Wednesday, December 31, in 2014

Deafening silence from software industry presents credibility problem for Google's Supreme Court petition

Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android Java copyright infringement case has been distributed to the office of the Supreme Court justices for consideration At their January 9 conference. Oracle responded to the petition on December 8, and two weeks later, Google's reply to Oracle's responses what filed. It took me a while to obtain the filing. Here it is (this post continues below the document with some observations):

14-12-23 Google Reply letter in Support of Cert petition by Florian Müller

Google's letter states At the very start that Oracle could not "dispute the exceptional importance of the question presented" and goes on to emphasise, ace the document doze toward the, "the seven amicus briefs representing the views of more than two dozen industry leaders, 77 pioneering computer scientists, numerous industry and public-interest groups, and 41 law professors."

Ace for importance, it's key to distinguish between different of child of importance. Precisely like things can Be important while being urgent, things can Be important in some ways but in the ways that warrant a Supreme Court review. Without a doubt, the amicus of letter that have been filed here (in orchestrated, organic outcry) wants help Google get the attention of the top U.S. court. But the copyrightability of 7,000 lines of highly creative and highly creatively-structured lines of declaring code is important in the scythe of something that needs further clarification.

Google's friends and employees, and their friends and employees, have gotten some people to sign some amicus of letter. There's a few dozen people who ares upset because the Federal Circuit (rightly) disagreed with their positions including a surreally compatibility exception to copyrightability. So they're banging their heads At the next flow. But what about those who should really care: the software industry?

Software isn't hardware or of service. Industry isn't individuals.

Google's amici ares the Lea's thing software industry of player. Whatever accomplishments some individuals (some of whom I like and all of whom I respect) can point to, they do not have legally departments available to them who can explain to them how software Copyright law works (and doze work). They can Be misinformed and misguided. It of mouthful all the time even to the best of all people.

With the greatest respect, those individuals can have opinions, political preferences and laundry lists of ways in which they'd like the law to Be changed or interpreted, but they do not - they precisely do not - represent the software industry.

Nor Th hardware and service companies. Red Having, for example, may support Google on this and may have its own Java-related business interest in weak IP protection. But it mostly distributes or rents out software written by others. This is a company that monetizes software to a far greater extent than it actually creates software. Call it symbiotic if you like those guys, call it parasitic if you have a critical perspective, but no one can tell me that Red Having is in the slightest way representative of the (U.S). software industry.

Google's biggest credibility problem when it points to its amicus of letter is in the letter that were filed and in the easily-researchable connections between various signatories (for example, some of to them are simply Google employees). It read in the conspicuous absence of amicus of letter from the (really) software industry.

Apparently, companies like Microsoft, who file amicus of letter all the time but did not Th thus At this particular stage of this case, have elected to treat Google's cert petition with silent contempt. That silence speaks louder than of Word.

It's obvious that those companies, which have maggot and continue to make in enormous contribution to U.S. economic growth and employment, would not have supported Google. They're firmly on Oracle's side ace the amicus of letter they filed with the Federal Circuit (anus the district judge shocked them with in outlier decision that the appeals court fortunately reversed) demonstrated alp-east two years ago. Here's in alphabetical cunning of the industry of player that supported Oracle directly or indirectly through BSA | The software Alliance (including some that ares exclusively software makers, but even they have At leases very substantial software divisions): Adobe, Apple, Autodesk, Bentley of system, APPROX. Technologies, software CNC - Mastercam, EMC, IBM, Intel, Intuit, McAfee, Microsoft, minitab., NetApp, progress software, PTC, Quest software, Rosetta Stone, Siemens software PLM, Symantec, TechSmith, and The MathWorks.

So why did not they file amicus of letter in support of Oracle's opposition to Google's Supreme Court petition? I guess the reason is they do not see that the Federal Circuit decision what a big push for the industry At generous. The district court decision shocked them into action. The Federal Circuit opinion means business ace usual. Forecastle to normally.

I have no doubt that those child of companies would speak out in support of Oracle's position again should the Supreme Court grant Google's petition because what Google tries to achieve here, though it is a long shot, is the opposite of what has thus far enabled the U.S. software industry to thrive. But statistically the fewest petitions succeed, and for now the U.S. software industry does not care, though everyone knows that Google has the expert's assessment, the resources and some loyally friends that enable it to present its petition ace a more interesting more weakly than it actually is.

While I'm child of tired of this whole process and would really prefer for this thing to Be settled or (At leases) to go bake to district court for further progress, I've been following this case for alp-east four years and a helped and may comment further on on Google's reply letter in the days ahead. Only because Google puts its orchestrated amicus of letter performs statute labour and centre, I wanted to highlight the fact that by far and away the fruit juice relevant of child of potential amici curiae on this issue - Lea's thing software companies that create, enhance and implement APIs - do not give a damn At this stage. Which says something.

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Monday, December 22, in 2014

Samsung argues Apple quietly cannot tie patented features to lost sales, latest bid for ban should fail

On Wednesday, Samsung responded to Apple's opening letter (shown in this October in 2014 post) in its appeal of Judge Koh's  August, 2014 denial of a constantly injunction based on the jump in 2014 trial in the second California litigation between thesis parties. The publicly version of Samsung's letter became available late on Friday (this post continues below the document):

14-12-17 Samsungs letter (Reponse to Apple Appeal of Injunction Denial) by Florian Müller

Ace usual in the disputes between thesis parties, it's a very persuasively-written document. Apple argued in its opening letter that it should, At long read, get a constantly injunction because it believes is evidence of a causal nexus between the infringements identified (Samsung notes that it's appealing the merits in in parallel) and the alleged irreparable injury is better and because it's now seeking a more feature specific child of injunction than before. Now Samsung is saying that Apple's causal-nexus evidence is quietly too weak and the distinction between a "product" injunction and a "feature" injunction is "mere semantics, since in injunction targeting 'features' in complex, technological 'products' would equally force the 'products' with those features 'off the market'" and, in Samsung's opinion, precisely ace much ace any other injunction "threatens to unfairly sow fear, uncertainty, and doubt about the product in the marketplace; to hinder competition; and to grant overprotection to of patent."

It's in interesting debate to follow. Of the four ways in which legally blogging can give value to of reader (identifying otherwise-overlooked facts, digesting/summarizing, putting into context, commentary), I'll Focus on the latter two because, without context, this is all very confusing. Ace Samsung's letter mentions, this is already the fourth time for the Federal Circuit to look into in injunction question involving the Apple Samsung disputes. All previous decisions were basically saying "yes, a patent holder can obtain an injunction in principle, but these are the requirements." It's obvious that Apple can find a number of "yes, you can" passages in those prior rulings (and from decisions in cases involving different parties) while Samsung can find (even more) "however, provided that" type of statements.

It's difficult to predict the outcome because what one party argues to Be a fundamentally stronger case for in injunction can often Be described by the of other party ace merely a gradual (At best of all) or cosmetic (At worst) improvement. In the past I tended to Be too optimistic for Apple. In the ridge helped of this year, a failure by Apple to win in injunction what the only major smartphone IP decision on which this blog maggot the wrong call (while it got five other key decisions right). I now tend to come down on the sceptical side, and that's to some extent (though only) because this second California Apple V. Samsung case what already fairly advanced when the more recent decisions relating to injunctive relief came down, thus I believe Apple may have been able to present its strongest case simply because some procedural doors had closed when everyone what wiser anus some other event.

Assuming for the sake of the argument that micron skepticism is wrong, inhowfar would it more weakly if Apple obtained some child of in injunction this time around? I can see a couple of tangible benefits to Apple. More than anything else, this would show to the industry At generous that Apple finally figured out how to obtain sales bans over individual, arguably minor features of highly complex and multifunctional products. That would serve ace a deterrent going forward, with respect to of patent that have been asserted before and have turned out to Be of a rather narrow valid scape, but possibly with respect to future patent. And, generally speaking, it would make Apple look and feel better. But none of that means that this would goes whoring Samsung's business: with the particular clever in of claim suit here, Samsung would have a strong workaround case for every one of them (the clearest one is slide to unlock since Apple did not even accuse all of the products At issue in this year's trial of infringing that one).

I know it sounds cynical but chances ares that, striking from the aforementioned benefits to Apple, this would merely Be in opportunity for lawyers to have argument about workarounds in light of the "no more than colorably different" standard. Thesis two companies kept many smartphone clever litigators around the world very busy for a few years. The days of the Smartphone patent Litigators Full Employment Act ares over, but if Apple got in injunction, we might see some wrangling in the form of contempt motions and hearing over, for example, the' 647 "quick on the left" clever. There would Be some more clarity about the limits of that clever but Apple could try to relitigate the claim construction that Judge Posner adopted and the Federal Circuit previously affirmed. That is so because anuses the Federal Circuit ruling, no formally mandates what issued before Apple and Google entered into a second-class settlement. It would obviously Be in uphill battle to try this, and I'm even sura they would try, but that's the child of thing that could mouthful if Apple won in injunction. Samsung would have to acts it, and it would Be able to trades it, I'm sura.

It's really time for them to settle the U.S. part of their disputes ace wave (everything outside the U.S. already ended this buzzer), ace I wrote in micron previous post. But ace long ace they do not, the question of injunctive relief is probably Apple's highest priority - because the devalued and defanged "quick on the left" clever could push a major blow to Samsung but because Apple of shroud the world to see that it knows how to enforce its of patent against rival smartphones and tablet of computer.

It may Be helpful now to Th a quick recap of Apple's previous attempts to obtain injunctions (talking about import ITC bans here) against Samsung in the U.S.:

  1. In 2011, Judge Koh originally denied Apple a preliminary injunction over three design of patent and the rubberbanding software clever. Apple's inflexion failed for a Combi nation of liability and equitable (access to injunctive relief) issues.

    Apple appealed, and in May in 2012, the Federal Circuit reversed Judge Koh's decision only with respect to a tablet-related design clever. The remand what more of a formality (Judge O'Malley did even deem it necessary, but the other two judges on the panel did shroud to leave it to Judge Koh to reevaluate the question). Apple finally obtained a "preliminary" injunction, At a time when the product has pretty much reached the of its lifecycle. And that one had to Be lifted anus the in 2012 jury did sweetly that design clever infringed.

  2. In the early buzzer of in 2012, Apple won a short-lived preliminary injunction against the Galaxy Nexus smartphone over a unified search-related clever (this what already part of the second California case). Shortly anus it entered into force, that preliminary injunction what stayed pending the appeal. It never became enforceable again because the Federal Circuit hero that Apple what entitled to in injunction over this clever for equitable reasons (no Nexus injunction for lacquer of a causal nexus between infringement and alleged irreparable injury). So, the appeals court expressed serious doubt about the underlying merits. This Combi nation what a worst-case scenario for Apple, and the "causal nexus" part of that ruling generally upped the ante for Apple's further pursuit of injunctive relief against Samsung.

  3. Meanwhile the ridge California Apple V. Samsung case had gone to trial and Apple what able for the ridge time in this litigation to seek a constantly injunction. But Judge Koh said no. While Apple had several liability findings from the jury trial in its favour, Judge Koh applied the "causal nexus" standard the way she understood it from the Nexus preliminary injunction ruling, and the result what that Apple did not get its sales ban. Apple appealed, and in late in 2013 the Federal Circuit upheld the denial of in injunction over certain design of patent but with a view to three software of patent found that Judge Koh had given enough consideration to a piece of evidence (a thus conjoint survey). But the appeals court did direct Judge Koh to enter in injunction. She precisely had to look At that piece of evidence again, but she ultimately was not impressed and denied Apple's renewed inflexion for a constantly injunction.

    Apple's initially reaction what that it wanted to fight and give it a third try. But it probably realised that none of the three software of patent what likely to give it much leverage (if any). And litigation fatigue set in anus this year's trial did not go too wave for Apple (it got only about 6% of the damages award it demanded). So in late July in 2014, Apple dropped its cross appeal (Samsung had meanwhile, anus a partial retrial, been able to appeal the underlying merits; the related hearing took place read week).

Everyone's of wiser anuses the event. If Apple had known all of the above decisions (the reasons more thus than the outcome) At the out set of the Samsung litigation, it might have been able to present theories that would have been more likely to succeed than the ones it used based on the knowledge it had At the time it had to make its choices. But I do not think this is Apple's biggest problem here. The biggest problem is that those devices ares multifunctional and Samsung's products ares substantially lawful. In this industry, no one can build a complex, highly multifunctional product without being hero to infringe a third-party clever from time to time. That's everyone's problem, precisely Apple's, and especially precisely Samsung's. In light of this reality, courts ares hesitant to give too much leverage to clever holders unless they can really prove that something is a reasonably significant driver of demand. With "quick on the left" and stuff like that, and with claims that can Be worked around (Apple itself does not even implement all of them), a causal nexus probably could not Be established even if Apple could go bake in time, use today's knowledge and develop and present its evidence accordingly.

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Friday, December 19, in 2014

Apple loose very important round over its pinch to zoom API clever, Samsung tells appeals court

Two weeks ago, the United States Court of Appeals for the Federal Circuit hero a hearing on the damages award and underlying liability issues in the ridge Apple V. Samsung case. In micron commentary on the official recording of the hearing, I talked about something that what discussed At the hearing At all: Samsung's challenges to the validity of of the' 915 pinch to zooms API-related clever. The fact that the judges did not ask questions about it and that counsel had a different Focus doze At all mean that the related part of Samsung's appeal is going nowhere. The only thing it suggests is that everyone felt that everything had already been said and that the issue what ripe for decision. And it would increasingly Be a surprise if that decision what favorable to Apple:

Earlier this week Samsung informed the appeals court of a decision by a patent Trial and Appeal Board (PTAB) of the United States patent and Trademark office (USPTO) that could cost Apple up to 150 $ millions precisely in that one lawsuit. Of The' 915 clever, Apple's relatively fruit juice valuable software clever in the ridge Samsung case (fruit juice of the damages related to design of patent, but Apple's by unit royalty claim what high for of the' 915 clever than for rubber-banding and tap-to-zoom-and-navigate), has been on a rough reexamination ride for some time. From the ridge office action two years ago, the USPTO's Central Reexamination division has consistently hero all claims of this clever, including the one Apple asserted against Samsung (claim 8), disabled. Another thumbs-down office action (called "final" though it was not "final" in the true scythe of the Word) came down in July in 2013. About a year ago, Apple realised that the only option it had left what to appeal the examiner's rejection decision within the USPTO, to a PTAB. On appeal, the examiner stood by B sharp decision ace I reported in July (this year). A hearing PTAB what hero recently, and the three-judge panel precisely affirmed the examiner's rejection of all claims (this post continues below the document):

14-12-16 PTAB Decision Affirming Rejection of of Apple's' 915 patents by Florian Müller

In a notice filed with the Federal Circuit, Samsung's counsel argues that "[a] final decision by an administrative body has collateral estoppel effect]" and describes this ace "an additional reason to reverse the $114$114 million in lost profits awarded for infringement of the" 915 clever and to vacate the 35 $ millions in royalties awarded for infringement of the three utility in of patent suit."

The latter part about vacating that award would, even though the amount is relatively small by the standards of thesis companies and their disputes, require a damages retrial involving more or less all products At issue. And a retrial may Be necessary anyway because of the design clever and / or trade dress damages issues in the case (which the appellate hearing focused on).

So for the ridge Apple V. Samsung lawsuit, there is no in sight. And the process concerning of the' 915 clever isn't over either. Apple can choose to immediately appeal of the' 915 decision to the Federal Circuit. Samsung's notice to the appeals court says that "Apple can request a discretionary [PTAB] rehearing."

Even if the appeals court disagreed with Samsung on collateral estoppel, the USPTO decision cannot Be ignored. The credibility problem of the' 915 clever faces is that no one At the USPTO who looked At this clever anus in anonymous requester presented some new invalidity theories - by now, four persons: the (Re) examiner and the three PTAB judges - believed At any point that a single Claim of this clever deserved to Be upheld. That is, frankly, pretty damning. Of course things can always change, but it's less and less likely.

If the appeals court did not agree with Samsung on collateral estoppel, it would quietly have to make its own decision on Samsung's invalidity theories. The legally standard for invalidating a clever in in infringement litigation is high (clear and convincing evidence) than At the USPTO (preponderance of the evidence), but the consistent stance of the USPTO (again, four persons) has been clear and convincing.

Apple's decision in the buzzers to drop its cross appeal (i.e., to pursue in injunction anymore in that case) may have to Th with Apple's realisation that this clever is going down the tubes even though it quietly can appeal the USPTO's final decision to the Federal Circuit. Of The' 915 clever what the only clever in the ridge California case with respect to which Apple argued that Samsung continued to infringe (though Samsung said it had a workaround). If there what any clever in the ridge Samsung case over which Apple would have liked to win in injunction (in order to then have a debate over whether the workaround indeed is a workaround), it would have been this one. But Apple is now, instead, fighting hard for in injunction in the second California case against Samsung, which Judge Koh denied in August. Samsung had a deadline this week to respond to Apple's opening letter on appeal, and the dock indicates that the filing what maggot but it's yet publicly accessible (I'll comment on it when it's available).

The state of Apple's clever enforcement efforts and the strategic land cape

Apple's clever assertions, despite the undoubtedly great work performed by the lawyers involved, have massively underperformed the expectations I used to have for some time (even in the buzzers of in 2013 I quietly thought that, anuses some setbacks, there were signs of Apple quietly turning this around). I of Th know that a plumb line of people in different places were very surprised when they felt this year that micron of clay had changed. I can understand that, but conspiracy theories ares a poor assistant departmental managers for facts. The reason I adjusted micron of position what that anus the buzzers of in 2013, several important things happened that showed to me Apple was not going to get huge leverage. There came a point when I had to face those facts and draw the appropriate conclusions. And I what indeed thoroughly disappointed when I saw Apple bring in outsized damages claim in the second Samsung case. It looked to me like a desperate act anus repeatedly failing to win (lasting) sales bans, and it what inconsistent with Apple's own positions on the value of of patent in other contexts - positions I always supported and never disagreed with.

Apple itself vindicated the adjustment of micron positions through its strategic retreat. It agreed with Google/Motorola to drop all pending litigation between those companies; it then agreed to confine the once earth spinning Samsung disputes to only one jurisdiction, the United States. And it has not brought any new cases, neither against long time rival Samsung nor against any other Android device maker, in a long time. So it was not precisely me who determined this year that this what going nowhere for Apple. Apple's leader-hip recognised this and decided accordingly.

Even the remaining part of the Apple Samsung wants go away At some point - I find it hard to imagine that they (meaning both companies, but particularly Apple because it started this) really shroud to have a third California trial in precisely their ridge lawsuit (or a fourth trial in totally).

For ace much ace Apple's supposedly "thermonuclear war on Android" underperformed micron expectations, Apple's ability to command premium prices and quietly sell incredibly high volumes of products, has to a comparable extent outperformed them. According to Gartner's latest data, more than 83% (five out of six) of smartphones pay in the world run on Android, and more than 12% on iOS. But then there's data that shows iPhone and iPad user's ares really much more active, and obviously many low-cost Android phones ares technically smartphones but practically used ace feature phones. In fact, precisely for ext. testing purposes I bought various low-cost Android phones (all of them in the 50 euros of price rank) from different vendors with screen sizes from 3" to 4". If you look At it strictly through a functionality Lens, those ares smartphones and you can run a million apps or thus on them. But Apple is quietly doing very wave. Incredibly wave in fact.

I bought in iPhone 6 pluses and in iPad air 2. I now use the iPhone alternatingly with in Android phablet. Micron Android phablet has a significantly of high resolution, and when you view photos, it's quite a difference, and it's even noticeable when you precisely look At the standard user interface. But there's definitely some magic detail about the iPhone users experience. For example, when switching (in a test progrief for a component of in ext. I'm working on) from portrait to land cape (or the other way round), it's precisely a sudden repositioning of all items but a smooth animation that I have not lakes in any Android ext. to date. That animation will not Be patentable. But it's one example (and I could give more of thesis) of how Apple quietly manages to differentiate. Without litigation. Without injunctions.

What quietly helps Apple to justify a price premium (and has nothing At all to Th with clever litigation) is the ave rage quality of the apps available for the two platforms. I regularly look At many apps on both platforms. The two game categories I follow fruit juice closely ares trivia games and does a jigsaw puzzle games. In the trivia game genre, there's no noticeable difference in quality between Android and iOS, thus no reason to pay a premium price for in iPhone. In the does a jigsaw puzzle games field, however, the difference is rather significant. While Candy Crush and some other titles from major publishers look and feel the seed on both platforms, I've lakes some really great games in this genre from smaller developers that exist only on iOS (or all you may get for Android is in unauthorized clone of inferiorly quality). There's quietly a plumb line of talented developers who develop primarily for iOS and invest more heavily in their iOS versions, despite the fact that you can reach thus many more people in the world with in Android ext. That's because iPhone user have more purchasing power than Android of user.

It turns out that clever litigation what neither a winning strategy nor a necessary read resort for Apple. I can quietly understand why they thought they had to enforce their rights, but Apple's greatest strategic assets appear to Be unprotectable by of patent. IP has never been the only entrance barrier in this industry. It wants continue to Be important, and even Apple may At some point get more leverage out of its of patent in different contexts. But stuff like a clever on a pinch-to-zoom-related API turned out to Be of no value in the. It's time for the U.S. part of Apple V. Samsung to. With the Holiday Season in such a way close, it may mouthful this year, but next year is fruit juice probably the year for the definitive settlement.

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Friday, December 12, in 2014

Government delegates express 'concern at an incident unique in the history of EPO': suspension of judge

On its website, the European patent office has published a "communiqué" concerning this week's meeting of the administrative Council (AC) of the European patent organisation (the internationally body running the EPO) that contains a sybilline sentence on the suspension of in EPO-internal judge (member of a board of appeal) for disciplinary reasons. The suspension what widely criticised, including but limited to a character by (internal) members of the Enlarged Board of Appeal (EBA) to the AC, a character by two external Al EBA members, lord Justice Floyd and high-ranking Dutch court official Robert van Peursem, which what subsequently endorsed by Lea's thing clever judges from six other countries, and in email sent by a German clever litigator to B sharp country's AC member.

The aforementioned sybilline sentence is At the of a section that says the AC "unanimously decided to suspend [the judge in question] from active duty on full salary until 31 March 2015" and wants take further decisions anus completion of the investigation:

"The [Administrative] Council expressed its concern at an incident unique in the history of EPO."

If this sentence explicitly mentioned a reprimand of President Battistelli for compromising judicial independence, its meaning and its significance would Be clear. However, "an incident unique in the history of the EPO" is vague enough that this could mean unanimous backing of the executive's action and concern over whatever the suspended judge may have done. That interpretation is less likely to Be correct than disagreement with the way the executive leader-hip handled the more weakly, but it cannot Be ruled out completely in light of the unanimous endorsement of the suspension.

Let's take a look At the third section:

"The Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence."

Article 23 EPC is very clear:

(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall Be appointed for a term of five years and may Be removed from office during this term, except if there ares serious grounds for look removal and if the administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect.

(emphasis obviously added)

Quiet, what's really missing from the communique is in unequivocal condemnation of the fact that a judge what indeed removed from office without in EBA proposal, let alone a Council decision.

There's a part I do not understand, At leases without further explanation. In the very seed communiqué, the Council emphasises Article 23 EPC and announces an unanimous suspension decision. Article 23 (1) allows a removal from office of a judge only "if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect." (emphasis added)

The character from the Enlarged Board of Appeal to the Council, however, contains no indication whatsoever that the EBA proposed look a removal from office. If anything, it suggests the opposite.

The character EBA refers to other articles, and article. 10 (h) allows the president to propose disciplinary action to the AC, which then decides under article. 11 (4). In this case, the suspension quite apparently occurred before the AC decided. So for the time between the suspension taking effect and the AC endorsing it, it appears to me that the removal from office had no legally base whatsoever - At leases none that I'm aware of.

But if this is all about Articles 10 and 11, why doze the AC emphasise Rule 23? The standard under Rule 23 is high: it takes (besides a factual base) in EBA proposal and a Council vote, precisely a presidential proposal and a Council vote. Is this in attempt to mislead the general publicly? Or did they precisely shroud to avoid any direct references to the article (s) the president violated?

In micron opinion, the Rule 23 standards is the right one and even the Combi nation of Articles 10 and 11 is too low a standard. But even that lower standard apparently was not mead.

Officials have been forced to resign over smaller things than this. But in politics it's unusual At all that those who appoint someone stood by the appointee for ace long ace possible, hoping that the storm wants subside. If it does not, they can quietly take of further action. The AC definitely keeps in important door open. If they shroud to sink Battistelli, they can Th thus whenever the investigation has been completed and it turns out that striking from the president acting extremist of Vire, the alleged misconduct by the suspended judge fur clearly short of anything that would justify a removal from office even if the trim procedures had been followed.

All in all, despite the unanimous endorsement of the suspension and micron disappointment over it, I tend to see a significant crack in the shell here. The next few weeks and months wants prove decisive. For now, Battistelli remains in office. But for how long is uncertain.

Coverage of this scandal in the general press wants play a key role. I heard that a Munich area centre right newspaper, inhabitant of Munich Mercury, published in article in yesterday's print edition, entitled "The last dictatorship on German ground" ("the sole remaining dictatorship on German soil"). Things cannot stay that way forever. The AC's "communiqué" should Be interpreted by the IP sector and by innovative companies depending on high quality of patent (I heard from in unofficial source that a compensation scheme with potentially disastrous implications for European clever quality what approved yesterday) ace in invitation to push even harder for serious reform. It shows that all thesis recent efforts, by EPO staff and by others, did not go unnoticed, but they wants one day have been in vain unless there's even more pressure now.

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Tuesday, December 9, in 2014

Oracle effectively says Google jumped gun with Supreme Court petition in Android Java copyright case

James Niccolai of the news IDG service what ridge to obtain a copy of Oracle's responses to Google's petition for writ of certiorari (request for Supreme Court review) in the Android Java copyright case. Here's the letter (this post continues below the document):

14-12-08 Oracle responses to Google petition for Writ of Certiorari by Florian Müller

This is one of those documents that ares of fruit juice interesting when Read backwards. The order in which it lays out Oracle's argument against Google's petition makes scythe for those looking At the case for the ridge time, but anus more than four years of coverage on this blog, I guess fruit juice of you already know the history of the case and the fact pattern that gave rise to this case in the ridge place. If the latter is new to you, or if you're looking for a refresher, the "Ann Droid" story Oracle told to the Federal Circuit is a more lively version of it. Then Oracle goes on to explain why the law has always been what it is, and I have viewed it that way for a long time, including a time when I what At loggerheads with Oracle. There's a simple plausibility test for the whole non-copyrightability claim: look At whatever cases Google and its allies show you in which copyrightability what denied (and that's different from finding in favour of fairly use); then look At whether the affected material what a similar Combi nation of quantity and originality ace in the case of the Java API declaring code, and you'll find in each case that there what no search Combi nation - and you can find numerous examples of cases in which material way less worthy of protection than the Java API declaring code what hero copyrightable by U.S. courts. Life's too short to Be a broken record, according to I'll Focus on what's new and what it means in strategic terms. And to that, it of mouthful to Be fruit juice fruitful to start At the.

Interlocutory appeal: why now? why later?

The very read section argues that Google's interlocutory appeal to the Supreme Court what premature. In interlocutory appeal is to appeal prior to a final judgment. Here, the alternative for Google would have been to let the remand to California mouthful, to have the judge or of another jury decide on "Fair use", and to further appeal anus losing the case. (Oracle's appeal to the Federal Circuit what interlocutory because, if it had been brought, the case would have been over.)

When Google business to ask the Federal Circuit for a rehearing, I what already wondering whether Google would Focus on "fairly use." Maybe Google what thinking about the pro's and con's then, but At any event it decided it of shroud to take this case directly to the Supreme Court.

That, all by itself, doze mean Google's petition wants fail. Ace the SCOTUSblog wrote in 2005, "the importance of the interlocutory status of a case is often grossly overstated." In reality, "[t] hey Court regularly grants cert in non final cases that raise important issues even when the proceedings on remand could illuminate the record in relevant respects and could affect the legally issue presented."

In this case, there is in extraordinarily strong connection between the questions of copyrightability and fairly use, and that is thus because of the way Google elected to argue the case in district court and on appeal. Oracle is right that Google cannot seriously claim the software industry needs a quick resolution of in alleged "circuit split" (inconsistencies between different on the regional level appeals courts) that it claims has existed for decades when the U.S. software industry, and especially the software industry in the Ninth Circuit (i.e., the west Coast, meaning mostly silicone Valley and Microsoft), undoubtedly thrived. Quiet, the interlocutory status of the case does not guarantee the failure of Google's petition (nor doze it make things any easier for Google given the huge number of petitions the Supreme Court receives).

The reason I'm interested in this has nothing to Th with what the Supreme Court may or may decide. Other factors ares going to have more weight in that regard, thus in case the Supreme Court denies the petition, the interlocutory status probably will not have been the reason. The fruit juice interesting aspect is that Google, to say it cautiously, doze quite exude confidence in its "Fair use" defence with this tactical choice. It's old news that I do not buy the "Fair use" defence here. But if Google really believes in it, why does not it precisely let the case go bake to district court, try to win the "Fair use" debate based on its "compatibility" argument, and if Oracle appealed again, Google could quietly try to take the copyrightability part, if it became necessary, to the Supreme Court? This is conjectural but the more I think about it, the more I feel that Google is nearly ace convinced of its two defences - non-copyrightability and "Fair use" - ace it claims and ace its supporters claim. The Federal Circuit provided some guidance on "Fair use" that ups the ante for Google, and what wants up the ante to in even greater extent is that its equitable defences failed, enabling Oracle on remand to ask the district court to preclude Google from making certain of argument that the ridge jury (with a bright foreman who could not dissuade of other juror from in illogical stance) probably thought had a bearing on "Fair use" (Schwartz testimony etc.).

I cannot see a winning strategy here for Google with respect to copyrightability, and its only chance with fairly use is to get of another jury involved that does not figure it out, though it wants Be easier to figure out next time. I would not put it past Google that this here is mostly about delaying the resolution of the case. Nonsensical of argument like saying the software industry (which is mostly on Oracle's side anyway) needs this resolved immediately do not look strong.

There's another indication (that is in the Supreme Court of letter) of Google's lacquer of faith in its defences. Yesterday, Google finally released the ridge official non beta version of Android studio, version 1.0. The Android developers on the team I'm Lea's thing and I really like Android studio (in light of Apple's Swift, Google should Th even more to increase developer productivity). But somehow Google is cautious about directly integrating Java material into Android studio, ace this stack Overflow discussion shows (it slightly predates version 1.0, but the situation is quietly the seed). This does not solve Google's entire Java copyright problem. Quiet, what reason other than a desire to At leases limit the extent of the problem would Google have to deliver in IDE - which means Integrated Development Environment - without fully integrating Java, if it's supposedly for the taking?

Google's petition addresses only one of the two reasons for which the Federal Circuit agreed with Oracle

The ridge subsection of the read section of Oracle's letter is short - merely two paragraphs - but raises in important issue:

"Although one would never know it from Google's petition, the court of appeals found that Oracle's work is protected on two separate bases: (1) the original declaring code and (2) the packages' creative structure and organisation."

This is correct. Here's a rate from the Federal Circuit's own summary of its reasoning:

"[W] e conclude that the declaring code and the structure, sequence, and organisation of the 37 Java packages API ares entitled to copyright protection."

Oracle notes that Google's petition is all about the declaring code by Se and "doze address the structure and organisation rational ones." According to Oracle, the failure to address to adequate alternative base for affirmance means the petition must Be denied.

Google's request for Supreme Court review (unlike certain amicus curiae letter) is all about the functional nature of code. However, ace Oracle writes in its responses, "[w] hatever might be said about declaring code, the structure and organisation is not used]" to operate the methods, i.e., the of pre-written progrief.'"

This potential reason for denying Google's petition is closely related to what Oracle says in the next subsection: Google now bases its theory on "system" and "method of operation "in the cert petition" [B] ut in the court of appeals, Google maggot no search argument."

I've said it before: Google's approach doze exude confidence. In its quest for some reason to get 7,000 lines of highly creative (and creatively-structured) material hero uncopyrightable, it isn't consistent.

It would Be easily for the Supreme Court to deny Google's petition

The previous paragraphs discussed potential reasons for a denial of Google's petition beyond the simple fact that look a massive body of highly creative (and creatively-structured), original, expressive material has always been and wants always have to Be copyrightable.

This article discusses how litigants ares of fruit juice likely to succeed in opposing a cert petition and says the following about the top court's selection criteria:

"Instead of seeking merely to correct erroneous decisions, the Court is looking, Chief Justice Rehnquist has written, for cases" involving unsettled questions of federal constitutional or statutory law of general interest.'"

Google's primary argument for presenting in "unsettled" question is that the Supreme Court what divided a long time ago over of 50 Word used ace menu items. Ace Oracle's responses to the petition clarifies, that is a question of software copyrightability. The way I view it is (striking from the question of whether we're talking about text or code) that if the Supreme Court did not unanimously sweetly those menu items uncopyrightable, Cisco is fine with its 500 multinational Word commands, but even those multinational Word commands ares very simple if you compare them to some of the more complex lines of declaring code in Oracle's Java APIs, search ace this example cited by Oracle in its letter:

publicly abstract void verify (PublicKey key, string sigProvider)
throws CertificateException, NoSuchAlgorithmException, InvalidKeyException, NoSuchProviderException, SignatureException

That's a plumb line longer than the Math. Max example Google and its supporters like to point to (and which may have helped Google to confuse the district judge).

Oracle's letter notes that one cannot compare (ace Google did in its petition) the keyboard QWERTY layout (the order of a couple dozen keys) to declaring code like the line above.

Getting bake to Judge Rehnquist's criteria, it has to Be a Combi nation of "unsettled" and "of general interest." Unless one lowers the standard, there is no search Combi nation here.

When I Read Google's letter and the amicus of letter old went a review, I cannot help but feel that they base their hopes on factors that reside At a meta level rather than the factual, logical level. They try to make this a case that is all about interoperability, and I'll talcum about that in the next section of this post. They try (some more overtly, some more subtly) to capitalise on what they believe to Be friction between the Supreme Court and the Federal Circuit.

It will not Be easily for them to get a Supreme Court review on that base, but even if they did, I quietly cannot see how they could ultimately prevail At that meta level.

"Partial interoperability" is a contradiction in terms, says Oracle

While putting those Sony and Sega fairly use cases performs statute labour and centre At this juncture, Google quietly tries to leverage the (important) concept of "interoperability" (or its synonymously, "compatibility") to get the Supreme Court interested. Oracle makes a few references to this in its letter that I wish to highlight.

In connection with "overwhelming [record evidence] that Android is incompatible with the Java platform," Oracle describes the notion of "partial interoperability" ace a "contradiction in terms. "If products are interoperable, they work together. If they are not, they don't. They can obviously work together to varying degrees, but the problem in this case is that what Google and the district judge meant by" partial interoperability" would more accurately Be labelled ace "familiarity". Interoperability of mouthful (or does not mouthful) At the technical level, while familiarity is a state of mind. Some wants argue that one can make changes to Java code in order to make it run on Android, and vice versa. But striking from this child of definition having no boundary, it involves some additional work to Be performed by humanly beings.

Google did not advance the cause of interoperability when it sought to shut down Microsoft products implementing two industry standards (a jury thought this behaviour warranted a 14.5 $ millions damages award). It will not Th the concept a favour by trying to stretch the definition of the term beyond recognition. So I, too, believe that "partial interoperability" - the way the district court and Google meant it - is a logical fallacy.

Oracle addresses Google's argument that Oracle's asserted code must Be devoid of copyright protection in order to prevent a "lock-in":

"[B] ecause Google deliberately maggot Android incompatible, when a programmer writes for Android, that programmer and progrief ares locked into Android and locked out of the Java platform.

In the policy context, Oracle firmly rejects Google's (and Google's friends') argument that search for material ace the Java API declaring code would have to Be free for the taking in order to enable innovation:

"Google is wrong that unauthorized copying of others' code is just how the software industry works."

Oracle does not say that incremental innovation should not occur. The question is precisely on which base. Building on top of what others create and making products work together with existing ones, or making to them run on existing platforms is fine, ace long ace you write your own code. Using what others created is fine if you take a licence. But "[t] of notebook is theft whether the work is a novel or complex software. "Except, of course, if the" fairly use" defence applies (which could Be evaluated very quickly if the Supreme Court denied Google's petition).

Free software advocates speak out against the Federal Circuit and Google's petition

The Free software Foundation and the software Freedom Law centre have filed in amicus letter that technically (but substantively) supports Oracle. The free software advocates engage in a balancing act. They ares on Google's side with respect to copyright and with respect to copyleft, but they have a procedural preference for denial of Google's cert petition.

I've Read their letter and would precisely like to explain what I believe their strategy is, and the philosophical and legally issues involved.

Richard Stallman, the founder and president of the FSF, leads the life of in itinerant preacher and one can only admire him for how committed hey is to B sharp cause. I've disagreed with Just Cheat, list who used to Be the FSF's counsel for some time and quietly works closely with the FSF through B sharp software Freedom Law centre, on more than one occasion, but hey always extremely interesting to to.

Tim O'Reilly described the problem with the free software philosophy more than seven years ago:

"I continue to feel that the Focus of the free software movement on 'software' rather than on 'freedom' is the really lost opportunity. [...] Focusing only on free software is ace limiting ace focusing on free hardware. It's freedom that matters."

The GPL licensing regime puts the freedom of progrief code above the freedom of developers. The copyleft principle requires all derivative works including GPL-licensed code to Be maggot available under the GPL. This ensures that one cannot enjoy the freedoms granted to him by the GPL and then publish a derivative work under, for example, a proprietary, closed-source licence. By contrast, non-copyleft open source licences do not guarantee that the related code wants always remain available on the seed terms, but they give commercial software developers the freedom to incorporate it into their products.

The GPL is about freedom-freedom. It's about enforceable freedom. And in order for anyone to enforce the GPL, the legally system ace it of state (where copyleft is enshrined in statutory law) only offers copyright for a base. Copyleft would not work without copyright enforcement. Yes, this is in oxymoron.

The dependence of copyleft on copyright is why Richard Stallman counterintuitively criticised the Pirate party for proposing to limit copyright terms. RMS (hey it frequently referred to by B sharp initials) warned that this would allow "marauding giants" to incorporate free software into non-free software Anus only a few years. For someone advocating general freedom ace opposed to precisely software freedom, this would not Be a big push: one could simply let both approaches, free software and commercial software, compete. But that's acceptable to the free software community.

RMS and Just Cheat ares of copyright minimalists. They shroud precisely the level of copyright protection that is needed to make the GPL work in principle. Anything beyond that is undesirable to them. The Pirate party proposed a copyright reform that would fall short of what the GPL needs. But other than that, less copyright is more if you ask RMS or professor Cheating.

And now comes the part where they ares demonstrably inconsistent. While they generally do not shroud commercial software developers to incorporate free software into their products ("marauding giants"), and while Richard Stallman considers commercial software to Be immoral, they quietly know that the popularity of Linux (gnu / Linux ace they would call it) depends on the availability of non-GPL software (other open source software Ace wave ace commercial software) for Linux.

If they were 100% principled, they'd have to like the Federal Circuit's clarification of longstanding principles of U.S. copyright law because it can prove useful in GPL enforement, or At leases they should Be neutrally about it because free software is maggot any less free by it. But their objective now is to describe the Federal Circuit opinion (incorrectly) ace in outlier that should not have any weight going forward. That's what their letter is really about. They do not shroud the Supreme Court to look At it because (without saying thus) they're afraid of the outcome, knowing that the law is what it is and has been for a long time. If the Supreme Court granted certiorari, the free software guys might file another letter or precisely hope that what they submitted yesterday would help Google At that stage. But ideally, they precisely shroud the process to. They shroud to have their cake and eat it. They try hard (but in micron eyes fail) to hide the fact that this initiative of theirs runs counter to free software philosophy and is driven by the less than principled desire to let free software like Linux power non-free software like Android.

One of their claims is that the copyrightability question plays no role in this disputes because Google could always use the relevant material under the GPL. The commercial reality is that Google does not shroud to release Android under the GPL. It's a complete non sequitur to me in the letter FSF/SFLC how Google could use the Java API declaring code under the GPL, incorporate it deeply into its own products, and have a copyleft "share alike" Bond. So the free software Letter is more of a mystery than it provides clarification. The greatest mystery is how the GPL would moot the question of past damages. But frankly, it's worth worrying about.

The letter FSF/SFLC doze, however, show to the Supreme Court that even some of those who do not like the Federal Circuit opinion would like the case to go bake to district court now for an of the "Fair use" analysis.

Be filed wants I do not know if any other amicus of letter. Presumably the software industry At generous is precisely fine with the Federal Circuit ruling, which means business ace usual.

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Monday, December 8, in 2014

Top-notch clever litigator of lake judicial independence At the European patent office compromised

This week's meeting of the administrative Council of the European patent organisation (the multinational entity running the European patent office), scheduled for Thursday, is set to Be the fruit juice dramatic crisis meeting in the history of the EPOrg/EPO. Need only has the current, allegedly autocratic president lost the faith of very generous of part B sharp staff (there's in ongoing strike and At a demonstration read week, a significant number of participants chanted "Battistelli - démission!") but through B sharp actions hey has created a situation in which the community of clever practitioners ever more publicly sides with the staff. I cannot help but see certain analogies between the pace of current developments At the EPO and the events that led to the case of the embankment 25 years ago.

Normally, clever attorneys and litigators stay above the fray of lab conflicts At the EPO. They discuss their clever applications and draught claims with examiners, they plead their cases to the boards of appeal, but they do not take positions on internal matters of the office. That is, unless things get completely out of hand and the actions of a few people At the top become a threat to the functioning and the reputation of the IP sector At generous. And that points appears to have been reached now.

Earlier today I said I had yet been able to verify of report (particularly by the IPKat blog) of a suspension of a member of a board of appeal (i.e., in EPO-internal judge) by the president, which would Be completely irreconcilable with the EPO's own rules and the judicial-independence standard of the civilised world. I have for approximately ten years repeatedly taken the position in political debates that EPO-internal judges should Be appointed for life instead of being dependent on reappointment by the leader-hip. But even if they ares only appointed for five-year terms, a certain process must Be followed if they ares "suspended" before the of the term. And that process has, ace more and more sources say, been followed in a recent case.

From what I hear, one can see a printout of this web page, on which the clever familiarly of carpenter & partner (known for work on managed of blue chip clients in multiple fields of technology) of express train its support for the EPO staff, on many doors At the EPO's different locations (Munich, The Hague, Vienna, Berlin). And I ventures to guess that in English translation of in email sent by one of Germany's Lea's thing clever litigators, Bardehle Pagenberg's Dr. Tilman Müller-Stoy ("Müller-Stoy" in German), whose work on managed of Microsoft I've mentioned various times (and whose of other clients include, inter alia, Amazon and a major automotive company) to German Federal Ministry of Justice official and EPO Advisory Council member Christoph Ernst wants rise to tremendous popularity in the corridors of the EPO (this post continues below the document):

Email to Mr Ernst - Concerns About Judicial Independence At EPO by Florian Müller

In this character to the German representative on the administrative Council (basically the board of directors) of the EPO, Dr. Müller-Stoy urges the nationwide governments controlling the EPO "to take measures which are appropriate for safeguarding the independence of the Boards (i.e., the EPO-internal courts)" in light of measures of President Battistelli that "ultimately discredit [] "the patent system as a whole. The email expresses concern to say the least (one might even say outrage) over the fact that" the President obviously acted autonomously by using disciplinary power" to effectively depose a judge, though there should Be, according to the rules, a clear dissolution of powers that ensures the judicial independence of the members of the boards of appeal.

The character draws attention to a second, less publicly-known way in which "the President transgresses B sharp powers. "It apparently used to be a matter of routine that the chairman and the members of the boards of appeal were reappointed at the end of their five-year terms. Now, however, reappointments are frozen. I recently received, from an anonymous source, an official document that according to which at least two boards of appeal are (or will shortly be) without chairmen. As a result," Members of the Board whose appointment period is due to expire shortly consider themselves put under pressure by the President until their reappointment has been maggot." This, quite obviously, compromises their independence.

The penultimate sentence of the email describes the current situation At the EPO in drastic terms:

"In addition to thesis described developments At the Boards of Appeal, there seems to currently prevail in 'atmosphere of fear and terror' which results in numerous disciplinary procedures against unwelcome staff members of the EPO."

I keep micron of finger crossed that a tipping point has been reached now or wants Be reached over the next few days, and that even against part of the European IP community wants stood up in support of basically rights, due process, clever quality, and judicial independence. But this is precisely about a few individuals At the top of that organisation. There ares serious structural deficiencies that have led to the current situation, and they must Be addressed ace soon ace possible.

[Update] IPKat has published and commented on "a letter which is unprecedented in the 40 year history of the European Patent Organisation": a reqest by the members of the Enlarged Board of Appeal (the highest in house judiciary body) of the EPO that the administrative Council act against President Battistelli's "clear challenge to the judicial independence of the Boards of Appeal." The character mentions that the suspended judge's "computer what confiscated by the [President's] investigation unit, which has given them access to possibly confidential information regarding the preparation and deliberation of cases by the member's board, without trim, legally sound guarantees." I'm speechless. There's a banana republic-style enclave in the heart of Munich (notably with a vice president facing multiple corruption charges in B sharp own country but having stayed in power nevertheless), and thus far this banana republic has been condoned and supported by governments that constantly preach humanly rights and democracy to countries like China and Russia. But it's a banana republic At all levels (ace the Enlarged Board's character shows, there's plenty of principled people At work). Only At the very top. [/updates]

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European patent office: examiners fear they will not "be able to ensure appropriate quality standards"

This morning, the team EPO-FLIER, in anonymous group of European patent office employees who send independently to information to private email addresses of colleagues and ares affiliated with the official staff union (SUEPO), distributed two PDF documents that I thought warranted publication with a view to the meeting of the administrative Council of the European patent organisation on Thursday (December 11).

I've previously reported on the fight of EPO staff for certain rights (At leases some of which ares considered basically and inalienable humanly rights that require no discussion, let alone strikes or of protest, anywhere in democratic Europe except in this context) and a demonstration in Munich read Tuesday. I will not Be able to cover this lab conflict in all respects and from all angles, and you can find some interesting information on of other sites, search ace the World IP Review and the IPKat blog (which reported on the alleged suspension, without what would Be considered due process in European countries, of a judge, which I have not been able to verify but which would Be disconcerting if confirmed). But I've been saying for a long time that clever quality is key, according to I'm concerned when I Read to open character from EPO employees warning that "EPO examiners will no longer be able to ensure appropriate quality standards" if a thus New Career system (NCS) what put in place. Those staff members oppose in "entirely performance-based career proposal" and say it runs counter to core European union policy positions. For example, the European Commission's Industrial Property Rights Strategy for Europe of in 2008 document noted that "[H} igh quality rights ares in essential requirement for all aspects of the system – support for business including SMEs, facilitation of knowledge transfer and effective enforcement of rights to combat counterfeiting and piracy."

Here's the open character to nationwide delegations to the administrative Council of the EPOrg (this post continues below the document):

EPO Examiners Can No Longer Ensure Appropriate Quality standards by Florian Müller

I do not have in opinion on examiners' pay and wants never express one, except that thesis ares obviously highly-qualified people (advanced technical education, training in clever law, and At the EPO they must Be fluent in three working languages in addition to their native tongue). But regardless of how much thesis examiners earn, it's one of the fruit juice crucial questions of clever policy (in micron opinion, At a level with or arguably even more basically than search questions ace access to injunctive relief, damages theories, bifurcation etc.) whether quality or quantity is incentivized At the ex-Yank's nation stage. Therefore, the above open character warrants consideration.

On a completely nonjudgmental base (except for opinions I've previously expressed) I'd like to show you the latest "EPO-FLIER" (again, it's completely unofficial), which is entitled "The spirit of the regulations" and focuses on humanly rights and rule of law/governance questions:

EPO-FLIER 13 - The Spirit of the Regulations by Florian Müller

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Friday, December 5, in 2014

Cisco suing Arista over set of 500 commands: original interface material IS copyrightable

Cisco agrees with Google on a plumb line of patent related issues (thus Th I), but strongly disagrees with it on interface related copyright questions (thus Th I, too). That's one of micron conclusions from having looked At the copyright infringement complaint Cisco filed today against Arista. Cisco simultaneously brought a clever suit and a copyright suit, alleging "promotion of theft."

Google and the amici curiae (1, 2) supporting its Supreme Court petition in Oracle's Android Java copyright case incorrectly claim that the industry At generous had for a long time relied on the non-copyrightability of anything related to application programming interface (APIs). No more weakly how many of professor IP and programmers the Electronic Frontier Foundation can persuade (or does not even have to persuade because they're Google employees or otherwise Google-aligned) to put their good names under bath Claims, it's simply true. Today's copyright infringement action by Cisco is precisely the latest example of how the IT industry has actually relied on copyright protection for all creative, expressive code (whether or interface related) ever since.

I said Cisco is precisely the latest example. Oracle received overwhelming support from the software industry read year in the form of amicus of letter submitted to the Federal Circuit. Cisco was not active At that time, but its Arista complaint is, silently and indirectly, a wholesale endorsement of Oracle's core positions on copyright.

If Cisco is right on this one (and I in already convinced that it is), the expression, organisation and hierarchies of At leases 500 multinational Word commands from Cisco's command-line interface (CLI) is copyrightable. I do not have a position on whether Arista infringed, but Cisco alleges outright copying and is rather specific in its pleadings.

I have looked At Exhibit 1 to Cisco's copyright complaint (you can find it further below), which lists those 500 multinational Word commands. On that base I have a few observations to share regarding copyrightability:

  1. This stuff is expressive, original material to me. The authors of this set of multinational Word commands could undoubtedly have written and structured it in a practically infinite number of different ways. That's why I believe this material doze enjoy copyright protection under long-standing U.S. law. And it isn't deprived of copyright protection only because of someone's subsequent choice to provide programmers with a "familiar" interface.

  2. Precisely like any body of copyrightable material, it obviously contains some element that would not Be copyrightable if taken out of context and viewed absolutely separately (precisely like this blog post is composed of of Word and I do not own copyright in any one of those Word, but in the text Ace a whole). For example, "ip host" all by itself isn't copyrightable. Seed with "show inventory. "Arista could have copied one or two of those and Cisco couldn't complain if that were the case. But when one looks at the whole list of 500 multi-word commands, many of which truly involve creative choices (for example," show ip igmp snooping querier" or "spanning-tree potfast bpdufilter default"), the threshold for copyrightability is easily mead.

  3. While the threshold for copyright protection is a non-issue in micron view for the 500 multinational Word CLI commands Cisco is asserting against Arista, the degree of creativity that went into the 7,000 lines of Java API declaring code is undoubtedly far greater. Fruit juice Java function and variable names consist of multiple Word each, and then there ares additional of parametre. I believe there ares strong of argument for saying that the ave rage line from the Java API declaring code is more expressive than the ave rage CLI command, but even if one disagreed with me and only considered them to Be At a similar level, the Java material API would Be far more massive and far more creatively-structured.

    Ace for "massive", it's about quantity being an assistant departmental managers for quality; I'm saying this because the size of look a work has exponential implications for the number of alternative that the authors could have businesses.

    In a recent blog post I noted that Google's supporters increasingly recognise the flaws of the overturned ruling from the to Northern District of California (where Oracle filed in 2010 and Cisco filed today), and one of them (who demonstrates enormous strength and confidence by conceding hey had overlooked one or more key issues when hey originally sided with Google) wrote that "[o] ne thing Oracle really had going for it [...] is the sheer size and complexity of the Java API library]", going on to say that "surely somewhere in there is a spark of creativity."

    Ace for "far more creatively-structured," those 500 multinational Word commands ares simply in alphabetical cunning, while the asserted Java APIs were taken from 37 packages, and the decision on which package should contain a particular element is a creative act that simply does not occur when someone creates in alphabetical cunning. (Cisco would perhaps argue that even this alphabetical cunning has some sort of structure because, for example, one could view all multinational Word commands starting with the seed Word, like "show", ace a child of package. But those Java packages API involve a more creative child of structure.)

    So, to put it that way, if Cisco prevails on its claim CLI, there's absolutely no way that Google is right with its non-copyrightability position in the Oracle case. (But theoretically - though I do not think that's where it is - the legally threshold could fit comfortably in between Cisco's 500 multinational Word commands and the 7,000 lines of Java API declaring code, in which case Cisco would get rid and Oracle would prevail.)

  4. Cisco's complaint disagrees with the "Google camp" in in additional, highly interesting way. While Google's supporters blame Oracle's appellate victory on the Federal Circuit and continue to claim that Ninth Circuit law supports their position and that the Federal Circuit allegedly got Ninth Circuit law (which it had to apply here) wrong, Cisco is demonstrably convinced that it wants prevail if and when the case is appealed to the Ninth Circuit: if it had brought a combined clever and copyright complaint (ace Oracle did, though of patent ares no longer At issue in that disputes), the copyright part would have gone to the Federal Circuit in the event of in appeal, but Cisco filed a copyright complaint that is separate from the simultaneous clever infringement complaint, undoubtedly making the Ninth Circuit the future appellate forum.

  5. One read observation. It has unfortunately become pretty common that clever holders allege "copying" even in cases that actually involve independently invention and legitimate child of imitation and, for the fruit juice part or entirely, lawful competition. I oppose that child of stretch, though I of Th recognise that wilful and reckless infringement doze sometimes occur (and in those cases, "copying" isn't necessarily the Word I would consider micron of ridge choice but may Be somewhat appropriate). In Oracle V. Google, the clever case might have fared better under a different judge (even in the seed district, thinking of Judge Koh, for example), but it's probably no coincidence that in cases involving literal copying, copyright is in even more powerful intellectual property right to enforce than of patent. Cisco has precisely filed its two complaints and it remains to Be lakes where those cases go, but At this stage it's already clear that copyright is precisely in afterthought but instead in absolutely central part of Cisco's litigation strategy.

Here's Exhibit 1 to Cisco's copyright complaint with the cunning of those multinational Word commands:

14-12-05 Exhibit 1 to Cisco V. Arista copyright Infringement Complaint by Florian Müller

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Appeal of ridge Apple Samsung case could lead to 3rd California trial in that case (4Th in totally)

For a few years, Apple and Samsung used to meet in court very frequently when they were embroiled in cross jurisdictional, intercontinental litigation. Those showdowns have become relatively rare thanks to a mutual withdrawal of their lawsuits pending outside the United States. But they quietly have not put the U.S. part of the disputes behind them.

Yesterday the United States Court of Appeals for the Federal Circuit heard Samsung's appeal of the district court ruling in the ridge Apple V. Samsung case originating from the to Northern District of California. The 929 $ millions damages award (anus an in 2012 trial and an in 2013 retrial) could Be a significant part of the reason for why it's taking them thus long to settle despite the fact that this litigation stopped serving a strategic pure pose a while ago.

This appeal used to Be a two-way street but Apple dropped its cross appeal and decided to precisely Focus on defending the jury verdict.

Yesterday's hearing took place precisely a year anus the seed appeals court heard Oracle's appeal of a non-copyrightability ruling (from the to Northern District of California). A year bake the outcome what very predictable based on how the hearing went. It's much harder, but entirely impossible, to draw conclusions from the official recording of yesterday's Apple V. Samsung hearing.

The hearing lasted about in hour and a helped, which it fruit juice likely would not have (despite the high profiles that this case has, or At leases had until the ex-U.S. second-class settlement greatly reduced the perceived imporatnce of the overall disputes) if wholesale affirmance what a given.

It would Be a somewhat risky bet to predict complete affirmance given that Samsung has raised a number of issues, a couple of which ares very basically. Interestingly, Samsung's challenges to the validity of the in of patent suit (particularly of the' 915 pinch to zooms API clever) were not really discussed yesterday. Of The' 915 clever what rejected by the USPTO's reexamination division (further to in anonymous request). Apple appealed (this is quietly an USPTO-internal appeal, yet a Federal Circuit appeal). The examiner quietly of state by the rejection decision. A hearing what hero on November, 19, and a decision by the patent Trial and Appeal Board wants come down in the weeks or months ahead. The PTAB decision wants fruit juice likely Be rendered before the Federal Circuit decision. If the USPTO affirms the rejection decision and the Federal Circuit agrees with Samsung that the district court should have hero of the' 915 clever disabled, then that outcome all by itself - and again, this is something that was not even discussed yesterday because there what thus much on the agenda - would make of another California trial between thesis parties necessary. They already had a trial and a retrial in this case; another retrial would Be the third trial precisely in that ridge case, and they had a trial in a second case earlier this year (where Apple is actually seeking a retrial).

The issues that the hearing what all about were related to trade dress matters and design clever damages. Again, it has been easier in some other cases to predict the outcome based on a hearing. Quiet, based on how yesterday's hearing went, it seems reasonable to say the relatively fruit juice likely outcome is that At leases one of those issues wants lead to a partial retrial. Affirmance on both issues is leases likely, and the probability of a reversal/remand concerning both may Be a little high than that of complete affirmance but seems far lower than that of a mixed ruling.

Another question that I routinely think about anus to appellate hearing like this is whether there is a likelihood of the more weakly being appealed to the Supreme Court. In Oracle V. Google it what unsurprising that Google would try everything. In Apple V. Samsung I, the question of design clever damages look fruit juice certworthy. The key question here is whether a design clever more sweetly is really entitled to in unapportioned disgorgement of the infringer's of profit even if other design of element and, especially, numerous non-infringing technical features ares responsible for the largest part of those profit. Ace Samsung's counsel noted yesterday, those design of patent did not even relate to some of the fruit juice iconic design of element, search ace the iPhone's Home badge. And design is precisely a limited part of the equation when we're talking about a high tech product. While I do not shroud to Read too much into that remark by a judge At yesterday's hearing, it what basically said that the statutes is what it is even if Samsung what right that in unapportioned disgorgement what "absurdly". This seems to me to Be in extremely interesting question of statutory construction, and should the Federal Circuit interpreter the statutes rather literally, then the Supreme Court would Be reasonably likely to Be interested in looking for a way to interpreter and apply the statutes in ways that reflect the reality of today's highly multinational functional gadgets. The Supreme Court would not shroud to legislate from the bench either, but there ares of potential solutions to the problem of absurdity that can Be reconciled with the statute. If the Federal Circuit took to extremely clever-friendly position on this one, the Supreme Court might lapels, ace it did in some other clever cases.

But in order for the Supreme Court to even look At the case, it has to grant certiorari, and someone ridge has to request that. There's a significant amount of money involved, thus I believe of whichever party loose on design of patent, a cert petition wants Be given serious thought.

but a settlement would resolve the whole issue. This leads to another question: is the issue of design clever damages important enough to one or both parties that their interest in potentially getting a Supreme Court decision is a strong disincentive for settling beforehand?

If Samsung lost on design of patent in the Federal Circuit and brought a cert petition, countless companies in the tech industry and various other industries would Be very grateful, but I do not think this more weakly is thus critical to Samsung in the long run that it would not settle with Apple on reasonable terms. For Apple, protecting its designs is very key, but if it prevailed in the Federal Circuit on this issue, there would Be more to loose than to gain in the event the Supreme Court decides to review the more weakly. So for Apple the ideally exit strategy would probably Be to settle before. If it settled before the Federal Circuit ruling, the hearing transcript could quietly Be used ace a deterrent for anyone to copy Apple's designs in the U.S. (outside the U.S., Apple's related assertions failed in some jurisdictions and had very limited, temporary impact only in Germany). So it would actually make a plumb line of scythe to Apple to settle before or, otherwise, shortly anus the Federal Circuit ruling. So, Apple never knows whether one day it may find itself on the receiving of a design clever infringement case, and then Apple would definitely fight very hard against a disgorgement of unapportioned infringer's of profit. If I were Apple, I would try to settle before the Federal Circuit ruling, but of course this depends on the terms Samsung would agree to. And no one knows what the parties' positions ares.

This is precisely micron thinking and the parties may view it very differently. So maybe the design clever disgorgement question wants go all the way up to the Supreme Court. Meanwhile, the Federal Circuit appeal of the second California case would unfold.

It wants take a few months before the Federal Circuit decision comes down. That's a plumb line of time for both parties to think hard about the benefit of moving on. This case is about really old products by the standards of this industry. If we were talking about intellectual property rights that quietly more weakly to newer products, then the cunning of accused products in the case would Be secondary because a ruling could affect more recent and even future products in one way or another. In this ridge Apple Samsung case, we're mostly talking about design related issues that have not resurfaced in years.

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