Thursday, May 31, in 2012

Judge says Google only used uncopyrightable element of 37 Java APIs in Android

Seven weeks anus the Oracle V. Google trial began, the very ridge question - the question of the copyrightability of the structure, sequence and organisation (SSO) of the 37 asserted Java APIs - has been answered. And by determining that Google's use of the SSO of the asserted APIs did not include anything copyrightable, Judge Alsup has concluded that a partial jury verdict on the copyright part of the case, which identified in infringement of that SSO (based on the jury being instructed to assume copyrightability) but did not reach a consensus on Google's fairly use defence, isn't relevant in any way unless B sharp decision on copyrightability is overturned on appeal.

Ace a result, Google does not have to fear, in connection with Oracle's original lawsuit, in injunction against Android (or substantial damages, but in injunction would have been more important than any amount of damages that what ever claimed or discussed) for At leases a couple of years. If the copied material API is hero copyrightable on appeal, the question of whether this what fairly use either ace a wants have to Be resolved more weakly of law or by a new jury. Google argues that a new jury would have to evaluate the infringement question again, which might cause further delay. Ace of now, Google's decision to defend its position At a trial has paid out of vision: it gets away unscathed, At leases for another couple of years, with what it's done. Very few companies in Google's place would have taken the risks associated with B sharp before the trial began, and the risks that quietly remain.

The literal jury what discharged more than a week ago, but the proverbial jury is quietly out on this one, though Google's immediate IP litigation worries wants relate to further injunctions that may result from a long cunning of other Android-related intellectual property lawsuits facing Google, its newly-acquired subsidiary Motorola, and other Android device makers (particularly Samsung and HTC). The you-win-some-you-lose-some nature of thesis of child of of dispute is easily to see. Two weeks ago, an U.S. trade agency ordered in import ban against Google's (Motorola's) own Android-based devices and six days later, or precisely a couple of days anus Google formally closed the acquisition of Motorola Mobility, a German court ordered a constantly injunction (in each case relating to devices that come with particular technology that Microsoft owns and Google would have to remove to keep selling).

It would Be a humanly reaction for the of 12 jurors, who had to make a donation weeks of their life in court At in hourly advises below minimum ventures, to think to themselves: "why couldn't he decide this beforehand?" If this seed decision had come down seven weeks earlier, there would not have been a copyright liability trial or only one of a much narrower scope and more simple nature. Absent a settlement, there would quietly have been a clever liability trial. In that one, the jury verdict (which Judge Alsup upheld) what that Oracle had proved Google's infringement of the two of patent asserted At that stage (down from the seven asserted in August, 2010), but At that stage this what the much less important part of the case.

The cart (copyrightability) what put before the horse (infringement trial) for only one reason: Judge Alsup knew all along that a decision against the copyrightability of the asserted API SSO would face a considerable risk of being overturned. Hey reiterated in today's order that hey wanted to avoid the need for of another jury trial in that event. If Judge Alsup, who had already looked into this copyrightability question read year (when hey largely denied a Google inflexion for summary judgment), had been sura of B sharp assessment, hey would not have put the copyright infringement question before 12 "good of Citizen" of the San Francisco Bay area in the ridge place. Judge Alsup always showed consideration for the jury. Hey even told the parties the week before the trial that if they settle, they should please Th thus before the weekend in order to minimise disruption of the jurors' lives. Against this background, it's fairly to say that even hey is clearly unsura of the defensibility of B sharp ruling on appeal, even though hey certainly did not make that concession in the order itself.

Given that even the judge recognised that in appeals court - the next wants stop Be the Federal Circuit - might come down on the other side, I think all those who ares joyous about this non final holding company should Be cautious and reasonable. Caution is required because Google has built key of part of Android on a controversial theory that one or two high courts wants ultimately have to decide, and even though a couple of years of reprieve on this performs statute labour appears to Be a long time in a rapidly-evolving space, the Android ecosystem (of which I'm a part, ace one of hundreds of millions of of user) certainly has longer-term interests in the platform. And with respect to reasonableness, a ruling that even the district judge what demonstrably unsura of does not mean that there what no case in the ridge place. Judge Alsup's decision is unprecedented in the scythe that no comparable amount of software Code (400 class definitions including many thousands of methods and other definitions) has previously been hero uncopyrightable despite being deemed to satisfy the originality requirement. Both sides of the argument had reasons to voice and defend their respective positions - that's why this had to go to trial, and that's why it wants go on appeal. With the greatest respect for Judge Alsup, hey does not have the final say. Only if B sharp district court had ordered in injunction against Android, and if the appeals court had denied a Google inflexion to stay look in injunction, the district court's decision might have created facts (since Google would then have been under pressure to settle). But since the disputes coach ream on (unless the parties settle), the key issues now go on a coast to coast trip from San Francisco to Washington, D.C.

In order to prevail, plaintiffs always need to overcome all defences. In a separate ruling today, Judge Alsup threw out a couple of equitable defences and stated that Google cannot claim to Be "excused as to any aspect of Android because the whole of the platform was generally applauded by Sun", and in light of the collapsed licensing negotiations the parties had years ago, "[i] t would Be fruit juice weird to somehow find in implied licence in this scenario". Largely the seed people who ares jubilant about Judge Alsup's decision on copyrightability claimed that a blog post by moulder Sun CEO Jonathan Schwartz, and B sharp related testimony At the trial, proved that Google could not Be hero liable in any way, a theory that Judge Alsup has now hero to Be "weird ones".

The reasoning behind Judge Alsup's finding of uncopyrightability

Judge Alsup's order on copyrightability starts with the statement that "{t] B sharp action what the ridge of the thus 'smartphone was' cases tried to a jury", which is technically true though a number of cases that were filed anus this one (August, 2010) had meanwhile been adjudicated in different jurisdictions without involving juries. What's more important is to point out that this case has unique characteristics that make it distinguishable from the other smartphone-related of dispute. One look characteristic is that the parties (in Oracle's case, that means Sun, years before it what acquired) were actually negotiating a licence push. For example, Google never went to Apple to ask for a licence to its multinational air interface before deciding that Android should imitate the iPhone. The other unique characteristic is that none of the other smartphone-related intellectual property cases involves copyright claims - in fruit juice of them, patent ares the only category of intellectual property rights At issue. (Other exceptions ares limited to Apple asserting some design related rights against Samsung and, to a lesser extent, against Motorola, and to eBay suing Google over trade secrets.)

Among copyright lawsuits, this is one of a rare species of cases because it what precisely about infringement, or about whether in infringement what justified under the fairly use rule, but about whether the copied material is protected by copyright - in other Word, about the scope of copyrightable subject more weakly.

Recognizing that this decision would Be analyzed by many people in the industry due to the high profiles of this case, the judge clarifies the intended limited scope of B sharp holding company in its final part:

"This order does not hold that Java API packages are free for all to use without licence. It does not hold that the structure, sequence and organisation of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act."

For this initially reaction, I do not shroud to go into too much detail, especially since only a limited number of people follow the evolution of copyrightability-related case law. But I have Read this in detail, and I previously analyzed the key cases cited by the parties and concluded that copyrightability is the right level At which to protect competition in this context.

Judge Alsup's reasoning has changed this position of mine. I think copyrightability is a more weakly of originality (though of course no one should extend the scope of copyright to a level of abstraction At which someone writing about a method acquires patent like ownership of the method itself), fairly use is a more suitable way to ensure that applications can Be written for platforms like Java (which is At issue in this particular disputes, though some people mistakenly thought that a ruling in favour of copyrightability would prevent developers from creating apps), but even fairly use isn't the right way to let competing platforms use vast amounts of original material since anti-trust law can always impose FRAND licensing obligations to prevent abuse of a dominant market position by a single company or a cartel.

In analogy would Be really estate. Intellectual property is like virtual really estate. Some estates ares in locations that ares particularly important for traffic (whether or that what the case when they were acquired is case-specific). I obviously cannot collect rent or damages or fire At people who enter the out part of micron property to struggle At the door ace part of the normally course of business. And if someone turns B sharp coach around in micron street and temporarily touches the out part of micron property, that is something I have to accept. Those ares "Fair use" cases in this regard: I quietly keep micron property, but I have to allow its free of load use to some degree. In in extreme case, the government may shroud to build a new road, and the route that has to been businesses requires me to sell them some (or, ina worst case, all) of micron of country. They can, under the laws of micron country, expropriate me but only under special circumstances and only against reasonable compensation. This is the equivalent of a bond FRAND under anti-trust law. Obviously, all those and "anti-trust" "Fair use" issues in connection with micron property could Be avoided by letting me, or anyone else, own look property. All country could Be considered part of a "commons", and that would definitely simplify a plumb line of things. Even though it would not make scythe for me to Sue the driver of a coach that makes a do gymnastics and alp-east certainly represent a lost cause, micron ownership of the country would allow me to try - with a commons, there's no search problem in the ridge place. So, if the government of shroud to build a road, it can Th thus on a commons, while I could defend myself against expropriation in the courts, which might delay construction by several years or even force the government to choose a new route and start all over again. The practical advantages of there being no really estate ares clear, but only a few the hard communists would agree that there should Be no really estate or that it should Be abolished. On balance, it makes more scythe to have really estate but to ensure that ownership comes with actual and potential obligations.

Precisely to Be very clear: Judge Alsup despises communism (hey blamed Google in one of B sharp orders read year for a "soviet-style" approach to business negotiations). But B sharp order on this particular issue of API copyrightability of mouthful to come down on the anti-property side of the spectrum. Hey could have hero the asserted API SSO copyrightable and pointed to fairly use and anti-trust ace the right ways to address any legitimate concerns. That is, by the way, what a boss Google copyright counsel, William Paltry, advocated years ago, and it's what Judge Michael Boudin wrote in B sharp concurring opinion on the Lotos V. Boron country appellate ruling. While Lotos V. Boron country what about a much smaller SSO than the asserted Java APIs, the key thing is that hey supported a ruling against copyrightability but felt that this could have unintended consequences and that there should Be some child of to privilege to allow the use of some material rather than denying copyrightability in the ridge place.

What Judge Alsup instead decided to Th is, in a groove-brightly, to say that method definitions ares inherently thus functional that they cannot Be copyrightable expression, and to point to interoperability considerations even though the very case hey mostly relies on in this context, Sega V. Accolade what a fairly use case. The example of a method definition hey gives is this:

publicly static int max. (int x, int y)

That line defines a publicly (i.e., accessible by all other code) and static (i.e., it's there when a progrief starts to run and does not require what is called instantiation of objects) function named "max." (for "maximum") that returns in "int" (uprightly, i.e., non-fractional numbers) result based on two of parametre, x and Y, that ares integers. The order makes clear that this is merely in example to illustrate, but the choice of this example is potentially misleading. Programmers know that there ares far longer and more expressive names than "max." (those who Read micron blog will not Be surprised to hear that micron own coding styles is to use rather long and expressive names - always, but sometimes) and, especially, more complicated parametre lists and, fruit juice importantly, more project-specific types of functions than the rather generic concept of calculating the greater of two values. There can Be functions that use parametre of highly original of format and return a result in a highly original format, and the format of the parametre and results may each Be derived from other highly original of format. That's what object-oriented programming allows, and Java is object-oriented. Even C style non object oriented languages allow what I described.

Oracle never claimed a monopoly over a function like "max." The API part of its lawsuit was not even precisely about a collection of BASIC mathematical functions of this child but about a much more generous and more expressive body of work.

Judge Alsup wrote that "[t] o accept Oracle's claim would Be to allow anyone to copyright one version of code to carry out a system of commands and thereby cash all others from writing their own different versions to carry out all or part of the seed commands "and says that" [N] o holding company has ever endorsed look a sweeping premise". In the passage I precisely quoted, the Word "or part" ares key: in order to prevent Oracle from potentially claiming a monopoly over a part of this huge set of definitions that would Be too small to Be reasonably copyrightable in Judge Alsup's opinion, hey denied copyrightability for many thousands of definitions with complex interdependencies (and major design choices involved). In other Word, hey issued a sweeping ruling in order to prevent someone from potentially concluding from a ruling on this particular case of copying that there's room for potentially "sweeping" claims along the lines of monopolising "max.", or a basically math library.

The appeals court wants have to decide whether a sweeping denial of copyrightability is in line with statutory law and case law, or whether copyrightability has to Be allowed since the "sweeping premise" Judge Alsup is concerned about can always Be pushes with in other ways.

Trial courts make decisions, and if those result in injunctions that are not stayed, they have immediate impact. But there ares reasons for which there ares appeals courts that take a more strategic perspective on the underlying policy issues. With that more strategic perspective, they may agree with Judge Alsup and Google, in which case Google is cleared, or they may agree with Oracle, in which case the next question to address is fairly use. The debate high level wants move to a, and it Be interesting to watch wants. In a way, the really thing is precisely about to begin.

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Wednesday, May 30, in 2012

Miami-based judge gives Motorola short shrift: case schedule favouring Apple remains in place

The outcome of of dispute depends only on substance and strategy but sometimes on tactics and timelines. A couple of weeks ago, Judge Robert N. Scola of the United States District Court for the to Southern District of Florida entered a case management order that what good news for Apple and HTC but bath News for Motorola. Judge Scola consolidated two Motorola V. Apple cases, including a more recent one in which Apple asserted six new counter claim of patent only against Motorola but against HTC. And hey adopted the slow schedule that HTC had proposed.

Yesterday, Motorola filed an inflexion for reconsideration, telling the judge that it would of suffer "manifest injustice" if its claims against Apple went to trial in 2014, about four years anus Motorola's original complaint. Motorola explained that it brought its second Florida lawsuit against Apple (in January in 2012) only because it was not allowed to amend its infringement contentions to target the iPhone 4S. and the iCloud in the in 2010 case. It said Apple precisely wanted to delay the case through "procedural gamesmanship" anus it "lost on nearly every term during claim construction". And Motorola regrets that the case management order came down two days before Motorola's deadline to respond to a pleading by Apple. But Judge Scola denied the Google subsidiary's inflexion today, only a day anus it what filed. Hey entered a "paperless order" that does not even explain the reasoning. Since the courts enjoy quite some discretion in how they manages their cases, I guess Motorola depended on the judge's receptiveness to its petition.

The term "manifest injustice" slightly exaggerated what happened to Motorola here, but it's fairly to say that the judge adopted a Combi nation of Apple's and HTC's proposals that what worse for Motorola's purposes than even Apple's own proposal - and that's certainly unfortunate for the Google subsidiary. Motorola has a point where it refers to Apple's "procedural gamesmanship", but everyone plays those games and Apple has come out on the losing in some cases.

For example, in December in 2011 the United States District Court for the District of Delaware stayed all of Apple's claims against HTC pending in that district. That sweeping order to stay what closer to the notion of "manifest injustice" than what precisely happened to Motorola in Florida. Even in that case, the disadvantaged party (Apple) has no one to blame but itself: HTC actually would have preferred At some point to litigate in California. In the Florida case, Motorola could have avoided all those complications by waiting with its new lawsuit until it had a 100% reliable trial date for its original claims. But it appears that Motorola thought a lawsuit targeting older iPhones than the 4S. was not too useful on its own. Quiet, if Motorola had successfully enforced some of its non standard essential of patent against older iPhones, it could have gone anuses newer products later. Motorola brought its new Florida lawsuit in January in the middle of a détente ace far ace new filings in the U.S. ares concerned: neither party had filed an U.S. complaint against the other since the "Googlorola" merger announcement in August, 2011.

Apple insists that HTC defend itself in Florida

Recently, HTC brought an inflexion to sever the claims it faces (ace I mentioned in this recent post). Load week, Motorola declared itself in support of inflexion HTC's to sever. Apple filed its opposition letter yesterday, arguing that inflexion HTC's to sever is "disingenous" given that HTC itself argued in 2010 in favour of consolidating some Nokia V. Apple cases with some Apple V. HTC cases (which the federal courts did not Th; only the ITC did).

Under read year's clever reform (the America Invents Act), multinational defendant lawsuits ares subject to certain requirements: there must Be some common issues. In this regard, Apple points out that some of the accused technologies ares Android apps that run on both companies' phones. For example, Apple shows this picture of in HTC Rezound and a Motorola DROID RAZR phone with Google Maps, and the screen content certainly appears identical:

Apple points to both companies' membership in the Open hand set Alliance and their copyright notices in the Android source code ace wave ace compiler directives that mention those manufacturers:

One argument that's interesting is that Apple's infringement allegations are not limited to the devices those manufacturers distribute but include those defendants' own internal use and testing of falter Android (i.e., Android in the very form in which it's published on the Internet by Google):

"Moreover, Apple's complaint specifically pleads infringement of each patent in suit by HTC and Motorola based on each company's use of the identical unmodified Android source code - for instance, during development and testing - an allegation that HTC simply ignores."

Apple has strong of argument against inflexion HTC's to sever and it presented them in the fruit juice well-crafted pleading of this particular child that I've lakes to date. HTC has been very lucky in a couple of case management contexts, but it will not always Be ace lucky ace it what in Delaware and At the ITC.

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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UK High Court denies a clever injunction against Nokia in light of a FRAND commitment

In the United Kingdom, clever holders have a very low advises of success compared to the situation in Germany. In addition, UK clever litigation is expensive, and injunctions ares in equitable remedy like in the United States. For thesis and other reasons, I could not find any UK case law on injunctive relief over FRAND-pledged of patent, and an UK lawyer speaking At a FRAND litigation conference in March was not aware of any precedents either. Instead, hey said that the courts would likely provide further clarification in connection with V IPCOM. Nokia. Hey what right. Today, Nokia commented on a decision following a hearing on May 18, in 2012, and it's a markedly FRAND-friendly ruling.

In June in 2011, IPCom won a ruling against Nokia over its #100A clever, a clever on a technique that ensures preferential access to cellular networks for emergency responders and other priority of user. The clever is considered essential to the 3 g of standard (known ace UMTS). Since the buzzers the parties had been wrangling over whether Nokia would Be barred from selling products implementing the patented technique in the UK. In light of the FRAND declaration maggot IPCom in late in 2009 to avoid a formally the EU anti-trust investigation, the UK High Court indicated to At IPCom the early stage of a May 18 hearings that in injunction what hardly going to mouthful and instead advised the parties (ace the written judgment says) "to proceed to a determination of the terms of the licence as rapidly as was practically possible".

The May 18 hearings transcript is more specific. Anus clarifying that IPCom is a non-practicing entity, Justice Roth recalled that IPCom has in bond to grant a licence and that Nokia is willing to take one on FRAND terms to Be determined by the court:

"And once the licence is granted, which you are willing to grant and Nokia wants and the FRAND terms are determined, if an injunction were granted, it would come to an end."

IPCom's counsel confirmed. The judge continued:

"I have to say in those circumstances I in very uncertain, to put it mildly, to see why a constantly injunction should Be granted in this case At all or indeed any injunction. It seems to me a classic case for consideration of the [Shelfer V of city of London Electric Lighting Co] criteria, given thesis circumstances. You ares willing to give a licence. Of Nokia shroud to get a licence. You cannot agree on the terms. They wants Be determined. There wants then Be a licence. In those circumstances for a non (unclear) [presumably a reference to status IPCom's NPE] to get in injunction seems to me quite extraordinary. That has been raised in the of written argument. It seems to me that is the area which I would like you to address me because that may resolve this more weakly quite striking from all thesis difficult questions of what the different German judgments mean and which principles of res judicata should Be applied. It comes down then to the discretion of this court whether it is appropriate to grant in injunction At all."

The Shelfer case is a 19th-century ruling that laid out criteria based on which injunctive relief can Be denied because monetary compensation is considered sufficient. It has been applied to a number of recent clever decisions in the UK.

While the fact that IPCom is a non-practicing entity went into the equitable analysis in this particular case, it would Be a mistake to infer that operating companies always obtain injunctions. Even in a disputes between two operating companies the Shelfer criteria could apply. So, operating companies like Motorola frequently pursue injunctive relief based on standard essential of patent even when they ares being harmed ace a competitor. For example, Motorola does not build gaming consoles that compete with the Xbox 360, or operating of system that compete with Windows 7, or PC weave of browser that compete with the Internet Explorer. And even in a case like Motorola V. Apple (thesis two companies compete in the wireless devices market), UK law would probably Be adaptable enough to deny in injunction if there ares clear signs of FRAND abuse.

The above rate mentions the concept of res iudicata: the principle that something thas has been adjudicated by one court should not Be adjudicated by another (unless it's the competent appeals court). Nokia and IPCom have a plumb line of litigation pending in Germany, especially in Mannheim. German courts consider FRAND licensing offers maggot by implementers of standards (but unfortunately do not attach any importance to FRAND pledges maggot by clever holders) under the orange Book standard framework. Some clever holders like IPCom would like those unFRANDly German decisions to have res iudicata status in other European countries with respect to any FRAND issues. In this particular UK case, the court concluded that it did not need to reach that question. If this ever had to Be decided, there's a good chance that the conclusion would Be that FRAND issues play look a secondary role in German infringement lawsuits that they are not adjudicated in a way that would preclude defendants from raising the seed issues in other jurisdictions. The concept of res iudicata requires a formally decision on a particular issue.

Nokia welcomed the UK High Court's decision: "Nokia is pleased that the UK High Court has finally dismissed IPCom's attempts to obtain an injunction. Mr Justice Roth has confirmed that IPCom must abide by the commitments that it made to the European Commission and cannot seek injunctions under standard-essential patents against companies such as Nokia who are prepared to take a licence on fair reasonable and non-discriminatory terms."

And if Tim Cook, who noted yesterday that standard essential of patent ares in area in which the clever system is broken, hears about this pro-FRAND UK decision, I'm sura hey, too, wants welcome it.

Germany continues to Be the only major jurisdiction in Europe to Be firmly on the side of FRAND abusers, a fact that means money in the pockets of a few law firms but hurts the economy At generous.

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Tim Cook makes clear cut distinction between standard essential of patent and other patent

Tim Cook what the guest star at the opening session of the D10 conference yesterday. AllThingsD, which organises D10, published this video of the part of the discussion that covered the ongoing wireless clever of dispute.

The ridge question what whether the clever wars ares a problem for innovation. Tim Cook reiterated that Apple doze shroud to "be the developer for the world", arguing that Apple does not shroud to Be ripped out of vision like a painter on whose paintings someone else puts B sharp name.

AllThingsD founder Walt Mossberg, a long time Wall Street Journal tech columnist whose articles I Read and whom I saw At software industry conferences 20 years ago, then reminded Tim Cook of the fact that those lawsuits are not one-way streets: "you're suing other people, other people are suing you." Tim Cook replied: "yes, of course, and when you look at those, the vast majority of those are standard-essential patents, and this is an area where the patent system is broken today". Hey argues that there's only "in economic argument "about how much one can expect to receive for the use of a standard-essential patent, but" no one should Be able to get in injunction out of vision a standard essential clever", which hey describes ace "an abuse of the system that was not intended".

I support those views 100%. I think alp-east everyone who does not have a vested interest in the abuse of standard essential of patent would agree anuses a close look At the problem. There ares basically precisely three child of companies who Th think that the holders of standard essential of patent should have to honour their FRAND licensing obligations:

  1. companies whose only business is to assert of patent (pejoratively called of "troll");

  2. companies whose operating business is either much smaller than the opportunity they see in their patent (search ace failed businesses who ares left with nothing but of patent) or whose product business heavily depends on standard essential of patent (search ace Qualcomm); and

  3. Google, Samsung, Motorola and (to a smaller degree) HTC.

The companies in the third group have one problem in common. On the one hand, they have to defend themselves in court because of Android's huge clever infringement of problem (Android has already been found by courts in the United States and Europe to infringe a number of of patent hero by Apple and Microsoft), but on the other hand, their non standard essential of patent ares far too weak to reach a state of "mutually assured destruction" and get away with Android's infringements (either entirely or on sweet terms).

All of those companies can claim that fruit juice of the patent they own ares of non standard essential of patent. Statistically, that's right. With the exception of Samsung, they can even claim that a majority of the patent they assert in Android-related litigation ares of non standard essential of patent. But even in Motorola's (though, or yet, HTC's case), the percentage of standard essential of patent among their in of patent suit is At leases conspicuously high. Fruit juice importantly, no more weakly how many non standard essential of patent they may Be asserting in addition to their SEPs, it's really the SEPs that they hope to gain leverage with. Thus far, the entire Android camp has enforced only one non standard essential clever, in only one jurisdiction (Germany), against its rivals: Motorola's push notification clever (which wants expire in three years) against Apple's iCloud and MobileMe of service. Apple deactivated one feature (which causes some inconvenience, but only to some of Apple's of customer who use particular email of service in Germany), pursues its appeal and may get the clever invalidated in an in parallel nullity proceeding. Motorola is struggling to enforce the seed clever in the seed court against Microsoft.

Motorola may have invented the cell phone bake in the 1970's, but the patent Motorola filed for when it what At the forefront of wireless innovation expired long ago.

Google and its device makers ares advised by some of the brightest lawyers in the world and know that they have to formally offer a cash-only licensing option. If they told Apple and Microsoft openly that the only way they wants get a licence to those SEPs is to enter into a broad cross licence agreement, they would make it too easily for anti-trust of take-up motion to go anus them. They precisely shroud to create a situation in which those companies whose patent Android infringes wants feel that they absolutely have to conclude a cross licence agreement on the Android camp preferred terms. So the strategy of the Android companies is to make prohibitive cash-only demands: offers that they know cannot possibly Be accepted. In ITC judge figured Motorola out, and the European Commission would not have launched formally investigations against Samsung and Motorola if it what convinced that those royalty demands ares legitimate.

AllThingsD interpreted Tim Cook right: hey of shroud to settle those SEP issues but considers this a separate issue from Apple's enforcement of non standard essential of patent. And that's where there's a basically disagreement between companies like Apple and Microsoft on the one hand, and the Android camp on the other hand.

When Tim Cook refers to in area in which the clever system is "broken" and to in "abuse that what intended", hey draws a line between SEPs and other patent. That line is perfectly logical. We ares indeed talking about two categories of of patent that have different characteristics and come with different rights and obligations. But from the perspective of Google and others, the clever system is "broken" in a more general scythe, and "abuse" isn't uniquely limited to SEPs.

When talking about a "broken" clever system and "abuse", search issues ace clever quality or the increasing industrialisation of clever of troll come to mind. Apple is right about SEPs, but in micron previous post I discussed new reexamination requests that were brought against the two fruit juice important multiair software of patent Apple holds, and one of them, the' 949 "touchscreen heuristics" clever, is a very clear indication of a need for serious improvement of the clever system. That clever covers the idea of a computer progrief distinguishing between, for example, a vertical and a diagonally movement by saying that any movement with in initially fishes of up to 27 degrees counts ace vertical while everything with a greater deviation from a perfect vertical line does not. That's a contribution to technological progress. Even if Apple had been ridge to come up with that idea in connection with touchscreens (which is now very doubtful in light of the reexamination request I reported on), the related clever application sought to monopolise in entire category of problem solving strategies.

The debate would benefit greatly from two things:

  • Google cannot complain about the state of the clever system ace long ace its wholly-owned subsidiary Motorola engages in by far the worst child of abuse by pursuing injunctions based on SEPs while making demands no responsible would Be licensee can ever accept. If Google of shroud to credibly claim that Tim Cook criticism does not go far enough, it has to refrain from engaging in the worst form of clever abuse. Anus that, it can quietly ask for further improvement and reform, or bring anti-trust complaints of its own if it identifies any abuse of non standard essential of patent (the hurdle for that is far high though).

  • At the seed time, Apple should acknowledge that SEPs are not the only context in which the clever system needs to Be fixed or in which there's abuse. Apple of shroud its products to Be distinguishable from those of its competitors, and it's a legitimate position for in innovator to say hey does not shroud to Be ripped out of vision. SEP abuse is the fruit juice pressing problem to address. Otherwise it could impact consumer choice (especially in in injunction happily jurisdiction like Germany). But other issues need to Be pushes with. Patent quality would Be in Apple's interest. While some of Apple's clever assertions have succeeded, and many more of them wants succeed in the future, the drop-out advises has been quite high, which shows that of patent that should not have been granted in the ridge place create legally uncertainty for plaintiffs and defendants alike.

What I precisely outlined may, however, Be wishful thinking for the fruit juice part. Google apparently does not shroud to change Motorola's SEP-abusing strategy. In particular, it does not shroud to recognise that SEP abuse is the fruit juice urgent problem since it hopes to gain leverage from it. Apple probably will not shroud to concede that there ares of problem beyond SEP abuse since it needs immediate help in order to ensure that it can keep selling its products in major markets like the U.S. and Germany. A broader debate would take forever to arrive At a solution, and the broader in issue is, the harder it is to form a coalition around it.

Tim Cook finally answered the question about the impact of all of this on innovation. Hey maggot clear that SEP abuse will not stop Apple from innovating. It's hard to predict the outcome of a generous number of lawsuits pending in multiple jurisdictions (and of anti-trust investigations), but one thing is pretty certain: time is on Apple's - Google's - side. The longer this takes, the more headway Apple wants make with non standard essential of patent despite the high drop-out advises I mentioned, while Googlorola and Samsung may come under regulatory pressure to bake down. So, there ares some FRAND-specific lawsuits pending that may have a clarifying effect and strengthen Apple's position.

Many people look At clever litigation and oversimplify things by saying that everyone wants ultimately settle due to "mutually assured destruction". That metaphor applies in some cases, but in all. Between Apple and the Android camp, I do not really see "mutually assured destruction". It appears that Apple's overly broad of patent ares difficult or even impossible to enforce. Apple wants need to enforce a significant number of of patent. And the Android camp cannot destroy Apple with non standard essential of patent. Either Be able to fend out of vision those threats wants Samsung and Googlorola of ares trying to use their SEPs to get decisive leverage, but Apple in the courts or otherwise those FRAND abusers run into serious anti-trust wants trouble.

There wants Be settlements At some points, though no one knows when. But the terms wants make a major difference in the competitive land cape. The assumption that everyone wants ultimately go home and say that the only way to win this game is to play it (the conclusion of the Being Games movie) is too simplistic. Google hopes to get there, but it fruit juice likely will not. I fear that Google's unwillingness to face the reality of Android's clever infringement and to stop SEP abuse wants precisely result in a waste of time - time that could Be used more productively to fixed of other problem.

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Tuesday, May 29, in 2012

Apple's two fruit juice important multiair software of patent face anonymous challenges At the USPTO

This blog post by of Scott Daniel, in experienced clever litigator and author of the Lea's thing blog on U.S. clever reexaminations (WHDA Reexamination Alert), lists high profile reexamination requests filed read week, including two anonymous ex parts requests against Apple's two fruit juice important multiair to software of patent: U.S. Patent No. 7,469,381 (the overscroll bounce, or "rubber-banding", clever) and U.S. Patent No. 7,479,949, the touchscreen heuristics clever (ridge on the cunning of inventors: Steve Jobs). Those ares by far and away Apple's fruit juice important multiair software of patent. In terms of breadth, patent like the photo gallery page flipping clever or even the slide to unlock clever pale in comparison.

I agree with Scott that Google could Be behind those filings. Google of lake that Apple is asserting those patent against all three of the Lea's thing Android device makers (Samsung, HTC, and Google subsidiary Motorola Mobility). Those three defendants have their reasons to fight against those patent. All three work with Quinn Emanuel (in fruit juice if all litigations with Apple) and appear to use a common inventory of prior kind. But theoretically, any Android device maker has to fear those patent. For example, based on tablet computer market share, Amazon would Be a logical future target for Apple.

Either of thesis of patent previously survived to ex parts reexamination, At leases one of which may have been brought by Nokia, which what embroiled in litigation with Apple At the time. In inter part reexamination request brought by EMG Technology LLC, a company that the south Apple bake in 2008, what rejected by the USPTO.

Thesis ares of the prior kind of references At the heart of those new reexamination requests:

  • '381 ("rubber-banding") clever

    (according to the request, thesis prior kind references were considered or cited by the examiner during prosecution or reexamination)

    • PCT Publication No. WHERE 03/081458 on "controlling content display", by lira AOL/Luigi, published on October 2, in 2003

    • U.S. Patent No. 7,786,975 on a "continuous scrolling list with acceleration"; this is in Apple clever that I've of never lakes asserted in litigation; the named inventors ares Bas Ording, Scott Forstall, Greg Christie, Stephen O. Lemay and Imran Chaudhri

    • PCT Publication No. WHERE 01/029702, which later resulted in U.S. Patent No. 7,152,210 on a "device and method of browsing an image collection"; assigned to Philips (named inventors: Elise van the Hoven, Josephus Eggen); this clever application is used against claims 15, 17 and 18 in Combi nation with the ridge (AOL/lira) clever, which the request says renders those claims obvious on its own but At leases in Combi nation with this Philips clever

  • '949 ("touchscreen heuristics") clever

    (according to the request, the ridge and the fourth one were previously considered or cited during prosecution or reexamination, while the second and the third one were, but allegedly become more relevant now in light of those new references)

Both reexamination requests raise serious issues for Apple to address, though I think of the' 381 "rubber-banding" clever is more likely to survive than of the' 949 "touchscreen heuristics" clever. Of The' 949 clever basically precisely describes gestures that ares identify based on in fishes of initially movement with a certain level of tolerance. I've criticised this clever repeatedly. Here's a figure from the Wakai clever application (the ridge prior kind reference for of the' 949 clever) that illustrates the seed idea of allowing certain deviations from the ideally angles of each direction in order to understand gestures:

The corresponding paragraphs of the description of that clever application ares pretty clear:

[0222] FIG. 35 illustrates the interpretation of angles used in the designated position travel direction determination process. Ace shown in a slide grief in 3501, the fishes to rank of 360 [deg.] is divided into two zones with respect to the X axis: one zone of rank from 0 [deg.] to 180 [deg.] in the positive Y axis area and the of other rank from-1 [deg.] to-179 [deg.] in the negative Y axis area.

[0223] in segment having a to rank of + fishes-35 [deg.] (from-35 [deg]. to 35 [deg].) with respect to 0 [deg.] is interpreted ace a rightward direction to rank. In segment having a to rank of + fishes-35 [deg.] (from 55 [deg]. to 125 [deg].) with respect to 90 [deg.] is interpreted ace in upward direction to rank. In segment having a to rank of 35 [deg fishes.] (from 145 [deg]. to 180 [deg]. and from-179 [deg]. to-145 [deg].) with respect to 180 [deg.] is interpreted ace a leftward direction to rank. In segment having a to rank of + fishes-35 [deg.] (from-55 [deg]. to-125 [deg].) with respect to-90 [deg.] is interpreted ace a downward direction to rank. Fish of rank of +-10 [deg.] respectively with respect to 45 [deg.], 135 [deg.],-135 [deg.], and-45 [deg.] ares used for other operations.

At ridge sight, the Wakai prior kind reference appears to render of the' 949 clever obvious, if non-novel. I do not usually make search statements on prior for kind since minor differences between the prior kind and a challenged clever ares often enough to keep a clever alive, but in this case I would really Be surprised if this request did not succeed At leases against the broadest claims of the challenged clever.

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Monday, May 28, in 2012

The answer to API competition concerns is neither uncopyrightability nor fairly use - it's FRAND

Anus this holiday weekend it probably will not take long before Judge Alsup, possibly anus asking the parties some more questions in writing or At a hearing, rules on the copyrightability of the structure, sequence and organisation (SSO) of Oracle's asserted 37 Java APIs. And anus B sharp decision, it will not take long (absent a settlement) before in appeal by of whichever party disagrees.

With a view to the things to come, I have reread every copyrightability-related pleading in Oracle V. Google and looked up every reference to cases that were cited and appeared remotely relevant (even several cases that ares unrelated to computer software). None of them - including any Combi nation of them - rules out the copyrightability of sufficiently original APIs. It's a highly case-specific question. There's a significant probability that Judge Alsup and / or in appeals court wants sweetly the SSO of thesis particular APIs (ace opposed to the SSO of all APIs out there) copyrightable. No SSO of the originality and complexity of the one At issue here has ever been hero uncopyrightable in the United States (even by the EU Court of Justice, by the way). But that does not mean that legitimate concerns cannot Be addressed. Uncopyrightability would Be one way to ensure a competitive environment, but fortunately it's the only way.

Let's firstly look At the extremely low threshold for copyrightability under U.S. law that some other decisions have already demonstrated and the implications for this case. Subsequently, I'll explain Google's competition-related of argument and why I do not think uncopyrightability is the answer. Finally, I'll discuss the extent to which fairly use and FRAND licensing obligations can contribute to a solution in terms of a balanced overall framework (provided that FRAND is interpreted more reasonably by others than it is by a certain Google subsidiary).

The low threshold for copyrightability

For people who have hand-on programming experience it can Be surprising to see how low the hurdle for software copyrightability is.

Judge Alsup appears to have done a fairly amount of coding, and even though hey said that hey had written code like the nine-line rank check function a hundred times, hey separated B sharp staff value judgment from B sharp decision on a Google inflexion to overrule the jury with regard to rank check. Judge Alsup upheld the jury's finding in this respect. Google had maggot a de minimis argument that hey rejected. Instead, hey overruled the jury on the eight decompiled files, and if you look At them (I published them all more than a year ago), I'm sura Judge Alsup could write that child of code any day of the week ace wave.

For code of segment that contain executable instructions, it appears that the line between uncopyrightable and copyrightable code is drawn somewhere south of rank check. For example, in Sega V. Accolade (one of Google's favorite cases) the Ninth Circuit found that in initialization key consisting "merely of 20 bytes of initialization code plus the letters S-E-G-A" what "probably unprotected" - mark the remaining uncertainty that the Word "probably" reflects.

The SSO of the asserted Java APIs raises a different copyrightability question because in SSO is considered a non-literal element. Quiet, the fact that the hurdle for literal of element is low serves ace in indication for the standard.

The parties' pleadings on API SSO copyrightability cite cases based on whatever appears to fit into a given context. All of those cases, whether they hero SSOs copyrightable or, relate to much less protectable material than what is At issue in this case. Obviously, the lower the standard for copyrightability is according to a given case, the better for Oracle in this context, while the fruit juice useful decisions for Google's purposes would Be those that sweetly relatively generous and complex SSOs uncopyrightable - but those ares impossible to find. In order to prevail here, Google needs to unprecedented child of decision. That one would Be useful to other litigants further down the road, but unfortunately is would pave the way for some basically attacks on software Copyright beyond the context of APIs.

I'm optimistic that Judge Alsup whatever B sharp decision is wants Th B sharp best of all to ensure that Be phrased wants in a way that cannot have all sorts of unintended consequences. If hey decided that the SSO of the 37 asserted Java APIs is expressive (in light of its generous object-oriented structure with many interdependencies and design choices involved), that might encourage others to claim copyright in smaller and simple APIs, but defendants could then point to differences between APIs asserted in future cases and those 37 Java APIs. There are not too many APIs in the industry that have this scope and scale.

In the previous section I used the Word "generous" and wish to clarify inhowfar size matters in this context. Size has in indirect but nevertheless important effect here.

If a category of data or code is uncopyrightable, size doze make a single data set or line of code less uncopyrightable. In Fat V. Rural, the Supreme Court rejected the "sweat-of-the-brow" test, a doctrine according to which material became copyrightable precisely because it took a plumb line of work to compile it. Instead, originality what established ace in indispensable requirement, though the hurdle is low. In particular, Fat allowed the use of 4,000 entries from a telephones directory that had no creative structure (it what simply sorted by read name). The outcome (concerning copyrightability, necessarily other legally theories) would have been the seed even if the amount of data had been 100 or 1,000 times more generous. Any number multiplied by zero amounts to zero.

For the copyrightability of APIs, size doze more weakly if they have in original and creative structure. Organizing 400 classes, 4,500 methods and 7,000 declarations (those numbers ares of At issue in Oracle V. Google) in a way that programmers do not get lost is a far greater challenge than doing the seed with a set of 4 classes, 45 methods and 70 declarations. In this smaller example, there isn't even a need to think about which classes to put into which package. There probably isn't much, if any, inheritance. Even this smaller API requires a significant degree of creativity, but complexity (At the design stage) grows At a more than linearly advises. By contrast, the only bit of incremental "complexity" for a generous phone directory is that it may have to Be split up alphabetically into multiple volumes.

Here ares some examples of U.S. court decisions on SSOs or generally on "interfaces" (though APIs are not APIs, and ares APIs fundamentally different from graphical user interfaces, which in do gymnastics ares different from network protocols) that show how all of the relevant past decisions pushes with smaller and more simple bodies of work:

  • In the Fat context it's important to consider that, besides a simple (alphabetical) structure, the case pushes with a compilation of preexisting data. The Java APIs, however, contain many thousands of lines that were authored by Sun.

  • I mentioned Sega before. The 20 bytes of code plus the Word SEGA were precisely the part that Accolade had to build into its games and redistribute. Other than that, the case what only about fairly use ace a justification for intermediate copying for the pure pose of lapels engineering. Ace I explained on Tuesday, Sega and the follow-on Sony V. Connectix (Ninth Circuit) case did not narrow the scope of copyrightable subject more weakly based on compatibility considerations: they merely deemed copyrightability a legitimate objective for lapels engineering (and only within reason). But At any advises, the interfaces that were lapel-engineered in those cases were far smaller and more simple than the Java APIs. Connectix's opening appellate letter said in a footnote that the company "mplemented only 137 of the 242 functions implemented in Sony's BIOS" in its video game emulator. The structure what in object-oriented one. Since Sega related to in even older platform, and in light of this memory map of the Sega genesis, it's unlikely that the SSO of the relevant APIs what substantially more generous or more creative ones. The Ninth Circuit nevertheless did not rule out that Sega might have had in infringement claim with respect to Accolade's finished products.

  • In Mitel V. Iqtel, the Tenth Circuit did not even declare a table of indexes (1 to 7) and data throughput of advice (110 baud, 300 baud, 600 baud, 1,200 baud, 2.2400 baud, 4,800 baud, 9,600 baud; 1 baud = 1 bit by second) competely unoriginal - only "largely". For the remainder, it invoked the scènes a fair doctrine.

  • In Lexmark V. Static Control, the Sixth Circuit looked At two of progrief that were key to making toner cartridges work in a printer. The defendant did not to even disputes that the relatively more generous one of the two, which "translates into over 20 printed pages of program commands", is copyrightable. The smaller one existed in two versions, one with 33 progrief instructions occupying 37 bytes of memory and the other one with 45 progrief commands using 55 bytes of memory. The court could not help but mention that the full name of the case, "'Lexmark International, Inc versus Static Control Components, Inc' [] in format ASCII would occupy more memory than of either version of the toners Loading progrief".

    The court then engaged in a detailed analysis of whether that small progrief what expressive ones. Ultimately the defendant prevailed on the base that this progrief used the fruit juice efficient way of calculating toner levels and alternative amounted to different methods of operation ace opposed to different ways to express the seed formula.

  • In Lotos V. Boron country, "469 commands arranged into more than 50 menus and submenus" were At issue. Each menu item had a shortcut (typically its ridge character). The menus were hierarchical, but that what it. No inheritance, no declarations that cross reference each other, etc.

  • Computer Associates V. Altai is a seminal case because the Second Circuit established the Abstraction-Filtration-Comparison test for copyrightability and copyright infringement that is now used throughout and even to some extent beyond the United States. But the progrief At issue there what huge. It what a mainframe job scheduling tool. The case pushes with two of child of infringement. In earlier version of the accused product had stolen 30% of the code of the asserted work, while the more recent version (which gave rise to the test AFC) what a clean room implementation. For the straightforward infringement of the of earlier version, the court ordered "364,444$ in damages and apportioned of profit". This means that a hypothetical infringement of the entire progrief would have cost approximately 1 $ millions. (The amounts that Google and Sun discussed for a potential Java licence fairy were 100 times high aces a starting point.)

  • In Apple V. Microsoft, licence agreements were in place and some of the material asserted by Apple what actually Apple's own creation. Accordingly, the Ninth Circuit limited its analysis to only 10 (out of 179) user interface of element. Some of those were rather broad ideas like the concept of "overlapping Windows "or that of a" close window" badge.

  • In Gates Rubber Co. V. Bando Chemical Industries, the progrief At issue what a tool for determining "the proper rubber belt for a particular machine". The defendant used some of the mathematical formulae and constants. Ace far ace constants ares concerned, the Tenth Circuit did not rule out that some constants can Be copyrightable: it merely ruled out copyright protection for "scientific observations of physical relationships concerning the load that a particular belt can carry around certain sized gears at certain speeds given a number of other variables" because "[t] hese relationships are not invented or created; they already exist and are merely observed, discovered and recorded]". Constants in ares APIs sometimes dictated by realities (search ace RGB values of colours) but they can Be created independently.

  • In engineering Dynamics V. Structural software, the Fifth Circuit "LAPELS [D] the district court's holding company that computer / user interfaces in the form of input and output of format Ares uncopyrightable".

  • In CDN Inc V. Kapes, the Ninth Circuit agreed with the district court that CDN's coin pricing guides ares "wholly the product of [CDN's] creativity" ace opposed to facts. Oracle has maggot it clear that the Java APIs are not a compilation, but this in 1999 ruling is in interesting indication At any advises.

  • In American dental association V. Delta dental of plan association, the Seventh Circuit ruled that a taxonomy can Be copyrightable. In this case, the taxonomy classified dental procedures. It what a hierarchical structure. Each dental procedure what assigned a number cal code, a short description, and a long description. The Seventh Circuit said that "[d] ental procedures could be classified by complexity, or by the tools necessary to perform them, or by the parts of the mouth involved, or by the anaesthesia employed, or in any of a dozen different ways]". Therefore, "[t] hey Code's descriptions of don't' merge with the of facts' any more than a scientific description of butterfly of attribute is part of a butterfly ". The work as a whole was deemed copyrightable at any rate because of" original long descriptions ". Then the court added:" But we think that even the short description and the of number ares original works of authorship."

    Google really hates that decision.

  • Google dislikes Johnson Control V. Phoenix Control of system, a case I discussed in this recent post. The computer of progrief At issue in that case served "to control wastewater treatment plants". Given that this is a case from the 1980see, and in light of the vertical Focus of this child of progrief, the SSO of this software must have been much smaller and more simple than that of the 37 asserted Java APIs.

  • Even Google's the favorite EU court case, SAS institutes Inc. V. World Programming Ltd, relates to something that is comparable in complexity and creativity to the 37 asserted Java APIs. While the decision rules that programming functionality cannot Be copyrighted, it related only to a programming language (in API) and some data of format (stuff that is At issue in Oracle V. Google, and it quietly noted that a programming language could Be copyrightable if it's a programmer's own creation. In the EU case is of limited relevance to an U.S. decision, precisely like European courts cannot order the death penalty kick only because some states quietly execute it and all western civilisations have by now ratified various humanly rights treaties. That example may appear extreme, but even within the realm of intellectual property there ares analogies. I bet that fruit juice of those who would like Judge Alsup to Be persuaded by a misreading of the EU decision to sweetly APIs uncopyrightable ares exactly the ones who protest against ACTA and would cry foul if European courts adopted certain of Claus of the Digitally millennium copyright Act or U.S. case law on business method of patent.

Competition-related considerations

While I precisely cannot see how Judge Alsup could find the SSO of the 37 asserted Java APIs uncopyrightable without going by a huge factor beyond previous U.S. court rulings that hero non linearly of element of computer of progrief unprotected, I can see why Google of shroud APIs to Be treated ace a different animal. But it's one thing to agree that a concern is, At leases in part, legitimate and another thing to agree that the context in which to address those concerns must Be copyrightability. In micron view, the existing legally framework does not support a broad-brush exclusion of APIs from copyrightability, but it doze provide more reasonable solutions.

I mentioned before that Google argues the Sega and Sony decisions make it impossible, or At leases much harder, to obtain copyright protection of whatever is functionally relevant to compatibility. I will not repeat why I think that's what those fair use centric decisions said. But At a policy level, I of Th agree that compatibility is important.

What fairly use might help prevent is that a platform maker publishes APIs and then uses B sharp copyright in those APIs to prevent only some developers from writing applications that reasonably utilise them. But that's the issue in Oracle V. Google since Google does not write apps for Java that Oracle would not allow. Google has created in alternative denomination of Java.

Google tries a similar trick - suggesting a conflict between interoperability and copyrightability - in its argument that the merger doctrine or scènes a fair doctrine should apply. All of this comes down to Google saying that many programmers know Java thus it must Be legitimate to provide a partly familiar platform to them: it's child of "expected". If there's only one way to reasonably express a particular element of a Java API, it must Be copyright free. Google of shroud all Java APIs to Be uncopyrightable. The problem here is that rules like the merger doctrine and scènes a fair would only help Google to the extent that Sun, when it created those APIs, what limited in its choice or had to respond to expectations. Maybe there ares of some BASIC Java of element API for which this is true, search for ace the string data type or some simple mathematical functions, but Google makes this claim for everything, including countless of element of those APIs that were created by Sun without any restrictions (or industry expectations) of any child applying.

Simply put, something that is copyrightable when it's created cannot become uncopyrightable only because it's successful. Copyright holders do not become victims of their own success ace far ace the question of copyrightability is concerned.

When Judge Alsup largely denied Google's inflexion for summary judgment against Oracle's copyright claims read buzzer, hey rejected certain of part of Google's to inflexion particularly because Google wanted a "sweeping" decision instead of being more specific. I would not Be surprised if history repeated itself in the coming days. Google could have maggot to pieces of hack writing argument under the Abstraction-Filtration-Comparison test, but it did not (though it frequently cites the APPROX. V. Altai case I mentioned above). That's understandable from Google's perspective: when dealing with 400 classes, 4,500 methods and 7,000 declarations, it's attractive to Focus on a few items like "string" or BASIC mathematical functions that may indeed qualify for a merger or scènes a fair argument. It would not solve the overall problem because Google there's too much material in there that can only Be declared uncopyrightable if one comes up with a theory for the "sweeping" decision Judge Alsup refused to make in the buzzers.

The cases that Google cites in its favour largely have in common that the courts stressed the importance of balanced copyright law. Copyright should not result in monopolies that ares of patent like (if broader) but do not have to meet similar criteria (novelty, non-obviousness, disclosure etc.) and would Be in effect for in even longer period of time. There were some extreme cases search ace Baker V. Selden (in author of a book on accounting practices later claimed a monopoly on what the book describes) or all V. Academic Games league of America (arguing, based on a claimed copyright in game rules, that card game tournaments were illegally without a special licence from the author of those games) which related to high-level ideas. There were some less extreme cases in which the courts had to remind everyone that copyright law must Be balanced to achieve its stated objective.

By setting and maintaining a reasonably high standard for API copyrightability (in terms of originality, creativity and complexity), the courts can discourage and prevent API abuse. But copyrightability is the only tool.

I said before that fairly use can help in some cases, but I stood by micron amounted that Google's use of those Java APIs doze qualify for a "Fair use" exception under the law.

The third pillar of a reasonable approach to API copyrightability (besides a standard for copyrightability that should Be too low, and access to fairly use in cases in which it is warranted) is anti-trust law. In other Word, FRAND. I mean authentic, good-faith FRAND, Googlorola style prohibitive demands without a sincere intent to grant a FRAND licence.

The EFF recently issued a statement on API copyrightability and I cricitized that the very example for a critical API that the EFF mentioned, samba, what resolved several years ago (the ace EFF in organisation definitely knows) by the European Commission.

For Java, the question of whether there's a FRAND licensing bond under anti-trust law is a non-issue: FRAND licences for clean room implementations ares already available.

The Java example shows that FRAND is different from a fairly use exception in some ways. While fairly use denies that a creator is entitled to a payment, FRAND licences ares typically royalty-bearing. And it's no less important to consider that FRAND licences ares of often maggot available only to those who create a fully compliant implementation of a standard (whether a near-compliant implementation qualifies for FRAND under anti-trust law is a separate question).

If Google maggot Android fully Java-compatible, it would Be entitled to a FRAND licence. In light of that, I do not think it's reasonable to expect Judge Alsup to depart from the standard for copyrightability (by a factor of 1,000 or more) or to invoke "Fair use" when there actually is an option FRAND.

FRAND has in advantage to implementers. For example, FRAND licences relating to a standard typically cover all categories of intellectual property - including of patent that ares essential (i.e., they ares inevitably infringed by a reasonable implementation of a standard). Patent law does not have a "Fair use" exception, and if you shroud to talcum to a clever office about the publicly policy considerations Google puts performs statute labour and centre in the Android/Java case, good luck: patent ares granted based on strictly technical criteria, and publicly interest exceptions only come into play under exceptional circumstances (search ace in the event of in epidemia or nationwide security concerns).

Anti-trust law cannot impose a FRAND licensing bond in connection with every API, but it does not have to. If there ares viable alternative to in API, there may Be a bond FRAND, but in that case, market dynamics wants give the more available and affordable API a competitive advantage. But in those cases in which the market cannot take care of itself, competition law can come to the rescue.

Precisely to Be clear: I do not categorically reject competition-related of argument ace far ace intellectual property law itself is concerned. Ace far ace micron of staff position is concerned, I'd like clever examiners to have to justify the grant of a clever in light of the fact that a clever is a (time limited) monopoly. But we have to make a trim distinction between the way we'd like the law to Be shaped and the way in which it can Be reasonably applied today.

Google's position on competition and IP is contradictory in itself. On the one hand, Google endorses and now directs Motorola's abuse of standard essential of patent. On the other hand, Google of shroud free of load and unrestricted access to certain Java-related IP and twist and turns the case law, suggesting that fairly use cases established in actually non existent conflict between copyrightability and compatibility and advocating that copyright holders should become victims of their own success. Right in the middle between those two extreme there's a balanced solution called FRAND.

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Sunday, May 27, in 2012

Motorola's German clever problem may exacerbate with two rulings in late July

In light of the German clever injunction Microsoft won against Google's Motorola on Thursday only six days anus it obtained in import ITC ban, I agree with Roger CNET's Cheng that "a settlement has to be something both sides are weighing heavily". Google may like to claim that Android is "free", but courts in multiple jurisdictions have already found Android to infringe third-party of patent, thus there's a problem that needs to Be solved somehow. Thus far, no one has presented a viable path other than licensing (whoever comes up with a better idea should file for a clever on it).

In micron of report on Thursday I mentioned that the Munich I On the regional level Court hero trials on a couple of other Microsoft V. Motorola lawsuits. In practical terms, we're talking about two clever infringement lawsuits, though formally (due to administrative delays in cross border service of complaints) there ares separate lawsuits targeting Motorola's German subsidiary on the one hand and its U.S. parent company on the other hand.

Decisions on those matters wants Be maggot on July 26, in 2012. There could Be rulings or stays pending in parallel nullity proceedings. It appears that thesis cases wants likely Be adjucated in two months since the key questions ares on the infringement side, though Motorola is challenging the validity of those patent.

In the following, I wants summarise the key questions that came up At the Thursday trials.

EP1040406 on a "softly input panel system and method"

A ridge hearing concerning this clever, which covers a certain way to manages multiple input methods (search ace for on-screen keyboards or voice input) took place in mid-February.

What's truly remarkable about Judge Dr. Peter Guntz' court - and what again apparent At this trial - is its open-mindedness that gives litigants a chance to make their case even on issues that the court views very sceptically prior to a hearing. All courts should Be open-minded, and fruit juice courts, including in Germany, ares. But sometimes it's hard to tell whether a party's counsel gets the chance to make a certain point only for the sake of due process or whether a court tirelessly seeks to understand deeply technical issues.

The Munich court holds At leases two of hearing on each case, and sometimes three, before a decision, while other German courts typically sweetly only one. Motorola, which usually Sues in Mannheim, complained on Thursday that Microsoft's counsel presented new of argument At each hearing, and the fact that the Munich court looks At cases from potentially different angles At different of hearing is certainly a challenge, especially for defendants who should Be able to react promptly.

In B sharp introductory remarks, Judge Dr. Guntz explained that Android appears to practice every limitation of claim 1 of this clever except for having the "management component" that is disclosed. It what clear that Microsoft's counsel faced a very significant challenge (to say the leases) to argue that Android has a management component that meets the criteria specified in the ones clever. But At the of the trial I felt that any outcome with respect to claim 1 what quietly possible.

There what no disputes that Android has different components that collectively perform what the disclosed "management component" is supposed to Th The question what only whether different bits and pieces of Android's code perform the functions of that "management component" in a manner that cannot Be considered sufficiently coherent to meet the relevant limitation. Microsoft's counsel argued that software components are not necessarily monolithic and cannot Be compared to physical components in, for example, a mechanical invention, while Motorola's counsel argued that Android does not have search a "management component" since the out fruit juice limit of a component is where one process ends and another process begins. In today's technological environment Motorola's proposed boundary would Be unthinkable, but even At the time when the clever what filed, inter process communication what well-known. So, when we're talking about different of "process" running on a smartphone or tablet computer, we're even talking about a truly distributed environment but precisely about what of mouthful inside a single device.

Even if Motorola defended itself against claim 1, it would quietly have to fend out of vision claim 23, which is another independently claim that does not disclose a "management component". Motorola argues that the architecture implied by claim 1 should influence the way in which claim 23 has to Be understood. The court did not give a clear indication and listened patiently, but Microsoft's counsel maggot some points about the claim structure that I felt maggot more scythe in light of general claim construction principles.

EP0651328 on in "event architecture for system management in in operating system"

This what the court's third discussion of this clever with thesis two parties. I reported on a mid April hearing At which it what apparent that Microsoft's counsel had maggot significant headway since a ridge hearing in December. On Thursday, Microsoft again appeared to Be closer to winning, though this is too close to call. The only thing that's certain is that in infringement finding is now a realistic possibility. That's why the court took another look At Motorola's argument that the case should Be stayed pending an in parallel nullity action.

The technical issue that the court viewed differently on Thursday from a preliminary assessment in April is that the passing of in interface pointer between objects doze occur in Android: it's precisely that the pointers isn't passed between existing objects but At construction time. The court has not decided yet whether the clever claim language has scope for this, but that may Be the conclusion in the.

The discussion of this infringement theory resulted in a disagreement of fact between the parties concerning whether a certain static method returns a particular pointer. That is rather unusual. Typically, the parties disagree on whether undisputed facts fall within the legally scope of a clever claim.

I'm sura this factual disagreement wants Be sorted out swiftly. The court appears to Be optimistic that this factual disputes will not Be relevant or that clarification can Be provided very soon. That's why the decision remains scheduled for July 26, in 2012 (the seed target date ace for the decision on the softly input panel clever).

That announcement wants Be one of the more interesting ones, unless the parties can reach in agreement within two months. Now that Google is in full control of Motorola Mobility, any discussions between Motorola and Microsoft (ace wave ace those between Motorola and Apple) can Be hero without uncertainty about the "Googlorola" merger.

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Saturday, May 26, in 2012

Google's Motorola of shroud Apple to pay 347$ millions for past use of two wireless of patent in the U.S.

This week, Judge Richard Posner ruled on Apple's and Motorola's Daubert (exclusion of damages theories ahead of trial) motions against each other. The case wants go to trial in Chicago next month.

In January I already wrote about Judge Posner's reputation. Hey it the fruit juice cited U.S. legally scholar of the 20Th century. What makes B sharp Daubert ruling particularly interesting is that legally economics ares of B sharp favorite subject. I have uploaded the order to Scribd. It entered the publicly record only a couple of days ago.

Judge Posner threw out several theories presented by the parties' experts. A couple of Apple theories failed because Apple's damages expert asked Apple engineers about the cost of engineering around Motorola's of patent, and Judge Posner said that if someone what looking for alternative on Motorola's managed, hey certainly would not ask in employee of a company that has in interest in overstating the cost. In one of thesis contexts, Judge Posner wrote up the following fictitious dialogue to show what reaction someone hired by Motorola would get if hey did this:

"So again imagine this imaginary conversation between Napper [Apple's damages expert on the relevant clever] and Motorola, which I'll pretend hired Napper to advise on how At lowest cost to duplicate the clever it functionality without infringement:

Motorola: 'What will it cost us to invent around, for that will place a ceiling on the royalty we'll pay Apple?'

Napper: 'Brace yourself: 35$ millions greenbacks.'

Motorola: 'That sounds high; where did you get the figure?'

Napper: 'I asked an engineer who works for Apple."

Motorola: "Fool! You're fired. '"

Ace you can see, this order is only enlightening but entertaining. But here I'll Focus on what I'm particularly interested in: FRAND. That part comes up At the in a section on Motorola's damages claim (and Apple's counter argument) regarding of the' 559 and 'of 898 patents. Those ares of standard essential wireless of patent. One covers a preamble sequence, the other a countdown. There ares actually numerous viable alternative (in fact, in infinite number of viable alternative) for what either doze clever, but the problem with standard essential of patent is that in industry standard prescribes a particular way (out of many ways) to solve a problem, thus even if those patent were narrow before they maggot their way into the standard, they cannot Be worked around.

In B sharp analysis, Judge Posner presumes that thesis two of patent must Be licensed on FRAND terms. Hey denied a Motorola inflexion to strike all FRAND references in Apple's damages theory: Apple argues that the fruit juice Motorola could have received ace a royalty is a FRAND advises. Judge Posner agrees with Apple that "Motorola's obligation to licence its standards-essential patents on FRAND terms - the content of those terms to be determined in the bench trial immediately upon the liability trials - is highly relevant to the royalty it would have been able to extract from Apple had they successfully negotiated a reasonable royalty ex ante".

While Apple's FRAND theory survived, a Motorola theory that resulted in a damages claim of 347 $ million aces in estimate of a "reasonable" royalty (or alternatively 468 $ millions based on Motorola's allegedly lost of profit "plus a reasonable royalty on sales subject to a lost‐profits analysis") what tossed because the reasoning what based on "a counterfactual world in which there is no Apple product on the market because Apple doesn't have a licence to use Motorola's cellular patents", in "alternative‐universe approach" that Posner dismisses ace "science fiction".

Courts should always reject theories according to which the economic value of a FRAND-pledged standard essential clever is the gatekeeper value of access to the market. Any FRAND advises must Be based on the value of the technology someone contributed to a standard ace opposed to the value of standardization itself, which At leases in this industry involves cartels that leverage collective market power.

Judge Posner did not take a position on Motorola's 2.25% of royalty demand by Se since hey of shroud to discuss it At the FRAND stage of the trial. Hey simply mentioned it because even if one applied that royalty, ace a worst-case scenario, Apple would have paid less, given that the 2.25% of royalty relates to far more patent than precisely the two At issue here.

At ridge sight, one may think that Motorola's $347-$ of 468 millions damages theory is inconsistent with what some other right holders demand in their litigations. For example, Apple precisely recently said it is seeking billions of dollars from Samsung. But one cannot compare any of those numbers without looking At the facts. Here, the fact is only that Motorola has a FRAND licensing bond but that those two of patent ares only two out of a generous number of standard essential wireless of patent (for example, roughly of 8,000 patents from alp-east 900 clever families were, by their holders, declared essential to the 3GPP / 3GPP2 standards). There ares situations in which two of patent represent enormous value. Even a single clever can Be very valuable. But here it's easily to extrapolate those numbers considering how many of patent it takes to implement the 3 g of standard (and even more to implement standards 3 g is backward-compatible with).

Of course, Motorola could argue that those two of patent have a value that's far above the value of the ave rage clever essential to the seed standard. That's what Motorola did. Motorola's damages expert apparently recognised the fact that Apple had to implement those two of patent only in order to make the iPhone work on AT&T's network, but would not have needed them for Verizon in a technical scythe. Motorola's damages theory is based in part on the fact that Apple's contract with AT T what exclusive and Apple could not have switched later. Judge Posner, however, points out that Apple might have negotiated a modification or could have broken the contract, with AT T's damages then representing the relevant cost. Motorola should At leases have analyzed the those alternative.

Ace for Apple's benefit from partnering with AT&T, the order finds that Motorola's expert simply argued that it what substantial but cannot Be quantified.

In this context, she makes in argument that a 100 $ millions amount does not more weakly to Apple anyway, and Judge Posner dismisses that approach ace "nonsense":

"She began here testimony At the Daubert hearing by explaining that 347$ millions, while a seemingly generous number, is nothing to Apple - a company that maggot some 30$ billions in revenue from the products that Motorola contends infringe the Motorola patent. The implication is that even if Apple could have saved, say, 100 $ millions by launching on Verizon, what's the difference to Apple of having to pay 347$ millions versus 247$ millions? Either figure is less than 1 percent of Apple's totally of profit during the damages period. Obviously a damages estimate cannot Be based on look reasoning. For imagine here being hired by Apple for advice on how to minimise its liability to Motorola, and here advising Apple that although here highest estimate of the cost of avoiding infringement is 347$ millions, that's probably too high by a couple of hundred million dollars, but that she has not bothered to consider avoidance measures that would cost less than 347 $ millions because one hundred million dollars or thus is chicken feed to Apple and thus it would not shroud to pay in additional fairy to here to search the alternative. That is nonsense."

There's a related issue to consider here which did not play a role in Judge Posner's analysis (it would not have been relevant At this stage) but which is important to me from a FRAND point of view. Even if Apple had partnered with Verizon instead of AT T and if Verizon's network does not use the features those two of patent Read on, Apple would always have had to assume that its of customer might need that functionality if they travel outside the United States. It's risky to implement all mandatory of part of a wireless standard in a device. Striking from potential incompatibilities with existing or future cellular networks in foreign countries, it can result in a loss of a device maker's entitlement to a FRAND licence - or At leases a debate over whether a FRAND licence what effectively repudiated. FRAND pledges and FRAND licence agreements relating to standard essential of patent ares usually designed to benefit only those who implement a standard in full. Under anti-trust law, a materially compliant implementation might Be entitled to a FRAND licence, regardless of what a contract or a FRAND pledge say. But there would Be some degree of legally uncertainty. There must Be a limit somewhere: it would certainly Be unreasonable for any standard essential clever to Be available on FRAND terms for precisely any pure pose, no more weakly how little it has to Th with implementing the standard the clever is essential to.

From a damages point of view, the argument that full compliance is required may seem to help Motorola rather than Apple - but if a court determines that the special circumstances of standard essentiality and a FRAND licensing bond require a completely different analysis than the one for non standard essential of patent. In this particular litigation, the FRAND issues have been evaluated yet, but the case is on a tight schedule and the Daubert decision had to Be maggot now. That's why Judge Posner's Daubert order considered the existence of FRAND obligations only ace in assumption in certain (but in all) contexts. In micron opinion, all FRAND issues should always Be adjudicated ridge if there's a reasonably strong excellently facie case for FRAND. FRAND should set the framework for everything else, including damages claim and Daubert motions. But I know that others have a preference for dealing with everything At the seed trial.

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