The Hon. David Nuffer has ruled on the SCO v. IBM motions, granting SCO's motion for reconsideration and reopening the case, which IBM did not object to. Judge Nuffer apologizes to the parties for the error in his previous order refusing to reopen the case. Sounds like a mensch to me. I love it when judges don't pretend something is the lawyers' fault when it's really the judge's fault. He's newly assigned to this case, and it's been going on for over a decade, so he specifically tells the parties not to assume his familiarity, asking them to provide him with enough detail in the various briefs going forward to work with. And he has essentially accepted the IBM suggestions on how to go forward, which SCO did not want to happen. I was fairly confident he would, though, precisely because he's new and he surely needs some time and help from the parties to get up to speed. So it's going to go like this: 1. SCO must file a brief statement identifying the claims it agrees are foreclosed by the SCO v. Novell judgment, the one that found that Novell did not transfer the UNIX copyrights to SCO in 1995. That wiped out all of SCO's claims, IBM asserts; SCO says it has two left.
2. IBM can then object to that list, which I'm sure it will.
3. IBM can then, by July 15, file a new motion for summary judgment on the remaining claims and counterclaims. This is what SCO did *not* want to happen.
4. After that motion is decided, there will be a process and schedule set up for the parties to respond to the court's request that they identify summary judgmet motions filed before the current judge was assigned that they still want to be decided, which this judge will then do. Here's what *won't* happen, what SCO wanted, namely that the old summary judgment motions filed 5 years ago that were stalled all this time by SCO's bankruptcy be ruled on without SCO having to do any more briefing.

Here's what *could* happen: The whole thing could be over after step number 3.

Here [PDF] it is! The opinion in Association for Molecular Pathology v. Myriad Genetics, Inc. striking down patents on naturally occurring human genes, even if they've been isolated. It was unanimous! I have done it as text for you. From the opinion: ... Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. From the Syllabus:Myriad's patent descriptions highlight the problem with its claims: They detail the extensive process of discovery, but extensive effort alone is insufficient to satisfy §101's demands. No patent on sweat of the brow. You have to actually invent something. Details from SCOTUSblog here: The Court held that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but manmade cDNA is patent eligible because it is not naturally occurring. You can find all the earlier filings here and some analysis on what the case was all about by Lyle Denniston here. As you can see from the Petition for a Writ of Certiorari [PDF], this successful challenge was brought by Dan Ravicher and his Public Patent Foundation and the ACLU.

What does it mean? Our genes belong to us. Here's what Dan Ravicher tweeted when he heard the news: Diagnostic genetic testing is now free from any patent threat, forever, and the poor can now have their genes tested as freely as the rich. I lost two grandmothers to breast cancer, and I want to say thank you to Dan and ACLU for taking this on for us. I am very grateful. It's not just that we can now afford to have genes tested. We can now get a second opinion instead of having only one option. Can you imagine a patent blocking that, even when it was known that the Myriad test sometimes gave false positives? That would be a patent forbidding coming up with a better mousetrap, you could say.

It would be a great time to donate to PubPat, to show appreciation for all it does. It's community supported, and could there be a better time? There were patent lawyers who mocked them for even bringing the case. Remember?

Microsoft has now filed an amicus brief in support of Apple in the appeal of Judge Richard Posner's ruling in which the judge tossed out both Apple and Motorola's claims with prejudice, saying neither had proven damages and saying injunctive relief when there was no demonstrable harm would be against the public interest. Interestingly, Microsoft here argues in its brief that the judge didn't rule out injunctive relief for FRAND patents. That's news to me, that Microsoft holds that view. Here's Motorola's appeal brief that Microsoft references repeatedly. In it, Motorola argued that Judge Posner implied a "no-injunctions for FRAND patents" rule, and that it ought not to be followed: As to the denial of any injunctive relief to Motorola, the district court set forth a seemingly categorical rule against injunctions for infringement of essential patents whose holders commit to SDOs to offer licenses on fair, reasonable and non-discriminatory ("FRAND" or "RAND") terms. Under this rule, the district court declined to examine Apple's refusal to accept a license over years of infringing use. That ruling requires this Court's reversal, because the district court's automatic rule that injunctions are never available for SEPs is contrary to the Patent Act, which provides injunctions as a statutory remedy; to the equitable principles of eBay; and to Motorola's FRAND commitments to the SDOs at issue here, which did not waive its rights to injunctive relief. Subject to the terms of the FRAND commitments at issue, the same injunction rules should apply to SEPs as to all other patents, and while the traditional factors reaffirmed in eBay set a high bar, Motorola should be given the chance to surmount it. No they shouldn't, Microsoft argues. Judge Posner already applied the eBay [PDF] elements. He didn't, Microsoft now claims, say there could never be an injunction for a RAND patent, just that Motorola didn't deserve one in this particular case, so the court shouldn't dig too deeply into the standard-essential patents issues that Judge Posner didn't dig deeply into himself.

The Essential Patent Blog has the filing [PDF]. The article tells us that Microsoft claims it just cares about ensuring that standards are implemented for the benefit of the public: Last week, the Federal Circuit granted a motion by Microsoft for permission to file an amicus brief in the Apple-Motorola appeal (No. 12-1548, Judge Posner edition). Microsoft then filed its amicus brief, becoming the latest in a long time of companies (see, e.g., here, here, here, and here) to weigh in on the case. Today, the public version of Microsoft's brief became available. In it, Microsoft supports Apple and Judge Posner, but cautions the Federal Circuit against making an overly broad ruling and deciding issues related to standard-essential patents and RAND licensing obligations that are not present before the court.

Microsoft pulls no punches - it argues at the outset that Motorola's positions "are wrong as a legal matter and terrible as a policy matter." That should come as no surprise, given Microsoft's current litigation disputes with Motorola (as well as ongoing competition with its parent company, Google). But Microsoft claims that its interest in this case goes far beyond its adversarial relationship with Motorola, arguing that as an active participant in many SSOs and implementer of many standards, Microsoft wants to ensure that standards are broadly implemented for the benefit of the public.

Perhaps recognizing that the Federal Circuit could rule in a way that might conflict with various district court rulings on similar standard-essential patent issues (i.e., Judge Robart's RAND-setting decision), Microsoft seems to want the court to tread lightly here. It asserts first that because Judge Posner generally based his decisions on damages and injunction relief without doing deep dives into issues unique to standard-essential patents, the Federal Circuit could resolve this appeal without making sweeping pronouncements regarding RAND or SEP issues. Groklaw watched Microsoft closely in the standards battle of OOXML v. ODF, literally day by day with particularity from 2005 to 2013, and I don't think any of us who watched that play out would conclude that Microsoft was seeking the public benefit. So excuse my curled lip.

Rizzolo is very polite, but I'll translate the Microsoft legalese into my own plainer English: Microsoft doesn't want the appeals court to dig too deeply into standards because it loves the no-injunctions-allowed ruling it got in its own backyard from a Seattle judge recently. It would like it to be the last word. It totally doesn't want a higher court to come out with a conflicting ruling, because the higher court ruling would trump a district court. So that's why it is asking the court not to rule on any of that.

SCO has filed its reply to IBM's response to SCO's motion asking the judge to reconsider his refusal of SCO's motion to reopen SCO v. IBM.

It will not surprise you that SCO doesn't like IBM's suggestions on how the case should go forward. IBM suggested a couple of rounds of a process, first tossing out whatever both sides agree are mooted claims, due to the Novell victory over SCO, then IBM would bring a summary judgment motion on the rest, and that would require briefing, IBM suggested, because there are new cases decided in the interim that are relevant.

SCO's argument in opposition goes like this, its list of three reasons it thinks IBM's proposal of further briefing and the summary judgement motion is improper -- 1) the parties already briefed the court on the effect of the Novell judgment, so just look it up; 2) if there are new cases, let IBM file a notice of supplemental authorities; and 3) SCO can't afford to wait while all that briefing goes on. Its cash supply is such, it's now or never. It wants a quick ruling on the pending 5-year-old motions, and then it wants a trial on whatever claims survive. Ah. A trial. The perpetual dream that it can get a jury to see it SCO's way. This case is its final asset, SCO whines, so the Court, it argues, "should proceed to adjudicate the pending summary judgment motions without the need for the improper rounds of additional briefing that IBM proposes."

However, judges don't decide matters based on how long one side can hold out. If the judge thinks IBM's proposal makes further briefing the way to go, it will happen. You are supposed to plan appropriately when you initiate litigation.

SCO complains of delay in the case, but the delay was caused entirely by SCO, who filed for bankruptcy and then just floated around on its back a leisurely long while in the pool, as all its money flowed out in rivers to lawyers, accountants, and other "helpers" for years, while it pretended to reorganize, which in the end never happened, as indeed was predictable from the start. Meanwhile, IBM was blocked by law from going forward. Hence the "delay". So the judge's heart strings may not be touched in quite the way SCO hopes by its tale of prejudice if there is a delay.

If one deliberately shoots oneself in the foot, complaining about pain in one's foot may cause onlookers to suggest not shooting oneself in the foot next time.

Because the President has said he welcomes discussion about the recent NSA surveillance revelations, I thought you'd want to know about a motion EFF brought in FISA court, which is being opposed by the government in a rare public document [PDF] -- relevant, EFF says, to the latest news. And there is also an ACLU motion [PDF] as well, requesting "that this Court unseal its opinions evaluating the meaning, scope, and constitutionality of Section 215 of the Patriot Act."

EFF asked the government for a copy of "any written opinion or order" of the FISA court in which the court held that the surveillance conducted under the FISA Amendments Act (2008 version) "was unreasonable under the Fourth Amendment" or had "circumvented the spirit of the law." After some of the usual back and forth in discovery, the government revealed that it had found one such [!], but it refused to provide it on the grounds that it had no authority under FISC rules "to release FISC opinions to a FOIA requester or any other member of the public without a FISC order." So that's why EFF is now approaching the court itself, asking for a ruling that the government is allowed to provide it. The ACLU asked, and was denied, once before for the same relief it not is asking for, but now, after the latest events and the President's encouragement of public debate saying it's healthy for a democracy, it is renewing its request.

The three filings being public give us a window into the secretive court that we would not otherwise have.

We've got something new at Groklaw. When you arrive at the homepage now, you'll see a new widget in the upper right corner, with a drop-down choice of themes, and it's available to everyone now, members and non-members. The default is Woodlands2, but now you can choose something else if you want to, even if you are not logged in.

The purpose is two-fold: first, to make it possible for folks on mobiles to arrive and get to the two themes that are best suited for mobiles, the themes titled Mobile and Grokporate. Both should be better suited for small screens and I'm hoping for anyone using screen readers. Feedback welcome.

And second, we have a new one now for tired eyes, especially mine, called Woodnight, with a black background and cream text. We're still working on Grokporate and Woodnight, and Woodnight in particular still has really rough edges, but we wanted to go live so we can incorporate feedback.

When President Obama announced several moves he's intending to make to address the patent mess trolls have made, the biggest new was that he said out loud that it's a mess, that patent trolls are damaging the US economy. I've been reading what others have written about the announcement, and reactions have varied. Those who adore patents are calling for their smelling salts. The head of Intellectual Ventures, I read the other day, wonders why people don't realize patent trolls like IV contribute to the economy. He didn't say the word trolls, but now that the President has, I guess we are all free to do so too. And some cynics say the Congress won't do anything anyhow.

That part is likely true, unless a lot of folks contact their representative and raise the roof. But I thought I'd explain why it doesn't matter, even if Congress proves the cynics right. Because one executive action on the list has the capability to make a real difference, and it doesn't require Congressional approval or action at all. That's the beauty of executive actions.

The President has absorbed and accepted Professor Mark Lemley's suggestion that the USPTO look at functional claims more closely and make sure patent applications are for something specific, not claiming broad functions instead of specific implementations.

You can't build a better mousetrap if someone has already gotten a patent on "trapping mice", regardless of how or what device is used.

Here is the final amicus brief [PDF] in support of Google in the appeal at the Federal Circuit of Oracle v. Google, the API case. This one is from app developers, specifically the Application Developers Alliance, with Rackspace, TMSOFT, and Stack Exchange, and I've done it in text for you. They tell the court that Oracle is trying for something new in copyright law, contrary to the expectations of the industry: Software is a mix of both functional and expressive components. For the past forty years, the common understanding in the industry has been that the "declaring code"-the code used to define interfaces and APIs-is functional and not copyrightable. In contrast, the "implementing code"-the code needed to provide the underlying functionality-is expressive and protected by copyright. Oracle's position, that the declaring code used to define an API is protectable under copyright, is contrary to the current and historical practice and expectations in the software industry and would have a devastating impact on the software business as a whole. Thousands of businesses, developers, and even end users would be faced with legal uncertainty if declaring code were afforded copyright protections....

What's more, similar attempts at aggregating control over APIs have been recognized by developers, the United States, and the European Union as dangerous to the app developer and cloud-computing industries. Copyright protection for declaring code would act as a tax on software development, leaving the public with lower-quality, less innovative software products....

Understanding the extent to which the software industry depends on the free exchange and use of API declaring code is necessary to comprehend the chilling effect that Oracle's position would have on software innovation and development. So they explain APIs and how they work in the industry -- and have worked for 40 years or so. APIs, they say, are the building blocks of software, like Lego® bricks. They can be all kinds, colors and shapes, but one thing they all have, and have to have to be able to put them together, are the bumps and holes that make them fit together, and those bumps and holes only work if they are all the same size. Software is like that too. They need a standard interface so they can fit together.

And your smartphone or other device communicates with the cloud entirely through APIs. APIs are that vital now. Developers have always felt legally free to use APIs, as long as the implementing code was their own. "For example," the brief states, "even Microsoft has re-implemented the UNIX APIs in the 'Interix' subsystem included with its server products." It did the same with WordPerfect, back when WordPerfect was more popular than Microsoft Word. Of course, Linux used UNIX APIs also, as did many other projects. And the Wine project has been re-implementing Microsoft's Windows APIs since 1993, the brief tells the court. This is an accepted business practice. Oracle is trying to extend the reach of copyright law.

This is the only amicus brief attempting to explain the Open Source viewpoint to the court, to help it understand exactly why it matters so much that APIs be available for the cloud. And it lets the court know that Open Source does not need copyright protection for APIs:Rackspace's involvement in both the open source and cloud computing markets lends the Court a unique perspective on the copyright issues raised in this appeal. Open source development is a driving force behind software innovation and fosters the creation of peer-reviewed, higher-quality code. The open source community is a perfect example of why copyright protection for APIs is unnecessary for continued innovation and why the monopoly Oracle seeks would in fact hamper that innovation. Further, the cloud computing market depends heavily on the use of APIs because all cloud functionality is delivered to the end user via APIs. Of course, that may just be why Oracle -- along with Microsoft, EMC, and NetApp, who filed amicus briefs in support of Oracle -- wants to make them proprietary.

Why the Obama Administration's Actions Against Patent Trolls Should Make a Difference
by Matt Levy (Cross-Posted on PatentProgress.org and on DisCo.)

This is a very big day: the Obama Administration has just entered the fray to help deal with patent trolls, and it's taking steps that have the potential to be a major part of the solution to the patent troll problem.

The early press reports on the Administration's efforts have missed the real story: the President and the Administration are publicly recognizing that the problem with patent trolls stems from the problems with software patents. You cannot deal with patent trolls without dealing with software patents.

The President's Executive action to tighten functional claiming does exactly that. It recognizes that in order to stop issuing bad and overbroad patents that wind up in the hands of patent trolls, we need to specifically address software patent applications.

The Computer & Communications Industry Association (CCIA) has now filed an amicus brief [PDF; also on CCIA's website here] in support of Google in the appeal of Oracle v. Google, and I have it for you as text. Once again, the court has not yet officially accepted it, and there could be corrections, which I'll let you know about if that happens, which it frequently does.

It's a more sophisticated level of argument than some of the others. Oracle, the brief says, is asking to overturn longstanding principles concerning the scope of copyright protection for computer programs, posing serious anticompetitive concerns for the tech industry. Oracle could, if successful, control who can interoperate with its products, leading to a broad monopoly. "The United States and over 40 other countries have recognized that permitting copyright law to impede interoperability would harm legitimate competition in the computer industry and impair the growth of the Internet economy." Amen to that.

"Free trade agreements mandate protections for interoperability," CCIA uniquely points out. "In addition to the reverse engineering exceptions adopted pursuant to the FTAs, legislation favoring interoperability has been adopted in over 40 countries, including many major U.S. trading partners," including the EU, the Pacific Rim, Canada, India, Israel, Kenya, and many others. Trading partners rely on a type of interoperability too, only in the law, not in computer code. If the US makes a sudden 180 turn in its view of copyright protections on interoperability, what happens to that trading partnership? To those free trade agreements? "CCIA, its members, and several litigants and amici here played a major role in creating this global legal environment that fosters interoperability and innovation. This case should not provide a basis for relitigating or legislating against more than two decades of established international law and jurisprudence," the brief concludes.

And the CCIA brief responds to some of the amici supporting Oracle, including Eugene Spafford [PDF] and the the BSA [PDF]. I'd like to do the same, and I'll show you a connection I see between Oracle and SCO Group's theories of copyright, and why I think they are pretty much the same and equally toxic.

Bit by bit, the amicus briefs on behalf of Google in the Oracle v. Google appeal about the uncopyrightability of Java APIs are becoming available. They are all interesting in different ways, but they all agree -- Oracle is wrong on the law and if it prevails, it will be a sad day for innovation. Copyright protection doesn't extend to procedures, processes, systems, or methods of operation, and it shouldn't.

This brief, on behalf of 39 intellectual property professors, and written and signed by Pamela Samuelson, outlines three legal errors they all believe Oracle is making:

• that Oracle takes an unduly narrow view of 17 U.S.C. § 102(b)

• it takes an overbroad view of the copyrightability of the structure, sequense and organization, or SSO, of computer programs -- so did SCO, I can't help but add, also represented by David Boies, and SCO's larks were partly funded by Microsoft, who is supporting Oracle, and

• it misunderstands the merger doctrine as it applies to interoperability.

Here's where you can find the "Brief of Amici Curiae Intellectual Property Professors in Support of Defendant-Cross Appellant and Affirmance." That's the title of the brief, and it is available on SSRN.

Oracle has struck an ominous chord with its claims, and the alarm they and other amici are expressing is sincere and deep. And what they are saying in chorus is: Oracle is wrong about the law on APIs. In fact, one case Oracle hangs its hat on, Apple Computer, Inc. v. Franklin Computer Corp., isn't binding precedent for Oracle, the brief highlights. It's a Third Circuit case (it was also merely dicta and the facts were distinguishable), and Oracle's case is in the Ninth. The court of appeals is supposed to give deference to the Ninth Circuit precedent. And dicta isn't precedential anyway. The cases that are more binding are cases Oracle ignores, like Computer Associates Int'l, Inc. v. Altai, Inc. and Sega Enterprises, Ltd. v. Accolade, Inc., and under their teaching, "the Java APIs should be deemed unprotectable by copyright law" because the district court found that these Java APIs were necessary to achieve interoperability.

Further, the brief cites Sony Computer Entertainment, Inc. v. Connectix, Inc. , where Connectix emulated the Sony functionality of the Playstation, but the court ruled that the Sony interface procedures were unprotected elements, even though the Connectix software "aimed to be a substitute for the plaintiff's product" and was not fully compatible with the Playstation games. That should put a sock in Oracle's mouth about compatibility, methinks. It keeps saying that Java and Android are not fullly compatible. The answer to that from these IP law professors is, the Ninth Circuit already handled a case like that, and it didn't alter the unprotectability of the interfaces.

They ask the appeals court to affirm Judge William Alsup's decision: Oracle has invited this Court to ignore or radically reinterpret more than two decades of copyright jurisprudence concerning the application of copyright law to elements of computer programs that are essential to achieving interoperability among programs. This Court should decline this invitation.

Is Microsoft's motto 'Always Be Evil'? Look at this report from Joe Mullin at ars technica on Microsoft's latest patent scheming:Some days $30 million seems like a lot of money, and other days it's just a bit of a letdown. Vringo is a once-upon-a-time ringtone company that's now basically a holding company for search patents dating back to the Lycos days, and it used those patents to sue Google. In November, a federal jury found that the patents were infringed, but Google should pay just $30 million, far less than the nearly $700 million it was seeking.

Investors had big dreams for Vringo, but that too-small payday, combined with an assurance of a lengthy appeal by Google, has left the stock price disappointingly stagnant.

In January Vringo unveiled its wholly predictable backup plan-sue the one other viable search engine, Microsoft's Bing. Now that case has settled for $1 million, plus five percent of whatever Google ultimately pays, according to a Vringo regulatory filing yesterday...

The five percent addendum is an interesting twist to this early settlement. One has to wonder if Microsoft really fought very hard. The company has effectively paid $1 million for an "option" to see its chief competitor hurt 20 times as bad as it is.

The settlement also provides for Microsoft to transfer six patents to I/P engine, the patent-holding subsidiary of Vringo. "The assigned patents relate to telecommunications, data management, and other technology areas," stated Vringo in its filing. Of course Google is appealing the verdict. Now this ploy by Microsoft. Now, why would it assign patents to Vringo? Maybe because Vringo's dreams of destroying Google with its Lycos patents didn't come true? Is it time for some prior art searching? How about some antitrust investigation of companies outsourcing to trolls to ding a competitor?

The remarkable outpouring of support for Google in the Oracle v. Google appeal continues, with a group of well-known innovators, start-ups, and those who fund them -- innovators like Ray Ozzie, Tim O'Reilly, Mitch Kapor, Dan Bricklin, and Esther Dyson -- standing with yesterday's group of leading computer scientists in telling the court that Oracle's attempt to copyright its Java APIs would be damaging to innovation.

Why? Because it would represent a change in the way copyright has worked since at least 1879, when Baker v. Selden was decided. "The scope of copyright protection for computer programs has always been carefully and purposefully limited," the brief notes. Remember Lotus v. Borland where the court found that a menu command hierarchy was an uncopyrightable method of operation "because it was essential to making use of the program's functional capabilities"? "The Java API elements at issue here are comparable to the menu hierarchy in Lotus: uncopyrightable because they constitute the method of operation through which a user's program accesses, controls, and makes use of the functional capabilities of the Java API," they tell the court. So why is Oracle trying to upset this careful balance?

Jennifer Urban, with the Samuelson Law, Technology and Public Policy Clinic at the U.C. Berkeley School of Law is representing this group, and here's their amicus brief [PDF] in support of Google. They tell the court why they care about this case and how they hope to be helpful to the court:Amici are software innovators, start-ups, and investors. The signatories on this brief include innovators, and founders of software and Internet companies that actively innovate in and compete across a wide array of markets. Signatories also include investors who invest in, and are expert in assessing the risks of investing in, companies that rely on APIs and other interoperability tools. Amici have broad first-hand experience in the role of interoperability-and the balanced and stable copyright rules on which it depends-in driving innovation in the technology sector. A full list of amici with individual descriptions can be found at http://www.law.berkeley.edu/amici.htm.

Amici's shared interest in this case is in preserving the deliberate balance Congress and the courts have established for software copyright, including longstanding limits on copyrightability that enable innovation by fostering interoperability and competition. Amici join to explain the importance to innovation and investment in innovation of upholding the District Court's careful application of these limitations to the Java API elements at issue in this case.I'm so glad people who fully understand the technology are stepping up to explain it to the court, in the hope that it will help the court to reach a better decision. It must be very difficult to rule on a case if you don't understand the technology or fully grasp the implications of a case. And as the brief points out, if Oracle's position were to be adopted, even in part, it would "drastically expand copyrightability".

An amazing collection of the leading computer scientists in the world have joined together to stand with Google and against Oracle in the Oracle v. Google appeal about APIs, and they ask the court to affirm Judge William Alsup's decision that the Java APIs are not copyrightable. It's in an amicus brief [PDF] that EFF has just filed. Here's EFF's press release.

And what do they say to the court? Exactly what you'd say, if you filed an amicus brief. Exactly what every computer scientist I know would say if filing an amicus brief about APIs: Amici are numerous individual computer scientists who believe the District Court correctly decided this case and who urge this Court to uphold that ruling. The signatories to this brief include some of the leading, pioneering scientists in the computer industry. They have invented or contributed to the authorship of numerous computer programs. They have joined this brief because they believe the District Court correctly rejected Oracle's attempt to overextend copyright coverage in a manner irreconcilable with the purpose of copyright law and the nature of computer science.

As computer scientists, amici have relied on the open nature of APIs and the programs built on them to create and operate new software. Amici depend on APIs remaining open to sustain widespread compatibility standards used by startups and incumbents alike. Reversing the District Court would dangerously undermine the settled expectations of computer scientists who rely upon the open nature of APIs. I believe this means that Oracle has now managed to dismay pretty much all the leaders in its chosen field. What kind of business sense does that make? Seriously, Oracle. Think this through, please. Bad karma lingers. This is your family. It's a family intervention.

This is important news, because there have been several articles claiming the opposite, and it's good to be precise and careful. It's why I waited until the Software Freedom Law Center could tell us whether Google's VP8 patent cross-license is or is not compatible with FOSS licensing.

The short answer is, it is:SFLC, like its client the Free Software Foundation, believes that software standing alone should not be patentable subject matter. We join skeptics of the VP8 license and the broader FOSS community in rejecting software patents in all forms, and we will continue to oppose them. But until software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting. It's not perfect, but no other modern web video format provides nearly the same degree of protection for FOSS implementations. Surprised? Me too. But as I've often told you, the law is complex, and if we are not lawyers, we are not lawyers, and as a result sometimes elements of the complexity can fly over our heads. That's the bottom line for all of us non-lawyers. When in doubt, I ask one to be sure, because guessing can lead to problems. It was right to consider the question, by the way, but now we know the answer.

We can put this episode in the same, ever-growing pile of materials where folks have leaped to a negative conclusion about Google, without basis, as it turns out. Google went to a lot of effort and expense to protect the FOSS community, and look at its reward -- undeserved criticism. FOSSPatents got this totally wrong, of course. If someone had forced me to write about this before today, I would have gotten it wrong too, to be honest (just not *that* wrong), so I'm not pointing fingers, but I am correcting the record. It's official. Google's draft cross license is compatible with FOSS licensing.

Google has now responded to Oracle's appeal in the Oracle v. Google API copyright case. Plus it adds its own cross appeal. It's fascinating.

We're working on a text version for you, but in the meantime, I'll show you the introduction. I'd sum it up like this: The Java API isn't a work of imaginative fiction. It's a functional, utilitarian work. The issue isn't how "creative" it may be; the legal question is how functional is it? So Oracle is asking for something for its functional work that Copyright Law doesn't provide, from Google's perspective (and mine): However creative and useful the Java API may be, it is fundamentally a functional, utilitarian work. It exists for the practical convenience of programmers. A work of imaginative fiction like Harry Potter serves no such utilitarian function. Its chapter headings and topic sentences exist entirely for communicative and aesthetic purposes-not to "bring about a certain result" when used in a computer.

No court accepts Oracle's premise that functional works like the Java API obtain the same level of copyright protection as works of imaginative fiction. The "fundamental purpose of the Copyright Act" is to "encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on." Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). Therefore, if a work is "largely functional," like software, "it receives only weak protection. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." Id. (citation and quotation marks omitted).

Copyright protection of functional works is said to be 'thin' because section 102(b) of the Copyright Act filters out and denies protection to the functional elements within those works. The more functional the work is, the more there is to filter out. Section 102(b) provides that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Congress explained that one reason for enacting section 102(b) was to "make clear" that "the 'writing" expressing [a programmer's] ideas"-his code-is "the copyrightable element in a computer program," while "the actual processes or methods embodied in the program are not within the scope of the copyright law." It's too late for Oracle to ask the court to ask for a ruling of copyrightability of the code anyway, Google asserts, because it waived it, but if the court nevertheless reverses the copyrightability judgment of the district court, it should direct it on remand to retry Google's fair use defense as well as the related issue of infringement:Sensing that its SSO claim may be doomed, Oracle argues that -- SSO aside -- there is an "independent" ground for reversal based on the purported copyrightability of 7,000 lines of non-implementing code that make up the class and method names and declarations of the 37 packages. But any asserted error regarding those 7,000 lines is both harmless and waived, because the district court gave the jurors instructions and a verdict form that barred them from considering whether Google infringed those lines, independent of their SSO. Oracle failed to challenge the instructions or the verdict form at trial, or in its opening brief. Thus, the copyrightability of the 7,000 lines (apart from the SSO) is not an issue in this case, and a reversal based on that theory could not alter the ultimate judgment.

Accordingly, this Court should affirm the copyrightability judgment while granting Google's cross-appeal on two minor issues of literal infringement. However, if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google's fair-use defense (as well as the inseparable issue of infringement). Here are the issues on Google's Cross Appeal: Was Google's use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?

IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the SCO v. IBM case. I have it as text for you.

IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has an proposed outline on how to proceed thereafter. Its plan differs from SCO's.

Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO's market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.

After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."

The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims: For example, while the Novell Judgment strengthens IBM's counterclaims concerning SCO's campaign to create fear, uncertainty and doubt about IBM's products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument. IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM's Memorandum Responding to SCO's Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.

The judge in Apple v. Samsung II asked the parties to narrow their claims, so they did but now Apple would like to add more claims [PDF], specifically to include the Galaxy S4. Samsung just sold 10 million S4s in less than a month, and Apple's hair must be on fire.

Would you like to know what it thinks of all you 10 million users of the new Samsung Galaxy S4 phone? It thinks you are infringing their stupid patents too, meaning, I would imagine, that if it is successful in this case, it will ask for an injunction against the phones you want and bought.

I'll show you what this stupid case is all about and what Apple thinks about you for buying the phone you want to buy and use, which Apple would like to make illegal to buy and use in the US by means of some infuriating software method patents. If you don't see why software shouldn't be patentable subject matter after watching Apple go for Samsung's throat with these patents, I give up.

Not really. My plan is to keep writing until you give up.

The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.

To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.

There are now 68 public comments listed on the FTC's website on the topic of patent trolls. Patent Progress's David Balko's article, The End-Users Strike Back, notes that a surprising number are from end users, defined as "retailers, financial services, grocery stores, advertising, hotel industries, and even oil companies [who] are coming out in droves to fight abusive patent troll tactics":Patent trolls have started to target end-users, especially small companies, because they typically lack the expertise, experience and ability to fight questionable claims. Litigation costs can quickly mount up to $250,000 to $500,000, and reach millions if the case goes all the way through trial (not to mention appeals). End-users also have to deal with disruptions to their business from discovery requests and managing the litigation. Often companies are forced to divulge secret financial and technical information as well as divert key personnel from their work to participate in depositions and give testimony. Patent trolls, on the other hand, have few costs in pursuing a suit because they do not operate in any market. The lawsuit has no disruptive effect on the patent troll's business because it is the patent troll's business. You may enjoy going through them, but I thought you might like to see one of the more thoughtful of the public comments, the one from Ken Wasch [PDF], President of the Software & Information Industry Association, or SIIA, a trade association for the software industry with 700 plus members, because it provides details on how the patent trolls attack and what the results have been. I don't see members listed on the site, but the Software Board lists a number of companies, including Red Hat and IBM, and a number of smaller companies. And the comment states that trolls are hindering innovation, being "masters at abusing and manipulating the patent system." The footnotes alone are worth noting, but the really interesting part is how the comment explains how trolls do what they do. I learned something I've long wondered about, why trolls hide who they are in litigation.