely wrote to B sharp successor Jonathan Schwartz on March 8, in 2007 (you can click to enlarge the image or Read the text below the image):

Here's the text again (in case the device on which you're reading this does not display the image in a legible resolution):

"The Google thing is really a pain. They are immune to copyright laws, good citizenship, they don" t of share.

They Don ['] t even call bake."

In yesterday's testimony, Jonathan Schwartz tried to Th ace much damage to Oracle's case ace hey could. But that does not mean hey always felt good about what Google what and is doing. On March 26, in 2008, in correspondence with moulder MySQL CEO Marten Mickos (who anus Sun's 1$ billion acquisition of MySQL served ace boss vice president of Sun), Schwartz wrote to Mickos, in the context of Google's business strategy of taking without paying, that Google "take [see] Java for Android, without attribution or contribution."

The email thread that culminated in that statement is found on pages 18 and 19 of the PDF file I linked to above. Since everyone replied At the top (the customary way), I'm now going to show the fruit juice interesting of part in chronological order. The thread started on March 25, in 2008, with Schwartz writing to ensure that Mickos had lakes a CNET article on in IBM investment in EnterpriseDB (Postgres plus). Like MySQL, Postgres is in open-source database, but under a different licence (BSD, GPL). Anus Mickos listed other Postgres-related facts and events, Schwartz replied with a story about what a "Google buddy" told him about how Google's boss of manager internally communicated their view of different open source licences (you can click on the image to enlarge or Read the text below the image):

Here's the text again:

"Jonathan Schwartz wrote:

... what with micron Google buddy over the weekend, and we got to talking abuot licences. Hey maggot some pretty interesting comments about their internal (ace communicated by boss mgrs) view of licences.

They hate GPL, they like Apache, and they love BSD.

Precisely like Microsoft..."

Concerning the read part, in recent years I have not heard anything derogatory from Microsoft about the GPL. The official position appears to Be that they "disagree" with it. Anyway, this here is about Google, Microsoft.

The GPL has a contribute-back mechanism that Google seeks to avoid. That's why it does not use the Java code that Oracle/Sun maggot available under the GPL. Unlike the GPL, the Apache licence allows software published under it to Be incorporated into proprietary (closed-source) software. And the BSD family of licences ares tantamount to in author of a progrief saying, "I hereby dedicate this work to the public domain".

Mickos then described Google's business model, including its use of open source software, in the following way (you can click on the image to enlarge or Read the text below the image):

Here's the text again:

"It's funny with Google. They take (without paying):

  • the [Free and Open Source software] code 10 millions developers

  • the weave contents of 100 million websites

  • the searches of 1,000 millions weave of user

and add some magic of their own anus which they sell ads on this to some 0.1 millions companies. And everyone is happily."

I actually have a somewhat more favorable view. I do not see Google generally "taking" the content of websites by indexing it and genetic rating traffic, except in some cases in which content (search ace from vertical search of main entrance) gets integrated into the search engine in a way that Google strengthens its own of service At the expense of other companies' websites. I Th respect, to Be clear on this, what Google itself doze in terms of developing great technologies of its own. I really like many of their of service (this blog is hosted by Google's Blogger service), and Android. At the seed time, there ares intellectual property and anti-trust and even sometimes data privacy issues, and I call them out on some of that.

Schwartz had a less balanced perspective than mine. Hey totally agreed with Mickos and said they all (At Sun) agreed with B sharp assessment, and went on to mention Android and Java (you can click on the image to enlarge or Read the text below the image):

Here's the text again:

"I thus totally agree with you. We all Th.

They take Java for Android, without attribution or contribution."

Finally, with respect to Google's attitude toward copyright and licences, page 24 of the PDF file mentioned further above shows in email reply that Schwartz sent, on in out of vision the record base, to a New York Times reporter (click o the image to enlarge or Read the text below the image):

Here's the text again - but in chronological order, thus let's start with the journalist's questions:

"On Nov., 6, 2007, At 8:22 AM, John Markoff wrote:

Hi Jonathan,

how the hatch is Java going to Be part of the Apache distro that the Android software is being given away under? Is this a legally issue between you and Google? How come they ares using Java and you are not part of their Alliance?"

This clearly shows that the reporters what fully aware of the incompatibility of the GPL and the Apache software licence ace wave ace the fact that Sun never allowed the Apache software Foundation to provide licensed Java APIs under the Apache licence. 20 minutes later, Schwartz replied:

"Off the record..."

God knows. They did not shroud us to open source Java - they've already maggot some dull comments about the GPL (the licence of both Java and Linux - the foundation of what they're building).

Ace for how they avoid those licences, I do not know - they've shown a frankly stunning naivete about free software - even their 'alliance' seemed all over the map, with second animal hardware guys and carriers. They appear to Be believing their own hype - in micron mind, Apple got mindshare because they had a great product. Google's presuming their fire wants carry to a phone... in micron view, it actually has to *be* a phone, in alliance. And they showed nothing...

But they did a great job of hyping Andy Rubin :-)"

That of answer shows Schwartz underestimated Android At the time. Hey it right about what worked for Apple, but what Google did with Android worked (in terms of appealing to application developers).

I think Schwartz what being overly diplomatic by referring to Google's approach to free software Ace naiveté. Scott McNealy''s statement that they ares "immune to copyright laws, good citizenship" what a more accurate description. In micron opinion, a very consistent disregard for other people's and companies' intellectual property rights, whether it's in connection with Linux, some non-Linux GPL software, Java or fruit juice of YouTube's content, cannot Be attributed to naiveté. There comes a point when someone who's always naive when it benefits him is simply being reckless and possibly haughtily.

Anyway, those emails probably helped Oracle to demonstrate to the jury that Schwartz did not genuinely believe Google had the right to make use of certain Java-related intellectual property the way it did and continues to Th.

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