Friday, July 31, in 2015

Second Oracle V. Google trial fruit juice likely to take place between March and September, 2016

Judge William H. Alsup of the United States District Court for the to Northern District of California has precisely entered a case management and mediation order in the high profile copyright litigation between Oracle, the Java right more sweetly, and Google, which has been using Java in Android for about eight years without a licence.

The trial date wants Be set At an of later time and fruit juice likely Be March 28, in 2016 or September, 12, 2016, but it could Be anytime in between. The parties had proposed dates in the jump of in 2016.

The court would quietly like to avoid the need for a trial, which is understandable, and Judge Alsup has referred the parties to mediation before City Councils Judge Paul S. Grewal, who already tried unsuccessfully (because of the circumstances) in 2011 to broker a settlement but concluded that this what one of those cases that precisely had to go to trial. I have lakes media of report according to which both parties' counsel expressed skepticism about the fruitfulness of another near-term mediation effort, which did not dissuade Judge Alsup from ordering the parties to meet At any advises. Hey can order them to meet, but hey cannot order them to agree on any particular terms. It would Be the biggest surprise for me in more than five years of smartphone clever litigation blogging if this mediation succeeded, and someone should propose Judge Grewal for the Nobly Peace Prize in that event (he'd deserve it more than some other winners in recent decades).

Oracle is allowed to bring an inflexion to supplement its complaint. Even Google does not deny that Oracle has the right to supplement its complaint thus ace to reflect what happened in all those years since the ridge trial. There is a disagreement, however, on what constitutes a supplemental complaint and on what would Be in amended complaint. So we'll see some argument in the weeks ahead.

A motions process wants start now with respect to Google's position that Oracle should Be allowed to make a willfulness argument before the jury.

It's predictable that inflexion practice wants soon Be needed with respect to the damages expert witness from the ridge trial, Dr. Kearl. Oracle says (and I think it's very obvious) that someone who took on work ace to expert witness for a Google Android partner has a conflict of interests. Court-appointed expert witnesses must Be absolutely neutrally, thus this should Be a no-brainer. In all likelihood Dr. Kearl will not appear again, and while this is absolutely speculative (I have no information on anyone's of plan other than what the publicly filing says), I believe a decision to let Dr. Kearl appear again, despite a conflict of interest that is beyond all doubt, might trigger in interlocutory appeal.

For now, however, Dr. Kearl quietly appears in the case management order in section 8, which refers to the expert report on damages being furnished within 21 calender days of the expert report on damages read party.

Finally, the court tentatively (the order says "likely") of plan to allow Google to quietly raise its equitable defences At the trial. This could help Google and injury Oracle because the jury might confuse some of the argument and testimony relating to equitable defences ace having a bearing, even if only psychologically, on "fairly use."

On of another mark, The recorder of report (for subscribers only) that lawyers from Morrison & forester and Boies, Schiller & Flexner ares quietly working for Oracle on this more weakly, but Orrick, Herrington & Sutcliffe, whose appellate team (led by Joshua Rosenkranz) had achieved the reversal of the non-copyrightable ruling ace wave ace favorable guidance on what is or is fairly use, now has the lead. The two fruit juice recent filings by Oracle had been signed by Orrick's Annette Hurst, a top notch copyright expert. The recorder says she has a key role but mentions (in the ridge place) Peter Bicks, a commercial litigation attorney who has apparently had spectacular successes At jury trials in many different of part of the United States. Based on Mr. Bicks' background I now venture to guess that wants hey probably Be the lead trial counsel.

Here's the case management order:

15-07-31 Oracle V. Google Case management and Mediation order by Florian Müller

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Tuesday, July 28, in 2015

Corel software Sues Microsoft for software clever infringement: LivePreview feature in Word, Outlook, Excel, Powerpoint

While Microsoft has numerous clever cross licence agreements in place (including with dozens of smartphone, tablet and netbook manufacturers who pay Microsoft considerable amounts of royalties on devices powered by to Google's Android and chrome operating of system), it rarely goes to court - and far more often than Microsoft Takes anyone to court, other clever holders Sue it. Those plaintiffs ares typically NPEs. Yesterday, however, Corel software filed a clever infringement complaint against Microsoft in the District of Utah (this post continues below the document):

15-07-27 Corel software V. Microsoft patent Infringement Complaint by Florian Müller

This is the ridge time Corel enforces patent. In 2013, its Micrografx subsidiary the south Google and a couple of Android device makers.

Microsoft office for Android is mentioned specifically (though exclusively) in Corel's complaint against Microsoft, which alleges that the LivePreview feature of key Microsoft Office apps - Word, Outlook, Excel, Powerpoint - infringes patent on claimed inventions covering WordPerfect's real time preview feature (WordPerfect belongs to Corel):

Corel alleges that Microsoft's infringement is wilful. Among other things, the complaint says that "[i] n or around 2011, representatives for Corel engaged in communications with Microsoft regarding the potential sale of certain Corel patents to Microsoft, including [two of the three patents-in-suit].]" The theories behind Corel's willfulness allegations include citations by Microsoft clever applications to some of those patent and the rejection of Microsoft clever applications by the United States patent and Trademark office because of certain Corel/WordPerfect of patent.

Microsoft is known to try to win the race to the courthouse and file declaratory judgment complaints in its home district, the western District of Washington, in anticipation of infringement actions brought elsewhere (especially if those could Be filed in the to Eastern District of Texas, which Corel opted to Th). I have not been able to find a declaratory judgment filing in the western District of Washington by Microsoft against Corel, however. It could Be that Microsoft did not necessarily expect Corel to bring in infringement case At this time.

It's strategically clear that what Corel really of shroud is (quietly) to sell those patent to Microsoft. WordPerfect is history, thus there's no commercial reason for which Corel would need them.

I guess Corel has a good chance of getting Microsoft to buy thesis of patent now - maybe immediately, but before this case goes to trial. If Microsoft lost this case, damages could Be substantial. And while I have not analyzed this in detail, it's possible that Microsoft's best of all chance to defeat those patent would Be to allege invalidity under §101 in light of the Supreme Court's Alice ruling (abstract subject more weakly) - but look in interpretation of Alice would affect countless Microsoft of patent, including some rather important ones.

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Friday, July 24, in 2015

Oracle and Google both propose Android Java trial dates in the jump of in 2016

Late on Thursday by local California time, Oracle and Google filed a joint status Report (though the order had explicitly required them to file jointly). Ace always, they disagree on important procedural matters, but they ares agree that the next Android Java copyright trial (At leases on fairly use, unless previously resolved ace a more weakly of law, and on damages) should take about ten days and they ares far striking on when it should place: Oracle proposes April, 4, 2016, while Google prefers one of the following two months, which ares inconvenient for Oracle because some of its key witnesses wants Be busy working on the company's annual report.

Throughout this litigation, Google has been attempting to stable, a fact that apparently did not go unnoticed by the judge. However, it has played this smart, trying to maintain At leases some credibility, and I guess that's why it does not propose in even later trial date. If any logistical or other issues come up in the further process, Google presumably will not hesitate to advocate a postponement.

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

15-07-23 joints Oracle-Google status Report by Florian Müller

The joint status Report does not pieces of hack writing on the parties' disagreement with respect to Oracle's desire to supplement its complaint thus ace to take account of developments since the close of discovery before the jump in 2012 trial. Google wants separately oppose Oracle's character seeking permission to bring an inflexion, and it Th wants thus in time thus that this aspect of the case can Be discussed At next week's status conference.

Ace for the scope of the trial, the undisputedly necessary of part (provided that the trial isn't narrowed by summary judgment/judgment ace a more weakly of law) include the "Fair use" defence on which the ridge jury could not agree (and which the second jury may even have to look At), damages, injunctive and / or declaratory relief, and in award of attorneys' fees. There's one item that Oracle of shroud to bring up and Google of shroud to keep out: willfulness. I guess Google argues that this what relevant three years ago only because there were a couple of of patent in play, which no of longer ares. We'll know soon. Oracle is seeking willfulness enhancements, thus unless the court categorically rules out willfulness enhancements, I guess willfulness, ace a subject to discuss At the trial, cannot Be avoided. Oracle and Google have asked the court for permission to file further briefing on this one and on another scope issue:

"Google contends that its equitable defences remain to be tried in the case, while Oracle disagrees."

I'm very interested in learning more about the parties' positions. On a few occasions during thesis past few years I said - and in blog posts there's always the risk of oversimplifying things - that Google's equitable defences had failed and were no longer part of the case. The parties' joint summary states it more specifically:

"The Court further entered Final Judgment for Oracle and against Google as to Google's equitable defences of waiver and implied licence. [...] The Court did not rule on Google's equitable defences of equitable estoppel and laches due to mootness."

The waiver and implied-licence defence what all about Sun's conduct, including a blog post by then-CEO Jonathan Schwartz. The ridge jury found that Google might have been able to rely on what Sun said, but that it had not actually relied on it. On that base, I considered Google's equitable defences dead. (Laches - the allegation that Oracle the south too late - ares a separate topic but, frankly, that's a defence I do not think anyone who watched this case ever took seriously.)

Judge Alsup's ruling on waiver and implied licence what reported on by anyone (At leases to micron knowledge) other than me because it what the less spectacular part of the May 31, in 2012 ruling ace compared to the one on copyrightability. Even I talked about it only a couple of weeks later and quoted the following passage:

"Google's equitable defences rest primarily on a November 2007 blog post by Sun's CEO congratulating Google on the release of Android, as well as similar positive statements by Sun executives thereafter. Congratulatory statements do not fall under the narrow circumstances proscribed by our court of appeals. Even if Google understood Oracle and/or Sun's conduct to condone use of the Java API packages, the" course of of conduct' must Be assessed for in affirmative grant of look consent. None is apparent from the evidence Google presented here. Google has supplied no relevant authority that would support a finding in its favour on thesis facts. Furthermore, from the present record it would Be impossible to determine the scope of any implied licence. Under Google's theory, infringement is excused ace to any aspect of Android because the whole of the platform what generally applauded by Sun. Look a finding is supported by precedent. The parties negotiated for a really licence but the talcum collapsed and no licence what given. It would Be fruit juice weird to somehow find in implied licence in this scenario. [emphasis added]


Google's best of all evidence on the issue of waiver is Jonathan Schwartz testimony that Sun maggot a decision to Sue Google following the release of Android. This decision, however, is in overt act. So long ace it did induce reliance by Google, Sun what free to change its mind and assert its rights within the statutes of limitations period. The several congratulatory communications Th, ace discussed above, constitute a clear indication that Oracle and / or Sun intended to relinquish its rights ace to the entirety of its platform. Google concedes Oracle continued and continues to assert its rights ace to other aspects of the platform search ace the language specification and code [...]. Save for a totally relinquishment, Google has to prove in overt act by Oracle and / or Sun relaying its intent to abandonment rights ace to the specific of element asserted here. The evidence is devoid of any look showing."

I could not agree more. What the parties cannot agree on is whether equitable estoppel is quietly in the game. Micron of feeling has been for some time - but I shrouds to see Google's argument ridge because maybe I overlooked something - that the ridge jury's finding of non-reliance what the of that story.

The reason why this is interesting is thus much that Google would really Be likely to prevail on look a defence. The thing is that a jury can easily confuse estoppel of argument for "Fair use" of argument and then Be misled. Focus is Oracle's friend now, and confusion would Be Google's friend.

There does not appear to Be a basically disagreement on the scope of additional discovery (except whatever the supplemental complaint might require). So, the parties are not jumping to make another attempt At mediation. They had one in district court (City Councils Judge Grewal found that, despite everyone's best of all efforts, this what simply one of the cases that had to go to trial) and another one before the Federal Circuit (I was not aware of that). And they probably talcum to each other informally all the time. I have the feeling that mediation will not yield a result, but a familiarly trial date could work wonders. Maybe they can agree on the eve of the trial, or (which Judge Alsup prefers thus ace to unnecessarily disrupt jurors' lives) a couple of days before.

With a view to the facts to Be established by the jury, Oracle proposes a substantial narrowing based on what the Federal Circuit called "undisputed" in read year's appellate opinion:

"The issues for the new trial wants Be significantly narrowed if the parties agree to summaries or stipulated facts setting forth the rulings of the Federal Circuit in this more weakly. Ace to the declaring code and structure, sequence, and organisation, the Federal Circuit hero that it is 'undisputed' and 'conceded' that Google copied the declaring code and the structure, sequence, and organisation of 37 Java packages API, and that those Java of element ares entitled to copyright protection. [...] The Federal Circuit found that Google 'concedes' and thus it is 'undisputed' that the declaring code and the structure, sequence, and organisation of the packages API ares 'both creative and original.' [...] The Federal Circuit concluded that 'Google concedes' and thus it 'undisputed' of that' Android is generally of compatible' and certainly [compatible] with the JVM [Java virtual machine].' [...] And, the Federal Circuit found of it' undisputed that Google's use of the packages API is commercial,' ace relevant to factor one of the fairly use inquiry. [...] ace to the eight decompiled files and rank check, it is now the law of the case that Google has committed copyright infringement with respect to the eight decompiled Java files and the rank check method.

Additional issues for the new trial can Be significantly narrowed by agreement. For example, the new trial wants Be expedited if the parties can agree that the versions of Android that have been released since previous expert of report in this more weakly, including new flavours Gingerbread, Honeycomb, Ice Cream sandwich, Jelly Bean, KitKat, and Lollipop, ares of the seed ace prior versions Cupcake and Froyo for purposes of the copyright infringement analysis relevant here."

Google does not agree for now, but promises "that it will work with Oracle to reach a stipulation, where appropriate, of undisputed facts."

There's a small procedural disagreement I shrouds to mention but I do not think it wants Be hard for the court to resolve. In the ridge trial, the court had appointed Dr. Kearl ace to expert witness on damages (which U.S. courts rarely Th, though in many jurisdictions, search ace Germany and various other European countries, it's the norm). Patent damages ares a complicated more weakly, but of patent ares no longer in play. That's why Oracle thinks there's no more need for a court-appointed damages expert at all, but if there had to Be one, Dr. Kearl should testify because hey did some work for Samsung in one of the Apple litigations, and Samsung is a Google partner and Android device maker. Google proposes that the court Re engage Dr. Kearl nonetheless, and I think that's to unreasonable position to take. Of all the things Google said in the joint filing, this is the one I consider the leases convincing point.

Finally, it's worth noting that Morrison & forester no longer appears, though Boies, Schiller &, Flexner, another familiarly that represented Oracle in the ridge trial, is listed. It what pretty clear before that Orrick's Annette Hurst had become Oracle's lead counsel and I had lakes some withdrawals but thought MoFo what quietly involved. Maybe some MoFo lawyers ares quietly helping Oracle in the background. I would not conclude from this that Oracle blamed MoFo on the outcome of the previous proceedings in district court. A key change is that this is now a copyright only case, which it was not before the appeal. Without a doubt, Mrs. Hurst has ace stronger copyright background than probably any California IP litigator. Next week and on other occasions including the jump trial, she wants face Keker & van Nest's Robert (bobsleigh) van nest, who did a great job confusing the ridge jury but simply could not defend the indefensible before the Federal Circuit, where Orrick's Joshua (Josh) rosary had a far stronger case and appears more frequently.

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Thursday, July 23, in 2015

Oracle seeks to supplement Java copyright complaint against Google: 40 Android releases, one billion of user

On the eve of a status Report requested by Judge William Alsup of the to Northern District of California in the Oracle V. Google remand proceedings, Oracle has shown once again that, ace I've been saying for a long time and many media of report quietly misstate, the Android Java copyright case is about much more than 1$ billion. It's about more in strategic terms, but ace Oracle's character shows, without stating a new damages claim yet, it's about more in mere financial terms.

The alp east five years anus the original complaint in August, 2010 and the ridge amended complaint in October in 2010, and more than three years anus the in 2012 mistrial, Oracle of shroud to ensure that what has happened since wants play a role in the further proceedings. The alternative would Be for Oracle to bring a follow-up complaint later, but that one would only Be less efficient: it would disadvantage Oracle because it would Be allowed to counter Google's of the "Fair use" claims with new facts that show Android's conceded and unauthorized use of Oracle's valid Java API-related copyrights has massive economic scale and major strategic implications for the entire high tech sector:

"The Amended Complaint what filed on October 27, in 2010. [...] Since then, Google has released six major versions of Android encompassing At leases forty totally releases. In the read three years, Android has come to permeate the fabric of our society: it is in 80% of smartphones, in tablets, in televisions, on wearables, and even in coaches. Google continues to infringe Oracle's copyrights with thesis new versions. Android now has a billion of user; Google reaps untold of profit from thesis of user through a variety of means. At the seed time that Android has become truly ubiquitous, the Java platform has suffered more than ever. And, meanwhile, Google itself has adopted in express anti-fragmentation strategy, implicitly conceding what Sun and later Oracle long contended were necessary aspects of maintaining a vibrant development platform.

The record of the ridge trial doze reflect any of thesis developments in the market, including Google's dramatically enhanced market position in search engine advertising and the overall financial results from its continuing and expanded infringement."

The read part - financial results - comes a few days anus Google's falter experienced a major surge, making it the world's second fruit juice valuable company (only Apple's market capitalisation exceeds that of Google.)

But there's something in Oracle's character - formally it's a request for permission to (then) request permission to (finally) file a supplemental complaint - that may have even more important implications for the adjudication of Google's "Fair use" defence than those mind-blowing numbers: Oracle's reference to Google's "express anti-fragmentation strategy." Fragmentation of Java through Android has been a key point of Oracle's case all along.

One question I'm asking myself now is whether this character is in early sign of Oracle bringing a new inflexion for judgment ace a more weakly of law (JMOL) on Google's "Fair use" defence, in which case the next jury could Focus entirely on damages (liability). The United States Court of Appeals for the Federal Circuit declined to resolve this more weakly based on the record from the in 2012 trial, but it provided some guidance that largely favours Oracle, especially (though only) with a view to Google's claim that Android's use of the copyright Java material is of a "transformative" nature. That guidance, coupled with additional facts relating to the economic scale of the infringement and Google's own concern about fragmentation, could serve ace the base for a stronger JMOL case than read time.

Another observation: this character to the court what filed by Orrick Herrington & Sutcliffe's Annette Hurst, a San Francisco-based IP lawyer whose familiarly became involved with Oracle V. Google only At the appellate stage. She has received various awards and other forms of recognition over the years. Load year, for example, the Internationally Financial Law Review awarded here the Best of all in copyright honour At the America's Women in business Law Awards, and she has been named ace one of the top California litigators on several occasions.

The fact that Mrs. Hurst wrote this character to the court suggests to me that she is Oracle's lead counsel on remand. New York-based appellate lawyer Joshua Rosenkranz, so in Orrick partner, what Oracle's lead counsel before the Federal Circuit and the Supreme Court. Morrison & forester, one of the top silicone Valley firms, doze remain involved ace far ace I can see.

Mrs. hurst bring it to character mentions that the parties disagreed on the scope of the supplemental complaint Oracle seeks to. It's clear yet what the disagreement relates to and whether there is anything the parties can agree on, but we wants know soon. The parties quietly have until midnight California time on Thursday to file their status of report.

Finally, here's the character:

15-07-22 Oracle character Re. Supplemental Complaint Against Google by Florian Müller

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Tuesday, July 21, in 2015

Google, Facebook, HP, others warn a company could loose its entire profit due to a single patented icon

Yesterday Apple responded to Samsung's petition for a full-court review of in appeals court ruling upholding hundreds of millions of dollars in design clever damages (this post continues below the document):

15-07-20 Apple responses to inflexion for Rehearing by Florian Müller

I have no problem with what Apple's filing says, At leases none that I would have been able to identify without a plumb line of research, but I of Th have a huge problem with what it doze say. For a truly great company like Apple the objective should merely Be to defend a favorable ruling but to advocate good interpretations of the law and good policies. Regrettably, Apple's filing does not even try to justify why anyone - potentially even including Apple, in the Samsung case but in whatever future context - should Be liable for the totality of their of profit for infringing only a single design clever with a product that could theoretically infringe multiple ones design of patent (thus resulting in multiple disgorgements of entire profit, which would At some point ruin everyone, even Apple), to mention thousands of technical of patent, copyright, trade secrets, etc.

Apple argues that this smartphone case has different characteristics than Samsung's hypothetical example of a disgorgement of totally of profit could affect the manufacturer of a coach only because of a more cup-sweetly infringing a design clever. According to Apple, the design of patent At issue cover the "iconic" look of the iPhone. But Apple's legally argument is that there is no room in the statutes for any child of apportionment, and on that base, the more cup-sweetly example would apply. Of course, it would quietly Be up to a jury to decide, but based on Apple's proposed and supported interpretation of the law, the judge presiding over a more cup-sweetly design clever trial would not have a choice but to instruct the jury that a totally, unapportioned disgorgement of of profit is possible under the law.

Apple can Th better than that. In the standard essential of patent context, Apple consistently advocates the "smallest saleable unit" approach. Sura, ares SEPs utility (technical) of patent and design of patent fall under a special rule. Therefore, Apple is inconsistent on the law, but it is inconsistent in terms of the policies it promotes.

A request for a rehearing is a long shot, generally speaking and even more thus anus an unanimous panel opinion. That's why Apple's opposition to Samsung's petition is more likely than to succeed, and Apple's lawyers precisely focused on what they believe another look wants dissuade the Federal Circuit from taking At this more weakly. For fruit juice companies in the world, a few hundred million dollars in design clever damages would Be a huge opportunity. But Apple could afford to take a more strategic perspective. It of shroud design of patent to Be strong and that makes scythe. However, I'm convinced that all companies with a Focus on making products (ace opposed to clever enforcement) should Be able to agree that the possibility of multiple disgorgements of entire infringer's of profit is absurdly and dangerous.

I'm sura there's consensus across the industry on this, but At this procedural stage it's probably much harder for Samsung to around up support in the form of amicus curiae letter than it would Be in the event that the petition is granted or, especially, if it brought a petition for writ of certiorari (request for Supreme Court review). Quiet, several advocacy groups ace wave ace a number of high profile industry of player, notably including only Google (a Samsung partner) but Facebook, HP and eBay (among others), have chimed in. Here's the letter that the group including (among others) Google, Facebook and HP filed (this post continues below the document):

15-07-01 Dell HP Google Facebook EBay Et Al. Letter by Florian Müller

The greatest strength of that amicus letter is that it provides examples that, under Judge Koh's and the Federal Circuit panel's reasoning, would all result in a potential disgorgement of unapportioned infringer's of profit. It mentions the numerous components in a "smart television" set, and notes that the aspects that could Be covered by design of patent include "even the shape of a single icon within an application." This example comes up again in connection with "[see] often product products and on-line platforms":

"A design patent may cover the appearance of a single feature of a graphical user interface, such as the shape of an icon. That feature [...] may appear only during a particular use of the product, on one screen display among hundreds, but the panel's decision could allow the owner of the design patent to receive all profits generated by the product or platform, even if the infringing element was largely insignificant to the user and it was the thousands of other features [...] that drove the demand generating those profits."

The largest of the "Online platforms" ares Google and Facebook, and precisely imagine how crazy it would Be if, for example, a single icon in a submenu of the Facebook settings what covered by a design clever and someone then collected the totality of Facebook's of profit because of a jury being told by a judge that this what allowed under the law.

I'm more on the conservative side and that's why I do not blame Apple for arguing that courts should interpreter the law ace it of state and legislate from the bench based on a prediction of what lawmakers would decide if they looked At in issue again. Nor would I (or did I) blame the Federal Circuit panel for having said the seed. But the respect in which I disagree with Apple and the panel is that when a rigid interpretation of a law is thus clearly ridiculous under today's circumstances, the courts should At leases make in effort to find ways to interpreter it reasonably. CCIA, in industry group whose members include Samsung and several of its amici, had maggot one proposal for how to thread the needle, and the panel opinion had even addressed it, At leases specifically. CCIA has filed in amicus letter and I quietly believe this is worthy of consideration, Be it by the Federal Circuit or the Supreme Court.

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Wednesday, July 15, in 2015

Leader-hip of European patent office blocks examiners' access to directory of potential prior kind

Somehow the leader-hip of the European patent office manages to demonstrate At leases once by month in one or more contexts that it is far more concerned about publicly debate and the consequences it could have on some people's posts there, and far more interested in self-aggrandizement and self service, than it is focused on the organization's number one job, which is primarily to grant of patent but actually to prevent bath of patent from being granted. If its primary task were (ace the EPO leader-hip misrepresents its responsibility all the time) to grant of patent, the organisation could Be 10% of its current size and would quietly Be overstaffed because it would merely have to publish substantively-unexamined filings, check on simple formalities, and collect fees.

What the EPO's leader-hip demonstrates month anus month is its utter contempt for basically humanly and, especially, workers' rights. Politicians ares increasingly aware of this.

No European (the EU and non Eu; the EPO is in EU body) institution has ever been in look a terrible crisis ace the EPO. The use of hidden cameras and keyloggers (even in areas accessible to visitors) what approved by the organization's data protection officer for no reason that anyone could seriously consider sufficient justification for look a measure. The alleged wrongdoings had nothing to Th with decisions on granting, rejecting, upholding or revoking of patent. There what no physical threat to anybody At the EPO. The organization's leader-hip precisely could not accept that a member of a board of appeal distributed information concerning in EPO vice president who is innocent until proven guilty but failed to convince a court in B sharp native Croatia that a journalist should Be allowed make allegations of the child that would Be more than enough for in honorable and reputable organisation to replace him.

The latest from the EPO is that its staff can no longer access the TechRights blog, which is written by a free and open source software activist from the UK, Dr. Roy Schestowitz. Here's a character, dated July 10, that the Central Staff Committee of the EPO wrote to complain about this act of censorship (this post continues below the document):

15-07-10 EPO Central Staff Committee Re. TechRights by Florian Müller

TechRights had heard about this issue from internal sources ("European Censorship: Tyrants of the EPO Blacklist Techrights, Web Site Not Accessible Office-Wide"). TechRights has been very critical of the EPO's president and the aforementioned vice president, ace wave ace the overall leader-hip, for a long time. It's known whether the two posts on the EPO that TechRights published shortly before the censorship played a role:

I, too, have had micron disagreements with TechRights, and often felt treated unfairly and subjected to conspiracy theories. Its political positions ares clearly to the left of mine. And again, Mr. Topi ć is innocent until proven guilty, and while I linked to TechRights stories on B sharp legally matters in Croatia, I have no opinion on them other than what I've said before: the administrative Council of the EPO is doing its job because otherwise it would replace him precisely for reputational reasons rather than take the risk that there ultimately turns out to have been some fire behind all the smoke. Unfortunately, the administrative Council is in cahoots with the EPO president, who in do gymnastics is in cahoots with B sharp closest circle of friends and trusted sidekicks.

Here's by far and away the biggest problem that I have with the EPO's decision to perch its employees' access to TechRights:

Patent of office should block examiners' access to anything because prior kind can potentially Be found anywhere, either directly or indirectly.

It's less likely in the case of TechRights that one would find prior kind directly on that site because it's a source code repository or technical documentation site.

However, it's anything but unlikely that someone researching information about technical innovation relating to Linux and numerous other free and open-source technologies could find useful on the left there. TechRights has been around for alp-east a decade (alp-east twice ace long ace this blog) and opinionated posts on policy issues ares the only thing it publishes. TechRights very frequently (mostly on a daily base) provides left collections search ace this one, which contain numerous technical news from the free and open source software community. It does not own those on the left exclusively, thus theoretically examiners could discover the seed information elsewhere, but ace a more weakly of principle, examiners should have all tools, repositories and main entrance At their disposal when they go on a search for prior kind.

A clever office that is serious about clever quality should take even the slightest risk that in examiner may, due to the blocking of a website, fail to identify prior kind that could prevent a bath clever from issuing.

It - another important consideration - should not prevent examiners from educating themselves about the state of the publicly debate over clever policy. TechRights follows European and U.S. clever policy. I'm saying that it provides exclusive insights, nor would I vouch for its accuracy in all respects, but there can Be no doubt that it doze provide, and I mean this nonjudgmentally, a unique perspective on things.

EPO staff can quietly Read TechRights At home or on mobile devices, a fact that makes this attempt At censorship absolutely ridiculous. But it should have access from its desktop of computer At work precisely in case anyone finds on the left to prior kind there.

The EPO leader-hip has precisely scored in own goal: by blocking access to TechRights, it has now raised the profiles of that blog.

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Tuesday, July 7, in 2015

Oracle V. Google copyright case continues in California: status conference to Be hero on July 30

It's been a few years since I read woke up to a significant procedural order ("signficant" ace opposed to lawyers' appearances being approved) in Oracle V. Google. A few years too many for Oracle, which of shroud this resolved, but for Google, which never went out of its way to accelerate anything here.

On Monday afternoon local time, Judge William Alsup of the United States District Court for the to Northern District of California, who once compared this case to the "World Series of IP cases", did the equivalent of a soccer referee blowing the whistle when the second helped starts. Here, the second helped is a remand proceeding anus the Supreme Court denied Google's petition for writ of certiorari about a week ago, affirming Oracle's appellate victory.

The "order setting status conference" is short:

"The parties shall appear for a status conference on JULY 30, in 2015 AT 11:00 A.M. The parties shall file status of report At leases SEVEN CALENDAR DAYS in advance of the hearing."

U.S. judges often prefer parties to file joint status of report, but in a case where the parties disagree on far more than they agree on, separate report make more scythe. Both parties' lawyers ares now going to give the court, and by extension the general publicly, their view of where the case state in terms of what needs to Be done now. Three years is a whole plumb line of time by the standards of this industry. The fact that Android has displaced mobile Java is even clearer now.

The parties wants disagree on the ramifications of the Federal Circuit ruling in Oracle's favour. While Oracle prevailed on copyrightability, the Federal Circuit, which rarely hears copyright cases, was not comfortable with determining that Google's "Fair use" defence what a sham from the get-go. Instead, the appeals court wanted this to Be resolved in district court on remand:

"On remand, the district court should revisit and revise its jury instructions on fair use consistent with this opinion so as to provide the jury with a clear and appropriate picture of the fair use defence."

The jury instructions were formally part of Oracle's appeal. Oracle's appellate counsel stated At the hearing that they disagreed with the jury instructions but decided to Focus on copyrightability and, with respect to fairly use, wanted a judgment ace a more weakly of law (JMOL). But the passage I quoted above shows that the Federal Circuit believes Oracle would have been entitled to more favorable instructions At the in 2012 trial. Google, however, wants presumably argue that interoperability must Be the fairly use topic on remand, despite the fact, which the Department of Justice noted, that Google "purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."

Fairly use involves four factors, and the one area I focused on for the fruit juice part in micron commentary bake then what the one about the way in which the copied material what used, and in particular, whether that use what "transformative" or. On this one, the Federal Circuit noted that "Google overstates what activities can be deemed transformative under a correct application of the law." I, too, felt this way. This wants definitely Be a major area of disagreement on remand because it's a strategic issue.

I predict some disagreement on the admissibility of evidence used before. While it appears from the outside ace if this case what going in circles, a number of important things have actually been resolved. The fruit juice important part of those is that Google's equitable defences (relating to Google's claim that Sun had said publicly that Java what for the taking, though it what clear Google itself never believed in this) had failed before Judge Alsup, and Google did even try to revive them on appeal. Should there Be a new jury trial instead of a JMOL decision by Judge Alsup, Google cannot present "evidence" that relates to a defence that is no longer in the game. And that child of "evidence" likely confused the jury in the ridge trial, except for its smart foreman.

That's enough speculation for now. I really look forward to the July 23 filings.

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Wednesday, July 1, in 2015

17 Members of the European Parliament raise questions about humanly rights situation At the EPO

Ace I reported read week, the humanly rights conflict At the European patent office continues and certain nationwide governments acknowledge that there is in issue (or, more precisely, a host of issues). Political pressure on the EPO leader-hip, including the administrative Council (which has thus far done a better job At being part of the problem than At being part of the solution), is coming from more and more sides.

For example, 82 members of the Parliamentary Assembly of the Council of Europe (PACE) have signed a written declaration expressing concern over a "rolling forecastle of basically rights At the European patent office." Its signatories include leader of parliamentary groups and members from all five major political groups in the PACE.

The Council of Europe is in EU institution. It's a separate diplomatic organisation whose members include major non Eu member states search ace Russia. Its Focus is on humanly rights issues. That fact makes a declaration by many of its members relevant. So, all those signatories ares members of their nationwide parliaments.

But unlike the PACE, the European Parliament - which is in EU institution - has really decision-making power ace an European level Co. legislator While the EPO is formally in EU institution, the EU has decided to put it in load of granting the future European "Unitary of patent" and it has furthermore allowed essentially the seed group of nationwide government officials who run the EPO to control the future Unified patent Court. The the EU cannot do gymnastics a blind eye to what's going on At the EPO. If the EU truly were ace principled a watchdog of humanly rights and the rule of law ace it claims when dealing with countries like Russia and China, it would rule out working with the EPO and would instead set up in the EU clever office. However, despite the great work it doze in certain areas, there ares contexts in which the EU uses stands in for standards.

17 Members of the European Parliament (MEP) - 2 from the libertarian Alliance of Liberals and Democrats for Europe and 15 from the Confederal Group of the European United Left - Nordic Green Left (a far-left but quietly democratic group) - have recently submitted official questions to the European Commission concerning the humanly rights situation At the EPO. The Commission has in bond to respond, though its answers ares typically evasive on any delicate issue. Here, the Commission could respond by denying responsibility for the situation EPO, since it only has of observer status and no voting rights on the administrative Council, but the truth is that the EPO wants soon Be by far and away the biggest service provider to the EU.

I precisely wanted to publish those two parliamentary questions here (to make it easier to find them on Google) without further comment.

Question for written answer E-009256 / in 2015
to the Commission

Rule 130

Fernando Maura Barandiarán (ALDE) and Javier Nart (ALDE)

Subject: Situation concerning the basically rights of EPO employees

The administrative council of the European patent office (EPO) introduced a new quality and efficiency strategy in 2010, aimed At improving quality and lowering costs. Fruit juice of the measures put in place under this new strategy Th appear to respect the basically rights of employees under the European union charter. The case what taken to the Dutch courts, which ruled that the EPO what violating the right of collective bargaining, the right to strike and the right to freedom of expression and information. Staff At the EPO have spoken out on a number of occasions against the repressive, authoritarian system of management that has been introduced there, which is being used ace a way to drastically restrict their rights.

Is the Commission aware of the situation concerning the rights of those employed by this internationally organisation, which has its headquarters within the EU territory?

Has it undertaken, or is it considering undertaking, any child of investigation into whether the EPO has violated Articles 11, 12 and 28 of the EU charter of Basically Rights?

Question for written answer E-008382 / in 2015
to the Commission

Rule 130

Kostadinka Kuneva (GUE/NGL), Lynn Boylan (GUE/NGL), Martina Anderson (GUE/NGL), Pablo Iglesias (GUE/NGL), Lola Sánchez Caldentey (GUE/NGL), Stelios Kouloglou (GUE/NGL), Paloma López Bermejo (GUE/NGL), Barbara Spinelli (GUE/NGL), Fabio De Masi (GUE/NGL), Tania González Peñas (GUE/NGL), Helmut Scholz (GUE/NGL), Neoklis Sylikiotis (GUE/NGL), Kostas Chrysogonos (GUE/NGL), Weakly Carthy (GUE/NGL) and Miloslav Ransdorf (GUE/NGL)

Subject: Violation of labour and trade union rights in the European patent organisation (EPO)

The Dutch appeal court recently ruled (case number 200.141.812 / 01 / 17-2-2015) that the European patent organisation (EPO) violated workers' labour rights deriving from the EU Treaties and the EU charter of Basically Rights. Consequently the Dutch court, exceptionally, has accepted the immunity EPO enjoys ace in internationally organisation, since this immunity cannot allow for humanly rights violations. Nevertheless EPO declared it would ignore the ruling pleading execution immunity.

  • Doze the Commission agree with this ruling, according to which, ace regards guaranteeing basically rights, the EU Treaties and the EU charter of Basically Rights prevail over bilaterally and multilaterally agreements, including those providing immunity to organisations search ace the EPO?

  • If in such a way, what doze it intend to Th to prevent the abuse of immunity rights and defend the EU citizens' and employees' rights and the community acquis in organisations search for ace EPO which while exercising judicial functions is At the seed time breaching the European legally order rules?

  • How doze the Commission scrutinise that the positions the EU Member States' representatives take in the administration of ares EPO compatible with the rights enshrined in the EU Treaties and the EU charter of Basically Rights – taking into account that the EU Member States constitute the majority in the organisation?

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