Blackletter

If you're a patent owner, or patent involved, or if are defending against an infringement case. The three recent precedential decisions from the Patent Trial and Appeals Board are really important things to know about.

The overall takeaway is that the board has a lot of discretion now to deny hearing on hearing a case, a PTAB case, if, one, there's prior art that had previously been submitted to the board, or if, two, somebody is making an argument about prior art that the examiner at the US PTO previously considered, and they're not making a statement showing why the examiner erred in considering it incorrectly. And then, three, if there's an upcoming trial with a concrete trial date, you should show a scheduling order. Then Patent Trial and Appeals Board can deny hearing an IPR, because there's a scheduled trial. And because that patent, that prior art, and the issue of invalidity will be resolved at the trial. 

https://www.dbllawyers.com/google-vs-oracle-america/

If you’re reading this on an Android, you are holding onto the heart of the ongoing legal battle between the search-engine giant, Google, and Oracle, the computer software company behind one of the most ground-breaking programming languages of the dot-com bubble. The operating system in Android devices contains approximately 11,000 of the 13 million lines of well-known software program, Java. Oracle contests that Google wrongfully used that coding without obtaining proper authorization while Google refutes these allegations. Google attests it did not need authorization because it made “fair use” of the code. The legal quarrel has been ongoing since 2010 steering mostly in Google’s favor. However, appellate courts have allowed enough room for Oracle to push their $9 billion discourse all the way to the Supreme Court.

Let’s rewind back to the birth of the disputed intellectual property child, Java. Java was developed by a man named James Gosling along with several fellow engineers at Suns Microsystems in 1995. The program was iconic for developers during the dot-com boom when investments in e-commerce companies exploded, then subsequently crashed in the late 1990s and early 2000s. Java was a much more simple and user-friendly programming language compared to its existing counterparts at the time. It was quickly adopted and is now used for a multitude of programming purposes including games, mobile device operating systems, e-business solutions, and internet programming. When Java was released it was done under an open-source license. This allows consumers to use or modify the software freely with some general restrictions protected under the license. Rather than locking these valuable ideas away within a single company and potentially limiting its advancement, open-source licensing allows programmers gifted with a kaleidoscope of thinking to further develop the language and create new innovative programs from the original work.

So, Google took that idea (or part of it) and ran. The Android operating system was originally produced by the like-named incorporation which was later purchased by Google in 2005. In 2007, the Android we’ve come to know and love was unveiled to the public for the first time followed by its first commercial product launch in September 2008; remember the T-Mobile G1, also known as the HTC Dream? Contained within that device’s operating system were the now infamous 11,000 lines of Java coding. Jonathan Schwartz, who was chief executive of Sun Microsystems at the time, praised Android and wrote a blog piece beaming about the use of Java within the Android Operating system. This blog would later come back to haunt Oracle during their lawsuit.

Everything seemed kosher between the two technological powerhouses until Sun Microsystems was acquired by Oracle in 2010. Oracle purchased Sun Microsystems, including its intellectual property, for around $7.4 billion. Following this acquisition, Oracle accused Google of infringing on said intellectual property by using patents and copywritten work without proper authorization by implementing parts of Java into the Android operating system.

The 2012 decision fell mostly in favor of Google by deciding that no such infringement had occurred and that Java’s APIs were not subject to copyrights. APIs (Application Programming Interfaces) in layman terms are specifications that allow programs to communicate with one another. As explained by Google’s attorney in their Supreme Court brief, “Without interfaces, your contact list cannot access your email program, which cannot send a message using the operating system, which cannot access your phone in the first place. Each is an island.”

Following this decision, Oracle found some traction after a federal appeals court overturned the copyright ruling in 2014 and decided that the APIs were eligible for copyright. Google’s defense claims that though the coding may be protected under copyright they have made “fair use” of the work. Judicial members typically consider the following four terms when presented with a fair use defense;

1. Transformative Factor – Has this material been used to help create something new or has it simply been copied verbatim into another work?
2. Factual vs Fictional – While copyright infringement is frowned upon, more leeway may be given if the information taken was factual and considered beneficial to the public
3. Less is Better: Its more forgiving to use smaller portions of work than trying to use most, if not all of it, thereby depriving the author of more commercial value of the work. However, taking information from the “heart” of the work is less likely to be tolerated when the copied portion is the most notable and commercially valuable aspect of the original work.
4. Effect on the Market: Fair use is unlikely to be awarded if the copyright owner is deprived of income or a potential market was undermined by the infringer, even if they were not directly competing with the original work.

The appeals have seen their way up the judicial ladder and have found themselves on the desk of the Supreme Court. In what has been described as “the copyright case of the decade,” those in the technological field and business world are somewhat divided on the issue. There is worry that Oracle’s success could open a can of worms prompting others to make similar demands on open-sourced commodities. Something else to be considered in the Supreme Court’s ruling is whether or not the analytical terms used to determine “fair use” should be revised to remove some ambiguities in this IP protection.

By Miranda Day

Day is a client services specialist for Dunlap Bennett & Ludwig based out of the Leesburg office.

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