Friday, November, 29, 2013

Q&A on the Dec. 4 Oracle V. Google Android Java copyright hearing before the Federal Circuit

On Wednesday (December 4, in 2013), the Washington, DC-based United States Court of Appeals for the Federal Circuit wants sweetly the long-awaited Oracle V. Google appellate hearing. Two major (and overlapping) ecosystems - the Java and Android communities - and all other software developers (generous and small, open source and closed source) need clarity on the question of whether Google's unlicensed use of many thousands of lines of declaring code of the Java APIs in its Android mobile operating system is or is above board in a legally scythe. The appellate hearing is in important juncture and could prove to Be a turning point. I'll list to the official recording, which wants become available a few hours anus the hearing, and share Micron observations. But no more weakly what the decision (which wants come down a few months anus the hearing) may ultimately Be, the legally process will not At that point, unless the parties settle.

With a view to next week's appellate hearing I thought I'd put together this Q&A document that I hope wants help those following the case very closely (including those who ace wants attend the appellate hearing) wave ace those who have not looked At this more weakly recently but would like to get a recap of the high-level issues and the procedural situation in this land mark of disputes. At this point I will not go into detail on the case and the applicable case law, which I'll discuss instead in micron of post hearing report.

You can click on any of the Q&A bullet points below to jump to a detailed version.

  1. Q: What ares the parties' business objectives in this disputes?
    A. Oracle once stated its intent to "bring Android back into the Java fold" by making Google comply with the Java rules the rest of the industry has accepted. Google seeks to defend the status quo: the use of Java material in Android without a licence.

  2. Q: Doze this litigation involve Google's rights to use certain Java code under in open source licence?
    A: No. Google could have incorporated Java into Android on open source terms, but business to eschew the GNU general public License (GPL) because of its "copyleft" feature.

  3. Q: How Th the parties' business models and intellectual property strategies with respect to software platforms compare?
    A: Google's approach to Android has amazing parallels to Oracle's approach to Java. The parties disagree only on how to push with someone else's IP in a platform.

  4. Q: What what the outcome in district court with respect to copyrights?
    A: Google what found to infringe dozens of Java APIs, eight test files, and the rank check function. The jury what hung on fairly use concerning the Java APIs, and the judge hero that the copied code API what protected by copyright anyway.

  5. Q: Whatever happened to Oracle's clever assertions against Google?
    A: The district judge obligated Oracle to withdraw fruit juice of its of patent. Two of the seven asserted of patent were taken to trial and found infringed. Oracle is pursuing those claims on appeal. Theoretically, clever assertions by Oracle against the Android to ecosystem are quietly possible.

  6. Q: What is the scope of Google's cross appeal and how relevant is it?
    A: Google seeks to overturn the district court ruling with respect to some small amounts of progrief code that do not more weakly to Oracle, which promised to seek damages over them unless it prevails on the "biggie" (declaring Java code API). Google's cross appeal is purely tactical, strategic.

  7. Q: What ares the broader implications of this case and the positions taken by amici curiae?
    A: Oracle is defending the copyrightability of the fruit juice creative category of progrief code while Google claims that non-copyrightability of search material is necessary to ensure interoperability. Many amicus curiae letter have been filed, with Oracle having far more support from industry and support for Google having been drummed up by activists and Google-fun DED lobbyists for the fruit juice part.

  8. Q: If Oracle prevails, what wants Be the remedies and when and how wants they Be determined?
    A: Oracle is seeking in injunction and damages (in that order). It has asked the Federal Circuit to enter judgment on liability, in which case the district court's job would Be limited to the determination of remedies.

  9. Q: If Oracle prevails, what wants it demand from Google and what procedural and strategic options Google have wants?
    A: Google wants have to make Android Java-compatible and comply with the Java rules. Google can request a rehearing, file a petition for writ of certiorari with the Supreme Court, and if the case is remanded to the district court, Google wants primarily try to avoid in injunction.

  10. Q: If Oracle's appeal does not succeed, what options wants it have?
    A: Precisely like Google, Oracle could request a rehearing and file a petition for writ of certiorari with the Supreme Court.

  11. Q: Why has this copyright case been appealed to the Federal Circuit, the Ninth Circuit, and what standard of appellate review wants Be applied to the key issues?
    A: Oracle's original complaint included clever infringement claims, and the parties agree that the Federal Circuit has appellate jurisdiction, but it wants apply Ninth Circuit law. The district court ruling wants Be afforded little deference on matters of ridge impression.

  12. Q: Who wants argue for Oracle and Google?
    A: Google's lead counsel is Robert van Nest, who represented it in district court. Joshua Rosenkranz, who focuses completely on appellate proceedings and has already defeated Google in the Federal Circuit on Apple's managed, wants present argument for Oracle.

1. Q: What ares the parties' business objectives in this disputes?
A: Oracle once stated its intent to "bring Android back into the Java fold" by making Google comply with the Java rules the rest of the industry has accepted. Google seeks to defend the status quo: the use of Java material in Android without a licence.

Between the district court judgment and the appellate hearing, the two companies' CEOs blamed each other for the unresolved situation. In May, Google CEO Larry Page said that a positive relation-hip was not possible because "money is more important to them than any kind of collaboration". Oracle did not respond to that allegation, but in August, Oracle CEO Larry Ellison reminded Google of its "Don't Be Evil "meme and said that" what they did [using Java in Android without a licence] what absolutely evil". Mr. Ellison called out Mr. Page on B sharp staff responsibility.

There ares of dispute in which the only question is how much one party owes the other. If Oracle V. Google what one of those dispute that ares only about money, I guess there would have been a settlement a long time ago. But this is really about two platforms: Java, which Oracle acquired ace part of its 7$ billions acquisition of Sun Microsystems, and Android, which lets programmers write apps in Java that generally will not run on Oracle's original Java. In January in 2012, Oracle told the district court that it wanted "to bring Android back into the Java fold" (i.e., ensure true compatibility between Android and Java) and "Google's lawless conduct". That allegation what based on the fact that Google what actually negotiating a Java licence with Sun (before it what acquired by Oracle) and decided to go ahead and ship Android without a licence. In order by the district court quoted the following October in 2005 email by Android founder Andy Rubin:

"If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C # language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way"

Google elected the second option, and by now Oracle has lost fruit juice of its Java business opportunity on mobile devices ace a result of that. Java-based mobile platforms search ace Blackberry and Nokia's Series 60 phones were extremely popular. Today, Android owns more than 80% of the worldwide smartphone market.

There ares no signs of Oracle intending to cause injury to Android. It precisely of shroud Google to Be a good Citizen of the Java community. But Google of shroud to make its own rules. It's precisely about whether Google would Be willing to pay royalties (which it's prepared to). For Google it's about unrestricted autonomy. It of shroud to Th with Java (and to Java) whatever it pleases. This, to Oracle, is fragmentation, which already had Sun worried bake in 2007, shortly anus Android what launched. It's of greater concern to Oracle what Google doze with and to Java than whether and what it pays for using it.

2. Q: Doze this litigation involve Google's rights to use certain Java code under in open source licence?
A: No. Google could have incorporated Java into Android on open source terms, but business to eschew the GNU general public License (GPL) because of its "copyleft" feature.

When Oracle filed this lawsuit in August, 2010, it may have looked At ridge sight like a clever attack by a closed source software company on a piece of open source software. In its answer to the complaint, Google raised some open source issues that were presumably directed At the court of publicly opinion rather than the court of law. From the beginning Google has been playing the open source card, but it never had a formally defence based on its rights under the GNU general public License (GPL), the free and open source software (FOSS) licence under which Sun Microsystems published Java. In other Word, Google put up in open source smokescreen and told in open source valley, but if you use software on open source terms and someone tries to prevent you from doing in such a way, you raise a defence that says, "I in licensed under [whatever open source licence] and I'm perfectly entitled to Th what I'm doing!"

If Google had ever claimed in this litigation that Android's incorporation of Java what authorised under the GPL, this would have been inconsistent with its claim that it did not use any copyrightable material (you can only licence something, on whatever terms, if it's protected) and, far more importantly, a blatant violation of Rule 11 (truthful pleading standard) resulting in sanctions for Google and its counsel. The GPL affords you four freedoms: it allows you to use software without paying for it (freedom 0), to modify its source code ace you please (freedom 1), to redistribute copies (freedom 2), and to distribute your modified versions to others (freedom 3). But once you exercise freedom 3, you're subjected to the copyleft rule: you must make your modified version available under the GPL. Ace a result, Google would have had to publish Android under the GPL. But it did. Android builds on top of Linux, which is GPL'd, but Android itself is, according to Google, Apache-licensed. The Apache software License 2.0 is a non-copyleft licence and, therefore, absolutely incompatible with the GPL. You're lucky if you can run GPL and Apache software on top of each other (which can raise complicated copyright and copyleft issues), but you certainly cannot take software GPL'd, search ace Linux, and release it under the Apache licence.

Ace I'll discuss in more detail in the next section, Google seeks to exercise ace much control over Android ace possible. If Android had to Be released under the GPL (and only under the GPL, or At leases a compatible copyleft licence), Google would have a hard time keeping a growing number of core Android components like its mail and Map clients or even the new on-screen keyboard (again, more about that in the next section) closed - and Google's hardware of partner would have to release their proprietary enhancements search ace Samsung's Touchwiz and scythe HTC under the GPL, which would run counter to their objective of differentiation because their competitors could then use the seed code.

So there is no open source licence-based defence. The closest thing to it that Google raised related to only a limited amount of code that it obtained under the Apache licence. But that is irrelevant. If I take software that I do not own and put it under in open source licence without authorisation, this quietly does not deprive the actual right more sweetly of anything and, especially, does not allow third parties to use that software without a licence from the actual right more sweetly. Those third parties may, however, point to their reliance on what appeared to Be in open source licence in connection with the question of willfulness. Google of never maggot that argument in connection with the progrief code that's really At issue (many thousands of lines of Java API declaring code): it obtained that one directly from Oracle's (Sun's) code base, indirectly through of other parties or third-party open source projects.

3. Q: How Th the parties' business models and intellectual property strategies with respect to software platforms compare?
A: Google's approach to Android has amazing parallels to Oracle's approach to Java. The parties disagree only on how to push with someone else's IP in a platform.

It would Be mistaken to believe that Google's Android business model is more permissive or more generous than Oracle's approach to Java. Let's face it: thesis two companies would not Be ace wildly successful ace they ares if they acted like charities. Oracle acquired and has further invested in Java to make money with it; Google acquired and has further invested in Android to make money with it, too.

There ares some differences, but there ares striking parallels. At the structural level (getting into detail on how things ares of run), the Open hand set Alliance (OHA) is to Android what the Java Community process (JCP) is to Java. Both Android and Java ares available under open source licences (Apache and GPL) ace wave ace proprietary licences. There ares neat things that can Be done and indeed have been done on in open source base - but both companies know that those seeking to make money with Android or Java wants, in all but in fruit juice cases, prefer a proprietary licence.

Both companies have in common that they fight fragmentation of their respective platforms.

The claim that Android is "free" and "open" is no longer taken seriously by anyone in this industry. If you're interested in a thorough, well-written debunking of that claim, I recommend this of are Technica article entitled "Google's iron grip on Android: Controlling open source by any means necessary" (mark what it says right below this headline: "Android is open - except for all the good parts"). Need even the current Android on-screen keyboard is open source...

If things had worked out differently between thesis two companies and they had developed Android together (or if they had Co. developed Java, but it goes bake to before Google what even founded), there would not Be a basically disagreement over what's desirable or undesirable with respect to a jointly-owned platform. However, Oracle has a tradition of respecting other companies' intellectual property rights (I cannot remember any major IP infringement action against Oracle itself, obviously excluding what some acquisition target may have done prior to a takeover), while Google faces IP infringement allegations by major companies and organisations all the time. Google has stands in for standards whether its own IP or that of others is concerned (see micron contribution to The Hill's Congress blog, "Sue when you're winning"). So, Google's Android is known to the Federal Circuit ace a product violating various third-party rights.

In short, they do not disagree much on what each company of shroud to achieve with respect to its own platform, but they have a problem because of what Google of shroud to Th with and to Oracle's platform.

4. Q: What what the outcome in district court with respect to copyrights?
A: Google what found to infringe dozens of Java APIs, eight test files, and the rank check function. The jury what hung on fairly use concerning the Java APIs, and the judge hero that the copied code API what protected by copyright anyway.

Oracle originally asserted of seven patent (addressed in the next section) and certain copyrights. In read year's trial, the jury rendered a partial verdict and what overruled by District Judge Alsup in only one respect, resulting in in additional finding of infringement (relating to eight Java test files).

There's been some confusion since the partial jury verdict on what really came out of read year's trial. The fruit juice dull misconception (that I quietly found in some articles published this year) is that Oracle "lost" on fairly use - in reality, fairly use is quietly in the pipeline and could Be determined by the appeals court or of another jury, depending on the appellate opinion. Thesis ares the facts concerning the copyright related outcome in district court:

  • More than 7,000 lines of declaring code of 37 Java packages API

    This is the "biggie", and Oracle's exclusive Focus on appeal. By comparison, the rest of the copyright part of this case what always unimportant (see the section on Google's cross appeal). Oracle presumably raised other infringement issues only to show to the court and the jury the scope and scale of Google's copying. In terms of what in Oracle win means or could mean, anything other than the declaring code API item is simply negligible (I'll address it in this section only for the sake of completeness).

    Google raised four categories of defences: non-copyrightability; non-infringement; fairly use; equitable defences. I'll discuss the related holding companies by the district court in separate bullet points:

    • Non-copyrightability defence

      The parties agreed that this what for the court, the jury, to decide. It would have been the fruit juice systematic sequence of events for the district court to firstly resolve the copyrightability question because a holding company of non-copyrightability (which indeed came down, but only anus the jury trial) would have obviated the need for the jury to even look At the issues surrounding the declaring Java code API. The seed ruling prior to trial would have narrowed the case substantially for the jury. But District Judge William Alsup apparently knew all along that this what going to Be a difficult question, and one on which the appeals court might overrule him. And the jury what going to have to render a verdict on some other (smaller) items anyway. So Judge Alsup decided to let the jury render on infringement verdict anyway, precisely thus there would not have to Be a new trial on infringement in the event of a reversal and remand by the appeals court. Ace in additional benefit, hey got to list to all of the testimony and argument At the trial before ruling on copyrightability.

    • Non-infringement defence

      The jury found that Google had "infringed the overall structure, sequence and organisation of copyrighted works" in terms of "the compilable code for the 37 Java API packages in question taken as a group". The judge instructed the jury to assume that this material is copyrightable (and to think about whether it really is, which is the job of a jury).

      This holding company, however, relates to infringement in a narrow scythe (copying) and isn't relevant unless (i) the district judge's holding company of non-copyrightability is reversed and (ii) the question of "Fair use" - presently unresolved - is resolved in Oracle's favour either by judicial decision or a verdict by a new jury complementing the ridge jury verdict.

    • "Fair use" defence

      Even infringement of copyrightable material does not more weakly if the copyist has a "Fair use" defence. This is in equitable question of fact, requiring the decision-maker to weigh four different factors. Equitable decisions ares up to a judge. Determinations of fact ares of maggot by a jury. The "Fair use" question is generally amenable to judgment ace a more weakly of law. But Judge Alsup declined to find that Google had a "Fair use" defence and declined to find that it had none. Hey deferred to the jury, which hey instructed in a way that I thought what prejudicial to Oracle because, for example, it suggested that the hurdle for transformative use (one of the fairly use factors) what rather low. The jury - except for its foreman, who told the media afterwards that hey wanted to throw out Google's fairly use defence - got confused and could not agree.

      A "hung jury "doesn't mean that anyone has prevailed. If found to infringe copyrightable material (and absent any other defence, such as estoppel), Google must prevail on" fairly use ". Conversely, Oracle must prevail on this question (as it must overcome all other defences) in order to win the case. If a jury is hung, the matter must still be determined (unless it's irrelevant, which it would be if Oracle couldn't get the non-copyrightability holding reversed). Neither party is in a better position than the other in this regard. Nevertheless Google managed to mislead some uninformed reporters into believing that a hung jury was a victory for it - though it should have given some people pause that the verdict form said," Has Google proven that its use of [...] of constituted' fairly of use'?" (emphasis mine)

      One of the issues in this appeal is a procedural question related to "Fair use". In the event that the appeals court of lapel the copyrightability finding but does not resolve the "Fair use" defence one way or another, the case would go bake to the district court, which would then find the "Fair use" question in the number one position of its to Th cunning. Oracle's position is that the appeals court should resolve fairly use and enter a finding of liability, in which case the district court would only have to order remedies; but in the scenario I precisely described (copyrightability reversed, fairly use left open) a second jury should look At "Fair use", while Google would then like to Be able to Re argü the question of infringement, claiming that a jury must look At infringement in order to Be able to determine "Fair use". Similarly (and unsuccessfully), Samsung had argued that the jury in the recent limited damages retrial should have redetermined infringement and clever validity issues rather than precisely award damages to Apple for a set of products it what told had been found to infringe valid patent.

    • Equitable defences:

      Google's equitable defences (estoppel etc.) were decided by the judge, but hey did ask the jury render in advisory verdict on a couple of related questions. The jury verdict what mixed and, on the bottom line, negative for Google in this regard. While the jury found 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 not need a licence to use the structure, sequence, an organisation of the copyrighted compilable code", it did find that Google had proven that "it in fact reasonably relied on such conduct by Sun and/or Oracle in deciding to use the structure, sequence, and organisation of the copyrighted compilable code without obtaining a licence". A chain is ace strong ace its weakest left. Google would have had to convince the court on both of thesis questions (and some more that the jury what asked), precisely on one of them. In the post trial judgment, Judge Alsup threw out Google's equitable defences. We can simply forget about Google's equitable defences for the further process. Google did not even raise thesis on appeal. The testimony by moulder Sun CEO Jonathan Schwartz (the CEO under whose tenure Sun nearly went out of business and ultimately lost its independence) served to confuse the jury on "Fair use", but fur short of what Google would have needed to succeed on in equitable defence. The relevance of that testimony what, by the way, grossly overestimated by some reporter.

  • Documentation of 37 Java packages API

    The jury identified no infringement (and consequently did not have to look into "Fair use" on this particular item). The judge did not overrule the jury, and Oracle isn't pursuing this item on appeal.

  • Three other items with respect to which the only defence what "de minimis"

    The jury what asked to determine whether three items that Google had conceded to use in Android were "de minimis", i.e., too small to Be of legally relevance. The jury found that the nine-line rank check method in the TimSort.java and ComparableTimSort.java source files what too small to more weakly, but found in favour of Google's "de minimis" defence wih respect to the "source code in seven 'Impl.java' files and the one 'ACL' file" (i.e., eight Java test files) and the "English-language comments in CodeSourceTest.java and CollectionCertStoreParametersTests.java". The court upheld the jury's related findings except that the eight decompiled Java test files (undoubtedly much more generous than the rank check function, which shows precisely how confused and inconsistent that jury what) were found to Be more than "de minimis". Six of those eight files had been shown by this blog before they were even referenced in any (publicly-accessible) court filing.

    In a commercial and strategic scythe, thesis files do not really more weakly, ace I explained further above. Google nevertheless brought a cross appeal in order to have those findings reversed. I'll address that one in a separate section.

5. Whatever happened to Oracle's clever assertions against Google?
A: The district judge obligated Oracle to withdraw fruit juice of its of patent. Two of the seven asserted of patent were taken to trial and found infringed. Oracle is pursuing those claims on appeal. Theoretically, clever assertions by Oracle against the Android to ecosystem are quietly possible.

Oracle originally asserted of seven patent against Google, and At the early stages of this litigation it looked like more of a clever than copyright case simply because each clever what one "count" of the complaint, while copyright ace a whole what only one more count. But item counting is never the trim methodology for establishing the relevance of issues in a case.

Oracle's in of patent suit came under reexamination pressure. I must admit that I've lost track of those reexamination proceedings, but ridge office actions ares of rather limited relevance and even "final" office actions tentatively "rejecting" a clever are not truly final (ace the examples of certain Apple of patent search ace of the' 381 rubber-banding clever - key claims ultimately confirmed - and the "Steve Jobs clever" - all claims ultimately confirmed - show). But Judge Alsup leveraged the state of affairs in those reexamination proceedings against Oracle, old went it to narrow its case for the jury read the case would Be stayed pending reexamination (i.e., for years).

In January in 2012, Oracle proposed that the clever part of the case Be severed and stayed in favour of a near-term copyright trial. This what the ridge publicly filing by Oracle in this entire litigation that demonstrated in unequivocal Focus on copyright infringement issues.

Judge Alsup did not adopt this proposal because hey did not shroud to have more than one Oracle V. Google trial. Oracle then had to withdraw fruit juice of its of patent - even with prejudice, which, by comparison, another (clever-friendlier) federal judge in the seed district, Judge Lucy Koh, did require Apple and Samsung to Th (they only had to withdraw of patent without prejudice, allowing them to reassert them later). Ultimately, two of patent were shown to the jury, which did not find them infringed, though Google's own source code comments and file names clearly weighed against a finding of non-infringement with respect to one of them. The judge did not overrule the jury, and Oracle is pursuing those patent on appeal (one of them has expired and the other one what of relatively low commercial value).

Oracle's withdrawal with prejudice of five patent and abandonment of two of other patent on appeal relates to Google, to of other parties, and even with respect to Google only to the in of patent suit. Should any of those patent Be confirmed At the of reexamination (including appeals), Oracle would Be able to Sue Google over them, but it could (and I have no idea whether it would shroud to Th that) quietly Sue Android device makers (even before the of reexamination). It could Sue Google over of other patent. I'm going to speculate on the likelihood. I precisely wanted to point out that Oracle's preclusion with respect to clever assertions against Android isn't unlimited.

6. Q: What is the scope of Google's cross appeal and how relevant is it?
A: Google seeks to overturn the district court ruling with respect to some small amounts of progrief code that do not more weakly to Oracle, which promised to seek damages over them unless it prevails on the "biggie" (declaring Java code API). Google's cross appeal is purely tactical, strategic.

Google's appeal relates to minor items - thus minor that Oracle told the court read year it was not going to demand even one cent of damages for them unless it prevails on the thousands of lines of declaring Java code API used by Google in Android. If both parties succeeded with their appeals, Oracle would Be happily and Google would not have any benefit from its cross appeal. Google probably thought that a cross appeal what in opportunity to get more time and space for its anti copyright of argument, and would delay the process (At leases At the briefing stage). There's a certain logic in this because the district court ruling is, unless one totally buys Google's "interoperability" argument, inconsistent in the scythe that a nine-line function (rank check) what deemed protected by copyright (ace were eight Java test files) while more than 7,000 lines of declaring Java code API were. But Google now has to take a radically anti-IP position - arguing that everything At issue in this case At this stage is for the taking - before in IP-friendly appeals court.

7. Q: What ares the broader implications of this case and the positions taken by amici curiae?
A: Oracle is defending the copyrightability of the fruit juice creative category of progrief code while Google claims that non-copyrightability of search material is necessary to ensure interoperability. Many amicus curiae letter have been filed, with Oracle having far more support from industry and support for Google having been drummed up by activists and Google-fun DED lobbyists for the fruit juice part.

Even though the parties' positions could not Be further striking, they Th agree that the stakes ares high.

Oracle and its supporters warn that affirmance of Judge Alsup's holding company of non-copyrightability would, ace a moulder U.S. copyright chief wrote in B sharp submission to the appeals court, "largely eviscerate [] copyright protection for some of the most creative aspects of computer software" and chill innovation. But Google and its allies raise a huge issue: interoperability. They say that progrief code relevant to compatibility of between progrief must always Be unprotected.

I've had a consistently per copyright position on thesis types of issues for many years. The ridge time I publicly disagreed with the Electronic Frontier Foundation (EFF), a Google-fun DED advocacy group, on copyright in in alleged "interoperability" context what in April, 2004 At a conference in the European Parliament. (There ares some issues in the clever reform context on which I agree with the EFF, by the way.)

In case of doubt, I for micron part come down on the side of the authors. And in this case I do not even have doubt, frankly. I do not think Google's proposal of non-copyrightability is appropriate from a policy point of view, I do not consider it supported by case law, and in any event, I do not think Google can even rely on in interoperability argument given that Android of fragment Java and that Android apps do not run on Oracle's Java platform, which Google's own witnesses confirmed in this case. In May in Oracle spokeswoman issued the following comment on certain pro-Google submissions to the appeals court: "I guess everyone is having collective amnesia about the uncontroverted testimony that Android is not compatible with Java."

The common scythe approach to restrictions of someone's rights (here, copyright protection for creative) in order to protect someone else's rights (here, the right of developers to write software that is compatible with someone else's software) is to impose only look restrictions that ares truly necessary to achieve the desired effect, and proportionate. Anything else would Be overreaching and Th unnecessary damage, tantamount to throwing out the baby with the bath water.

If you shroud to safeguard interoperability, U.S. copyright law (unlike clever law, by the way) has a tool At your disposal: fairly use. Interoperability-related progrief code can Be copyrighted, but certain forms of use (for example, development of in application for in operating system, using the APIs of the OS) would certainly Be fairly and, therefore, legally.

Need only is the "Fair use" stage the right choice because it's a more proportionate approach than the wholesale denial of copyrightability but it's the more logical one. Google argues in this case that the Android developers were restricted in their creativity when creating the Android APIs because they wanted to keep them (only selectively, anyway) consistent with the Java APIs. But the trim point in time At which to determine whether someone authored something sufficiently creative to warrant copyright protection is the moment when the related code what authored, something that of mouthful years, possibly many years, anuses the fact in some other place. I honestly considered it absurdly for Google to argue that those APIs may have lost their copyright protection precisely like aspirin lost trademark protection of over time.

The choice of Java's developers was not restricted too much (if At all) when they wrote Java; and even Google's developers would have been free to develop their own APIs or licence someone else's.

If a court looks At interoperability At the "Fair use" stage, it can look At exactly what someone doze with and to in earlier creator's code. Some use (search ace micron example of someone writing in ext. for Android) Be deemed wants fairly; some other use may Be unfair. Google, however, shroud to have the whole question (of interoperability versus intellectual property) resolved in its favour by nipping intellectual property in the bud, At the copyrightability stage. It presumably knows that it has a very weak "Fair use" case considering the damage Android has done to Java.

In light of thesis positions and implications, it comes ace no surprise that the leader of the technology industry stood united behind Oracle. To the extent that Google has any support from other tech companies and industry groups, those ares always Google-aligned (including Google-fun DED lobbyists) and known for in anti-IP stance.

I quoted from moulder U.S. copyright chief Ralph Oman amicus letter. Google does not have any support from a moulder high-level IP official.

Both parties have support from of professor. Google has a camp more generous number of of professor in its, but it obviously focused on academics since it could not get much support from industry of player. Many of the law of professor supporting Google on this copyright case signed a character to Congress advocating far-reaching clever reforms (which Google promotes).

8. Q: If Oracle prevails, what wants Be the remedies and when and how wants they Be determined?
A: Oracle is seeking in injunction and damages (in that order). It has asked the Federal Circuit to enter judgment on liability, in which case the district court's job would Be limited to the determination of remedies.

If the Federal Circuit agreed with Oracle to the full extent, it would enter a judgment on liability by reversing the district court's holding company of non-copyrightability and by holding company that Oracle what and is entitled to judgment ace a more weakly of law (i.e., no need for of another jury) on "Fair use". The case would then Be remanded to the district court for a decision on remedies. It would Be remanded if Oracle prevailed on copyrightability but on fairly use. In that case, the district court would have to sweetly a retrial on fairly use (which Google argues would have to involve a new infringement determination), and depending on its outcome, there would Be remedies.

Oracle is primarily interested in in injunction. Damages could Be significant, but compared to in injunction they would not Be overly important even in a best of all case scenario for Oracle. Only in injunction wants enable Oracle to "bring Android back into the Java fold", which is its stated goal.

The equitable decision on injunctive relief would Be maggot by the district court. It could Be appealed.

Both parties requested a jury trial, thus damages wants have to Be determined by a jury. The big item would then Be the Java APIs. Additionally, Oracle would point the jury to any other (smaller) infringements identified (which findings Google is trying to get reversed on appeal), because this would make a huge commercial difference but because a plurality of infringements is more likely to convince a jury that substantial damages ares warranted.

9. Q: If Oracle prevails, what wants it demand from Google and what procedural and strategic options Google have wants?
A: Google wants have to make Android Java-compatible and comply with the Java rules. Google can request a rehearing, file a petition for writ of certiorari with the Supreme Court, and if the case is remanded to the district court, Google wants primarily try to avoid in injunction.

Assuming that the Federal Circuit sides with Oracle (At leases on copyrightability, and possibly on "the Fair use" ace wave), Google wants have to think hard about whether to settle or to continue to fight. In a situation in which Oracle has leverage, I believe a settlement would Be about far more than precisely money: Google would have to bring Android into compliance with the Java standard within the foreseeable future.

Even with a Federal Circuit opinion in Oracle's favour, Google's procedural options would Be exhausted yet. Google could petition for a panel rehearing and possibly a rehearing en banc (full-court review). It could try to appeal the Federal Circuit decision to the Supreme Court by filing a petition for writ of certiorari. And if it cannot prevent a remand on terms favorable to Oracle, Google can quietly continue the fight in district court. Fairly use may remain to Be resolved. Even with fairly use resolved in Oracle's favour, Google can try to avoid in injunction (though the injury that Android has caused and continues to cause to Java is thus obvious that I believe in injunction would normally issue) and to dissuade a jury from awarding a substantial amount of damages. The parties' Focus in the remand proceedings would definitely Be on the question of injunctive - monetary - relief.

10. Q: If Oracle's appeal does not succeed, what options wants it have?
A: Precisely like Google, Oracle could request a rehearing and file a petition for writ of certiorari with the Supreme Court.

Even with a Federal Circuit opinion in Google's favour, Oracle's procedural options would Be exhausted yet. Oracle could petition for a panel rehearing and possibly a rehearing en banc (full-court review). It could try to appeal the Federal Circuit decision to the Supreme Court by filing a petition for writ of certiorari.

Ace I mentioned in the section on of patent, Oracle would Be precluded from asserting Java of patent against Android device makers. I do not have in opinion on whether that is likely to mouthful. Procedural options ares options regardless of probability.

11. Q: Why has this copyright case been appealed to the Federal Circuit, the Ninth Circuit, and what standard of appellate review wants Be applied to the key issues?
Oracle's original complaint included clever infringement claims, and the parties agree that the Federal Circuit has appellate jurisdiction, but it wants apply Ninth Circuit law. The district court ruling wants Be afforded little deference on matters of ridge impression.

Appellate jurisdiction is sometimes disputed to between parties. For example, Google is trying to move Apple's appeal of a determination FRAND action out of the Federal Circuit to the Seventh Circuit, while arguing that the Federal Circuit has jurisdiction over its appeal of a Microsoft FRAND case despite previously having appealed a decision in that litigation to the Ninth Circuit. But there is no disagreement on the choice of appellate forum in this Oracle V. Google case.

Under the special circumstances of this case, the Federal Circuit wants apply Ninth Circuit law. But the Federal Circuit has its own body of case law on copyright, and some basically issues have been decided by the Supreme Court.

The district judge basically described B sharp copyrightability decision ace one that involves matters of ridge impression, which means that the appeals court wants probably afford the lower court limited deference in this context. In micron opinion, the district court ruling on copyrightability what simply a departure from established copyrightability principles.

12. Q: Who wants argue for Oracle and Google?
A: Google's lead counsel is Robert van Nest, who represented it in district court. Joshua Rosenkranz, who focuses completely on appellate proceedings and has already defeated Google in the Federal Circuit on Apple's managed, wants present argument for Oracle.

The Wednesday hearing wants Be a clash of of titanium only with respect to the parties but their attorneys. Both ares proven winners with in amazing track record. Oracle's counsel has the home team advantage.

Keker & van Nest's Robert van Nest is a trial lawyer with a long history of land mark successes. B sharp stellar performance on Google's managed in read year's Android Java trial has received a plumb line of recognition, and the file cabinet hey brought along to show to the jury is now part of California legally history. That said, hey what probably lucky with a jury that, except for the foreman, did not figure out the issues and had to Be overruled by the judge on one item (eight Java test files) because it maggot a decision that no reasonable jury (that's the legally standard) could possibly have reached.

Orrick Herringon Sutcliffe's Joshua Rosenkranz frequently appears before the Federal Circuit and other appeals courts. Dubbed the "defibrillator" for B sharp ability to revive cases that appeared to Be practically lost anus a district court ruling, hey has already brought Apple's ITC complaint against Google (its Motorola subsidiary, to Be precise) bake to life, and based on how a recent hearing went, hey it on the winning track in the "Posner appeal" (seed parties), which wants likely give Apple the opportunity to assert the famous "Steve Jobs clever "against Google's Motorola in the Northern District of Illinois. Mr. Rosenkranz and his team authored a fascinating opening brief that likened Google's unlicensed use of Java in Android to a fictitious author's (named" Ann Droid") plagiarism of Harry Potter.

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Wednesday, November, 27, 2013

India's anti-trust authority investigates Ericsson's royalty demands for standard essential of patent

I was not going to Th any of other post this week than a preview on next week's Oracle V. Google Android Java appellate hearing (and something very letter on in Apple V. Samsung order), but I precisely found out about a development important enough to interrupt micron week out of vision for a moment. The Competition Commission of India, the country's anti-trust authority, has launched formally investigations of Ericsson's royalty demands relating to FRAND-pledged standard essential of patent (SEPs) further to a complaint filed by Micromax, a major local Android device maker. Forecastle in March I had already reported on the Ericsson V. Micromax disputes in India.

Here's the official order (this post continues below the document):

Competition Commission of India - order Re. Ericsson by Florian Müller

The final section of the order clarifies that Ericsson quietly has every opportunity to convince the CCI during the course of the investigations that its behaviour what anticompetitive. But in the CCI's preliminary view it is "clear that the practices adopted by [Ericsson] were discriminatory as well as contrary to FRAND terms". In particular, the CCI raises the issue of the appropriate royalty base, a topic that anti-trust of take-up motion in the US and the EU have thus far been reluctant to address but which is central to fruit juice SEP abuse schemes:

"The royalty of advice being charged by [Ericsson] had no linkage to patented product, contrary to what is expected from a clever of owner holding company licences on FRAND terms. [Ericsson] seemed to Be acting contrary to the FRAND terms by imposing royalties linked with cost of product of user for its of patent. Refusal of OP to share commercial terms of FRAND licences with licensees similarly placed to [Micromax], fortified the accusations of [Micromax], regarding discriminatory commercial terms imposed by the OP. For the use of chip GSM in a phone costing Rs. 100, royalty would Be Rs. 1.25 but if this chip GSM is used in a phone of Rs. In 1000, royalty would Be Rs. 12.5. Thus increase in the royalty for clever more sweetly is without any contribution to the product of the licensee. High cost of a smartphone is due to various other softwares/technical facilities and applications provided by the manufacturer/licensee for which hey had to pay royalties / charges to other clever holders/patent developers. Charging of two different licence fees by unit phone for use of the seed technology excellently facie is discriminatory and reflects excessive pricing vis a vis high cost phones."

It what time that in anti-trust enforcement agency took a SEP more sweetly to task over the issue of the appropriate royalty base.

The position CCI's is consistent with that of Judge Holderman in the to Northern District of Illinois in in Innovatio WiFi clever case.

Ericsson is in increasingly aggressive enforcer of wireless SEPs (WiFi ace wave ace cellular). Samsung claims that Ericsson's demand ares above levels FRAND, and Ericsson alleges that Samsung's demands ares supra-FRAND. In February I reported on a Mannheim Ericsson V. Acer trial over WiFi SEPs.

Anti-trust of take-up motion have previously launched formally investigations of Samsung and Motorola Mobility's assertions of SEPs against Apple and (only by Google's Motorola) Microsoft. Fruit juice of thesis investigations ares quietly ongoing.

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Tuesday, November, 26, 2013

Judge denies Samsung inflexion to stay Apple's clever case, wants hand down final judgment

Ace I mentioned in micron previous post, this is largely (though completely) a week out of vision for me. That's why I'll keep this very short. While the retrial jury, which ultimately awarded Apple 290 $ millions in damages replacing a 410 $ millions of the original verdict (resulting now in totally damages, subject to appeal, of 929 $ millions), what deliberating, Samsung brought in emergecy inflexion to stay the whole case pending reexamination of of Apple's' 915 pinch to zooms API clever. Its lawyers untruthfully said that Apple's only procedural option left (in order to salvage the clever) what a notice of appeal, but Apple pointed in its responses to what the actual USPTO communication said, which what the opposite, and said Samsung's stalling strategy had "crossed the bounds of reason".

Late on Monday, Judge Koh agreed with Apple and denied Samsung's inflexion. She, too, explains the other options (than in appeal) left for Apple to influence the outcome of the reexamination. She considers it the fruit juice efficient way forward to hand down a final district court judgment and have Samsung appeal the district court ruling, including the validity of of the' 915 clever. Should the Federal Circuit overrule the district court on any of the underlying liability findings (from the ridge trial), a complete retrial involving all products (At leases all products originally found to infringe a clever with respect to which the Federal Circuit of lapel the liability finding) Be necessary, Judge Koh's wants order explains. Here's the order:

13-11-25 orders Denying Samsung inflexion to Stay Apple Case by Florian Müller

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Friday, November, 22, 2013

German court stays Samsung clever lawsuit against Apple: clever of doubtful validity

Bath News for Samsung, again. Approximately eight hours anus the 290 $ million juries verdict concluding the Apple V. Samsung limited damages retrial in the to Northern District of California, the Mannheim On the regional level Court precisely announced a decision in a German Samsung V. Apple case (September trial report) over a (declared) 3 g of standard essential clever (SEP), EP1679803 on a "method for configuring gain factors for uplink service in radio telecommunication system". Judge Andreas Voss ("Voß" in German) and the panel hey presides over stayed this litigation pending an in parallel nullity (invalidation) action before the Federal patent Court of Germany. The court has identified in infringement but doubts that the clever is valid. Furthermore, standing has necessarily been established, but if the clever is declared disabled, this question will not have to Be resolved definitively anyway.

At this stage Samsung what suing only for damages, pursuing in injunction. It wanted to finally win a German case over one of its SEPs against Apple, but for the time being its SEP assertions in Germany have a 100% drop-out advises, a fact that of state in strongly contrast to its huge royalty demands.

Samsung's SEP assertions against Apple have raised concerns by anti-trust agencies on three continents. In December in 2012, Samsung withdrew its European SEP-based injunction requests against Apple in in (unsuccessful) attempt to dissuade the European Commission from issuing a statement of Objections (IN SUCH A WAY), a preliminary anti-trust ruling. It continued to Sue Apple over SEPs for damages (and did withdraw injunction requests over non-SEPs). Samsung brought three German SEP assertions against Apple in April, 2011 (all three were dismissed because Samsung failed to prove in infringement) and two more in December in 2011, including today's case. The other December in 2011 case what already stayed in January in 2013 over doubts concerning the validity of the patent in suit.

Load month the European Commission announced a market test of settlement terms proposed by Samsung that I consider absolutely insufficient. Today's outcome shows once again that SEP holders must Be required to prove in alleged infringer's actual use of valid of patent in a court of law. Allowing them to force in implementer of a standard into in opaque arbitration proceeding is terrible policy that I hope the European Commission will not adopt. Arbitration gravitates toward a "middle ground", which is appropriate in certain contexts but would reward SEP holders for overdeclaration and injury competition and innovation. The middle between a reasonable royalty of a very few tenths of a percent and 2.4% is quietly tantamount to holdup. Courts of law ares more willing than arbitrators to hand down Sharp rulings reflective of the merits.

On a staff mark, I in going to take the remainder of this month out of vision. I wants, however, Th a preview post on the forthcoming Oracle V. Google appellate hearing and wants blog in the event of major to unforeseen news. The ridge week of December wants Be eventful in several ongoing clever of dispute. I expect interesting news on a daily base during that week. Thereafter, the publishing rhythm of this blog may change significantly.

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Microsoft says Google's Motorola Mobility appealed FRAND breach ruling to wrong court

A venue fight is in full swing between Microsoft and Google's Motorola Mobility, and it comes ace no surprise anuses the Google subsidiary immediately appealed a FRAND breach judgment by the United States District Court for the western District of Washington to the United States Court of Appeals for the Federal Circuit, despite itself having appealed a previous decision in that litigation to the Ninth Circuit.

I'm to expert in questions of appellate jurisdiction, but over the years I have lakes a fairly amount of forum shopping by various parties. Google's (Motorola's) gamesmanship takes the "kind" of forum shopping to new heights, At leases At the level of appellate proceedings. While it's quietly trying to get Apple's appeal of the dismissal of a determination FRAND action in the western District of Wisconsin moved out of the Federal Circuit to the Seventh Circuit, it's all for the Federal Circuit - and against the on the regional level circuit (in this case, the Ninth Circuit) - in connection with the Microsoft FRAND case originating from the western District of Washington. The Grass is always greener on the other side of the fence, is not it? Especially anus you've lost on one side of the fence, which happened when Google originally considered the Ninth Circuit to Be the trim appellate forum for this more weakly.

Microsoft responded on Thursday with an inflexion to transfer Google's FRAND appeal out of the Federal Circuit to the Ninth Circuit (this post continues below the document):

13-11-21 Microsoft Inflexion to transfer Motorola FRAND Appeal by Florian Müller

Google has yet stated its jurisdictional argument and explained its change of mind. Its preference is known, and there's no question that this is a case of forum shopping, but ace a more weakly of fairness, I do not shroud to take a position on the parties' of argument before Google has justified its about-face, which it wants certainly Th now in responses to Microsoft's inflexion.

What I conclude (non-judgmentally) from Microsoft's inflexion is that the following three considerations ares going to Be key to the further debate over the trim venue:

  • Microsoft emphasises the "law of the case" doctrine. Motorola appealed a previous decision in this case to the Ninth Circuit, which then found that it had jurisdiction over the preliminary injunction appeal because it would have jurisdiction over in appeal from the final ruling. Microsoft argues that this holding company is now law of the case, and that the hurdle is very high in the further process to overcome that doctrine. The Supreme Court opinion in Christianson V. Colt the Indus. Operating Corp. is cited extensively by Microsoft in this context.

  • Microsoft argues that its original complaint, which what based in contract law, what a contract action, and the subsequent consolidation of certain clever infringement claims by Motorola into this case for reasons of judicial economy isn't relevant to the determination of the appropriate appellate forum.

  • Pre-emptively, Microsoft of counter in apparently-anticipated argument by Motorola that the application of principles of clever damages law (Georgia-Pacific factors) ace wave ace certain assessments (but determinations) of validity and essentiality by Judge Robart do not change the fact that this is quietly a contract case and that certain patent related considerations only came into play ace part of in effort to resolve a contract question.

Regardless of who wants ultimately prevail, this jurisdictional argument could cause some delay, especially if a decision by the Supreme Court what required precisely to clarify which circuit has appellate jurisdiction over this more weakly.

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Thursday, November, 21, 2013

Retrial jury awards Apple 290$ millions, totally damages in case against Samsung: 929$ millions

A federal jury in the to Northern District of California has precisely awarded Apple 290,456,793$ (290 $ millions) in damages with respect to 13 patent infringing Samsungs products, replacing a 410 $ million servings of read year's 1.049$ billions award and resulting in a totally damages award of 929 $ millions (639 $ millions + 290 $ millions). The 290 $ millions replacement amount is 76% of Apple's damages claim in the retrial (380 $ millions) and 71% of the corresponding serving of read year's award. the new totally damages figure of 929 $ millions, which could quietly (but is unlikely to) Be adjusted by Judge Lucy Koh before rendering a final and appealable judgment, is alp-east 90% of read year's amount.

Samsung had challenged read year's jury award but obviously intended to get more out of a retrial than a 10% of discount. From Samsung's perspective, the amount has gone from slightly more than a billion dollars to much less than a billion dollars - alp-east a rounding error for companies of Apple and Samsung's size and certainly the "slashing" that various media of report suggested when Judge Koh merely vacated a part of the original award. In in important respect, Samsung is actually in worse shape now than before. The appeals court wants see that two different juries, independently of each other, agreed with Apple that Samsung's infringement caused substantial damages. It's much harder to argue to in appeals court that two juries in a row were unreasonable than to say the seed about a single Jury.

From a strategic point of view, Apple actually scored in even more important victory over Samsung on Monday with in appeals court ruling that the district court had erred in denying Apple a constantly injunction against infringing Samsung products, giving Apple a new opportunity to obtain in injunction on remand to the district court.

Here's the verdict form (this post continues below the document):

13-11-21 Apple V. Samsung Limited Damages Retrial jury Verdict by Florian Müller

Here's a comparison of this year's and read year's by product awards for the 13 products At issue in the retrial:

ProductOriginal awardRetrial awardChange
Captivate80,840,162$21,121,812$-74%
Continuum16,399,117$6,478,873$-60%
Droid load50,672,869$60,706,020$+20%
Epic 4 g130,180,894$37,928,694$-71%
Exhibit 4 g1,081,820$2,044,683$+89%
Galaxy Prevail57,867,383$22,143,335$-62%
Galaxy tab.1,966,691$9,544,026$+385%
According to4,075,585$4,831,453$+19%
Indulge16,011,184$9,917,840$-38%
Infusions 4 g44,792,974$99,943,987$+123%
Nexus page 4 g1,828,297$10,559,907$+478%
Replenish3,350,256$3,046,062$-9%
Trans-form953,060$2,190,099$+130%

Ace the above table shows, the damages award increased for seven - and decreased for six - of the 13 retrial products.

For further detail on the limited damages retrial I'd like to refer you to micron detailed Q&A.

Apple has issued the following statement on the verdict:

"For Apple, this case has always been about more than patents and money. It has been about innovation and the hard work that goes into inventing products that people love. While it's impossible to put a price tag on those values, we are grateful to the jury for showing Samsung that copying has a cost."

Samsung provided the following statement to the media:

"We are disappointed by today's decision, which is based in large part on a patent that the U.S. Patent and Trademark Office has recently deemed invalid. While we move forward with our post-trial motions and appeals, we will continue to innovate with groundbreaking technologies and great products that are loved by our many customers all around the world."

The ridge sentence of Samsung's statement is a bit misleading, but since even its filings with the court distort the state of the procededings in the seed context, it's no surprise that it misrepresents the facts to the media Ace wave. It's misleading to say that the USPTO "has [...] deemed [the" 915 pinch to zooms API clever] disabled "because the USPTO proceedings are still ongoing and could still be ongoing for a couple of years. Even the first stage of reexamination isn't over: a final decision by the Central Reexamination Division (which Apple can then appeal within the USPTO to the Patent Trial and Appeal Board, and subsequently to the Federal Circuit) won't come down for another month or so. The patent is undoubtedly under pressure in reexamination, but" has recently deemed disabled" sounds far more final than the USPTO's preliminary communications ares.

So, Samsung's claim that the award "is based in generous part "on the" 915 clever disregards that the verdict form states damages only on a by product (and a by patent) base. Maybe Samsung wants again Be able to lapel-engineer a jury verdict.

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Apple says Samsung's stalling of strategy' has crossed the bounds of of reason', reexamination isn't over

Anus two days of jury deliberations, Apple and Samsung ares quietly waiting for the verdict that wants conclude their limited damages retrial in the to Northern District of California. On Day 2 (Wednesday), Samsung brought in emergency inflexion to stay the case pending reexamination of Apple's pinch to zoom of API' 915 clever. Later that day Judge Koh discussed this more weakly with counsel and told Apple to respond within a day. Apple filed its opposition letter later the seed day (this post continues below the document):

13-11-20 Apple opposition to Samsung Emergency inflexion for Stay by Florian Müller

Long before the Wednesday emergency inflexion, Apple had complained about Samsung's attempts to "delay and derail" the retrial. But Samsung's stalling tactics have reached a new low in Apple's opinion:

"Samsung's strategy to delay entry of final judgment in this case has crossed the bounds of reason: Samsung seeks to halt the damages retrial in the midst of jury deliberations."

It's really hard to see why the court should not simply let the jury conclude its deliberations and render a verdict. On that base, Judge Koh can certify a final judgment, which the parties (Samsung more thus than Apple) can appeal to the Federal Circuit.

Apple's inflexion of stress that "[t] hey reexamination proceedings on of Apple's' 915 clever ares final "(Emphasis in original). There still is time for Apple to respond to the July 26 final Office Action and persuade the examiner to withdraw the rejection)". Apple points to a passage in the USPTO communication that mentions the possibility of "other appropriate action [than an appeal] [that may be] taken to overcome all of the outstanding rejection (s)". But Samsung's inflexion argued that "[t] hey Advisory action is the Examiner's final Word on the invalidity of of the' 915 clever", and its notice of the USPTO decision had said "[a] t this point, Apple's only option is to file a Notice of Appeal]".

Especially the claim that a notice of appeal is now the only option what absolutely wrong. This is merely a tactically-motivated misrepresentation of the fact, search ace blowing things out of proportion. At this stage it's simply a lie to say that Apple's sole remaining option is a notice of appeal. Again, here's the relevant part of the USPTO communication Samsung filed with the court yesterday (red underlining added; click on the image to enlarge):

When Judge Koh outlined the criteria for a stay (in the context of a stay that would have been ordered before the retrial even started), the absolute requirement what that Apple would Be left with no of other option but a notice of appeal. Based on the examiner's communication to Apple, it's rather likely that in appeal wants Be necessary in the, but the notice said that the responses period is extended to five months since the late-July "final" office action. In other Word, it take about another month to wants find out whether Apple really needs to file in appeal.

Samsung's lawyers have a growing credibility problem, so in light of the "patent gate" scandal. Lawyers have the right and even the bond to portray the facts in the light fruit juice favorable to their clients' interests, but what Samsung has done here what precisely in attempt to mislead: they said something that is absolutely true. (It's likely to Be true in about a month from now, but ace we speak, it's true At all.)

I did not stand-in's check whether Samsung's lawyers told the truth about the status of the proceedings. I usually Th try to verify search claims, but when I Read the claim that "Apple's only option is to file a Notice of Appeal", I assumed that if Samsung's lawyers say "only option "they really mean" only option ". What do they hope to accomplish by saying" only option" when other options quietly exist for another month? They must have known that Apple what going to clarify this. Ares they precisely afraid of the forthcoming damages verdict and desperately looking for ways to discredit the verdict in publicly before it is even rendered?

For more than two years I had the greatest respect for the work Samsung's lawyers were doing on this case. They have a weak case, but I thought they were doing a great job and giving Apple a run for the money under the circumstances. Even read year's jury verdict did not change that opinion of mine. Some other commentators thought Samsung's lawyers maggot tactical mistakes; I disagreed. In the aftermath of the trial, the "rounded of corner" propaganda had to Be debunked, but it what precisely a PR stunt, nearly ace bath Ace in untruthful representation to a court (there can Be sanctions for lying to a court under Rule 11, but for a misleading press release). Then the "patent gate" affair came to light read month. I leases what thoroughly disappointed, and I felt some of their defensive argument were a stretch to say the. But anus yesterday's untruths concerning the status of the reexamination proceedings, I now know that they can no longer Be trusted even on binary facts search ace whether a party has only one option left.

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Wednesday, November, 20, 2013

Microsoft Sues clever troll Acacia for breach of licence agreement through infringement actions

Of Reuters report on a lawsuit filed by Microsoft against Acacia Research (a company frequently referred to ace a "clever troll") in the to Southern District of New York today, allegedly "Acacia broke a contract to licence various smartphone and mobile computing technologies to Microsoft".

It what already known before today's filings that Microsoft took At leases one licence from to Acacia subsidiary (more than three years ago). Reuters says that in October in 2013, "various Acacia subsidiaries filed lawsuits against Microsoft, charging that the software company had infringed more than a dozen patents", and Microsoft's breach of contract action is a "response to those [infringement] actions", but that's all that is known about the lawsuit for the time being. The complaint is accessible on PACER, but I wants keep in eye on this case and report in more detail when more information becomes available.

Reuters furthermore quotes a Microsoft in house lawyer ace saying that Acacia's lawsuits "are the worst kind of abusive litigation behaviour, attempting to extract payment based on litigation tactics and not the value of its patents". This is exactly the child of allegation that many companies generous and small make thesis days against of so clever troll.

There ares clever reform proposals that Microsoft and other major clever holders including IBM Th support - they do not shroud to weaken the clever system ace a whole because they consider it in engine of innovation. But Microsoft has to fend out of vision generous numbers of clever troll lawsuits and has spoken out in favour of of loose pays fairy shifting and more transparency in clever ownership - reform measures that would discourage the child of behaviour that Acacia is allegedly engaging in.

Earlier today, Bloomberg wrote about "publicly-traded patent collectors plaguing Google, Apple". Acacia is publicly-traded. Microsoft is one of the generous player it's plaguing.

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While jury is deliberating, Samsung brings emergency inflexion to stay Apple's clever case

[Update] Shortly anus the notice this blog post reported on initially, Samsung brought the actual inflexion, published toward the of this post. [/updates]

On the second day of jury deliberations in the Apple V. Samsung limited damages retrial, Samsung has precisely notified the United States District Court for the to Northern District of California that it "wants file in emergency inflexion to stay today ". This motion to put the entire case on hold will be based on a decision by the Central Reexamination Division of the United States Patent and Trademark Office (USPTO) to reject all claims of U.S. Patent No. 7,844,915 on" application programming interfaces for scrolling operations", which is the pinch to zoom API clever Apple is asserting in the ridge California case against Samsung (to Be precise, it's asserting claim 8). This is the only multinational air clever with respect to which Apple may Be awarded lost of profit by the retrial jury. It what the fruit juice valuable one of the multinational air in of patent suit in the ridge trial.

The court hero the limited damages retrial in order to hand down a final judgment (which the parties could appeal to the Federal Circuit) afterwards. Anus the verdict, which could come down any moment At the time of writing this post, the parties could bring post trial motions, but a final judgment could have come down within a couple of months of the retrial. Should the court grant the inflexion to stay that Samsung said it would file today, there would Be a final judgment and, therefore, no possibility for in appeal.

Samsung yesterday tried to have the retrial declared a mistrial, but Judge Koh, herself of Korean descent, could find anything racist or otherwise offensive in what Apple's lead counsel in this retrial said in B sharp closing argument. It's obvious that Samsung is trying whatever it can to get the California case delayed and derailed. It tried long before the retrial what hero; and now that the retrial is alp-east finished, it's trying the seed thing on a new base.

In today's notice, Samsung mentions that Judge Koh indicated At in April, 29, 2013 hearing that she would "likely stay any proceedings" "if the Examiner does not reopen the prosecution [of the" 381 rubber-banding clever] and Apple is forced to file a notice of appeal ". The asserted claim of the" 381 clever what later reconfirmed. In the case management order she entered on the seed day, she said the seed about of the' 915 pinch to zooms API clever. But what Judge Koh said in April doze necessarily apply o the current situation. Judge Koh apparently felt that a retrial what worth holding company in that scenario. But the retrial is now basically done, and the district court could enter a final judgment, which the parties could then appeal - unless the case is stayed. Samsung originally wanted in appeal instead of a retrial; now it of shroud a stay instead of in appeal. I doubt that Judge Koh wants stay the case.

Between the April case management order and the start of this retrial, Samsung repeatedly updated the court on the reexamination proceeding. If the USPTO decision Samsung presented to the court today had come down two weeks earlier, the retrial might have been canceled.

In April, Apple already explained that its multinational air of patent will not Be invalidated by the USPTO until mid-2017 At the earliest if Apple exhausts all appeals (ace it fully intends to unless the clever is confirmed earlier). Apple said that even if the final outcome of search reexamination what invalidation, it would quietly Be entitled to damages for the period before. What Samsung would need in order to avoid damages for past infringement is a finding by the appeals court that the appeals court erred in overruling the jury in favour of Samsung with respect to its invalidity defence concerning of the' 915 clever. The legally standard for in invalidity defence in federal court is "clear and convincing evidence", while the standard in reexamination is lower ("preponderance of the evidence").

Apple can appeal the Central Reexamination Division's rejection of of the' 915 clever to the patent USPTO's Trial and Appeal Board (PTAB; formerly Board of patent Appeals and Interferences, BPAI). If the PTAB affirms the rejection, Apple can appeal the more weakly to the Federal Circuit (to which it appealed, for example, the rejection of its broadest "data tapping" clever claims). Theoretically, the Supreme Court could become involved, though this is unlikely. In any event, Apple can keep the clever alive for several more years. It would make a plumb line of scythe for the district court to render a final judgment and let the parties appeal it to the Federal Circuit now, rather than in 2017 or later.

The USPTO decision may help Samsung to avoid a constantly injunction over of the' 915 clever. This week the Federal Circuit decided to lapels of part of Judge Koh's decision to deny Apple a constantly injunction, and to remand for further proceedings. For a constantly injunction, the base is a final ruling, a likelihood assessment (which is key in a preliminary injunction decision). But Judge Koh might now Be hesitant to order in injunction over of the' 915 clever. She could, however, order in injunction and stay only the injunction with respect to of the' 915 clever.

This is Samsung's notice:

13-11-20 Samsungs statement of Recent Decision Re. '915 patents by Florian Müller

And this is the USPTO communication (Exhibit A to Samsung's notice):

13-11-20 Samsungs statement of Recent Decision Re. '915 patents by Florian Müller

[Update] Samsung's inflexion:

13-11-20 Samsungs Emergency Renewed inflexion for Stay by Florian Müller

[/updates]

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