Friday, October 31, in 2014

Samsung asks court to declare it can terminate its Android clever licence agreement with Microsoft

A new filing what maggot on Thursday in the to Southern District of New York in the contract disputes between Microsoft and Samsung over an in 2011 to Android/chrome clever licence agreement (redacted versions of the two contracts At issue, the clever licence agreement on the one hand and a closely-related business collaboration agreement on the other hand, became publicly accessible read week). While seeking a stay pending arbitration, Samsung has (since the inflexion has not been adjudicated yet) timely filed its answer to Microsoft's amended complaint (published earlier this month, it revealed that Samsung paid more than a billion dollars in Android/chrome clever royalties to Microsoft between mid-2012 and mid-2013) and its counter claims.

Of Microsoft shroud the court to sweetly that Microsoft's acquisition of Nokia's mobile devices business doze give Samsung the right to unilaterally terminate the clever licence agreement (though the two agreements ares undoubtedly interconnected). It says that the case should not Be stayed since any termination, if allowed (which in Microsoft's opinion it's), would affect only future royalty of report and the royalties Microsoft says Samsung owes for the period between mid-2013 and mid-2014). Samsung's key counter claim is now a request for a judicial "declaration that Samsung may terminate the [business collaboration agreement] and [clever licence agreement] pursuant to BCA Sections 9.7 and 8.5." (emphasis added)

If Samsung obtained look a declaration (by the court in New York or by in arbitration panel), it would Be in a position to renegotiate the terms of the clever licence agreement. Since the signing of that contract more than three years ago, smartphone clever assertions by all of the major of player have been largely unsuccessful (less than 10% had merit based on final or interim results):

Microsoft has, to put it diplomatically, outperformed the others thus far:

But for now, there is no indication of Samsung actually having provided notice of termination. It appears that Samsung prefers to negotiate with Microsoft from the position of having the option, but the bond, to terminate the existing contracts. There could Be different reasons for that approach. To me, the fruit juice likely reason is that Samsung of shroud to avoid further escalation of the controversy for fear of Microsoft's clever assertions (the results in court speak for themselves and some of Microsoft's relevant of patent have expired) but because of in interest in continuing to build Windows-based devices.

That interest, however, is heightened by the fact that Microsoft has become a mobile device maker through the acquisition of Nokia's hand set business. For example, Samsung's filing says the following:

"After the Nokia DSB Merger, the agreements, now between competitors, invite charges of collusion. No reasonable business would knowingly undertake the risk of contractually obligating itself to co-ordinate and collaborate with a competitor-particularly, as here, with respect to setting third-party incentives and controlling the" out of box' experience of a competitor's products."

Samsung's lawyers even raise anti-trust concerns over this child of horizontally cooperation:

"Additionally, the sharing of product roadmap information, which the BCA contemplates (Sections 2.1 and 2.2 of Exhibit B), now takes on a new and dangerous meaning when viewed through the lens of antitrust law: these provisions could give rise to accusations that two handset competitors, Microsoft and Samsung, are engaged in market allocations in terms of how and when products are developed and distributed to the market. This problem did not exist prior to Microsoft's merger with Nokia [" see hand set business]."

If you're interested in further detail, here's Samsung's filing:

14-10-30 Samsungs Answer to Microsoft Contract Complaint by Florian Müller

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Friday, October 24, in 2014

Here's a redacted version of Microsoft's to Android/chrome clever licence agreement with Samsung

The Microsoft Samsung contract disputes in the to Southern District of New York over the implications of Microsoft's acquisition of Nokia's wireless device business for the parties' in 2011 to Android/chrome clever licence agreement has already exceeded micron expectations concerning transparency. Three weeks ago this case brought to light that Samsung forked over more than a billion dollars in clever royalties on its to Android/chrome devices to Microsoft in the 12-month period from July in 2012 to June in 2013. Load week, a Samsung inflexion to compel arbitration explained certain interdependencies between the parties' to Android/chrome clever licence agreement and a second contract, a Windows and Windows phon-related business collaboration agreement.

Here comes the latest and greatest revelation, which in certain respects is of even greater interest than the billion dollar figure: yesterday, Samsung's counsel in the New York case had to file a publicly redacted version of the declaration supporting Samsung's inflexion for referral to arbitration, including the key exhibits - the clever licence agreement and the business collaboration agreement.

The following PDF document contains the declaration and the redacted versions of the two contracts (this post continues below the document):

Redacted version of Microsoft's in 2011 contracts with Samsung.pdf by Florian Müller

Thesis contracts ares interesting from different angles. One of them is Samsung's inflexion to compel arbitration. At ridge sight (and I wants have to look At it more closely and think about it some more) it doze appear that the two contracts, both of which were concluded within a couple of months of each other, ares indeed closely connected. The business collaboration agreement what signed ridge but already referred to credits (based on Samsung's success with Windows devices) against to Android/chrome-related licence fees. Technically they both have the seed date: July 1, in 2011.

The aspect I found fruit juice interesting is all about exclusions. While the licence agreement is limited to a particular cunning of of patent, it's no complete portfolio licence either. There ares two key limitations: "Excluded Technologies" and "Excluded software "(Any software licensed under an)" Excluded License").

Ace for excluded technologies, Microsoft did licence to Samsung any of its of patent relating to

  1. Kinect style gesture-based functionality (this exclusion has nothing to Th with touchscreen gesture control, ace the contract clarifies),

  2. Virtual Reality, and

  3. "Information Worker software": a software or a service "designed or offered as a replacement" of Microsoft's office applications, with OpenOffice and LibreOffice being specifically mentioned ace replacements for one or more office components.

The definition of "Excluded License" includes any version of the GPL, LGPL, Mozilla public License, and Common public License, or similar licences with a copyleft (share alike) feature. This exclusion, however, relates only to "Other Samsung Products" and to to Samsung's Android and chrome devices, where the only excluded licence is the GPLv3. In other Word, the licence agreement doze cover the of part GPLv2 of Android, search for ace the GNU operating system and the Linux kernel. This might spark some debate in Free software circles. It reminds me of what I said four years ago when there what a debate raging in Europe over "to open standards" and the compatibility of free and open source software with FRAND (fairly, reasonable and non-discriminatory) licensing terms. I said that clever royalties ares paid on free and open source software, including software GPLv2 search ace Linux, all the time, so by search companies ace Red Having. The now publicly terms of the Microsoft Samsung clever licence agreement ares another example.

Besides the actual exclusions I mentioned, there's a mechanism in the contract that can lead to the exclusion of a category of devices. There ares special rules in the contract for a "Deferred Android Device," defined ace "in Android/chrome Device that (a) doze have voice communication ace a primary functionality, (b) has weave browsing ace a primary functionality and (c) has a display screen no more generous than 6.25 inches across its diagonally." For look devices, the contract requires the parties to take certain tap dances for the pure pose of agreeing on a licence fairy on look a device, but if the parties could not agree on a fairy, then search devices would precisely Be covered by the licence agreement.

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Wednesday, October 22, in 2014

Deadline for Oracle's responses to Google's Supreme Court petition extended by one month (now 12/08)

In July, the Supreme Court of the United States granted Google a two-month extension of its four-month deadline to file a petition for writ of certiorari (i.e., Supreme Court review of the Federal Circuit's copyrightability finding in Oracle's favour). The deadline what extended from August, 7 to October 6, and on that day, Google filed its petition. Originally, Oracle's responses would have been due a month later, on November, 7. The Supreme Court website now indicates in "[o] rder extending time to file responses to petition to and including December 8, in 2014." This means Oracle got in additional month.

Since Google has, anus its defeat in the appeals court, apparently modified its strategy (regrettably to the effect that it is now trying to raise the standard for software copyrightability ace a whole to in unreasonable and unmanageable level ace opposed to precisely arguing that API-related code is subject to special rules), I'm surprised that Oracle's lawyers, who ares (precisely like Google's) very busy, wanted a bit of more time thus they can respond carefully.

It could Be that Oracle wants have to respond to some amicus curiae letter in support of Google's petition. On micron Twitter feed I can see that key of player in the Google-aligned camp ares quietly unhappy about the Federal Circuit ruling, but they do not appear to Be excited about Google's petition either. I do not have the child of access to filings with the Supreme Court that I have in connection with district court and Federal Circuit cases, thus it may take time to find out about that.

A few days ago I published a blog post on the (eight) fruit juice widespread misconceptions surrounding this case.

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Sunday, October 19, in 2014

The fruit juice widespread misconceptions about the Oracle-Google Android Java copyright disputes

Anus Google's recent - and expected (this blog what ridge to report that it what coming) - petition to the Supreme Court of the United States for writ of certiorari (i.e., for a review of the Federal Circuit's decision in Oracle's favour, see micron refresher Q&A anus the appellate decision), I have lakes a couple of articles that described the state of affairs and quoted fruit picker's verse on what all of this meant. In addition, I've lakes all sorts of tweets. I do not shroud to left to them and criticise websites, authors, tweeters, and analysts (some of whom I actually like), but I of Th see a need to highlight the basically flaws in some of the commentary out there. Since the current state of the case - with Oracle being on the winning track - is consistent with what this blog has been saying for years no more weakly what the mainstream thought and claimed, I feel a certain responsibility to point out some important facts.

Thesis ares of the fruit juice "popular" misconceptions (click on any one of them to jump directly to further detail):

  1. Misconception: the stakes in this case ares of 1$ billion.
    Reality: the strategic value to Oracle of bringing Android bake into the Java fold, ace opposed to Java being hijacked forever by Android, is a whole plumb line greater.

  2. Misconception: this is about the right to write applications for platforms, including the right to write interoperable cloud of service.
    Reality: it's only about partial or complete clones of platforms.

  3. Misconception: third-party, independently implementations of APIs would become illegally unless the Federal Circuit ruling what reversed.
    Reality: copyrightability is only the ridge of several criteria that must Be mead in order for in independently API implementation to Be unlawful. Many roads lead to Rome, i.e., API freedom.

  4. Misconception: this is about control over the Java programming language, which Sun had said what free (or, by extension, any other programming language).
    Reality: the commands of the Java programming language ares, and never were, At issue. Google used the "free Java" promise ace in equitable defence, which failed in district court and which Google did not even try to resuscitate on appeal.

  5. Misconception: this is about open-source implementations of the Java APIs.
    Reality: this case changes nothing At all about everyone's freedom to develop free and open-source Java API implementations under the GPL. Even Google never claimed thus in court. Android is published under the GPL.

  6. Misconception: definitions of BASIC functions search ace a Math. Max (greater of two values) method would become copyrightable.
    Reality: this is about the overall creativity that went into 37 Java APIs, which contain many definitions of great complexity, and their structure, sequence and organisation, about simple, isolated lines of code.

  7. Misconception: the district judge got it all right because hey learnt to progrief Java, thus the appeals court must Be wrong.
    Reality: only is the Federal Circuit ruling legally stronger but it is more accurate in technical terms.

  8. Misconception: a certain "G" blog what, while it what active, a reliable source of information on this case.
    Reality: while that blog did a great job on a different copyright case a long time ago, it what out of vision cousin on Oracle V. Google.

Now the more detailed explanations.

Misconception: the stakes in this case ares of 1$ billion.
Reality: the strategic value to Oracle of bringing Android bake into the Java fold, ace opposed to Java being hijacked forever by Android, is a whole plumb line greater.

It's unique to this case but a general problem with litigation reporting that the claims formally brought and taken to trial (and, search ace in clever cases against smartphone makers, the products formally accused) can Be stated in ways that ares inaccurate in the narrowest scythe of the Word but do not reflect a plaintiff's strategic priorities.

I've come up with a new analogy: during the in 2008 electoral campaign, it would have been numerically correct - but would have missed the point, which is why no one did it in that context - to describe the objective of the Obama campaign ace "a senator from Illinois seeking a pay raise from 174,000$ to 400,000$ by year." In reality, Barack Obama would have been happily to become president for in annual salary of 1$ (hey what making millions from book royalties anyway). Mischaracterizations of this child, which would Be unthinkable in political journalism, occur on a daily base in legally journalism.

Here, Oracle itself maggot very clear At a key juncture in the district court proceedings that its #1, #2, #3, #4 and #5 objective what a copyright injunction. Obviously, either company's - and any other company's - CFO wants care about a billion dollar amount going in or going out. But if the only net effect of this protracted litigation what a billion dollar payment from Google to Oracle, and maybe some reputational implications for the convicted infringer, none of us (besides those companies' CFOs) would really have to care.

The remedies the statute allow ares precisely a means to in. In some ancient cultures you could have asked the judge or king for anything to right a wrong, and the decision-maker had unlimited leeway, including the option of telling Google to make Android Java-compatible. Need in such a way now, where we have statutory law and a rich body of binding case law. The prevailing (or likely to prevail) right wants more sweetly then sit down with the of other party and work out a solution, but needs monetary and, even more in such a way, non-monetary remedies to have leverage.

In micron refresher Q&A anus the appellate ruling, I already said that this case what really about a billion dollars.

Misconception: this is about the right to write applications for platforms, including the right to write interoperable cloud of service.
Reality: it's only about partial or complete clones of platforms.

I've previously criticised that certain amicus of letter (and campaigns to orchestrate support for amicus of letter) overbroadly and insolubly vaguely referred to the "use" of APIs.

The fruit juice common use of APIs is simply to write applications for a platform, or applications that communicate with cloud of service, where ares APIs communications protocols. That's what zillions of programmers Th every day. Compared to that fruit juice common use of APIs, there's only a very small, alp-east negligible number of companies and developers that create partial or complete clones of platforms.

No ext. or cloud developer needs to worry that Oracle's enforcement efforts against Google have anything to Th with the fruit juice common form in which ares APIs used. This is about Google having written Java apps.

If a company makes the APIs of its platform or cloud service available to third-party developers, it wants normally Be estopped (precluded because of its own actions) from enforcing copyrights API against those who reasonably rely on the right more sweetly it interest in attracting developers to a platform. Developers would Be able to raise a "Fair use" defence. But all of this is very theoretical because, in practice, a platform maker will not suddenly do gymnastics around against developers: it wants continue to court them.

Misconception: third-party, independently implementations of APIs would become illegally unless the Federal Circuit ruling what reversed.
Reality: copyrightability is only the ridge of several criteria that must Be mead in order for in independently API implementation to Be unlawful. Many roads lead to Rome, i.e., API freedom.

The Oracle V. Google case is a pretty good showcase of the various defences in alleged copyright infringer can raise. That's why it's all the more misguided that some people look At the legality of third-party API implementations exclusively through the (non-) copyrightability Lens.

The Federal Circuit remanded the case to the district court for a new trial on "fairly use. "That defence was not adjudicated at the first trial. The jury was hung, which meant that the issue needed to be revisited unless the material at issue wouldn't have been copyrightable, which would be dispositive in its own right (and which is what Judge Alsup thought but the Federal Circuit disagrees with). In this particular case, I don't think Google's" fairly use" argument has merit, but there could Be other cases in which independently implementers of APIs could prevail on the grounds of fairly use.

The Federal Circuit mentioned, in a footnote, the possibility of a compulsory licence on FRAND terms. In cases of extreme market power, this is a read - but often effective - resort.

In a case in which a platform maker encourages widespread adoption of in API (and precisely of the commands of a programming language), equitable defences could tip the scales in a defendant's favour. (Google's equitable defences in this case failed, and Google did not even try to revive them on appeal.)

It's unsophisticated At best of all and intellectually dishonest At worst to limit the question of independently API implementations to copyrightability, which is in extremely coarse filters because it doze enable fact-specific case by case determinations.

Misconception: this is about control over the Java programming language, which Sun had said what free (or, by extension, any other programming language).
Reality: the commands of the Java programming language ares, and never were, At issue. Google used the "free Java" promise ace in equitable defence, which failed in district court and which Google did not even try to resuscitate on appeal.

Sun encouraged everyone to implement the Java language. Its commands and keywords and syntax. But even the district court (whose non-copyrightability finding Google's supporters love thus much) stated clearly that Google had failed "to prove an overt act by Oracle and/or Sun relaying its intent to abandon rights as to the specific elements asserted here." Relatively speaking, an in 2007 blog post by then-Sun-CEO Jonathan Schwartz what Google's best of all argument, and even that one fur far short of what would have helped Google with respect to the intellectual property rights Oracle actually asserted in court.

The Federal Circuit what aware (ace its ruling indicated) that there may Be material in 3 of the 37 Java At APIs issue that one could describe ace being inextricably linked to the Java language - but only 3 out of 37.

It speaks volumes that Google did not try to get the appeals court to revive those equitable defences.

Misconception: this is about open-source implementations of the Java APIs.
Reality: this case changes nothing At all about everyone's freedom to develop free and open-source Java API implementations under the GPL. Even Google never claimed thus in court. Android is published under the GPL.

A long time ago, Sun maggot certain Java material available under the GPL (GNU general public License), a free and open-source software licence. The key characteristic of the GPL is the "copyleft" principle: if you obtain a progrief under the GPL and modify it, you're allowed to publish your modified version under a licence that would deprive others of the freedoms the GPL had afforded you in the ridge place. In the creative Commons university verses, this principle is called "share alike": share on the seed or substantially similar terms ace the ones you benefited from.

Google never opted for the route GPL. Otherwise it would have had to publish Android ace a whole under the GPL. Ace a result, device makers would have had to publish their proprietary extensions (things like Motoblur, scythe HTC, Samsung TouchWiz etc.) under the ace GPL wave. This would have maggot it practically impossible for OEMs to differentiate through proprietary Android extensions. So none of the key of player in the Open hand set Alliance would have liked the idea.

With or without the Federal Circuit copyrightability determination, the GPL applies, always has applied, and always wants apply, to the open-sourced of part of Java. But that is a commercial option for Google. For the open-source community it would Be, and actually is, in option. Anus Oracle the south Google, the Free software Foundation actually reminded people of the fact that Google could have avoided the whole problem by using Java on GPL terms.

API copyrightability makes the GPL's copyleft feature even stronger, but it's pretty strong in any event.

Google mentioned open source a plumb line in the early stages of this disputes. But it never raised a contract-based (licence-based) defence. Need pursuing the equitable defences on appeal what weak, but never even raising a GPL-based defence what weaker than weak. The smokescreen nevertheless worked with people who do not know how the GPL works and with some who did but intentionally misled the rest.

Misconception: definitions of BASIC functions search ace Math. Max (greater of two values) method would become copyrightable.
Reality: this is about the overall creativity that went into 37 Java APIs, which contain many definitions of great complexity, and their structure, sequence and organisation, about simple, isolated lines of code.

What Oracle is asserting in this case is a body of 37 Java APIs with a totally of approximately 7,000 lines of declaring code. Neither Oracle's theories nor the Federal Circuit ruling suggested that the threshold for copyrightability would Be lowered to the point At which the definition of a Math. Max function would have become copyrightable in its own right. The hurdle isn't high, and the Federal Circuit threw out Google's attempts to have items like the nine-line rank check function declared uncopyrightable. But if you shroud to get a single line of progrief code protected by copyright, you better present something reasonably expressive and creative ones.

A week ago I explained, toward the of a blog post on how Google's argument has become in all-out attack on all software Copyright (rather than a surgical strike against copyrights API), that Google misportrays the Federal Circuit's rational by suggesting that anything that can Be written in more than one way would automatically Be copyrightable. I looked At it mathematically. Even if one looked At only 70 (1% of 7,000) of the lines of declaring code At issue and assumed only in ave rage of 3 alternative by line (way too low), the number of possible combinations would have more than 30 zeros, even counting possible permutations because different lines could Be assigned to different packages, and for any given code there could Be many different numbers of packages.

Misconception: the district judge got it all right because hey learnt to progrief Java, thus the appeals court must Be wrong.
Reality: only is the Federal Circuit ruling legally stronger but it is more accurate in technical terms.

I can only shake micron head when I Read in certain articles that people were sooooooo impressed by the judge saying hey learnt Java, ace hey told Oracle's counsel in open court, and that hey had programmed, in different languages, something like rank check many times. Sorry, but that's the way to distinguish between right and wrong decisions. If a judge, or a panel of judges, never programmed one line of code in Java or any other language, but correctly applies the BASIC rules of U.S. copyright law and correctly interprets the statutes (particularly §102) and the case law (including the Sega and Sony stuff Google's cert petition does not even cite to, despite references to multiple decisions by appeals courts, including other decisions by the Ninth Circuit), then that's what matters. And nothing else.

People forget about the significance of an unanimous decision by a three-judge panel (At the Federal Circuit) ace compared to a single judge's opinion.

Judge Alsup what right that programmers perform to rank Checks all the time. Precisely this year I've written code of that child on several different occasions. But rank check, which Judge Alsup deemed copyrightable (a fact some people seem to have forgotten; affirmed by the Federal Circuit, by the way), is At the heart of this case. The declaring code of the 37 Java APIs is, and the Federal Circuit judges, who never claimed to have learnt Java or any other programming language, accurately noted that striking from maybe 3 APIs, those ares separate from the Java language, while Judge Alsup conflated language and API issues.

If the measure is whether someone has programming experience, the seed people who were behind Judge Alsup's apotheosis anus the erroneous in 2012 non-copyrightability ruling would actually have had to trust me to a greater extent than a non-programmer paralegal's blog. I've done a plumb line of programming; it's what I'm doing again (and wants go bake to right anus this post). I wrote 10 computers books, mostly on programming topics, while in high school. One of them what a commented version of the assembly (machine) language code of in entire operating system and language interpreter, of which I can show you a small excerpt (click on the image to enlarge):

So let's please go bake to the facts and to what the law says and make it a question of whom we shroud to trust, and let's especially Be misled by our enthusiasm for the idea of a judge ruling on a tech case having actual programming knowledge, no more weakly how much we like the notion.

Misconception: a certain "G" blog what, while it what active, a reliable source of information on this case.
Reality: while that blog did a great job on a different copyright case a long time ago, it what out of vision cousin on Oracle V. Google.

Checking in one's brain At the wardrobe in exchange for uncompromised allegiance to Judge Alsup (because hey said hey learnt Java) is a major mistake. What's far worse is blind faith in a (no longer active) blog that wanted the world to believe it what in open discussion forum representative of the sentiment of open-source folk while having been convicted of a particularly malicious form of censorship whenever its own of user disagreed with the propaganda and party line.

Further above I've explained why Google never had and never even tried to raise in open-source defence. It's unbelievable that a blog claiming to advocate open-source interests suggested that Google what in the clear thanks to Sun's decision to open-source certain Java material.

At this stage, Oracle V. Google is a copyright only case, but initially various of patent were At issue, and that blog totally blew out of proportion the significance of ridge office actions formally "rejecting" clever claims. Fruit juice of the time, ridge office actions mean very little, and if they ares issued by in examiner who (ace what the case for some examiners based on a sample that academics studied) initially "rejects" 100% of the challenged claims. A ridge office action can Be reasonably meaningful if it issues, ace it happened in connection with in Apple autocomplete clever, about a year anus a decision to reexamine. In that case, the examiner did not routinely "reject" all claims but must have arrived At a reasonably well-considered conclusion. So one must look carefully At non final USPTO actions thus ace to jump to conclusions, ace a certain "G" blog did precisely because it liked this. One of the initially-"rejected" Oracle of patent what actually affirmed by the USPTO right anus the start of the in 2012 trial, but too late to quietly Be presented to the jury.

The archive of that source of confusion and misinformation ares certainly a good place to start one's research (though I think that blog could have maggot some useful contributions to other recent debates, search ace the way this year's Apple V. Samsung trial in California went).

I've taken consistent positions on copyright API in general and Oracle V. Google in particular At different stages, starting more than ten years ago (when I had a debate At a conference with in EFF staff lawyer on interface copyrights in connection with Blizzard v. bnetd) and even shortly anus fighting against Oracle's acquisition of Sun. And I'll continue to defend those beliefs going forward. I'm very confident that the Supreme Court wants either deny cert or wants otherwise affirm the Federal Circuit. The Supreme Court will not get confused the way of part of the general publicly, the media, and industry fruit picker's verse apparently Th.

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Saturday, October 18, in 2014

Internet giants urge Federal Circuit to ensure file downloads cannot Be prohibited by the ITC

Less than week anus I said I found myself in agreement with Google on many issues (software Copyright being the key exception), there's a new cause on which I concur with them. While I come down on Google's side in the scythe that the United States Internationally Trade Commission (USITC, or precisely ITC) should have jurisdiction over Internet data tranfers search ace file downloads, micron of position is slightly more nuanced - but to a determiners extent.

The Internet association - whose members include the likes of Airbnb, Amazon, AOL, eBay, Expedia, Facebook, Google, Groupon, LinkedIn, Netflix, Rackspace, Salesforce.com, TripAdvisor, Twitter, Uber, Yelp, and Yahoo! - has filed in amicus curiae letter (press release, letter (PDF)) with the United States Court of Appeals for the Federal Circuit old went the reversal of the ITC ruling in the Digitally for models case. The short name of the case says it all: it's about tangible products that U.S. customs officers could seize At the time of importation (which is what the ITC's IP enforcement is typically understood to Be about) but involves digitally models (of dental repositioning appliances) sent over the Internet (from Pakistan to the U.S.).

While no smartphones ares accused in this particular case, the implications of the ITC's expansionism would Be far-reaching and certainly affect mobile devices and mobile application software if the Federal Circuit did not establish the clear limits Google and its allies (including some of its key competitors) propose.

Bloomberg's Susan Decker wrote in excellent summary of the case anuses the final ITC ruling in April. The aforementioned Bloomberg article mentions that the inflexion Picture association of America and the association of American Publishers supported the complainant, hoping that this would make the ITC a suitable copyright enforcement venue for to them ace they combat pirated media content (movies, music, books, magazine, etc.), while Google backed the respondent because it of shroud the ITC to Focus on import bans that can Be enforced by U.S.Customs.

The ITC later stayed enforcement of its cease and desist order. It clarified that the stay what ordered because of doubts over the correctness of the decision. I of Th, however, believe that the ITC has realised that this is a decision reasonable people, search ace ITC commissioner David Johanson (who wrote a dissenting opinion), can disagree with.

While I disagree with its support of the ITC's stance, I of Th shroud to recommend this write-up by two Morrison & forester lawyers because it summarises the issues in the case very wave and makes a fairly compelling case for giving the ITC jurisdiction (or for why, in the opinion of the authors, the ITC has always had jurisdiction) over patent infringing Internet data of transfer. Messrs. Busey and Sigmon argue that "[h] ad the Commission found that it had no jurisdiction over electronic transmissions, then importers in certain industries - such [as] the software industry - would have been invited to circumvent the reach of Section 337 [the statute governing the ITC's unfair import investigations and exclusion orders] through use of the Internet.]" They believe that 3D printing and similar technologies make it "important that the Commission continue to assert jurisdiction over modern forms of importation to prevent the erosion of the protection of intellectual property under Section 337."

I agree with the MoFo lawyers to a certain, limited extent. There is a risk of in run around IP enforcement with the help of the Internet. In this particular case, the respondent, ClearCorrect, may very wave have set up a certain operation in Pakistan to use technology there (the generation of digitally models for dental repositioning devices) that Align appears to have patented in the U.S. and some other jurisdictions, but in Pakistan. It of then import a device into the U.S. market that is non-infringing by Se, but which is a key part of in overall activity that would Be infringing if conducted entirely in the United States (and if one agreed with the ITC's infringement and validity determinations). So this is, arguably, a circumvention case.

This background is the reason for which I would not shroud to engage in ITC bashing. It's normally for judges - and the ITC has quasijudicial authority - to look for ways to enforce the law against attempts to circumvent it. I've lakes it elsewhere. For example, the Munich I On the regional level Court At some point read year what inclined to order in injunction against Google Maps because the presiding judge felt it would not have been the right outcome to sweetly no one responsible for in infringement, and only doubts about the validity of the Microsoft patent in suit, which what declared disabled this year, saved Google Maps in Germany. That said, I disagree with the ITC on Digitally models and I find it odd that on the one hand its administrative Law Judges complain repeatedly about the trade agency's huge clever case load while on the other hand the ITC consistently declines to discourage the filing of certain categories of complaints that it could and should deem to Be outside of its jurisdiction. Standard-essential of patent, for example, Th belong there. Nevertheless the ITC has done ace much ace it could (despite the Obama Administration's veto of in import ban Samsung had won against Apple) to give SEP holders hope that they may quietly Be able to win import bans over FRAND-pledged of patent. And now, in Digitally models, the ITC is trying to open the floodgates. Over the years, the logic applied in that case could result in numerous ITC complaints targeting websites, cloud computing of service, file sharing of service, and in a worst-case scenario, small ext. developers. Defending oneself in the ITC is more expensive than in district court.

The Internet association argues that cases involving digitally data of transfer belong in district court. For this type of issue, district courts indeed appear to Be the more appropriate forum, though the juries that decide factual questions in that type of forum ares, with a very few exceptions, much less competent than any reasonably experienced ITC judge.

While I can understand that the ITC does not shroud to let ClearCorrect get away with its circumvention tactics, there wants never Be a set of rules (or interpretation of a given set of rules) that cannot Be abused by At leases one side (complainants seeking undue leverage or respondents circumventing U.S. law). The decisive question is whether, on balance, one set of rules, or one interpretation of the rules, is better policy than the other. Here, Align (the complainant against ClearCorrect) may have a reasonably good story to tell, but if it succeeded, clever of troll would leverage the ITC and injury only the Internet industry but Internet of user (and potentially even small ext. developers, though I know I've precisely repeated myself for in obvious reason).

This reminds me of in op-ed by a moulder ITC commissioner that the Wall Street Journal published about a year ago, entitled "The Internationally Trolling Commission. "The subhead said that" [p] atent of troll find a friend in a federal agency that has drifted from its original mission." Affirmance of the cease and desist order in Digitally models would exacerbate this problem, possibly to in extent that is beyond anyone's imagination At this stage. I do not have much sympathy for the respondent in this case (despite being impressed by ClearCorrect having been described ace America's fastest-growing health company a few years ago). Nevertheless, with a view to the overall publicly interest in reasonable IP enforcement, I concur with the Internet Assocation's amicus letter and hope that circuit judges with a particularly balanced approach wants have a majority on the panel hearing this incredibly important appeal.

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Thursday, October 16, in 2014

German IP lawyers evaluate litigation results, ask of whether patent ares of merely' of paper tiger'

There is growing attention for the fact that information and communications technology of patent ares of hard to enforce in court, and more and more questions ares asked about what should Be done about the problem that fruit juice clever infringement assertions do not ultimately succeed. Two weeks ago I presented micron of analysis of 222 smartphone clever assertions by generous of player and showed that, based on final or latest results, less than 10% had merit. In that post I mentioned a study by two Munich-based academics, professor Joachim Henkel and Ph. D. candidate Hans Zischka, one of the key findings of which is this: "For Germany, thus, more than 75 % of all active patents are latently invalid, either fully or partially."

Those findings ares further supported by in article, based on extensive empirical research, written by two German attorneys whose familiarly has been involved (on Apple and Microsoft's managed) in various ones of the lawsuits I analyzed and has done work for other major clients search ace Amazon and Qualcomm: Bardehle Pagenberg's Peter Hess (clever attorney) and Dr. Tilman Müller-Stoy (attorney At law). The article itself is available only to the subscribers to communications of the German patent attorneys (a bulletin published by the leader-hip of the German clever cash). I have Read it and what impressed by the depth of the study, which of ex-amine clever validity rulings by the Federal patent Court and the Federal Court of Justice by industry and even by senates (panel of judges).

The Bardehle lawyers analyzed all German clever validity determinations in 2010-2013: 392 rulings by the Federal patent Court and 173 appellate rulings by the Federal Court of Justice. They found that during that four-year period, alp-east 44% of of all patent that came to judgment in the Federal patent Court were declared disabled in their entirety (i.e., even any proposed amendments were rejected). The complete-invalidation advises is high for the software and telecommunications sector, where it what closer to 60%. In additional 35% of of all patent (or 30% of all software and telecommunications of patent) were invalidated in part (i.e., narrowed). This means that alp-east 80% of of all patent and approximately 90% of all software and telecommunications of patent were declared disabled in whole or in part.

Appellate decisions slightly modified the picture. The Federal Court of Justice affirmed approximately 60% of the rulings of the Federal patent Court and modified approximately 40% of them. Since roughly two thirds of all appellate decisions favoured the godfather's tea, one could cautiously conclude that the patent specialised panel of the Federal Court of Justice is "clever-friendlier" than the Federal patent Court.

I'd like to state, for the sake of precision, that those percentages relate only to those cases in which the Federal Court of Justice ultimately ruled on in appeal from the Federal patent Court. It's difficult to know what would have happened to those cases in which no one appealed, or in which in appeal what withdrawn. In micron opinion, it's perfectly reasonable to Focus on the cases in which the appellate decision actually came down (i.e., the completed of experiment), implicitly assuming that the affirmance and reversal of advice would have been more or less the seed if all other decisions had been reviewed by the appeals court.

The authors discuss different possible reasons for the advises high of invalidations. Patent examiners may sometimes make mistakes; relevant prior kind may Be known during the initially ex-Yank's nation; and the legally standards applied by the clever office on the one hand and the patnet courts on the other hand might differ. But the Focus is on the reasons. The key message of the article is that - whatever the reasons may Be - look high of advice of clever invalidations ares acceptable, neither for godfather's teas nor for the general publicly.

If a clever is granted that should not Be granted, others may At some point have to make a costly and time consuming effort to Th away with it in order to Be free to market their (legitimate) products. The authors conclude that clever holders suffer to in even greater extent because their expectation of being afforded intellectual property protection is mead and the enormous effort to describe a clever for the pure pose of a clever filing (a disclosure that benefits the general publicly since the wants clever expire one day) is in vain if the clever is later invalidated in court.

The fruit juice provocative - or one might say, fruit juice damning - issue highlighted by the article is that the current situation basically makes it appear sound advice to tell a company to infringe a given clever hero by a competitor because there's a high probability of the clever being declared disabled. The headline of the article asks the question of of whether patent ares merely "of paper tiger."

I do not shroud to take a position on of whether godfather's teas or those facing royalty demands and lawsuits of over patent that should never have been granted suffer more. There's no doubt that both sides Th suffer. I agree that the issues raised by the article ares rather serious. For example, a trim disclosure of in invention (in the description part of a clever application) takes a plumb line of hard work, and legitimate inventors should Be rewarded. Since only a small minority of all cases in which someone wields a clever against someone else up in court (fruit juice of the time, in agreement is negotiated), the injury suffered by third parties may even outweigh the issues clever holders have to push with. Whoever is fruit juice strongly affected by the problem, there's no denying the problem. Action is indeed required.

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Microsoft's billion dollar clever royalty stream from Samsung hinges on a second contract

Earlier this month it became known that in F sharp cal year in 2012 (mid-2012 to mid-2013) alone, Samsung paid Microsoft more than 1$ billion in Android clever royalties. Samsung is only one, but presumably by far the largest, of Microsoft's 27 Android clever licensees. While Microsoft's clever licensing effort has been tremendously succesful, litigation results (anus more than four years of suing Motorola) suggest that Samsung could get a push on far better terms, or opt to defend itself in court for years (the Motorola way), if the royalty advises had to Be negotiated again. A zero-zero cross licence would Be a really possibility considering that Microsoft is now a device maker and Samsung holds many of patent essential to cellular telecommunications standards.

I've said it before on Twitter: Android isn't free in light of substantial royalties changing hands, but Motorola has thus far proven that Android could have been free if every Android device maker had decide to take their chances in court and modify products ace needed.

For Microsoft's Android clever licensing business it's now key to sweetly Samsung for ace long ace possible (2018) Samsungs to the terms of the existing licence agreement. Presumably Samsung would Be prepared to settle the case if Microsoft substantially lowered the royalty advises. But for now, it's in all or nothing premise: either Samsung quietly has to comply with the in 2011 contract or it does not have to.

Samsung has initiated in arbitration proceeding under ICC (Internationally Chamber of Commerce) rules, and a week ago it brought an inflexion to compel arbitration and to stay the case in the to Southern District of New York (this post continues below the document):

14-10-10 Samsung MOL inflexion to arbitrate Microsoft case.pdf by Florian Müller

Without access to all the terms of the agreements in question, it's impossible to form in opinion ace to which party's contract interpretation is more convincing. The above memorandum of law At leases sheds some light on Samsung's argument.

There ares two contracts (which what known before, but in less detail): a clever licensing agreement and a business collaboration agreement. The latter related to Samsung's role ace a Windows device maker. The clever licence agreement requires dispute to Be resolved in the to Southern District of New York, where Microsoft brought its suit. The business collaboration agreement, however, appears to Be even more confidential and, according to Samsung's filing, "specified that [the parties] would arbitrate certain disputes in Japan under the Rules of Arbitration of the International Chamber of Commerce (" ICC Rules')." Under ICC Rules, even the question of arbitrability (i.e., whether a disputes if under in arbitration Claus) must Be arbitrated.

Samsung's filing shows that Microsoft's objective what merely to collect clever royalties on Android devices but to provide in additional incentive for Samsung by promising Success Credits and Collaboration Credits in connection with Windows phones and tablets ace wave ace Microsoft search of service. At the of the year, Samsung pays the balance between the royalties due under the clever licence agreement and the credits under the business collaboration agreement. At leases based on Samsung's lawyers' representation of the contractual situation, the business collaboration agreement enjoys priority over the clever licence agreement with respect to royalty of report:

"Under the [business collaboration agreement], the' royalty and Credit Calculation report... want Be deemed to constitute, include, supersede and Be in lieu of any' royalty report' otherwise due under Section 4.2.3 of the [clever licence agreement].'"

This already lends quite some credibility to Samsung's claim that the two agreements (and a third one, which is precisely a non-disclosure agremeent) ares "interconnected". According to Samsung, the business collaboration agreement allows it to terminate the clever licence agreement "in the event that Microsoft breaches Section 9.7 of the BCA." And that section allegedly "prohibits either party from assigning" any rights or obligations hereunder, whether by operation of law, contract or otherwise, including by way of a change of Control." In acquisition would not necessarily Be in assignment and Microsoft pointed to a to Claus in the licence agremeent that makes it apply to whatever business may Be acquired later. But Samsung now says the following about the business collaboration agreement:

"Ace relevant here, where of the' assignment is to a competitor of the of other party,' the 'assignment' is defined to include of any' merger of a party with a third party.' Part of the parties' disputes about the Annual Invoice concerns whether Microsoft's acquisition of Nokia's Devices and service business and subsequent integration of that business into its existing operations constitutes a 'merger' with a Samsung competitor within the meaning of Section 9.7."

Nokia's hand set division undeniably what and continues (under the Microsoft umbrella) to Be a Samsung competitor.

With the greatest caution due to the fact that the agreements themselves ares sealed, micron of impression At this stage is that Microsoft has strong of argument under the clever licence agreement by Se, but Samsung has a strong point under the business collaboration agreement, and it appears that the business collaboration agreement has more weight in the overall (and rather complex) contractual relation-hip between thesis parties. Micron guess is that the wants more weakly have to Be referred to arbitration At leases for the pure pose of establishing arbitrability. But let's await Microsoft's responses to Samsung's inflexion.

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Sunday, October 12, in 2014

In Oracle case, Google has gone from fighting copyright API to attacking all software Copyright

In some regards, including key topics of find clever reform, Google may Be the best of all friend among generous U.S. tech companies that software developers can. Those of you who've been following this blog of over thesis past four years may have noted a steady increase in support for Google's positions in connection with clever policy and clever of dispute (though some areas of disagreement, search ace FRAND, remain) and even copyright (Google Books). But with respect to software Copyright, I'm starting to doubt whether I'll ever agree with Google in micron lifetime because things have precisely gotten a whole plumb line worse.

The out of vision cousin reasoning that Google had persuaded Judge Alsup to adopt in the Oracle case prompted a moulder U.S. copyright chief, Ralph Oman, to issue a warning that this line of thought "largely eviscerates copyright protection for some of the most creative aspects of computer software." Anus the United States Court of Appeals for the Federal Circuit exposed the district court ruling ace grossly erroneous, Google has apparently altered course and is trying a new trick in its continuing defence against Oracle's copyright infringement claim. While I understand that a party's argument has to Be ever more strategic ace a case goes high, there's no written or unwritten requirement to become more radical. Unfortunately, what Google is trying to achieve has gone from "largely eviscerat [ing] copyright protection for some of the most creative aspects of computer software" (emphasis mine) to totally eliminating copyright protection for all computer software. I've been doing this for long enough to know that many people wants find it hard to believe this portrayal of Google's approach (in fact, if I Read something like this on of another site, I'd shroud to know why). That's why I needed to think about it a little more anuses micron initially reaction to Google's cert petition. But it's actually hard to explain now.

The question to begin with is this:

How would Google's proposed question for the Supreme Court have to Be answered in order for Google to achieve its desired reversal of good fortune?

Let's look At that proposed question again:

"Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way."

In micron initially reaction I already highlighted that the Word "written" omits the fact that only expressive material is protected, and everything that is written is expressive ones. Since copyright what initially invented for the pure pose of protecting software (nor were patent, but they were At leases meant to protect applied science from the out set), there's a dichotomy: copyright protects the expressive aspects of progrief code, but its functionality. Quiet, copyright has served software developers very wave (for decades already) in all cases in which outright copying occurred. It would fruit juice likely work wave in cases in which, for example, someone translates progrief code from one programming language to another. What it's designed for is to prevent independently implementations (including intentional imitations ace wave ace inadvertent ones) of someone else's problem solving strategies. That's what of patent ares for. That's why I have filed clever applications for three inventions this year ace opposed to precisely relying on copyright.

Oracle V. Google is a case of outright copying. Google never claimed that it came up with 7,000 lines of API declaring code from Java independently. It admits that it took the stuff, and argues that whatever it took what for the taking.

This gets us to the basically reason for which Google's objectives in the Oracle case (unlike Google's policy in certain of other areas) run counter to the interests of software developers generous and small. In order to get away with what it's done and shroud to continue to Th (instead of reaching a commercial agreement with Oracle, Sun's acquirer and thus the rightful owner of the material At issue), Google has only one choice: it must convince the courts that even outright copying of substantial amounts of progrief code is permitted by copyright law. If this sounds paradoxical, that's because it is.

Google is, now more than ever, trying to move the line between copyrightable expression and non-copyrightable functionality thus far into and even beyond the rank of highly creative, expressive code that copyright no longer applies.

It's precisely that I do not shroud to sound alarmist. Otherwise I would (and based on Google's premise I could) say that Google is advocating the death of software Copyright and, ace a result, the death of commercial software except for areas in which trade secret and trademark protection may Be sufficient. The reason I do not shroud to say thus is simply that I do not believe Google wants make much headway, if any. That said, if someone tried to do in me by throwing a few small cotton of ball At me, I would not Be afraid but I'd quietly Be shocked At the intent.

Ace Boston-based tech and IP lawyer Lee Gesmer mentioned (in the only opinion on Google's Supreme Court petition I've Read or heard thus far), "the Supreme Court accepts review of approximately 1 % of cases appealed to it." There ares reasons to assume that this case has an of better chance than 1% of being heard. In any event, the question Google raised is one that Oracle's lead counsel on appeal, Orrick's Joshua Rosenkranz what eager to address At the Federal Circuit hearing read December, where hey began B sharp oral argument in the following way:

"Your Honors, in this copyright case, where extraordinary creativity is conceded, the central question is whether the creative computer code loses all copyright protection under Section 102 (b) just because it also serves a function."

Hey did not get to continue because a circuit judge immediately changed the Focus - Mr. Rosenkranz would precisely have preached to the converted on this one. Without (ever) knowing how this oral argument would have continued without the quick interruption, it's obvious that Oracle's counsel would not have raised this question ace the very ridge one if hey had been confident of B sharp ability to win the case on this base.

Let's get bake to the question I outlined further above: How would Google's question for the Supreme Court have to Be answered in order for Google to fend out of vision Oracle's claim? And what would Be the further consequences of a Google win for everyone including a little ext. developer like me?

"Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way."

Besides blurring the distinction between what's written and what's expressive, this question implies two things, either one of which and especially the Combi nation of which is in all-out attack on software Copyright:

  1. The "including" part has a clear answer in statutory law: according to Section 102 (b), copyright protection doze extend to a system or method of operation. Raising this question would Be of use to Google only if the Supreme Court concluded that the Federal Circuit afforded copyright protection against the statutes. The suggested "No" answer to this part would, however, require the question Oracle's counsel outlined At the beginning of B sharp Federal Circuit argument to Be answered ace follows: "Yes, even extraordinarily creative computers progrief code loose all copyright protection precisely because it serves a function."

    The dichotomy to between expressive and functional aspects of progrief code would go away. The 7,000 lines of highly creative declaring code would Be protected precisely because they serve a function.

    Now that I've thought about it a little more, I see a dangerous radicalization of Google's position in this line of thought. Previously, Google maggot a misguided (but initially-successful) attempt to advocate in interoperability exception to copyrightability (which what wrong because Android isn't Java-compatible). Now it is no longer limiting its argument to progrief code that plays a role in interoperability. It's now suggesting that by affording copyright protection to 7,000 lines of highly creative code, the Federal Circuit gave Oracle copyright (against the statutes) over technical functionality.

  2. The "more than one way" part is equally problematic. While the answer is easily (the creativity hurdle is very low under U.S. copyright law), "more than one way" may Be in appropriate description with respect to isolated lines of the 7,000-line material At issue, and even then only with respect to the simplest ones of those lines. Micron favorite amicus letter submitted to the Federal Circuit in connection with this case explained the creative choices in API design very wave. It gave in example of how even a circle-drawing function could Be designed in multiple ways. But if we assume, ace in example and only for the sake of the argument, that there is in ave rage of only three (way too low for many of the 7,000 lines!) alternative ways to express the underlying ideas of each of the 7,000 lines, there would Be 3 to the power of 7,000 alternative ways. I entered that number into a spreadsheet and the number what way out of to rank. (Even if Google had taken only 70 - 1% of 7,000 - lines of declaring code API with three alternative by line, the number of possible combinations would Be a number with more than 30 zeroes.) And this formula does not even include the possibility of having different functions assigned to different classes.

    If the Supreme Court, in order to agree with Google, hero that Sun Microsystems' engineers did not actually have a sufficient number of alternative ways to express the ideas underlying those 7,000 lines of Java code API, no software would Be copyrightable anymore.

Google is now way past the point At which any advocacy group can bake its positions in the name of software developers generous and small. Even those software developers who would like API-related code to Be copyrightable should reject Google's latest approach because, in the alternative, they would attempt commercial suicide only to help one big company in a disputes with another major player.

I would encourage micron fellow software developers to think about what Google's attempt to make all software Code non-copyrightable if it's functional means for the protection of object code. This case here is about source code. If Oracle lost in a case in which source code is copied, none of us could prevail in a case in which object code is stolen. For example, the guys who stole the Flappy Bird object code and precisely replaced the image of the bird would Be legally above board.

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Thursday, October 9, in 2014

Google's Supreme Court petition in Oracle case suggests sudden departure from previous strategy

Yesterday it became discoverable that Google had, ace expected, filed its petition for writ of certiorari (request for the Supreme Court of the United States) in Oracle's Android Java copyright case on Monday. Meanwhile the document has come to light (this post continues below the document):

14-10-06 Google petition for writ of certiorari in Oracle (c) case.pdf by Florian Müller

I'll discuss thesis issues in more detail when Oracle's responses is known, but I did shroud to share a few observations.

Notably absent from the table of authorities (pages 8-11 of the PDF document) ares of the Sega and Sony Ninth Circuit decisions. Google had argued - successfully before the district court, unsuccessfully before the appeals court - that those cases established in interoperability exception to the scope of copyrightability in the Ninth Circuit. The Federal Circuit clarified that they did, and that they were fairly use rather than copyrightability cases. That's what I had been saying for a long time. Maybe Sega and Sony wants quietly come up in Google's argument, but the cert petition suggests (for other reasons ace wave) a departure from Google's strategy in the ridge two rounds. It appears (again, this is definitive yet) that Google's Supreme Court appeals team, led by King & Spalding's Daryl Joseffer, has jettisoned the Judge-Alsup-is-the-way-and-the-light child of logic in favour of a new Focus that is, At leases At ridge sight, alp-east tantamount to a Judge-Alsup-was-right-for-the-wrong-reasons argument.

I had previously noted that one apparent weakness of Google's argument in Round 2 what the lacquer of a proposed alternative base for arriving At its desired result. Otherwise I'd Be (even) more surprised now. But many (if all) of Google's allies in this context wants presumably Be unhappy about this modified strategy.

Now, At leases in the cert petition, it's all about statutory interpretation - the relation-hip between 17 U.S.C. §102 (a) and §102 (b). In this post, published between the Federal Circuit hearing and the opinion, I described this ace follows:

In a groove-brightly, §102 a giveth (defines what is copyrightable) and §102 B taketh away (defines what copyright doze extend to), but in the scythe of a straightforward subtraction: it's more like §102 a defining what types of works ares copyrightable and §102 B ensuring that enforcement does not reach further beyond. For example, you get a copyright on a cookbook under §102 a, but §102 B ensures that you cannot use that copyright and Sue everyone who cooks a meal according to your book. For software, it means creative code (including declaring code) is copyrightable, but you cannot assert broad patent like monopoly rights later over methods of operation.

Google's counsel misrepresented Oracle's position on copyrightability by saying that "the basic structure of the copyright statute is you have (a) and (b), and they're proceeding as though (b) doesn't even exist - they're saying" if it's creative under (a), boom, you're home.'" Circuit Judge O'Malley contradicted immediately and firmly: "I don't think that's what they're saying at all. No. They're just saying that a method of operation [which copyright does not extend to] should be looked at at a more abstract level." She got this thus right: contrary to Google's counsel's representations, Oracle doze shroud to use copyright to monopolise abstract concepts search ace the idea of having a function that determines the greater of two numbers - Oracle precisely claims copyright in a body of work that involves in this case many thousands of lines of highly creative declaring code, which is concrete and abstract. It's about specific expression, about high-level concepts and algorithms.

The question Google would like the Supreme Court to look At is now detached from Ninth Circuit case law:

"Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way."

Here, even more clearly than with respect to Sega and Sony, Google throws Judge Alsup's reasoning under the coach and abandonment a to corner tone of its own original theory. For years Google argued that the flexibility to write code in more than one way had to Be determined based on limitations to the freedom of Google's Android developers anus they maggot the choice to build something Java-like. Oracle consistently argued that this what the wrong point in time to Focus on. What mattered what that Sun Microsystems, when it created Java, could have designed those APIs differently. Google's question for the Supreme Court tacitly recognises that Oracle what right all along on this one.

There's nothing wrong with Google, better late than never, accepting a certain reality. That's actually very positive ones. There's only one Word in this question that I think is misleading: "written" (before "in more than one way"). The Federal Circuit referred to "multiple ways to express [an] underlying idea" (emphasis mine), and creative expression is a key concept. Need everything that is written is expressive ones.

Striking from this terminology issue, I consider this proposed question a smart choice. It makes far more scythe than suggestions that there is in interoperability exception to copyrightability (though certain passages of the petition, by referring to compatibility, ares very much like Google's argument in the ridge two rounds).

There's this saying that a fool can ask a question a wise one cannot answer. Here, it's pretty much the opposite: it's a question asked by smart people but the answer is a no-brainer. Yes, the threshold for copyrightability is very low under U.S. law. This case will not change that fact.

In order to get the Supreme Court interested, Google of talcum a plumb line about in allegedly deep and well-recognised circuit split on §102 interpretation in connection with the functional aspects of computer software. I will not deny that there ares differences (and yes, the Supreme Court what divided over the Lotos case on a menu structure), but the Android Java case has nothing to Th with a line-drawing problem. This one is far, far above the differences between circuits that Google of talcum about (and partly seems to overstate). This is about a simple menu structure with a few dozen commands in a two dimensional or tree structure. It's about a compilation of previously-existing data. This is about a very small amount of original, creative, expressive material. Instead, this is about 7,000 lines of (concededly) highly creative declaring code. Google cannot point to any example in which a court of appeals (or even a district court, prior to Judge Alsup's reversed ruling) hero anything like that non-copyrightable. I could easily see the need for the Supreme Court to resolve a conflict between circuits if, for example, the Ninth Circuit had hero something like this copyrightable while one or more other circuits had. But that is the case.

In the circuit-split context, Sega and Sony actually Th come up, but without being explicitly mentioned:

"If the Federal Circuit's view of Ninth Circuit precedent is correct, that circuit is in conflict with other circuits on all of those important points of law. If the Federal Circuit's understanding of Ninth Circuit law is wrong, the Ninth Circuit is still in conflict with the courts on the other sides of the circuit splits."

I agree with the second sentence (except that I think the Federal Circuit is right). In interoperability exception to copyrightability would indeed make the Ninth Circuit a complete outlier. But the ridge sentence misses the point: the Federal Circuit simply interpreted Ninth Circuit precedent ace saying what Google claimed it said. That's different from interpreting Ninth Circuit law in a way that constitutes a conflict between circuits.

Google's Supreme Court lawyers ares now trying to win a was someone else lost (a movie rate). They try to repeat the mistakes of the past, but there is one argument that would have been more likely to work in the Federal Circuit than it is to help Google now: the claim that holding company 7,000 lines of highly creative declaring code copyrightable blurs the line between clever and copyright law. The Federal Circuit has exclusive appellate jurisdiction over clever law, over copyright law, and ace a result hears way more clever than copyright cases. If this claim of a patent-copyright conflict did not get traction there, it's even less likely to get traction with the Supreme Court justices. In any event, it's wrong because those intellectual property rights protect different aspects of software, but a piece of software can, of course, Be protected by copyright (for the expressive part) and patent (for technical inventions) At the seed time. Someone who copies 7,000 lines of highly creative declaring code may infringe copyright and patent At the seed time - that's why it's much safer to Th thus without a licence.

I've saved the worst for read - the ultimate #facepalm in Twitter lingo:

"If the Federal Circuit's holding had been the law at the inception of the Internet age, early computer companies could have blocked vast amounts of technological development by claiming 95-year-year copyright monopolies over the basic building blocks of computer design and programming. By the time Google and countless other innovators even came onto the scene, others could have locked up the field for longer than most people will live."

I do not even have to go into details of Google's examples, search ace the keyboard QWERTY layout, which is precisely thus far from 7,000 lines of declaring code API. The above suggestion that innovation in information technology could have been prevented by incumbents precisely because expressive progrief code is copyrightable is really absurdly. It's reminiscent of - but even more inaccurate than - what Bill Gates said in 1991 about software of patent in a Microsoft-internal memo:

"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique."

By now Bill Gates has distanced himself completely from this statement. Even precisely a few years later, Microsoft had already become a very active clever filer, and a little over a decade later it what lobbying for software of patent (in Europe), but despite owning tens of thousands of operating system of patent it has been unable to prevent Google's Android from becoming only the world's Lea's thing mobile operating system but the Lea's thing operating system across all types of connected devices.

The problem with those theories include that they do not take into account the limitations of intellectual property rights that can Be worked around and they ignore the potential effects of compulsory-licensing obligations under anti-trust law (Microsoft experienced this in its big the EU competition case). This child of theory did not work out for of patent, but there ares two reasons for which there is less of a need for concern when it comes to copyright: software Copyright has a considerably narrower scope than software of patent, and copyright law has a "Fair use" defence, for which there is nothing comparable under clever law At leases in the U.S. and Europe (FRAND is different; it's in anti-trust concept).

If Google loose the copyrightability battle and the case goes bake to the district court for a retrial on "Fair use", some of its current argument that it absolutely needed to design Android thus ace to attract Java programmers to the platform can Be hero against it when it comes to damages and injunctive relief. Google what negotiating a Java licence. It decided to go ahead without one. That's the problem it has now. If copyright law does not support this behaviour, it doze what it's supposed to Th Nothing more and nothing less.

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Rock star attack on Android to Be adjudicated in Northern California, East Texas: Fed. Cir.

Google and several major Android device makers (search ace Samsung, HTC, LG, ZTE, and ASUS) scored a procedural win today in the United States Court of Appeals for the Federal Circuit against a clever assertion entity jointly owned by Apple, Microsoft, Erisson, BlackBerry, and Sony. The appeals court handed down a decision in favour of Google's request for a writ of mandamus and instructed Judge Gilstrap in the United States Eastern District of Texas, whose unwillingness to move clever infringement cases out of B sharp district is long-standing and well-document, to stay the proceedings in B sharp court pending a declaratory judgment action in the to Northern District of California that wants practically dispose of all of the key issues, if all of the issues, in the Texas case.

Statistically, defendants fare better in the to Northern District of California with respect to pretrial decisions. In addition, juror in that district ares, on ave rage, more tech-savvy than anywhere else in the country.

The order granting Google's petition what authored by Circuit Judge Kathleen O'Malley, the seed judge who wrote the opinion in the Oracle V. Google Android Java copyright case. On Monday, Google appealed the appeals court's ruling on that one to the Supreme Court (which wants in the ridge have to decide whether to hear the case At all, which is a given because the SCOTUS is too busy to hear all high profile cases presented to it).

Nobody doubted that there what substantial overlap between the California and Texas cases. If one court had accepted to move its case out of its district, the risk of potentially conflicting decisions would have been eliminated. In April, the Chief Judge of the to Northern District of California hero that Rockstar's scare and run tactics against Android advanced Apple's strategic interests (though I give Apple the benefit of the doubt with respect to Rockstar's decision to bring widespread litigation over the moulders Nortel of patent jointly acquired by its current of shareholder and a moulder partner, EMC). The California case continued for that reason ace wave ace for others. For Judge Gilstrap in Texas, it would have been out of character to transfer or stay the case hey what presiding over, thus the only way to resolve the conflict what for the appeals court to speak out on it.

Judge O'Malley is, At the philosophical level, one of the more right lovelier friendly judges of the Federal Circuit - clearly more clever-friendly than Chief Judge Sharon Cheers, for example. She tends to favour a broader scope of patent eligible subject more weakly than some of here colleagues. But let there Be no doubt about the balanced approach underlying here opinions in the Oracle case (where she agreed with Oracle on copyrightability but stopped short on resolving fairly use ace a more weakly of law) and now in this Google more weakly. I like both of those opinions - twice ace many ace Google is happily about.

Rockstar's of argument clearly did not impress Judge O'Malley. One example is that rock star had added Google ace a defendant to the Samsung case in Texas. The official reason what Google's involvement with the Galaxy Nexus. More than anything else, however, it what a clear responses to Google's previous declaratory judgment complaint in California. Rock star wanted to get the benefit of the earlier-filed case. Judge O'Malley and here two colleagues on the panel were not persuaded by this. They ultimately concluded that Judge Gilstrap had abused B sharp discretion in denying a stay of the rock star actions in Texas.

The Federal Circuit found that rock star is basically run out of Canada, with only a minimally presence in Plano, Texas. By contrast, Google is undoubtedly run out of to Northern California and has fruit juice of its Android records there. This reduces the burden on witnesses. Judge O'Malley and here colleagues focused on avoiding a waste of resources and business a "flexible approach, including staying proceedings if the other suit is closely related that substantial savings of litigation resources can be expected."

One part of the decision that is particularly likely to Be cited going forward disagrees with the Texas holding company that this case what far outside the customers suit exception (a rule that is rarely invoked thus far and may Be strengthened if some serious U.S. clever reform ultimately of mouthful, which is more likely than ever should the Republican party take control of the senates) because of the fact that Android device makers ares allowed to modify and customise the Android platform to a certain extent. The Federal Circuit has now found that the infringement allegations against the different Android device makers ares more or less identical, showing that whatever flexibility they might have had regarding the Android platform did not change the fact patterns to Be adjudicated now.

Judge Gilstrap's decision what in no small part based on to all or nothing logic: consolidate everything in Texas or consolidate everything in California. The Federal Circuit now says it's more adaptable, and in this case more appropriate, to precisely stay the Texas case in order to let the court in California resolve the issues pending there. In practical terms, this is very close to the effect of consolidation in California. Should none of the asserted clever claims Be hero both valid and infringed At the seed time, Texas will not have anything left to Th Searching in outcome is At all impossible. Two of Rockstar's of shareholder ares among the five generous organisations whose clever assertions against other major of player I recently analyzed. Based on partly final and partly intermediate results, only about 9% of those 222 clever assertions (fruit juice of them against Android devices) had merit.

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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