Microsoft, BSA, Scott McNealy, others file amicus briefs in support of Oracle's appeal against Google ~pj
Microsoft has filed one, together with EMC Corporation, and NetApp, Inc. Scott McNealy has filed one with Brian Sutphin. Can McNealy be a witness for Oracle at trial, which he was [PDF], and also file an amicus brief? Well, he has. The Picture Archive Council of America, Inc. has filed one with the Graphic Artists Guild. Also there's one from the BSA. And finally Eugene Spafford, Zhi Ding, and Lee A. Hollaar have filed an amicus in support of Oracle. Hollaar seems to file a lot of amicus briefs.
So why do these entities and individuals care about this Java API case, do you suppose?
The Transcript of Oral Argument in Bowman v. Monsanto: Where's Patent Exhaustion for Self-Replicating Patented Seeds? ~pj
I know the media in general are saying that Mr. Bowman is almost certain to lose, judging by the questions asked by the justices. I disagree that questions asked by judges mean anything certain, by the way, but in any case some of the questions asked evidenced a deep understanding of the unusual aspects of the facts of this case and the dangers they pose.
This is a case the fact pattern of which has never come up before. While Monsanto tries to compare Roundup Ready seeds to software and vaccines, the truth is there's never been a case before about a patented invention that in the normal course of events naturally reproduces itself.
And what Mr. Bowman's attorney, Mark P. Walters, points out -- particularly at the end -- is that Monsanto's position removes patent exhaustion entirely from the picture, in that when you buy -- as opposed to licensing -- a patented product, there is supposed to be an end to the patent owner's rights. But Monsanto claims that while there is a transfer of title, buyers must agree to a "Technology Agreement" which places conditions on use. Can it have it both ways, sale and license? The only way to use the invention here is to plant and grow the seeds. And Monsanto is claiming rights not only to generation 1 seeds but every generation after that. You can't plant those generation 2 seeds for a crop without infringing the patent, they claim, even if you bought them from somebody else.
As Patently O earlier pointed out, "Both the district court and the Court of Appeals for the Federal Circuit held that the exhaustion doctrine does not apply to new copies of a patented product created by the accused infringer." However, Mr. Walters argues, if that applies in this situation, where is the exhaustion of patent rights in this picture? These are self-replicating seeds. It's not the same as copying a million copies of someone's software. It's just doing what farmers do. Can Monsanto legally void the patent exhaustion doctrine in such a fact pattern? Can it force farmers to farm differently than they have from the beginning of time? We're talking about 90% of all soybeans planted in the US being from Monsanto's patented seeds, after all. How do you avoid infringing now? You'd have to buy new seeds from Monsanto every planting. Think of what that means.
These are the right questions, at least, and I believe at least some of the justices understood it.
Meanwhile, in Apple v. Samsung I, which is still going on, the parties will be arguing before the Federal Circuit on March 26, as both parties believe the magistrate judge is threatening to unseal too many documents in that case, and things are on hold until the appeals court decides who is right. So far, that is about the only thing the parties *do* agree on, that the magistrate has gone too far. Here's Apple's supplemental appeal brief [PDF] on that issue of sealing from Apple v Samsung I. William Lee of Wilmer Cutler will argue [PDF] for Apple on March 26, and Victoria F. Maroulis of Quinn Emanuel will argue [PDF] for Samsung. That's at 10 AM on March 26 at the US Court of Appeals for the Federal Circuit in Washington, DC.
If you are getting confused, so is everybody. The judge even asked at the February 14th hearing in Apple II if it didn't make good sense to put that case on hold until they get a ruling from the Federal Circuit on Apple I, the other appeal in Apple I, the one Apple filed about Judge Koh's refusal to order a permanent injunction against Samsung, which you'll find here.
I do wish Apple would spend this much time and money and heart into creating new products instead of throwing it to the winds like this. This litigation never seems to resolve anything that matters, and only the lawyers are having any fun.
Guess how many lawyers are listed on the brief for Oracle? Twenty-eight: 6 from Boies Schiller, 5 from Kirkland & Ellis, 10 from Morrison & Foerster, and 7 from Orrick, Herrington. I'm assuming Oracle cares about the outcome plenty. You won't believe how the Introduction opens:Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix-the fifth book-and proceeds to transcribe. She verbatim copies all the chapter titles-from Chapter 1 ("Dudley Demented") to Chapter 38 ("The Second War Begins"). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one ("Harry nodded."). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid's Harry Potter 5.0. The knockoff flies off the shelves. J.K. Rowling sues for copyright infringement. Ann's defenses: "But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base."
Obviously, the defenses would fail.
Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid-and has offered the same defenses. Yes. Ann Droid. You know what's wrong with this Introduction? Software is not a novel. The copyright rules are not identical. Duh. And that's not an accurate or fair description of what Google did. I'd expect them to say that to a jury, not the Federal Circuit.
If anyone is in the Denver area or is free to get there in May, it's time to start to plan. It's a wonderful opportunity to see Mr. Boies in person doing what he does best. And David Tulchin, for Microsoft, is considered one of the best appellate lawyers in the country. And most of all, the Groklaw family is hoping for news from the courtroom, if there is any way a volunteer can be available.
The Eric Holder Memo on the "Reasoned Exercise of Prosecutorial Discretion" and the Swartz Affair ~pj
And now I've come across something that I think might be helpful, a May 19, 2010 memo [PDF] by Attorney General Eric H. Holder, Jr. to all federal prosecutors, letting them know that he wanted them to be fair and reasonable in exercising their prosecutorial discretion. He told them that he wanted them to be flexible, too, not necessarily bound by maximum/minimum guidelines, but to look at the individual circumstances of each case, stating that the "reasoned exercise of prosecutorial discretion is essential to the fair, effective, and even-handed administration of the federal criminal laws". That raises a natural enough question, of course, about whether that policy was followed in the Swartz case, but that isn't what struck me. It's this as BLT explained it at the time:The May 19 guidance, which replaces previous memos from then-Attorney General John Ashcroft and then-Deputy Attorney General James Comey, says all charging decisions must be reviewed by a supervisory attorney. All but the most routine indictments should be accompanied by a document that sets out charging options and explains the charging decision. People who commit similar crimes and have similar culpability should be treated similarly. If Massachusetts followed that guidance, there should be such a memo in existence. Since members of Congress sent a letter to the Attorney General, asking for details, and they've been promised a closed briefing, I would imagine this explanatory document, if it exists, might be exactly what they are looking for, in that it was written contemporaneously instead of after the huge public furor.
I have collected a couple of other reports on the hearing, and then we have our own. Ours is hilarious, in the way that only geek pain plus indignation plus despair plus a touch of amazement at tech cluelessness can provide.
Yes. Another 'is software patentable' case. Or is this patent so blazingly obvious it is invalid? If so, how about if the patent claims the magic happens when folks do it "using a computer"?
I agree with him in the abstract, so to speak, that software patents require increased disclosure. He has ruled that the means-plus-function software patents Motorola was using in this litigation are, without specifically disclosed algorithms, invalid in that he decided the algorithms claimed were insufficient as vague: Accordingly, where the disclosed structure corresponding to a means-plus-function element is a computer-implemented algorithm, the algorithmic structure must be disclosed....
Because neither the examples of a decoder, nor the definition of a decoder, identified in the specification amount to anything more than a programmed general computer or a functional description, the court requires disclosure of an algorithm corresponding to the "means for decoding" and "means for using" limitations....Although the specification describes how one of skill in the art would ascertain what blocks to consider when decoding, the specification provides no guidance as to how one of ordinary skill would actually decode the considered blocks. Thus, the court concludes that the specification contains no disclosure that supports Motorola's proposed algorithm (or any other algorithm) for corresponding structure to the decoding function required by the "means for selectively decoding" limitation of claim 13 of the '375 Patent. Means plus function claims are exactly what the USPTO is asking the software community to comment on, with the view to improving software patents, and one suggestion we at Groklaw are sending in is the need for increased disclosure, and not just for the type of patent the judge thinks needs more specific disclosure. But if the world decides that any time the patent says something like "on a computer" that you need to provide specific algorithms, so be it. From his mouth to God's ears, as they say.
You doubt that software patents need to go? Look at all the trouble they are causing.
But I thought you might like to see what Newegg did just prior to that victory, something that is still pending. In early December, Newegg filed an amicus brief [PDF] in the appeal of Apple v. Motorola, the Illinois litigation that Judge Richard Posner tossed out with prejudice, saying neither side had proven damages. He never let the case go to a jury. Part of what Newegg asks the Federal Circuit to do is to remind district courts of the need to take seriously their gatekeeper role and act more like Judge Posner did in that case. The brief asks for more than just the need for establishing a causal nexus. Jury awards, they argue, are preposterously high and totally unpredictable. They have some suggestions on how to bring damages awards out of the stratosphere and back to realistic earthly levels.
Wouldn't it be ironic if the courts were to respond to the smartphone patent wars -- which Apple and Microsoft got into to try to destroy Android -- by reevaluating how patent infringement damages awards are calculated, so that such litigation tactics no longer paid off and companies had to go back to innovating and competing in the marketplace instead of trying to clobber each other with questionable patents in courtrooms?
Ah. "And business recrods." Burdensome to whom? To whom would SCO's business records be burdensome? Not me. I hereby volunteer to pay for storage for those records, in order to preserve them. Obsolete how? Does the bankruptcy court know that SCO has a petition [PDF] before the US District Court in Utah asking the court to reopen SCO's litigation with IBM?
The excuse is money. They are paying to store them, poor dears, as of January 31, I gather, since they ask the court to authorize payments nunc pro tunc back to that date. Either that, or there's more to this story than you can find in the motion. They also ask the court to let it not inform all its creditors about this. Heh heh. Imagine how messy it could get if they all showed up asking for a computer or shelving.
But Apple and Samsung must be groaning. The trouble with Tribbles, of course, is that there's no seeming end to them -- "they are born pregnant" and threaten to consume all the onboard supplies, but Judge Grewal, like Spock, is immune to their effects, so he refuses most of the requests, saying over and over that the parties have failed to show in a particularized way how revealing the materials would be harmful.
But as I read the list I can see how they might be, particularly because the parties are suing each other all over the place, not just in this one courtroom. Having said that, as a member of the public, I'm personally looking forward to reading every last one of them. I find these Tribbles adorably appealing.
Say, how's that thermonuclear war against Android working out?
We are going to respond to the USPTO's Topic 2 question as well, but the deadline for Topic 1 looms, so we'll start with Topic 1 for now and I'll post the Topic 2 draft later. The first roundtable panel will be February 12th, so I'd like to submit by that date.
Judge Koh Rules in Apple v. Samsung - No Willfulness, No Enhanced Damages for Apple but No New Trial Either ~pj
Next stop, appeals court, where we will find out if they agree with Judge Koh that the trial was fair. Meanwhile, poor Apple will have to make due with a mere $1 billion as its jury award. We'll see if that stands on appeal too. A billion dollars for infringement that was officially not willful. Your US patent law at work. How do you like it?
The hearing was in two parts. The first part had to do with the validity of Motorola's patents, which Microsoft is challenging. The second part was on whether Google's 2005 license agreement with MPEG LA sweeps Motorola's FRAND patents at issue in this litigation into MPEG LA's clutches and control. It's all about how much Microsoft has to pay Motorola, if anything. For background, go here and here for lots more details and context on the license agreement issue.
Don't worry if you don't understand everything when you read them. The parties' lawyers don't understand the licenses fully either, not for sure, in that they don't agree at all on what they mean, and that's why they are in a court of law.
After the parties briefed the issue of what they thought the agreement meant, the judge asked [PDF] them to present any "extrinsic evidence" they could on how to interpret that license, "such as affidavits from MPEG LA regarding the purpose and intent of the grant-back provision", and of course, Microsoft did exactly that, and surprise, surprise, MPEG LA's president claims in a declaration [PDF] that Microsoft is exactly right in its interpretation. When Motorola asked to depose him, the judge said: Nope. No can do. The judge can ask for such evidence this late, but there's no time to, you know, verify it to make sure it is actually true and admissible. Motorola calls it hearsay and inadmissible.
We haven't been covering each painful inch of this litigation, so maybe I missed it, but has this judge ruled for Motorola yet in anything? If so, email me please, and I'll add it to the article. All I know is, every time I parachute into this courtroom in Seattle, so to speak, to see how things are going, the judge has just ruled for Microsoft again.