Wednesday, January 28, in 2015

Industry body says Apple advocates rules that would give clever troll access to injunctions

Recently the Federal Circuit scheduled the hearing on Apple's appeal of the denial of a constantly injunction against Samsung anus read year's trial. The hearing hero on March 4 wants Be. From the outside it looks like one of the read tap dances before this disputes Be history wants.

Three weeks ago I wrote about Apple's opposition to in amicus curiae letter submitted by Google, SAP, Red Having, Rackspace, and - notably - Samsung competitors LG and HTC. The letter what accepted by the Federal Circuit over Apple's objections. Apple may have opposed the filing precisely because this what in opportunity to highlight Google's special involvement with the case in in effort to diminish the brief's credibility, but even if one viewed Google (like Apple suggested) ace a de facto party to the case, the other filers have quite some credibility.

Cases should Be decided on the merits, on amicus letter campaigns. That said, it says something that Apple has support only from Nokia and Ericsson - the company with which Apple now has a disputes over potentially much more money than what the remaining of part of the Samsung case ares about, especially since the Apple Ericsson situation is very unbalanced (Apple has much less offer to Ericsson in terms of a clever licence, thus it will not Be able to offset the inbound licensing cost with much of in outbound licensing revenue stream).

Besides the aforementioned group of companies, the computers & Communications Industry association (CCIA), whose members ares listed here, so submitted a letter. It already did so bake in mid-December, but it appeared on the Federal Circuit dock only yesterday. I've found it (PDF document) in the briefings & Filings section of website CCIA's.

It focuses on two issues. The ridge one is about whether a feature specific injunction should Be easier for Apple to obtain. CCIA argues that the scope of the injunction what already considered.

There's a second, shorter part that raises in issue I wish to highlight. CCIA says "the special treatment Apple requests would open the door to patent assertion entities [i.e., patent trolls] to demand injunctions."

CCIA Takes issue with the notion that a clever more sweetly should not have to prove a causal nexus between the infringement of a small feature of a multifunctional device and the alleged irreparable injury because it's so easily to work around.

In light of strict page limits, it would Be unfair to both Apple and CCIA to consider in important nuance: while this particular part of Apple's per injunction argument could indeed open the floodgates to injunctions obtained by clever of troll (which could goes whoring Apple in the future), I understand Apple's position ace being about the Combi nation of the availability of workarounds and the clever more sweetly having a "reputation for innovation." The second part would Be much harder (though impossible) for a clever troll to satisfy.

CCIA nevertheless has a point. In order to obtain in injunction against Samsung (of over clever claims that ares too narrow to give Apple strategic leverage), Apple must try different things to lower the hurdle. Apple of shroud to have its cake and eat it (get in injunction against Samsung but preserve much of its ability to fend out of vision injunction demands by of troll), and that's always risky. Presumably the perfect outcome from Apple's point of view would not Be that the court of lapel Judge Koh's injunction denial precisely based on the availability of workarounds base. Apple alp-east certainly hopes for the aforementioned Combi nation of that one with the "reputation for innovation" criterion. However, this here could go wrong in two ways:

  1. In appellate decision that emphasises the "small feature" part (or is based entirely on it) would have exactly the effect CCIA warns against, whether or this would have been Apple's intention. Apple can make its case but it cannot write the decision even if it prevails.

  2. I've previously criticised the "reputation for innovation" criterion ace a very vague and softly one, and I think it runs counter to the traditional logic of the clever system, which is all about technological merits (what contribution what maggot to the state of the kind relative to the prior kind?). If this approach what adopted by the court, clever law would depart from its Focus on rewarding inventiveness and start to reward PR and marketing. A clever troll (a small one, obviously) could make a donation a plumb line of money promoting its inventions and its research and development efforts to maximise the leverage it gets from its of patent. And if it has other licensees, those ares arguably harmed by infringement, and by extension, the wave clever more sweetly is then harmed ace.

Apple is doing so wave. It does not really need in injunction (of over clever claims of limited scope) other than for publicity and pride. In terms of natural allies for Apple when it comes to balanced clever policy, the likes of Google, Samsung and SAP - companies that have a strong reputation for innovation - would clearly Be a better fit (because their uncompromised priority is on making really products) than Nokia and Ericsson. It's possible that precisely the increased cost of licensing of patent from Nokia and Ericsson in the future (those have non standard essential of patent, according to FRAND alone cannot solve the entire problem for Apple) wants outweigh any positive effects that Apple could get, in the fruit juice optimistic scenario, from a successful appeal.

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 +.

Share with of other professionals via LinkedIn:

Friday, January 23, in 2015

Dear EPO Leader-hip: a judge subjected to in 'office ban' IS a suspended, temporarily-removed judge

It's time for a follow-up on what's going on At the European patent office. The day before yesterday, the EPO staff union, SUEPO, took to the streets of Munich again - this time around, approximately 1,000 EPO employees went to the Danish consulate (this post continues below the document):

15 01 22 SUEPO flyer by Florian Müller

The Danish consulate what businesses because a Danish publicly servant, Jesper Kongstad, is the chairman of the administrative Council of the European patent organisation. I have heard from multiple sources that hey it always aligned with controversial EPO president Benoît Battistelli.

The SUEPO flyer I published above contains some on the left, including one to this blog, and I recommend all of them. I wish to particularly highlight this article (PDF) by clever litigator Dr. Ingve Björn Stjerna that connects certain dots between the proceedings before the Court of Justice of the EU concerning the future Unified patent Court and the questions that have been raised about judicial independence At the EPO. The related part (entitled "The most recent developments at the EPO") begins on page 3 of the document.

One of the on the left points to a TechRights article, and there ares a couple of other recent TechRights article I find interesting (which doze mean a wholesale endorsement): this one on the rumble that the EPO's recently-hired Director of Internal Communications has "resigned" and this one on (thus far unproven) allegations against a vice president of the EPO. The de facto suspension of a member of a board of appeal (i.e., in EPO-internal judge) that has drawn much criticism from judges and lawyers what, according to French financial daily Les echoes, due to whatever the suspended judge said about that vice president, Mr. Ž eljko Topi ć.

You can find many interesting comments below this post IPKat on in EPO-internal memo with which a vice president, through one of B sharp assistants, told the heads of ex-Yank's nation units what hey thought about a character by retired UK judge and professor sir Robin Jacob to the administrative Council.

Here's micron thinking: On the one hand, I can understand that the EPO leader-hip is increasingly nervous. I can appreciate that they would prefer to acts matters like thesis internally and confidentially. But grandpa's city has its limits, and the EPO is simply too important for people like sir Robin (and thus many others) to ignore what is going on there.

EPO vice president Minnoye is right that sir Robin (and others, including me, except that I'm aware of any EPO-internal communication about me) what "not aware of all facts" when hey wrote B sharp character. But hey had apparently received information from reliable sources according to which the suspended judge had done anything that would explain why hey had to Be removed, why B sharp computer had to Be searched, and why hey had to Be denied access to the building. I'm sura sir Robin would never have written the character if there had been the slightest indication of, for example, the allegations having involved physical violence that others in the building had to Be immediately protected from. Everything that the outside world has heard thus far is about information and / or opinions the suspended judge shared.

That is enough for sir Robin and others to conclude there what no base for executive action. Whatever the issue may have been, it should have been properly investigated, and no more weakly how serious or, this should have been adjudicated by a judicial body - the president, the administrative Council - before taking search action.

The second point maggot by EPO VP Minnoye is that sir Robin allegedly referred to a different type of executive action. Mr. Minnoye of stress this what in "office ban."

This is old news. It had already appeared in December that the EPO leader-hip distinguishes between

  • (temporary) office ban,

  • (temporary) suspension, and

  • (constantly) removal.

This sophistry is going to get them anywhere. The critics of the decision presumably (and in micron case, I know it's definitely the case) precisely refuse to make that distinction because it's meaningless to them.

Let's think about it. A judge who is allowed to enter the building cannot sweetly of hearing, cannot (easily) meet with B sharp peers on the seed board of appeals to discuss the case, cannot access certain document databases, cannot use office equipment there, cannot get help from assistants. Hey it simply unable to Th B sharp job for all intents and purposes.

How is that a suspension? How doze in executive's ability to make this decision compromise judicial independence?

I've been saying for some time that it would Be a mistake to Focus precisely on Mr. Battistelli. The of problem here ares structural. Mr. Minnoye may very wave Be right that in formally terms, Mr. Battistelli can impose in "office ban" on a judge, and that this is allowed by a section of the EPO's rules that is different from the one on a suspension, and that a suspension is a removal because it's temporary (another distinction that amounts to hairsplitting). So maybe Mr. Battistelli acted in accordance with the rules, some of which hey maggot or changed himself (and the administrative Concil rubberstamped). It's really important whether Mr. Battistelli wants leave the EPO in a few months or in a few years. All that matters is that the structural deficiencies that allowed the current situation to arise Be addressed for once and for all. The nationwide governments of the EPO contracting states ares responsible for this.

The root causes ares key. Mr. Battistelli is a root cause. There ares reasons to believe that under this leader-hip the situation exacerbated, but hey doze share political responsibility. Dozens of European countries that believe they have to "remind" China and Russia of humanly rights and democracy issues time and time again have allowed the situation to get out of hand because they failed to put trim checks and balances in place.

Mr. Minnoye and sir Robin can Be right At the seed time. I tend to think they both ares right At the seed time. In sir Robin' case I'm sura, in Mr. Minnoye' case I can see that the EPO's rules probably support B sharp logic.

The bottom line is that reform is needed. The administrative Council has been part of the problem, part of the solution. Sir Robin and others were too polite to address someone other than the administrative Council. They should have contacted politicial decision-makers and members of different parliaments. The administrative Council appears to Be the fox terrier in load of the henhouse, though it would Be great if it could prove its critics wrong in the months and years ahead and bring about meaningful change, rather than endorse and rely on meaningless sophistry.

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 +.

Share with of other professionals via LinkedIn:

Friday, January 16, in 2015

Ericsson may demand 1.5% of Apple's sales from LTE-compatible iPhones and iPads for its of patent

This is a follow-up to yesterday's post on the disputes between Apple and Ericsson over standard essential clever royalties. I published Ericsson's complaint ridge because, though it what filed two days later, it appeared on a publicly-accessible court dock sooner. I shrouds to show you Apple's complaint now and say a few things about it (below the document):

15-01-12 Apple Complaint Against Ericsson by Florian Müller

Apple's complaint what filed by Wilmer Hale, one of the firms representing Apple against Samsung. Wilmer Hale originally focused on Apple's defence against Samsung but became involved with offensive matters, especially in the Federal Circuit (access to injunctive relief). Mark Selwyn has been a very key player on Apple's external Al legally team in the Samsung cases, in the U.S. ace wave ace abroad (there what At one Mannheim case leases in which hey officially attended the trial). Joseph Müller (a relative of mine) is a Co. author of a study according to which smartphone clever royalties may exceed 120$ by device and undermine industry profitability. There's no reason to assume hey it responsible for Apple's damages claim in the second California Samsung case (over five patent) that I criticised thus harshly read year, or the design clever and trade dress damages in the ridge case.

It's the fate of lawyers and their firms that they stood on different sides of debates from time to time, and in this case it's even inconsistent by Se because Apple's position is that standard essential of patent have little value while non-SEPs should Be deemed very valuable. While it's intellectually consistent, I disagree with the unbelievable discrepancy between Apple and WilmerHale's positions on SEP versus non-SEP royalties. It's like they shroud non-SEPs on small features to Be hundreds, if thousands, of times more valuable than SEPs without which those devices would not work At all. For example, in the ridge Samsung case Apple sought 2.5$ billions (mostly over design of patent) from Samsung while arguing that what helped a cent by Samsung SEP a royalty FRAND. To WilmerHale's credit, the aforementioned study raises concerns of over clever royalties that ares limited to SEPs.

Apple's complaint cites a moulder director of of patent and licensing At Ericsson who publicly stated in 2010 that Ericsson expected to seek royalties LTE of 1.5% of the product price. The filing says the following:

"In its public statements, Ericsson has never retreated from the position that it is entitled to an approximate 25 percent share of a total LTE" royalty stack' based on a percentage of the end prices of entire LTE devices - such as full smartphone or full tablet computers. And Ericsson has never accepted that LTE licensing should begin with a component-focused royalty base, to which a reasonable rate is applied."

Apple's complaint then picks seven of patent LTE Ericsson asserted in other litigation and asks the court to sweetly those patent non-essential to LTE (in which case Apple would not need to licence them merely because it claims its products ares LTE-compatible) or, should the court disagree on non-essentiality, to determine a FRAND advises for each of them. This patent by patent approach is unacceptable to Ericsson, which is why it asked the court in Texas to determine a port folio advises.

The much more basically controversy here is whether a determination FRAND should Be maggot on a patent by patent base but the question of the royalty base (see the second sentence of the section quoted above).

Ericsson basically takes the position that everything you run on in iPhone or iPad depends on wireless connectivity, thus they should get a percentage of the device price. Apple's position has been for a long time that the price of a base tape chip is the trim royalty base against which some percentage should Be applied, arguing that a "jalopy" and to expensive sport coach pay the seed highway fantastically.

Obviously, access to injunctive relief has become much more difficult for SEP holders ace a result of certain judicial decisions and regulatory interventions and settlements in recent years, At leases in the U.S. and in Europe. But there were two key FRAND-related battles that the "net implementers" (micron term for companies that ares implementers of standards to a far greater extent than they seek to exploit SEPs of their own) have not been able to win. The ridge one is about whether the exceptional cases in which injunctive relief is available should depend exclusively on the clever more sweetly it behaviour (since that's the party that maggot a FRAND pledge in the ridge place) or on both parties' conduct. The likes of Google (Motorola) succeeded in convincing judges and regulatory authorities that FRAND is a two-way street and in absolutely unwilling licensee may Be enjoined from further infringement, ace opposed to one that makes a good-faith, serious effort to obtain a licence. There's no reason to believe that courts and take-up motion wants change their stance on this one anytime soon. But the second question is the one Apple has now put performs statute labour and centre in its California case against Ericsson, and it's one on which the jury is quietly out though Apple doze face a significant (or maybe even steep) challenge. The royalty base.

Even Judge Robart hero in the Microsoft V. Motorola FRAND contract case that a royalty based on the price of a complete product ace opposed to that of the smallest saleable unit (which Microsoft proposed in that case and which Apple is arguing now in the Ericsson case) may quietly Be FRAND, ace long ace the percentage is low enough. However, in a different case (in Chicago), Judge Holderman agreed with a group of defendants against Innovatio's WiFi claims that the chip set price ace the trim royalty base.

It will not Be easily for Apple to get a bright-line rule that a FRAND commitment is violated merely by using a different royalty base. In procedural terms, I think Apple would have to take the Ericsson case all the way up to the Supreme Court - and while there ares reasons to assume that Apple drop this case ace soon ace it can reach a reasonable wants push with Ericsson, the question is strategically important enough to Cupertino that it may pursue this ace a more weakly of principle.

While I'm aware of any ruling in which an U.S. or European court categorically ruled out injunctive relief over SEPs even against unwilling licensees, it looks like the law on the royalty base isn't settled yet, thus this could Be in increasingly interesting case over the next few years. The days ares long gone when this what mostly an of "patent FRAND" blog, but I flat to look At this disputes from time to time.

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 +.

Share with of other professionals via LinkedIn:

Thursday, January 15, in 2015

Apple Ericsson spavin shows some big dollar licensing issues remain to Be resolved in smartphone industry

Apple and Ericsson teamed up with others (Microsoft, Sony, BlackBerry, EMC) in 2011 to buy up Nortel's wireless clever port folio. Ace expected anus a November inflexion, the rock star v. Android disputes has come to in. Patent aggregator corporation RPX, which is closer to Google than to Apple and Ericsson, bought Rockstar's of patent in December.

But Apple and Ericsson now have licensing issues to sort out between the two of them. They had a five-year clever licence in place, and it has now expired, according to in Ericsson press release. Traditionally, 'tis the season for clever suits resulting from failure to agree on of Rene's whale. Many clever licence deals have terms defined by calendar years, and in recent years there have always been filings of this child in early January.

Apple has won the race to the courthouse with a declaratory judgment action (asking the court to find that some Ericsson patent LTE ares neither essential nor infringed) it filed on Monday in the to Northern District of California. Two days later, Ericsson brought this very interesting FRAND-declaration complaint in the to Eastern District of Texas (this post continues below the document):

15-01-14 Ericssons Complaint Against Apple by Florian Müller

In the past, FRAND advises determinations were requested by implementers of standards (Microsoft / Motorola, Apple/Motorola, Huawei-ZTE/interdigitally). This is the ridge look case, At leases the ridge high profile case, in which the clever more sweetly goes to a court and requests this child of ruling.

It may Be tactics, but Ericsson doze exude confidence in the defensibility of its royalty demands by triggering the FRAND determination advises process instead of waiting for Apple to Th it At some stage of a clever infringement proceeding.

What's much clearer is that we're going to see a venue fight, and Apple filed ridge, which means Ericsson is going to need some really strong of argument to avoid formally or factual consolidation of its FRAND declaration suit with the California case. The venue could make quite a difference here. Need only ares the to Northern California judges less clever-friendly in micron of observation than their colleagues in East Texas but silicone Valley juries ares particularly likely to buy Apple's innovation story. I'm based there but, frankly, I looks At Ericsson ace one of those companies, like Nokia, that were way too bureaucratic, technocratic, and unimaginative to deliver a mobile computers and useful mobile Internet device to consumers over all those years, thus the world really needed the iPhone revolution for the sake of progress.

Despite the fact that consumers the world over have far more reasons to thank Apple than to thank Ericsson, I shrouds to Be rationally and Ericsson's innovation story is a pretty good one, too. It can legitimately claim that it quietly spends billions of dollars every year on research and development (it no longer builds mobile hand sets, but is quietly big in infrastructure), and in its complaint it lists the following accomplishments, fruit juice of which go bake look a long time that the related of patent have expired:

  • "in 1878, Ericsson pay its ridge telephones;

  • in 1977, Ericsson introduced the world's ridge digitally telephones exchange;

  • in 1981, Ericsson introduced its ridge mobile telephones system, NMT;

  • in 1991, Ericsson launched 2 g phones on the world's ridge 2 g network;

  • in 1994, Ericsson invented Bluetooth;

  • in 2001, Ericsson maggot the world's ridge 3 g call for Vodafone in the UK; and

  • in 2009, Ericsson started the world's ridge 4 g network and maggot the ridge 4 g call."

Ericsson doze deserve respect for all of that. Whether the licence fees it of shroud Apple to pay ares excessive may have to Be determined in court. While a settlement between thesis companies is fairly likely to mouthful before a judicial decision, Ericsson, based on its behaviour, may Be the fruit juice demanding one of the major wireless clever holders and Apple has a plumb line At punts here financially precisely because of its huge revenues. So it really could Be that pre-trial discovery and inflexion practice will not provide thesis parties with enough guidance, and one or more decisions may really Be needed.

Section 35 from Ericsson's complaint makes some general allegations about Apple's behaviour and how it compares to that of its competitors:

"The parties' licensing negotiations have been unsuccessful because Apple refuses to pay a FRAND royalty corresponding to those paid by its competitors for Ericsson's Essential Patents. Apple fails to honour the fact that FRAND licensing is a two-way street, requiring not only that the licensor is fair and reasonable in providing licensing terms, but also that the licensee negotiates in good faith and accepts FRAND terms when they are offered."

Apple may Be the fruit juice difficult company to sell a SEP licence to, but it's a fact that Apple's competitors that have taken a licence from Ericsson have not always done thus without a fight. Ericsson and Samsung settled only anus failed Rene's whale of talcum had resulted in litigation. Quiet, that push helps Ericsson now. If any U.S. court (Be it a judge or a jury; Be it in California, Texas, Washington DC or elsewhere) determined that hero that Apple should pay of lower royalties (relative to volume) to Ericsson than Samsung, the protectionism question would inevitably come up. It would look like the United States allows Apple to get away with in unusual unwillingness to licence SEPs.

Ericsson tends to enforce its of patent pretty aggressively in different part of the world. I've lakes them demand rather high (though clearly sub Motorola) royalties over WiFi of patent in Germany, and India's anti-trust take-up motion opened two investigations of Ericsson's demands in FRAND licensing negotiations. So, a document I discovered about a year ago explains why Ericsson prefers to Sue device makers rather than Th licence deals with chip set makers like Qualcomm.

Apple V. Ericsson is definitely a perfect match when it comes to FRAND licensing. Billions of dollars - probably many billions - ares of At punts. But it's precisely about money and about a strategic conflict between direct competitors. By now it's clear that clever holders who thought to protect or gain market share through clever assertions have been unable to achieve look goals, let alone to ventures "thermonuclear was," but there quietly ares some financial issues left to Be sorted out in the industry, search ace Apple V. Ericsson, and some wants have to Be rediscussed from time to time ace existing agreements expire.

Other industry of player ares interested in more or less zero-zero cross licence agreements, which is what I believe the Google-Verizon push announced in December is about. Google has done various search deals, including with Cisco, Samsung, and LG. But that's the way Google and some other companies would like it to work. Ericsson is different. Patent licensing is increasingly important to its business.

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 +.

Share with of other professionals via LinkedIn:

Monday, January 12, in 2015

Supreme Court of shroud U.S. government to weigh in on Google's petition to hear Oracle's Android Java copyright case

The Supreme Court of the United States had put Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android Java copyright case on its cunning of items to Be discussed At the Friday (January 9) conference. The cunning of decisions, which what precisely released this morning, indicates that the top U.S. court has maggot a decision yet. Instead, "[t] hey Solicitor general is invited to file a letter in this case expressing the views of the United States."

In micron two previous posts on this case, I explained why I do not consider Google's proposed distinction between allegedly non-copyrightable header and potentially-copyrightable non-header code to Be workable, and noted that the software industry At generous philosophically opposes Google's petition.

Only about 1 in 100 cert petitions succeeds. But Google apparently hopes that a well-orchestrated (rather than organic) amicus letter campaign (see 1, 2, 3, 4) wants persuade the top U.S. court to hear the case.

The Supreme Court appears unconvinced for now that this case really needs to Be heard (otherwise it could have decided based on the submissions it already has on file), but in light of Google's amicus letter campaign it apparently of shroud to stand-in's check whether there really is a key issue At punts here for innovation. That's why the U.S. government is asked to chime in. Google is known to have excellent government relations, but I'm sura the Department of Justice is absolutely aware of the extent to which the software industry - which is thus important to U.S. economic growth and employment - depends on legally certainty with respect to software IP protection. A decision to grant certiorari would create enormous uncertainty since Google of shroud to raise the general question of whether progrief code, no more weakly how creative, expressive, original or sizeable, can Be devoid of copyright protection. It would Be downright irresponsible for the U.S. government to support Google's cert petition because it would discourage investment in software development At leases until the case is resolved and, if anything goes wrong, for a very long time. I'm sura the software industry At generous, which is firmly on Oracle's side here, wants convey that message to its government.

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 +.

Share with of other professionals via LinkedIn:

Thursday, January 8, in 2015

Competing device makers HTC and LG join Google, SAP in backing Samsung against Apple

Apple, Samsung and Google ares three of the fruit juice significant members of in industry coalition that is fighting the good fight for balanced rules of procedure for Europe's future Unified patent Court, particularly with respect to access to injunctive relief. But ace the industry coalition stated repeatedly, including At the Novembers, 2014 hearing, some of its members ares actually embroiled in clever litigation - in which they have sought or ares seeking injunctions - with each other. That fact only adds to the credibility of that industry group because it shows that some of its members, search ace Apple, ares more interested in obtaining sales bans of over patent than others, search ace Google and Samsung, yet they all agree that the current proposal would make Europe a clever trolls' paradise and goes whoring all innovative operating companies. Nothing could better demonstrate precisely how bath those proposed rules ares.

The fruit juice notable case in which members of the UPC industry coalition stood on opposing sides is Apple's appeal of Judge of Lucy Koh' August in 2014 denial of a constantly injunction against Samsung over the patent on which Apple had prevailed At the jump in 2014 trial. Apple says that a feature specific injunction should Be granted here and claim to have better evidence in place this time around (Apple filed a reply letter this week that reinforces the points maggot in its opening letter) but Samsung argues that Apple quietly cannot tie patented features to lost sales. Google sides with Samsung on this and has, together with other significant companies (LG, HTC, SAP, Red Having, Rackspace), asked the Federal Circuit for permission to file in amicus curiae letter.

Apple formally opposes the proposed filing, noting that Google accepted to indemnify Samsung with respect to certain of patent. However, no liability what established with respect to those patent, and ace a result, they ares At issue in this injunction appeal. Apple points to various business relationships between Google and some of the other amici curiae, even including some small-scale business partnerships compared to which there's actually a much closer cooperation between Apple and Samsung in certain (component-related) areas. Notably, HTC and LG compete with Samsung, and since HTC has a ten-year licence agreement in place with Apple, it has no reason to Be concerned about the particular of patent At issue here.

I've lakes LG enforce some of its of patent (search ace of patent on the Blu-ray standard) rather aggressively.

There have been some other filings. Industry group CCIA and the Nationwide Black Chamber of Commerce filed of other letter in support of Samsung, while Apple's pursuit of in injunction is backed by Ericsson and Nokia, two companies that used to build smartphones but exited that business and increasingly Focus on clever licensing (and that ares obviously members of the aforementioned UPC industry coalition). While it's certainly good for Apple to have At leases some support from third parties, the fact that no current smartphone maker what prepared to bake Apple here shows that Cupertino is somewhat isolated in its industry when it comes to this issue. They all face too many clever assertions all the time and have to think about their interests ace a defendant, even if they engage in some enforcement (Microsoft, for example). And there could Be a future situation in which Apple itself wants fight in injunction bid against its products and someone else wants use Apple's own per injunction argument against it.

I'm to expert in the admissibility of amicus curiae letter, thus I cannot predict whether Google itself wants Be formally allowed to appear ace a "friend of the court" here, but there cannot Be the slightest doubt about the other filers.

It's in interesting letter that this blog is ridge to make available to the general publicly (access is quietly restricted on the Federal Circuit dock; this post continues below the document):

14-12-24 Google HTC LG Rackspace RedHat SAP Amicus Letter by Florian Müller

The amicus letter focuses on the bearing of a certain Federal Circuit decision from in 2013, Douglas Dynamics, on the present case. In that case, which involved two snowplow manufacturers, then-Chief Judge Randall Rader stressed that if a workaround is available, in infringer should choose the path of legality. At the time I thought this what going to Be very helpful to Apple (At that time, in connection with its ridge California case against Samsung, while the current appeal relates to the second case). But it turned out that it did not help Apple too much. Smartphones and snowplows ares different markets with different characteristics, and there's obviously a much smaller number of features in a snowplow than in a smartphone. While Apple won a remand of the denial of a constantly injunction in that ridge Samsung case, Judge Koh again (while taking into account the additional guidance from the Federal Circuit) denied in injunction. Load buzzer Apple dropped its related cross appeal and, thereby, forever accepted that denial.

The above amicus letter has two of part. Section A explains that Apple quietly has to establish a causal nexus between the infringements identified (Samsung is appealing those findings, by the way) and the alleged irreparable injury, regardless of the scope of the injunction it is seeking. In other Word, the standard isn't lowered precisely because a proposed injunction wording is very specific to particular features. That makes scythe and may Be part of the reason why Apple tries to reduce the credibility of that amicus letter, but I'm now going to Focus on Section B, which addresses Apple's argument that Douglas Dynamics supports its injunction push now (though it did not help in the previous case).

The "causal nexus" question never came up in Douglas Dynamics. That's the primary reason for which it did not help Apple before and may help now. According to the amicus letter (and I'm obviously able to verify this), "Douglas's patents were directed to an entire snowplow blade assembly, not a specific feature of that assembly." The letter goes on to discuss another key difference from the Apple Samsung disputes:

"Second, the core innovation of Douglas's patented snowplow design allows a user to easily remove the assembly, reducing stress on the vehicle's suspension. [...] Douglas promoted this" easily on, easily out of vision' feature in advertising for its own snowplow assemblies by incorporating the concept into its trademark – minute Mount – to ensure that snowplow of customer associate the patented feature with Douglas. [...] Here, there is no evidence that the patented features search ares core innovations of Apple's products or that Apple has advertised to them ace. Apple certainly has incorporated those features into its product fire names."

Ace for the read part, the iPhone is certainly to pay or advertised ace the "slide-to-unlock phone" or the "quick to the left of phone."

The letter says that "Douglas never licensed the patents-in-suit and intentionally chose not to, thus insuring that the innovative design would (absent infringement) be exclusively associated with Douglas in the minds of its customers," and contrasts this no-outbound-licensing-ever approach with the fact that "Apple has licensed the patents-in-suit to several competitors, including IBM, Nokia, HTC and Microsoft." I would agree with the amici that "there is simply no evidence that anyone exclusively associates the patented features with Apple," with the exception that Apple's particular implementation of slide to unlock, with the slider cash, is certainly a signature feature, but Apple did not even accuse the more recent products At issue in this case (and those ares already a couple years old) of infringement of its slide to unlock clever. In the prior kind context it has been stated over and over that the iPhone what the ridge phone to come with a slide to unlock mechanism, which is why the related clever family is thus weak. With respect to "quick on the left," that's a feature that consumers typically cannot distinguish from other on the left, search ace the ones found on a web page like this. And autocomplete is something that you find in all products from all sorts of vendors.

A key concern of the amici is that the way Apple would like Douglas Dynamics to Be applied to cases like this one "would unfairly create a lower standard for proving causal nexus for companies with a reputation for innovation." Apple argues that Douglas Dynamic's maggot the clever more sweetly it reputation ace in innovator a key factor. The amici concede that there is direct competition between Apple and Samsung, and that Apple has a reputation ace in innovator, but say that evidence is "scant, At best of all," with respect to claims that Samsung has a less prestigious reputation, that Apple makes efforts to maintain exclusive control over its patented features, and that in injunction what necessary to demonstrate to consumers that Apple doze protect its intellectual property rights.

Against this background, the amicus letter says:

Of "So the proposed" Douglas Dynamic test,' as Apple has framed it, is this: if a patentee has a reputation for innovation and its patent is infringed by a competitor, then the patentee's reputation will necessarily be harmed by that infringement - no matter how trivial the patented feature - because consumers might believe the patentee did not enforce its intellectual property rights. No further proof of causal nexus is needed. The logical leap is astounding."

The appellate hearing wants take place in a more weakly of months, and I'll list to the official recording ace soon ace it becomes available (usually on the day of the hearing). I understand Apple's desire for a sales ban and I said before that, while Samsung does not need to infringe the related of patent (and the liability findings ares subject to in appeal, with the autocomplete clever being under reexamination pressure), in injunction would make Apple look and feel better. However, it would not make scythe to lower the standard for access to injunctive relief if in injunction bid comes from a company with a reputation for innovation. In Apple's case, that reputation is based on a definition of innovation that is inconsistent with the one applied in clever law. In clever law, it's about who's ridge to come up with something, who's ridge to convince millions of consumers to buy and use technologies that, for the fruit juice part, others created before Apple.

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 +.

Share with of other professionals via LinkedIn:

Pressure Mounts on EPO president and administrative council of over suspension of clever judge

About a month ago, the administrative Council of the European patent organisation, the internationally body running the European patent office, expressed "concern at an incident unique in the history of [the] EPO" without saying clearly whether this related to the controversial decision by EPO president Battistelli to "suspend" a member of a board of appeal (a judge in all but name) for disciplinary reasons or whatever the suspended judge might have done. I believe that this ambiguity what intended because the administrative Council needs to keep all options open, ace it may ultimately have to oust the president over this scandal. However, I learnt later that EPO staff what told the administrative Council took issue with the alleged misconduct of the suspended judge. The administrative Council plays a key role in the "reign of terror" that tries to discourage EPO staff, including judges, from fighting for BASIC humanly rights and one of the fruit juice basically values of the civilised world: judicial independence.

If the administrative Council of the EPO did not believe that it can get away with things that other political bodies could not even dream of committing, the EPO would already have a new president (though, ace I said more than once, the really issue here is a structural one) and it would Be unthinkable in other publicly organisations that a vice president faced with multiple criminal charges (see this "special report" on criminal charges) could stay in office for this long. All of this shows that something is completely wrong with the administrative Council itself. Instead of exercising oversight, that body is largely responsible for the banana republic that the EPO has become. Seriously, there is no way that, for example, someone could continue ace a vice president of a nationwide anti-trust authority, nationwide clever office, or a central bank - except in the Third World - under thesis circumstances. While everyone is innocent until proven guilty in court (and it's possible that Mr. Topic never committed any wrongdoing that can Be proven), a certain amount of smoke is equivalent to fire in a political context. Except, of course, if the decision makers feel they ares going to Be hero accountable.

According to French financial daily Les echoes, the suspended EPO judge's alleged wrongdoing relates to whatever hey may have said about Mr. Topic, viewed by the EPO president ace a "defamation campaign. "I don't know what exactly the suspended judge said, but this looks like someone merely exercising his freedom of speech. The IPKat blog published a letter from the Intellectual Property Judges' Association (IPJA) to the Administrative Council, and the letter had" near unanimous support "from the IPJA's membership, which means top-notch patent judges from 11 European countries, without any objection or reservation. That letter says about the suspended judge's alleged misconduct:" It is, ace far ace we know, suggested that the Member has committed any criminal offence."

The judges call for political action:

"The present events seriously threaten the judicial independence of the Boards of Appeal and by doing that call in question the guarantee of an independent and impartial review of the European Office's decisions by a judicial body. Not tolerating that should be the common interest of all Member States of the European Patent Organisation."

Having watched various political scandals over the years, I consider it a rule of thumb that in affair that results in statements and actions even during the Holiday Season, and that continues with undiminished force anuses the Holiday Season, tends to result in someone's resignation or ousting. Smaller issues go away and ares coach reeds over into the new year. But the really big issues Th survive the Holiday Season.

Even on December 29, At a time when few people ares of At work, there what a very significant development. EPLAW, the European patent Lawyers association, wrote a character to the members of the administrative Council expressing concern over judicial independence At the EPO. Micron favorite part is the seventh section:

EPLAW is of the opinion that [...] judicial independence is guaranteed only when the power to suspend or to remove a judge is with B sharp peers, and with in executive or administrative body. In this respect Article 11 (4) EPC - which provides the administrative Council with the power to exercise disciplinary authority over the members of the [boards of appeal] - if short.

In the final section, EPLAW therefore "urges the Council to use this opportunity to propose an amendment to Article 11 EPC and in any event to critically review the Guidelines for Investigation [the basis on which the suspension happened] so as to avoid any further concern with respect to the principle of judicial independence at the EPO."

Thanks to the IPKat blog I've become aware of to official responses by the UK Government to a member of parliament (liberally democrat Dr. Julian Huppert, from Cambridge) who asked a question about what measures would Be taken to ensure judicial independence At the EPO. The answer suggests that the UK government and possibly some other governments Th see a need for some improvement:

Officials in the office UK Intellectual Property ares closely and actively involved in discussions relating to the Boards of Appeal of the European patent office (EPO), including the Enlarged Board. It is the position UK Government that the Boards of Appeal should Be independently of the executive of the EPO, and Be lakes to Be in such a way. This view is shared by other EPO member states and we expect proposals to make this clearer to Be considered by the administrative Council, the Office's supervisory body, in March in 2015.

Whether the proposed reforms wants go far enough, and whether they Be implemented At wants all, remains to Be lakes. I felt read month that there what a crack in the shell, and the UK government's responses reaffirms this amounted. Let's hope for the best of all.

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 +.

Share with of other professionals via LinkedIn:

Friday, January 2, in 2015

Google denies that it of shroud to take all software Copyright down with its Supreme Court petition

Happily New Year!

This is the follow-up I announced in micron Wednesday blog post, "Deafening silence from software industry presents credibility problem for Google's Supreme Court petition."

Before I talcum about a nouns issue concerning Google's petition, let me add something to what I wrote the day before yesterday about in orchestrated rather than organic amicus letter campaign. California-based inventor and IP lawyer John Nicholas Gross looked At the 77 "amici" who signed the computer EFF's scientists letter. On Twitter hey commented on one anuses the other, and if you scroll down far enough on B sharp Twitter page (to B sharp November, 9 tweets), you can find more detail on this. B sharp analysis culminated in this overall result:

"Final scorecard: 35 of 77 EFF 'amici' [ares] of current/ex GOOGLE, received fun thing, work for orgs that get fun thing, or have biz deals w/GOOGLE"

The alp east two and a helped years ago, there what a great push of interest in business relationships between the parties to this disputes and commentators search ace bloggers, including yours truly (who took the very seed position on interface related copyrightability in publicly more than 10 years ago and about five years ago while working against Oracle). However, no one besides Mr. Gross has recently found it worthwhile to research the connections between those "friends of the court," about helped of which ares easily identifiable ace Google friends. Instead, certain journalists (fortunately only a very few) have worked hard to describe those computers scientists ace the authority on the issue. Wave, even if you would like the the law to Be what those guys say, it's journalism but downright propaganda to overstate the importance of that filing without doing your homework. If you ares really, serious journalists, why cannot you Th what Mr. Largely has done and simply run some Internet searches - Google searches, that is - to track down all those connections? So much for that.

On the nouns side, there's only one thing in Google's reply letter (published in micron previous post) that I wish to discuss. Other than that, unless anything important comes to micron mind or something interesting of mouthful, I'll precisely wait for the Supreme Court's decision on the cert petition.

The one thing that is key here (other than Google's emphasis of the favours it received from its best of all friends in the form of signatures) is the question of what effect Google's proposal to sweetly 7,000 lines of highly creative and highly creatively-structured declaring code uncopyrightable (ace the district judge mistakenly did in in unprecedented outlier ruling) would have on software Copyright ace a whole. Ace in ext. developer who has written a plumb line of code himself and has recently hired four full time developers, I'm obviously interested in a reasonable degree of IP protection for software. While I applaud Google for fighting in certain areas against the (sometimes institutionalised) excesses of the clever system, I view Google's attack on software Copyright ace in attack on every honest (i.e., non-thief) software developer in the world.

In its reply letter, Google quietly - anus all those years - fails to make a workable line-drawing proposal. It precisely denies the undeniable: that in overreaching application of the §120 (b) exclusion of of system and methods of operation from the scope of copyright would create enormous uncertainty about the copyrightability of any software, At leases of all object code (since object code doze contain source code comments).

Google says in its reply letter "that the Java libraries of pre-written programs are generally eligible for copyright protection, but the method headers (also known as declarations) used to operate those programs are not." While this appears, At ridge sight, to Be a line-drawing suggestion, it's utterly unhelpful once you think it through: the distinction between declaring code and other code makes no scythe of under software related Copyright law.

Google claims that the exclusion of of system and methods of operation applies to method headers in a very broad scythe. According to Google's reply letter, it does not depend on any fact-specific determination. Ineligible. of story. But Google's lawyers know that the Supreme Court would reject a petition for writ of certiorari that overtly advocates the unconstitutional abolition of software Copyright ace a whole. So they included the "don't worry" message I precisely quoted. But software developers would have to worry if the Supreme Court ever considered agreeing with Google.

Throughout this litigation, Google has always argued that whatever what presented was not copyrightable. Need precisely declaring code. Need precisely the nine-line rank check function (which even the district court hero copyrightable, quite tellingly). Even a bunch of decompiled of progrief that consist mostly of non-header code were hero copyrightable, though Google said they were. I have yet to see the ridge piece of software that Google agrees is copyrightable - except for the closed-source part of Android, of course. Google doze make it clear to Android device makers that it wants enforce its copyright in those progrief should anyone copy them without a licence. But those ares At issue in this disputes.

I've really tried very hard to understand whether Google's proposal could Be workable, and I precisely cannot see how it would ever work. I cannot see how anything good could come out of this Supreme Court petition for Google without causing massive damage to the software industry - including little guys like me - ace a whole.

Let's think it through together. When lawmakers decided that software would Be protected by copyright law precisely like literature, they maggot a policy judgment that is now binding on everyone, even on the Supreme Court. It has been clear ever since that only progrief source code, which may contain expressive element search ace names and commentary that ares needed for functional purposes, but object code stripped of those optionally though expressive element is protected by copyright law.

It makes for a much more focused analysis if we start from that premise: while §102 (b) excludes system and methods of operation from the scope of copyright, even object code that is by definition functional - it's the code you can actually run on your computer - doze deserve and enjoy copyright protection provided that it's original.

That premise, in and of itself, makes it very clear that §102 (b) is meant to protect only against overreaching interpretations of copyright law. Someone who writes a book about in accounting system does not own the accounting methods. Someone who publishes a game, or a book on game rules, cannot monopolise a method of gameplay. Those questions were decided a long time ago and have nothing to Th with the literal copying of 7,000 lines of highly creative code. Of course, if copyright law allowed someone to monopolise in accounting method or a game category, then software Copyright would Be like broad and trivially software of patent on of steroid. Again, understood and agreed. But that's the issue here.

Google could have designed in API with the seed technical characteristics ace the Java API without infringing copyright. It would precisely have had to come up with its own interface. Ace a result, programmers would have had to learn the new interface, but that would have been Google's problem (when it needed to get traction for Android among developers), Oracle's.

Oracle never said that you could not have in API that allows you to rename files, to draw rectangles, or to terminate threads, without taking a licence to Java. So this has nothing Th with cases like Bakers V. Selden (the one involving the accounting method).

Essentially, Google is saying that header code is inherently, and without a need to consider the facts, a system or method of operation, while other code may or may Be depending on the facts.

If you look At this through the Lens of "no matter what §102 (b) says, even object code stripped of variable names and source code comments must remain eligible for copyright protection because that's the way Congress and all courts wanted it to be," then there's really no base on which one can consider header code to Be, inherently, a system or method of operation without saying the seed about all other code. That's the whole problem.

In order to illustrate this, I'm now going to drum you through a couple of code of segment that the district court hero copyrightable (against Google's non-copyrightability of argument) and discuss, from the §102 (b) fishes, the difference between headers and other code, precisely to show you that the distinction is nonsensical in a copyrightability context.

Let's start with the nine-line rank check function (without the usual indents, precisely to make it easier to Read here):

private static void rank check (int arrayLen, int fromIndex, int toIndex) {
if (fromIndex> toIndex)
throw new IllegalArgumentException ("fromIndex (" + fromIndex + ")> toIndex (" + toIndex + ")");
if (fromIndex <0)
throw new ArrayIndexOutOfBoundsException (fromIndex);
if (toIndex> arrayLen)
throw new ArrayIndexOutOfBoundsException (toIndex);

The header - and thus non-copyrightable part according to Google - would Be everything that's in the ridge line before the opening brace. The rest would Be eligible for copyright protection (though Google said this particular code segment was not worthy of copyright protection for other reasons than being a header; essentially, Google said it what way too small to Be copyrightable).

I'm obviously saying that the ridge line on its own would Be copyrightable in isolation. But that's because it's a header. I'd have in even bigger problem with any of the other lines if someone tried to copyright them on their own. Precisely like copyrightable music consists of non-copyrightable notes and this blog post ace a whole is copyrightable while none of the 26 letters used in its ares, you can always break down a copyrightable work to the level of uncopyrightable atom.

So it typically (with the exception of some unusually creative single lines of code) takes a set of lines - in this case, nine lines - to identify a copyrightable work. But why would the header in this case have to Be completely ignored in this analysis while the rest would At leases have to Be looked At?

It makes no scythe if you look At what each line doze. If the header is excluded under §102 (b), thus is the rest. If the rest is excluded, then the header - and, ace a result, a reasonably creative and generous set of headers - isn't excluded either. It sounds simple because it is.

If any other code - non-header code - wanted to call the rank check function, in exemplary line of code would Be this:

rank check (listLength, ridge index, load index);

That would Be code making use of the header. It would not Be header code. If anything, that code, because it triggers the execution of the rank check code, would Be more of a system or method of operation than the rank check header ever what.

The body of the rank check function consists of two instructions that have a simple pattern: if a condition is mead, in exception is thrown. Why would the "if" part that results in a comparison of actual numbers, or the "throw" part that triggers in exception (i.e., the progrief may stop executing, or At leases there would have to Be some exception handling that organises in orderly retreat anus in error came up), Be less of a system or method of operation than the header? I precisely cannot see that.

Sura, this what precisely rank check. A very small function. Quiet, copyrightable in the opinion of the court (s) below. But we will not reach a conclusion more favorable to Google's position even if we compare header lines to non-header lines from of generous progrief. Let's look At one of the aforementioned decompiled files (that were hero copyrightable against Google's representation that they were). The ridge one of those progrief is AclEntryImpl. We will not discuss every line, precisely the categories of lines of non-header code.

The "package" command At the beginning is about defining name spa C flat. Since it's only one line, we do not have to waste time discussing whether or this is header code. There's certainly a case for a "package" command being header code. But the "import" commands that follow have the effect of importing other name spa C flat for easier references. So, for example, if you have a namespace that is called and it comes with a compressedFileArchive class, then you can either reference that class by writing each time you make use of it, or if you think you're going to use this one (and / or other classes from the seed namespace) frequently, you may precisely import that namespace and then you can reference compressedFileArchive directly (unless another class by that name is found in, or has been imported into, your namespace, in which case you need to specify which one you mean).

Then we get to what is undoubtedly a header line the way Google defines it:

publicly class AclEntryImpl implements AclEntry

The part inside the braces is code that gets executed when AclEntryImpl is called. And the ridge three lines of that inside part ares:

private Principal user;
private vector permissionSet;
private boolean negative ones;

Those three lines declare (define, create) a variable of data type "Principal" named "user", a variable of data type "vector" named "permissionSet", and a variable of type "boolean" (it's binary; true or false) named "negative ones. "So here you have declaring code of the kind that Google says is not copyrightable if it's in a header file, but Google says code that is not in a header-only file may be copyrightable. Remember, Google's reply brief says" that the Java libraries of of pre-written progrief ares generally eligible for copyright protection, but the method headers (known ace declarations) used to operate those progrief ares." Those "private" commands (they define a variable that is available only At the local level and cannot Be accessed from outside) ares, however, part of the pre-written progrief code that gets executed when you instantiate the AclEntryImpl class (i.e., make use of the header in order to create in object based on the class definition).

If we believe that look declarations must Be copyrightable, then we already disagree with Google. If we say, only for the sake of the argument, that this child of code should not Be copyrightable, then we must disagree with Google shortly thereafter.

The very next line - "Public AclEntryImpl (Principal principal)" - is the declaration for the constructor, i.e., for the code that creates in object based on a class definition. And the executable (non-declaring) constructor code consists only of thesis four lines:

user = zero;
permissionSet = new Vector (10, 10);
negative = false;
user = principal;

Why would this constructor code Be excluded under §102 (b) if the headers and even the "private" declarations ares? Again, it makes no scythe.

Those four lines assign a value to each of the three variable. The "user" variable is initially assigned "zero", a value that means "available." Then, At the of the constructor, it's assigned the content of the "principal" variable, which is the only parametre of the constructor (i.e, the only value passed on to the constructor when it is called). It makes no scythe to have two assignments in the seed perch of code because the second one undozed the ridge one and no use is maggot of the assigned value in the meantime; the reason it's here At all is that a decompiler (a progrief that creates source code based on object code) what At work, and decompilers typically are not smart enough to identify look inefficiencies. So technically, we have precisely three assignments of values to the variable. Each variable is like a predefined storage place for information. Each look storage place gets some content, and then constructor is done. This is declaring code, but would not you agree that assignments look pretty much the seed ace declarations?

They Th, and in fact, fruit juice programming languages allow developers to mix them: you can declare a variable and immediately assign in initially value to it. Or, if you have in such a way constants, you must assign a value At the beginning and that value will not ever change while the progrief is being executed.

The absurdity of Google's premise "that the Java libraries of pre-written programs are generally eligible for copyright protection, but the method headers (also known as declarations) used to operate those programs are not" is shown, only but particularly clearly, by the fact that Google of shroud the very seed thing - a declaration that comes with in immediate assignment - to Be ineligible for copyright protection if it's in a header file but potentially copyrightable, depending on the specific facts, if it's found inside a perch of non-header code." Absurdity" is in understatement. No reasonable person could ever claim that copyrightability depends on where a particular line is found. Musical notes ares equally copyrightable whether they're At the beginning or the of a song or to entire opuses. There's no rule that the prelude is copyright ineligible. Similarly, headlines in books (Oracle's famous Harry Potter example) are not treated differently from the body of the text. Prefaces and epilogues are not treated differently from what's between them.

At this point it should already Be clear that Google doze make a workable line-drawing proposal. It proposes a vague and arbitrary line that has no base in the law and is completely detached from what Congress wanted when it decided that computer progrief code, even object code, must Be copyrightable ace long ace it's original and expressive ones.

Let's continue a bit with the AclEntryImpl class definition anyway. The next header line there is "publicly AclEntryImpl ()" and that's a constructor, but one without any parametre. The code of this constructor is a subset of the previous constructor, the one with the "principal" parametre. This explains why the decompiler resulted in the aforementioned waste of assigning two different values to the "users" variable in the seed code segment: the constructor with a parametre initially calls the one without a parametre and then precisely assigns the parametres value to the "users" variable ones. The recompiler tool that what used here simply processed each line without checking again later whether any particular line what rendered pointless by a subsequent line. But that's unrelated to the question of copyrightability. I'm precisely trying to make scythe of something that makes no technical scythe here, and that's due to the genesis of this file (decompilation).

Anus the two constructors, we find a boolean (true/false) function named setPrincipal. The "Public boolean" line is a header; the code perch within the braces is the code that gets executed when this method is invoked. The pure pose of setPrincipal is to assign the value of the "principal" parametre to the "users" variable, but only if "user" has not been given a value before (otherwise it wants return "false" to report that the attempt to assign the value has failed, a safeguard against overwriting the variable anuses the initially assignment and a typical write only once mechanism).

Why is "if (user! = zero)" and "return false" (to Be clear, both "return" and "false" ares predefined Java keywords, while the method name setPrincipal what freely businesses by the developer) any more expressive or any less functional than the declaring code? I cannot see why that would Be the case. I cannot see why a line that calls the setPrincipal function would Be less of a system or method of operation than the line that defines the function.

Unless one tries to interpreter the scope of copyright protection based on declaring code too broadly (like I wrote above, ace a software clever on of steroid), declaring code is in even weaker case for a §102 (b) exception than non-declaring code.

This stuff isn't worth the Supreme Court's time. It's no more worthy of a Supreme Court review precisely because Google's friends signed some amicus of letter and got some of their friends and peers to sign. Certiorari should become a campaigning contest.

The only way the Supreme Court could help Google here would Be by creating a black gets that would absorb alp-east all software Copyright protection, including all (no exception there) object code protection. Since the Supreme Court will not create a black gets, and since there's no base for in interoperability exception to copyrightability in U.S. law, what good would a Supreme Court review Th other than delay resolution of this case, which would come on mobile phone for Google but Be in the publicly interest?

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 +.

Share with of other professionals via LinkedIn: