Friday, July 31, 2015

Second Oracle v. Google trial most likely to take place between March and September 2016

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

The trial date will be set at a later time and most likely be March 28, 2016 or September 12, 2016, but it could also be anytime in between. The parties had proposed dates in the spring of 2016.

The court would still like to avoid the need for a trial, which is understandable, and Judge Alsup has referred the parties to mediation before Magistrate Judge Paul S. Grewal, who already tried unsuccessfully (because of the circumstances) in 2011 to broker a settlement but concluded that this was one of those cases that just had to go to trial. I have seen media reports according to which both parties' counsel expressed skepticism about the fruitfulness of another near-term mediation effort, which didn't dissuade Judge Alsup from ordering the parties to meet at any rate. He can order them to meet, but he cannot order them to agree on any particular terms. It would be the biggest surprise for me in more than five years of smartphone patent litigation blogging if this mediation succeeded, and someone should propose Judge Grewal for the Nobel Peace Prize in that event (he'd deserve it more than some other winners in recent decades).

Oracle is allowed to bring a motion to supplement its complaint. Even Google doesn't deny that Oracle has the right to supplement its complaint so as to reflect what happened in all those years since the first trial. There is a disagreement, however, on what constitutes a supplemental complaint and on what would be an amended complaint. So we'll see some argument in the weeks ahead.

A motions process will also start now with respect to Google's position that Oracle should not be allowed to make a willfulness argument before the jury.

It's predictable that motion practice will soon also be needed with respect to the damages expert witness from the first trial, Dr. Kearl. Oracle says (and I think it's very obvious) that someone who took on work as an expert witness for a Google Android partner has a conflict of interests. Court-appointed expert witnesses must be absolutely neutral, so this should be a no-brainer. In all likelihood Dr. Kearl won't appear again, and while this is absolutely speculative (I have no information on anyone's plans other than what the public filing says), I believe a decision to let Dr. Kearl appear again, despite a conflict of interest that is beyond all doubt, might trigger an interlocutory appeal.

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

Finally, the court tentatively (the order says "likely") plans to allow Google to still raise its equitable defenses at the trial. This could help Google and harm Oracle because the jury might confuse some of the argument and testimony relating to equitable defenses as having a bearing, even if only psychologically, on "fair use."

On another note, The Recorder reports (for subscribers only) that lawyers from Morrison & Foerster and Boies, Schiller & Flexner are still working for Oracle on this matter, but Orrick, Herrington & Sutcliffe, whose appellate team (led by Joshua Rosenkranz) had achieved the reversal of the non-copyrightable ruling as well as favorable guidance on what is or is not fair use, now has the lead. The two most recent filings by Oracle had been signed by Orrick's Annette Hurst, a top-notch copyright expert. The Recorder also says she has a key role but mentions (in the first place) Peter Bicks, a commercial litigation attorney who has apparently had spectacular successes at jury trials in many different parts of the United States. Based on Mr. Bicks's background I now venture to guess that he will 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 Mueller

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Tuesday, July 28, 2015

Corel Software sues Microsoft for software patent infringement: LivePreview feature in Word, Outlook, Excel, PowerPoint

While Microsoft has numerous patent cross-license agreements in place (including with dozens of smartphone, tablet and netbook manufacturers who pay Microsoft considerable amounts of royalties on devices powered by Google's Android and Chrome operating systems), it rarely goes to court--and far more often than Microsoft takes anyone to court, other patent holders sue it. Those plaintiffs are typically NPEs. Yesterday, however, Corel Software filed a patent 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 Mueller

This is not the first time Corel enforces patents. In 2013, its Micrografx subsidiary sued Google and a couple of Android device makers.

Microsoft Office for Android is also mentioned specifically (though not exclusively) in Corel's complaint against Microsoft, which alleges that the LivePreview feature of key Microsoft Office apps--Word, Outlook, Excel, PowerPoint--infringes patents on claimed inventions covering WordPerfect's RealTime preview feature (WordPerfect belongs to Corel):

Corel alleges that Microsoft's infringement is willful. 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 also include citations by Microsoft patent applications to some of those patents and the rejection of Microsoft patent applications by the United States Patent and Trademark Office because of certain Corel/WordPerfect patents.

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 Eastern District of Texas, which Corel opted not to do). I haven't been able to find a declaratory judgment filing in the Western District of Washington by Microsoft against Corel, however. It could be that Microsoft didn't necessarily expect Corel to bring an infringement case at this time.

It's strategically clear that what Corel really wants is (still) to sell those patents to Microsoft. WordPerfect is history, so there's no commercial reason for which Corel would need them.

I guess Corel has a good chance of getting Microsoft to buy these patents now--maybe not immediately, but before this case goes to trial. If Microsoft lost this case, damages could be substantial. And while I haven't analyzed this in detail, it's possible that Microsoft's best chance to defeat those patents would be to allege invalidity under § 101 in light of the Supreme Court's Alice ruling (abstract subject matter)--but such an interpretation of Alice would also affect countless Microsoft patents, including some rather important ones.

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Friday, July 24, 2015

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

Late on Thursday by local California time, Oracle and Google filed a joint status report (though the order had not explicitly required them to file jointly). As always, they disagree on important procedural matters, but they are agree that the next Android-Java copyright trial (at least on fair use, unless previously resolved as a matter of law, and on damages) should take about ten days and they are not far apart on when it should place: Oracle proposes April 4, 2016, while Google prefers one of the following two months, which are inconvenient for Oracle because some of its key witnesses will be busy working on the company's annual report.

Throughout this litigation, Google has been attempting to stall, a fact that apparently didn't go unnoticed by the judge. However, it has played this smart, trying to maintain at least some credibility, and I guess that's why it doesn't propose an even later trial date. If any logistical or other issues come up in the further process, Google presumably won't hesitate to advocate a postponement.

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

15-07-23 Joint Oracle-Google Status Report by Florian Mueller

The joint status report doesn't elaborate on the parties' disagreement with respect to Oracle's desire to supplement its complaint so as to take account of developments since the close of discovery before the spring 2012 trial. Google will separately oppose Oracle's letter seeking permission to bring a motion, and it will do so in time so that this aspect of the case can be discussed at next week's status conference.

As for the scope of the trial, the undisputedly necessary parts (provided that the trial isn't narrowed by summary judgment/judgment as a matter of law) include the "fair use" defense on which the first jury couldn't agree (and which the second jury may not even have to look at), damages, injunctive and/or declaratory relief, and an award of attorneys' fees. There's one item that Oracle wants to bring up and Google wants to keep out: willfulness. I guess Google argues that this was relevant three years ago only because there were a couple of patents in play, which no longer are. We'll know soon. Oracle is seeking willfulness enhancements, so unless the court categorically rules out willfulness enhancements, I guess willfulness, as a subject to discuss at the trial, can't 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 defenses 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 these past few years I said--and in blog posts there's always the risk of oversimplifying things--that Google's equitable defenses 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 defenses of waiver and implied license. [...] The Court did not rule on Google's equitable defenses of equitable estoppel and laches due to mootness."

The waiver and implied-license defense was all about Sun's conduct, including a blog post by then-CEO Jonathan Schwartz. The first jury found that Google might have been able to rely on what Sun said, but that it hadn't actually relied on it. On that basis, I considered Google's equitable defenses dead. (Laches--the allegation that Oracle sued too late--are a separate topic but, frankly, that's a defense I don't think anyone who watched this case ever took seriously.)

Judge Alsup's ruling on waiver and implied license was not reported on by anyone (at least not to my knowledge) other than me because it was the less spectacular part of the May 31, 2012 ruling as 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 defenses 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 conduct' must be assessed for an affirmative grant of such consent. None is apparent from the evidence Google presented here. Google has supplied no relevant authority that would support a finding in its favor on these facts. Furthermore, from the present record it would be impossible to determine the scope of any implied license. Under Google's theory, infringement is excused as to any aspect of Android because the whole of the platform was generally applauded by Sun. Such a finding is not supported by precedent. The parties negotiated for a real license but the talks collapsed and no license was given. It would be most bizarre to somehow find an implied license in this scenario. [emphasis added]


Google's best evidence on the issue of waiver is Jonathan Schwartz's testimony that Sun made a decision to not sue Google following the release of Android. This decision, however, is not an overt act. So long as it did not induce reliance by Google, Sun was free to change its mind and assert its rights within the statute of limitations period. The several congratulatory communications do not, as discussed above, constitute a clear indication that Oracle and/or Sun intended to relinquish its rights as to the entirety of its platform. Google concedes Oracle continued and continues to assert its rights as to other aspects of the platform such as the language specification and code [...]. Save for a total relinquishment, Google has to prove an overt act by Oracle and/or Sun relaying its intent to abandon rights as to the specific elements asserted here. The evidence is devoid of any such showing."

I couldn't agree more. What the parties can't agree on is whether equitable estoppel is still in the game. My feeling has been for some time--but I want to see Google's argument first because maybe I overlooked something--that the first jury's finding of non-reliance was the end of that story.

The reason why this is interesting is not so much that Google would really be likely to prevail on such a defense. The thing is that a jury can easily confuse estoppel arguments for "fair use" arguments and then be misled. Focus is Oracle's friend now, and confusion would be Google's friend.

There doesn't appear to be a fundamental disagreement on the scope of additional discovery (except whatever the supplemental complaint might require). Also, the parties aren't jumping to make another attempt at mediation. They had one in district court (Magistrate Judge Grewal found that, despite everyone's best efforts, this was simply one of the cases that had to go to trial) and another one before the Federal Circuit (I wasn't aware of that). And they probably talk to each other informally all the time. I have the feeling that mediation won't yield a result, but a firm trial date could work wonders. Maybe they can agree on the eve of the trial, or (which Judge Alsup prefers so as not 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 last year's appellate opinion:

"The issues for the new trial will be significantly narrowed if the parties agree to summaries or stipulated facts setting forth the rulings of the Federal Circuit in this matter. As to the declaring code and structure, sequence, and organization, the Federal Circuit held that it is 'undisputed' and 'conceded' that Google copied the declaring code and the structure, sequence, and organization of 37 Java API packages, and that those Java elements are entitled to copyright protection. [...] The Federal Circuit also found that Google 'concedes' and thus it is 'undisputed' that the declaring code and the structure, sequence, and organization of the API packages are 'both creative and original.' [...] The Federal Circuit concluded that 'Google concedes' and thus it 'undisputed' that 'Android is not generally compatible' and certainly not [compatible] with the JVM [Java virtual machine].' [...] And, the Federal Circuit found it 'undisputed that Google's use of the API packages is commercial,' as relevant to factor one of the fair use inquiry. [...] As to the eight decompiled files and rangeCheck, it is now the law of the case that Google has committed copyright infringement with respect to the eight decompiled Java files and the rangeCheck method.

Additional issues for the new trial can also be significantly narrowed by agreement. For example, the new trial will be expedited if the parties can agree that the versions of Android that have been released since previous expert reports in this matter, including new flavors Gingerbread, Honeycomb, Ice Cream Sandwich, Jelly Bean, KitKat, and Lollipop, are the same as prior versions Cupcake and Froyo for purposes of the copyright infringement analysis relevant here."

Google doesn't 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 want to mention but I don't think it will be hard for the court to resolve. In the first trial, the court had appointed Dr. Kearl as an expert witness on damages (which U.S. courts rarely do, though in many jurisdictions, such as Germany and various other European countries, it's the norm). Patent damages are a complicated matter, but patents are 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 not testify because he 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 an unreasonable position to take. Of all the things Google said in the joint filing, this is the one I consider the least convincing point.

Finally, it's worth noting that Morrison & Foerster no longer appears, though Boies, Schiller &, Flexner, another firm that represented Oracle in the first trial, is listed. It was pretty clear before that Orrick's Annette Hurst had become Oracle's lead counsel and I had seen some withdrawals but thought MoFo was still involved. Maybe some MoFo lawyers are still helping Oracle in the background. I wouldn't 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 wasn't before the appeal. Without a doubt, Mrs. Hurst has as stronger copyright background than probably any California IP litigator. Next week and on other occasions including the spring trial, she will face Keker & van Nest's Robert (Bob) van Nest, who did a great job confusing the first jury but simply couldn't defend the indefensible before the Federal Circuit, where Orrick's Joshua (Josh) Rosenkranz had a far stronger case and also appears more frequently.

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Thursday, July 23, 2015

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

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

Almost five years after the original complaint in August 2010 and the first amended complaint in October 2010, and more than three years after the 2012 mistrial, Oracle wants to ensure that what has happened since will play a role in the further proceedings. The alternative would be for Oracle to bring a follow-up complaint later, but that one would not only be less efficient: it would also disadvantage Oracle because it would not be allowed to counter Google's "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 was filed on October 27, 2010. [...] Since then, Google has released six major versions of Android encompassing at least forty total releases. In the last 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 cars. Google continues to infringe Oracle’s copyrights with these new versions. Android now has a billion users; Google reaps untold profits from these users through a variety of means. At the same time that Android has become truly ubiquitous, the Java platform has suffered more than ever. And, meanwhile, Google itself has adopted an 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 first trial does not reflect any of these 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 last part--financial results--comes a few days after Google's stock experienced a major surge, making it the world's second-most valuable company (only Apple's market capitalization exceeds that of Google.)

But there's something in Oracle's letter--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" defense 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 letter is an early sign of Oracle bringing a new motion for judgment as a matter of law (JMOL) on Google's "fair use" defense, in which case the next jury could focus entirely on damages (not liability). The United States Court of Appeals for the Federal Circuit declined to resolve this matter based on the record from the 2012 trial, but it provided some guidance that largely favors Oracle, especially (though not 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 as the basis for a stronger JMOL case than last time.

Another observation: this letter to the court was filed by Orrick Herrington & Sutcliffe's Annette Hurst, a San Francisco-based IP lawyer whose firm became involved with Oracle v. Google only at the appellate stage. She has received various awards and other forms of recognition over the years. Last year, for example, the International Financial Law Review awarded her the Best in Copyright honor at the America's Women in Business Law Awards, and she has been named as one of the top California litigators on several occasions.

The fact that Mrs. Hurst wrote this letter to the court suggests to me that she is Oracle's lead counsel on remand. New York-based appellate lawyer Joshua Rosenkranz, also an Orrick partner, was Oracle's lead counsel before the Federal Circuit and the Supreme Court. Morrison & Foerster, one of the top Silicon Valley firms, does remain involved as far as I can see.

Mrs. Hurst's letter mentions that the parties disagreed on the scope of the supplemental complaint Oracle seeks to bring. It's not clear yet what the disagreement relates to and whether there is anything the parties can agree on, but we will know soon. The parties still have until midnight California time on Thursday to file their status reports.

Finally, here's the letter:

15-07-22 Oracle Letter Re. Supplemental Complaint Against Google by Florian Mueller

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Tuesday, July 21, 2015

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

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

15-07-20 Apple Response to Motion for Rehearing by Florian Mueller

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

Apple argues that this smartphone case has different characteristics than Samsung's hypothetical example of a disgorgement of total profits could affect the manufacturer of a car only because of a cupholder infringing a design patent. According to Apple, the design patents at issue cover the "iconic" look of the iPhone. But Apple's legal argument is that there is no room in the statute for any kind of apportionment, and on that basis, the cupholder example would apply. Of course, it would still be up to a jury to decide, but based on Apple's proposed and supported interpretation of the law, the judge presiding over a cupholder design patent trial wouldn't have a choice but to instruct the jury that a total, unapportioned disgorgement of profits is possible under the law.

Apple can do better than that. In the standard-essential patents context, Apple consistently advocates the "smallest saleable unit" approach. Sure, SEPs are utility (technical) patents and design patents fall under a special rule. Therefore, Apple is not 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 so after a unanimous panel opinion. That's why Apple's opposition to Samsung's petition is more likely than not to succeed, and Apple's lawyers just focused on what they believe will dissuade the Federal Circuit from taking another look at this matter. For most companies in the world, a few hundred million dollars in design patent damages would be a huge opportunity. But Apple could afford to take a more strategic perspective. It wants design patents to be strong and that makes sense. However, I'm convinced that all companies with a focus on making products (as opposed to patent enforcement) should be able to agree that the possibility of multiple disgorgements of entire infringer's profits is absurd and dangerous.

I'm sure there's consensus across the industry on this, but at this procedural stage it's probably much harder for Samsung to drum up support in the form of amicus curiae briefs 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). Still, several advocacy groups as well as a number of high-profile industry players, notably including not only Google (a Samsung partner) but also Facebook, HP and eBay (among others), have chimed in. Here's the brief 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. Brief by Florian Mueller

The greatest strength of that amicus brief 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 profits. It mentions the numerous components in a "smart television" set, and notes that the aspects that could be covered by design patents include "even the shape of a single icon within an application." This example comes up again in connection with "[s]oftware products and online 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 "online platforms" are Google and Facebook, and just imagine how crazy it would be if, for example, a single icon in a submenu of the Facebook settings was covered by a design patent and someone then collected the totality of Facebook's profits because of a jury being told by a judge that this was allowed under the law.

I'm more on the conservative side and that's why I don't blame Apple for arguing that courts should interpret the law as it stands and not legislate from the bench based on a prediction of what lawmakers would decide if they looked at an issue again. Nor would I (or did I) blame the Federal Circuit panel for having said the same. But the respect in which I disagree with Apple and the panel is that when a rigid interpretation of a law is so clearly ridiculous under today's circumstances, the courts should at least make an effort to find ways to interpret it reasonably. CCIA, an industry group whose members include Samsung and several of its amici, had made one proposal for how to thread the needle, and the panel opinion had not even addressed it, at least not specifically. CCIA has also filed an amicus brief and I still believe this is worthy of consideration, be it by the Federal Circuit or the Supreme Court.

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Wednesday, July 15, 2015

Leadership of European Patent Office blocks examiners' access to directory of potential prior art

Somehow the leadership of the European Patent Office manages to demonstrate at least once per month in one or more contexts that it is far more concerned about public 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 not primarily to grant patents but actually to prevent bad patents from being granted. If its primary task were (as the EPO leadership misrepresents its responsibility all the time) to grant patents, the organization could be 10% of its current size and would still be overstaffed because it would merely have to publish substantively-unexamined filings, check on simple formalities, and collect fees.

What the EPO's leadership also demonstrates month after month is its utter contempt for fundamental human and, especially, workers' rights. Politicians are increasingly aware of this.

No European (EU and non-EU; the EPO is not an EU body) institution has ever been in such a terrible crisis as the EPO. The use of hidden cameras and keyloggers (even in areas accessible to visitors) was approved by the organization's data protection officer for no reason that anyone could seriously consider sufficient justification for such a measure. The alleged wrongdoings had nothing to do with decisions on granting, rejecting, upholding or revoking patents. There was no physical threat to anybody at the EPO. The organization's leadership just couldn't accept that a member of a board of appeal distributed information concerning an EPO vice president who is innocent until proven guilty but failed to convince a court in his native Croatia that a journalist should not be allowed make allegations of the kind that would be more than enough for an honorable and reputable organization 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 letter, 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 Mueller

TechRights had also 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, as well as the overall leadership, for a long time. It's not known whether the two posts on the EPO that TechRights published shortly before the censorship played a role:

I, too, have had my disagreements with TechRights, and often felt treated unfairly and subjected to conspiracy theories. Its political positions are clearly to the left of mine. And again, Mr. Topić is innocent until proven guilty, and while I linked to TechRights stories on his legal matters in Croatia, I have no opinion on them other than what I've said before: the Administrative Council of the EPO is not doing its job because otherwise it would replace him just 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 turn is in cahoots with his 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 block its employees' access to TechRights:

Patent offices should not block examiners' access to anything because prior art can potentially be found anywhere, either directly or indirectly.

It's less likely in the case of TechRights that one would find prior art directly on that site because it's not 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 links there. TechRights has been around for almost a decade (almost twice as long as this blog) and opinionated posts on policy issues are not the only thing it publishes. TechRights very frequently (mostly on a daily basis) provides link collections such as this one, which contain numerous technical news from the free and open source software community. It doesn't own those links exclusively, so theoretically examiners could discover the same information elsewhere, but as a matter of principle, examiners should have all tools, repositories and portals at their disposal when they go on a search for prior art.

A patent office that is serious about patent quality should not take even the slightest risk that an examiner may, due to the blocking of a website, fail to identify prior art that could prevent a bad patent from issuing.

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

EPO staff can still read TechRights at home or on mobile devices, a fact that makes this attempt at censorship absolutely ridiculous. But it should also have access from its desktop computers at work just in case anyone finds links to prior art there.

The EPO leadership has just scored an own goal: by blocking access to TechRights, it has now raised the profile of that blog.

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Tuesday, July 7, 2015

Oracle v. Google copyright case continues in California: status conference to be held on July 30

It's been a few years since I last woke up to a significant procedural order ("signficant" as opposed to lawyers' appearances being approved) in Oracle v. Google. A few years too many for Oracle, which wants this resolved, but not 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 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 half starts. Here, the second half is a remand proceeding after 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, 2015 AT 11:00 A.M. The parties shall file status reports at least SEVEN CALENDAR DAYS in advance of the hearing."

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

The parties will disagree on the ramifications of the Federal Circuit ruling in Oracle's favor. While Oracle prevailed on copyrightability, the Federal Circuit, which rarely hears copyright cases, wasn't comfortable with also determining that Google's "fair use" defense was 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 defense."

The jury instructions were not 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 fair use, wanted a judgment as a matter 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 2012 trial. Google, however, will presumably argue that interoperability must be the fair use topic on remand, despite the fact, which the Department of Justice also noted, that Google "purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."

Fair use involves four factors, and the one area I focused on for the most part in my commentary back then was the one about the way in which the copied material was used, and in particular, whether that use was "transformative" or not. 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 will definitely be a major area of disagreement on remand because it's a strategic issue.

I also predict some disagreement on the admissibility of evidence used before. While it appears from the outside as if this case was going in circles, a number of important things have actually been resolved. The most important part of those is that Google's equitable defenses (relating to Google's claim that Sun had said publicly that Java was for the taking, though it was clear Google itself never believed in this) had failed before Judge Alsup, and Google did not even try to revive them on appeal. Should there be a new jury trial instead of a JMOL decision by Judge Alsup, Google can't present "evidence" that relates to a defense that is no longer in the game. And that kind of "evidence" likely confused the jury in the first 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, 2015

17 Members of the European Parliament raise questions about human rights situation at the EPO

As I reported last week, the human rights conflict at the European Patent Office continues and certain national governments acknowledge that there is an issue (or, more precisely, a host of issues). Political pressure on the EPO leadership, including the Administrative Council (which has so 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 "rollback of fundamental rights at the European Patent Office." Its signatories include leaders of parliamentary groups and members from all five major political groups in the PACE.

The Council of Europe is not an EU institution. It's a separate diplomatic organization whose members also include major non-EU member states such as Russia. Its focus is on human rights issues. That fact makes a declaration by many of its members relevant. Also, all those signatories are also members of their national parliaments.

But unlike the PACE, the European Parliament--which is an EU institution--has real decision-making power as a European-level co-legislator. While the EPO is formally not an EU institution, the EU has decided to put it in charge of granting the future European "Unitary Patent" and it has furthermore allowed essentially the same group of national government officials who run the EPO to control the future Unified Patent Court. The EU can't turn a blind eye to what's going on at the EPO. If the EU truly were as principled a watchdog of human rights and the rule of law as it claims when dealing with countries like Russia and China, it would rule out working with the EPO and would instead set up an EU patent office. However, despite the great work it does in certain areas, there are contexts in which the EU uses double standards.

17 Members of the European Parliament (MEPs)--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 still democratic group)--have recently submitted official questions to the European Commission concerning the human rights situation at the EPO. The Commission has an obligation to respond, though its answers are typically evasive on any delicate issue. Here, the Commission could respond by denying responsibility for the EPO situation, since it only has observer status and no voting rights on the Administrative Council, but the truth is that the EPO will soon be by far and away the biggest service provider to the EU.

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

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

Rule 130

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

Subject: Situation concerning the fundamental 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. Most of the measures put in place under this new strategy do not appear to respect the fundamental rights of employees under the European Union Charter. The case was taken to the Dutch courts, which ruled that the EPO was violating the right of collective bargaining, the right to strike and the right to freedom of expression and information. Staff at the EPO have also spoken out on a number of occasions against the repressive, authoritarian system of management that has been introduced there, which is being used as a way to drastically restrict their rights.

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

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

Question for written answer E-008382/2015
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), Matt 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 Fundamental Rights. Consequently the Dutch court, exceptionally, has not accepted the immunity EPO enjoys as an international organisation, since this immunity cannot allow for human rights violations. Nevertheless EPO declared it would ignore the ruling pleading execution immunity.

  • Does the Commission agree with this ruling, according to which, as regards guaranteeing fundamental rights, the EU Treaties and the EU Charter of Fundamental Rights prevail over bilateral and multilateral agreements, including those providing immunity to organisations such as the EPO?

  • If so, what does it intend to do to prevent the abuse of immunity rights and defend the EU citizens' and employees' rights and the community acquis in organisations such as EPO which while exercising judicial functions is at the same time breaching the European legal order rules?

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

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