Deafening silence from software industry presents credibility problem for Google's Supreme Court petition

Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android-Java copyright infringement case has been distributed to the offices of the Supreme Court justices for consideration at their January 9 conference. Oracle responded to the petition on December 8, and two weeks later, Google's reply to Oracle's response was filed. It took me a while to obtain the filing. Here it is (this post continues below the document with some observations):

14-12-23 Google Reply Brief in Support of Cert Petition by Florian Mueller

Google's brief states at the very start that Oracle couldn't "dispute the exceptional importance of the question presented" and goes on to emphasize, as the document also does toward the end, "the seven amicus briefs representing the views of more than two dozen industry leaders, 77 pioneering computer scientists, numerous industry and public-interest groups, and 41 law professors."

As for importance, it's key to distinguish between different kinds of importance. Just like things can be important while not being urgent, things can be important in some ways but not in the ways that warrant a Supreme Court review. Without a doubt, the amicus briefs that have been filed here (an orchestrated, not organic outcry) will help Google get the attention of the top U.S. court. But the copyrightability of 7,000 lines of highly-creative and highly creatively-structured lines of declaring code is not important in the sense of something that needs further clarification.

Google's friends and employees, and their friends and employees, have gotten some people to sign some amicus briefs. There's a few dozen people who are upset because the Federal Circuit (rightly) disagreed with their positions including a surreal compatibility exception to copyrightability. So they're banging their heads at the next wall. But what about those who should really care: the software industry?

Software isn't hardware or services. Industry isn't individuals.

Google's amici are not the leading software industry players. Whatever accomplishments some individuals (some of whom I like and all of whom I respect) can point to, they don't have legal departments available to them who can explain to them how software copyright law works (and does not work). They can be misinformed and misguided. It happens all the time even to the best people.

With the greatest respect, those individuals can have opinions, political preferences and laundry lists of ways in which they'd like the law to be changed or interpreted, but they don't -- they just don't -- represent the software industry.

Nor do hardware and services companies. Red Hat, for example, may support Google on this and may have its own Java-related business interest in weak IP protection. But it mostly distributes or rents out software written by others. This is a company that monetizes software to a far greater extent than it actually creates software. Call it symbiotic if you like those guys, call it parasitic if you have a critical perspective, but no one can tell me that Red Hat is in the slightest way representative of the (U.S.) software industry.

Google's biggest credibility problem when it points to its amicus briefs is not in the briefs that were filed and in the easily-researchable connections between various signatories (for example, some of them are simply Google employees). It lies in the conspicuous absence of amicus briefs from the (real) software industry.

Apparently, companies like Microsoft, who file amicus briefs all the time but didn't do so at this particular stage of this case, have elected to treat Google's cert petition with silent contempt. That silence speaks louder than words.

It's obvious that those companies, which have made and continue to make an enormous contribution to U.S. economic growth and employment, wouldn't have supported Google. They're firmly on Oracle's side as the amicus briefs they filed with the Federal Circuit (after the district judge shocked them with an outlier decision that the appeals court fortunately reversed) demonstrated almost two years ago. Here's an alphabetical list of the industry players that supported Oracle directly or indirectly through BSA | The Software Alliance (including some that are not exclusively software makers, but even they have at least very substantial software divisions): Adobe, Apple, Autodesk, Bentley Systems, CA Technologies, CNC Software - Mastercam, EMC, IBM, Intel, Intuit, McAfee, Microsoft, Minitab, NetApp, Progress Software, PTC, Quest Software, Rosetta Stone, Siemens PLM Software, Symantec, TechSmith, and The MathWorks.

So why didn't they file amicus briefs in support of Oracle's opposition to Google's Supreme Court petition? I guess the reason is they don't see that the Federal Circuit decision was a big deal for the industry at large. The district court decision shocked them into action. The Federal Circuit opinion means business as usual. Back to normal.

I have no doubt that those kinds of companies would speak out in support of Oracle's position again should the Supreme Court grant Google's petition because what Google tries to achieve here, though it is a long shot, is the opposite of what has so far enabled the U.S. software industry to thrive. But statistically the fewest petitions succeed, and for now the U.S. software industry doesn't care, though everyone knows that Google has the expertise, the resources and some loyal friends that enable it to present its petition as a more interesting matter than it actually is.

While I'm kind of tired of this whole process and would really prefer for this thing to be settled or (at least) to go back to district court for further progress, I've been following this case for almost four years and a half and may comment further on on Google's reply brief in the days ahead. Only because Google puts its orchestrated amicus briefs front and center, I wanted to highlight the fact that by far and away the most relevant kinds of potential amici curiae on this issue -- leading software companies that create, enhance and implement APIs -- don't give a damn at this stage. Which also says something.

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BSA and four law professors agree: injunctions should 'ordinarily' not be available for SEPs

Two more amicus curiae briefs related to Google's appeal of Judge Posner's FRAND ruling in Apple's favor have become available: one of them was submitted by BSA | The Software Alliance, and the other one by four law professors. Both support Judge Posner and Apple. I have previous published and commented on Intel's pro-affirmance and Qualcomm's pro-reversal briefs. In connection with the latter I said that one of the two key challenges Apple and its amici face in their defense of Judge Posner's reasoning is the part of the eBay v. MercExchange ruling that disfavors the unavailability of injunctive relief in any "broad swath" of cases. The BSA and the four professors argue that Judge Posner's ruling is perfectly consistent with eBay and explain why injunctions over FRAND-pledged standard-essential patents (SEPs) in most cases must be denied as such requests fail to satisfy the eBay criteria.

For more information on BSA | The Software Alliance (including a list of its members) and the four law professors just follow the links to sections of an earlier post (written before the actual briefs became available).

I'm now going to publish the two letters and will talk about them a little more further below.

This is the submission made by industry group BSA | The Software Alliance:

13-03-20 BSA Amicus Brief in Support of Apple on FRAND by Florian_Muelle_439

And this is the joint amicu curiae brief filed by law professors Thomas F. Cotter, Shubha Ghosh, A. Christal Sheppard, and Katherine J. Strandburg:

13-03-20 Law Professors' Amicus Brief in Support of Apple on FRAND

The BSA letter focuses entirely on injunctive relief. The professors' submission also addresses FRAND SEP damages.

On the availability of injunctive relief over SEPs, both briefs take very similar positions. The professors write that "Injunctions Ordinarily Should Not Be Available To Holders Of RAND-Encumbered Standard-Essential Patents". The BSA says Judge Posner "correctly recognized that injunctions ordinarily are not an appropriate remedy for infringement of a standard-essential patent when the patentee has made a [F]RAND commitment". The word "ordinarily" appears repeatedly in both submissions, which of course raises the question of which extraordinary circumstances would warrant injunctive relief. The only examples given are that an infringer cannot be sued for royalties, in which case an ITC exclusion order may be appropriate, and scenarios in which someone refuses to pay a FRAND royalty determined by a court or an arbitrator.

Both submissions apply the eBay criteria to the issues presented by Google's appeal. According to eBay, a patent holder seeking an injunction must demonstrate: "(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction."

Judge Posner had placed particular emphasis on the second part, inadequacy, which he considered to be an absolute requirement that generally can't be met in FRAND cases. The amicus briefs go into a more detailed factor-by-factor analysis.

Addressing the first two factors (irreparable harm and inadequacy of monetary compensation) together, the professors express their belief "that a patentee who has committed to license its patent to all comers cannot, absent egregious conduct by the putative licensee, demonstrate that it has suffered an irreparable injury or one for which money damages would be inadequate". They also find with respect to the third factor that "the balance of hardships between a patentee and a standards-implementer ordinarily tips decidedly in favor of the implementer where a [F]RAND-encumbered standard-essential patent is at issue" in light of significant investments and the related lock-in (high switching costs). With respect to the fourth factor, the public interest, they tout the positive and potentially pro-competitive effects of standards (interoperability etc.) and warn against the chilling effects of letting patent holders prevent industry players from implementing standards.

BSA makes clear that it's not against all SEP-based injunctions, but it supports injunctive relief only in special circumstances and normally opposes it. BSA is also known for supporting injunctive relief with respect to non-SEPs. Its brief focuses on why SEPs are so special and must be treated differently.

Performing the eBay test, BSA writes that "because the premise of a [F]RAND commitment is that the patentee will make licenses available on reasonable terms to those who wish to practice the patent, a patentee who has made a [F]RAND commitment ordinarily will be unable to establish that denial of an injunction would lead to 'irreparable injury.'" Accordingly, BSA agrees with Judge Posner that a patent holder who makes a FRAND pledge "acknowledge[s] that a royalty is adequate compensation for a license to use that patent." Like the law professors, BSA also points to "high switching costs" and a potential "lock-in effect" in connection with the third eBay factor (balance of hardships). With respect to the fourth factor, BSA writes that the public interest "would be threatened if courts frequently awarded injunctions to remedy infringement of [F]RAND-encumbered, standard-essential patents, because such remedies could seriously destabilize the standards-setting process and thus deprive consumers of its considerable benefits." BSA also makes an "unclean hands" argument against the abuse of SEPs through an "opportunistic bait-and-switch" (promising FRAND licenses in order to make a patented technique part of a standard only to turn around later and leverage the lock-in situation against an implementer).

One might argue that the submissions by BSA and the four law professors are in some regards duplicative, but as I said in another post, amicus curiae briefs are not only about what is said but also about by whom it is said. In that regard, a leading industry organization and a group of law professors are complementary.

In closing I would also like to draw attention to a very interesting paper published this month by one of the four law professors who submitted the aforementioned amicus brief, University of Minnesota Law School Professor Thomas F. Cotter. "Reining in Remedies in Patent Litigation: Three (Increasingly Immodest) Proposals" proposes that injunctions be unavailable over FRAND-pledged SEPs, advocates apportionment of the disgorgement of an infringer's profits that a design patent holder can seek (this approach would have taken care of a substantial part of the damages issue in Apple v. Samsung, for example), and finally -- which is the most ambitious part but makes a lot of sense to me -- elaborates in the form of a "thought experiment" on an idea Judge Posner tossed out a few month ago: for a "wide swath of U.S. patent cases" it might be preferable to avoid juries. Obviously the Seventh Amendment right to a jury trial is difficult to challenge, but Professor Cotter talks about a way in which bench trials might be justified in many patent cases under the existing legal framework.

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Google requests more time to respond to Oracle's appeal brief and in-depth amicus curiae briefs

Late on Thursday Google filed a motion with the United States Court of Appeals for the Federal Circuit requesting an extension of almost two months for its answer to Oracle's Android/Java copyright appeal brief. If this motion is granted, which is pretty certain given that Oracle and Google had already agreed on mutual non-opposition to their extension requests back in November, Google's response to Oracle's brief and to the amicus curiae briefs filed in support of Oracle's appeal by industry leaders, creatives and academics including a former U.S. copyright chief will be due on May 23, 2013 instead of March 23, 2013.

It was a given that Google was going to put in this request. It had a procedural deal with Oracle in place, and it has no business reason to favor swift resolution of the appeal. Google is also appealing the parts of the dstrict court's ruling adverse to its positions, but it stands very little to gain at the appeals court, while this is Oracle's chance to bring the Android/Java copyright infringement case (which originally was also, in part, a patent case) back to life. During the district court proceedings Google also consistently advocated delay.

Google presumably elected not to request the negotiated extension from the court prior to seeing Oracle's brief because a deal between the parties is not a substitute for good cause from the court's vantage point. Google's good-cause theory has two main parts. Just like Oracle did in its November motion, Google stresses the complexity of this case and the huge number of documents in the record. Additionally, Google appears to be quite impressed with the depth of Oracle's brief and the breadth and depth of the amicus curiae briefs:

"6. As an additional good cause for the requested extension, Google notes that six amicus briefs have been filed in support of Oracle:

• Brief for Amicus Curiae Ralph Oman Supporting the Position of Plaintiff-Appellant and Urging Reversal (document 46) (6,959 words);

• Brief of Amici Curiae Picture Archive Council of America, Inc. and Graphic Artists Guild in Support of Plaintiff-Appellant Seeking Reversal (document 54) (6,390 words);

• Brief for Amici Curiae Microsoft Corporation, EMC Corporation, and NetApp, Inc. in Support of Appellant (document 55) (4,965 words)

• Brief of Scott McNealy and Brian Sutphin as Amici Curiae in Support of Reversal (document 58) (5,753 words);

• Brief for BSA | The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. (document 59) (6,622 words); and

• The Brief of Amici Curiae Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D. in Support of Appellant (document 62) (4,497 words).

7. These six amicus briefs contain a total of 35,186 words—more than 2.5 times the length of Oracle’s opening brief (which contains 13,998 words). Google's First Brief will be its last opportunity to respond to these additional briefs (except to the extent that they bear on Google's cross-appeal)."

The last part means that the copyrightability and "fair use" issues raised in the amicus curiae briefs can be, in part, relevant to Google's appeal of the district court's finding of liability for the rangeCheck function.

The briefs have not entered the public record yet. Once they are all available, I will discuss their content in more detail. Some of the briefs have meanwhile appeared on the Internet. BSA | The Software Alliance (previously known as the "Business Software Alliance") published its submission on the organization's website. ArsTechnica obtained and published the brief filed by Microsoft, EMC and NetApp as well as the one submitted by the Picture Archive Council of America and the Graphic Artists Alliance.

The Microsoft-EMC-NetApp brief focuses entirely on copyrightability, arguing that interoperability should be addressed at the "fair use" level rather than denying copyrightability to original works as Judge Alsup did. As I explained in my post on Oracle's appeal brief and on previous occasions, copyrightability is a must-win item for Oracle. "Fair use" can be resolved by the Federal Circuit (as Oracle requests) but it could also be addressed at a new trial. I still see reports on the Internet that mistakenly believe the jury sided with Google on this one: the jury simply didn't decide at all. BSA | The Software Alliance supports Oracle on copyrightability and "fair use". The two organizations representing creatives don't address copyrightability (they presumably thought that software-specific issues aren't of sufficient concern to their membership, though I believe that creatives, too, should be interested in ensuring that original combinations of non-copyrightable elements remain copyrightable) but focus entirely on "fair use".

If there's one buzzword that really matters to both the copyrightability and the "fair use" issue, it's interoperability. Microsoft's brief accurately notes that Judge Alsup decided to give Google an interoperability privilege only for "convenience". Interoperability is not a copyrightability issue -- the rulings Judge Alsup cited to this effect did not really make interoperability a criterion in the copyrightability context at a closer look. And to the extent it's a "fair use" question, what Google did was not really about enabling two technology products to work together (interoperate) and communicate: the only objective was to attract Java developers to a competing platform.

BSA | The Software Alliance also addresses what it considers to be errors and misconceptions on Judge Alsup's part with respect to the definition and import of interoperability (these are my words, not the BSA's). The BSA's members clearly have a track record of advocating interoperability: they all build products that are, and must be able to be, used together with other companies' technologies.

Again, I'll elaborate on the substance of the amicus briefs once I've obtained all of them, including the submission made by former U.S. Register of Copyrights (Director of the U.S. Copyright Office or colloquially "copyright czar") Ralph Oman.

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Industry leaders, creatives, academics and former U.S. copyright czar support Oracle's appeal

On February 11, 2013 Oracle filed its opening brief in the appeal of the district court's ruling on the Google Android/Java copyright infringement case. Among other things, its brief clears up certain misconceptions concerning the role software patents and copyright play in the protection of software-related intellectual property. Yesterday (Tuesday, February 19, 2013) was the deadline for amicus curiae briefs in support of Oracle. This morning I found a really impressive list of filings on the Federal Circuit docket for this appeal. The amicus briefs themselves will likely enter the public electronic record today and/or tomorrow, and I'm going to review and discuss them all. In the meantime, let's look at the names of these supporters of copyright protection of original works. The persuasive impact of amicus curiae briefs depends not only on what is said but also by whom it is said.

Technology industry leaders: Sun founder, Microsoft, EMC, NetApp, Business Software Alliance

Sun founder Scott McNealy and former Sun EVP Brian Sutphin tendered a brief. Google is likely going to point to former Sun CEO Jonathan Schwartz' testimony, and maybe Mr. Schwartz, who has an axe to grind with Oracle because of Larry Ellison's dismissive remark about his managerial skills, is going to submit an amicus brief in support of Google. The difference between McNealy and Schwartz is that the former founded this company and made it an industry leader, while the latter's track record is not held in particularly high regard.

There are two kinds of company submissions. On the one hand, the Business Software Alliance (BSA) made a submission. On the other hand, three companies -- Microsoft (represented by a former United States Solicitor General), EMC and NetApp -- filed a joint submission directly.

The BSA's members include (in alphabetical order) Adobe, Apple, Autodesk, Bentley Systems, CA technologies, CNC Software - Mastercam, IBM, Intel, Intuit, McAfee, Microsoft, Minitab, Oracle, Progress Software, PTC, Quest Software, Rosetta Stone, Siemens PLM Software, Symantec, TechSmith and The MathWorks. They collectively represent a high percentage of U.S. investment in software development, which dwarfs whatever Google and its Android hardware partners spend on software-related R&D.

Creatives: Picture Archive Council of America and Graphic Artists Guild

I'm not surprised that creatives are concerned about the wider implications of this case. The Picture Archive Council of America and the Graphic Artists Guild filed a joint brief. Here's some background on the two organizations:

PACA, the Picture Archive Council of America, describes itself on its website as "the trade organization in North America that represents the vital interests of stock archives of every size, from individual photographers to large corporations, who license images for commercial reproduction. Founded in 1951, its membership includes over 100 companies in North America and over 50 international members."

The Graphic Artists Guild's members are "graphic designers, Web designers, digital artists, illustrators, cartoonists, animators, art directors, surface designers, and various combinations of these disciplines" (freelancers as well as staff artists). Wikipedia has an interesting article on the Graphic Artists Guild, its activities and its history.

Former U.S. copyright czar Ralph Oman

The headline of one amicus brief stands out because it not only states support for plaintiff-appellant (Oracle) but also "urg[es] reversal". It was submitted on behalf of Ralph Oman, who served as Register of Copyrights (head of the U.S. Copyright Office) from 1985 to 1994. He's a Washington D.C. thought leader on intellectual property in general and copyright in particular, and has played a key role on the international stage (it's worth noting he stated at leading French university the Sorbonne). According to his profile on the website of George Washington University (where he is a professorial lecturer in intellectual property and patent law), Mr. Oman "helped move the United States into the Berne Convention for the Protection of Literary and Artistic Works, the oldest and most prestigious international copyright treaty, a goal sought by U.S. Registers for 100 years". Wikipedia also mentions that he is "one of three founding directors of the U.S. Committee for the World Intellectual Property Organization".

If the Federal Circuit affirmed Judge Alsup's ruling with respect to copyrightability, or if Google ultimately prevailed on its "fair use" defense, intellectual property and especially copyright would be weakened. It appears that Mr. Oman is profoundly worried.

Academics: Purdue computer security expert Gene Spafford, UC Davis engineering professor Zhi Ding, Utah computer networking and IP professor Lee Hollaar

The three professors who submitted a joint amicus brief all have an engineering background, and one of them is additionally an IP expert.

Professor Eugene ("Gene") Spafford teaches computer science at Purdue University and, according to Wikipedia, "a leading computer security expert". He served on the President's Information Technology Advisory Committee from 2003 to 2005. A key free and open source software security tool named Tripwire was coded by one of his students but supervised by Professor Spafford, who (according to Wikipedia) "was later the chief external technical advisor to the Tripwire company during their first few years". He was involved in a similar supervisory role with COPS (Computer Oracle and Password System), another FOSS project.

Professor Zhi Ding heads BRAT-Lab (Broadband Radio Access Technologies Laboratory) at the University of California (UC) Davis, where he is currently Professor of Electrical and Computer Engineering. He received his first degree in China but also studied in Canada and the United States. According to this profile, "[h]is research contributions cover a broad range of signal processing and communication problems including wireless transceiver optimization, blind channel estimation and equalization, multi-input-multi-output communications, multiuser detection, source separation, adaptive signal processing, parameter estimation, radar target discrimination, multimedia wireless communications, and cross-layer wireless communications".

Professor Lee Hollaar currently teaches computer networking and intellectual property and computer law at the School of Computing (formerly the Department of Computer Science) at the University of Utah in Salt Lake City. So he's a technologist as well as an IP expert. His amicus briefs have previously had quite some impact on IP law in the United States. According to his biography, "he played major roles in adding two words to the vocabulary of intellectual property law:

• 'Inducement' was recognized by the Supreme Court in its unanimous Grokster opinion. The concept of liability for inducement of copyright infringement was revitalized in his paper Sony Revisited: A new look at contributory copyright infringement, and refined in his amicus brief in the case. The paper also led to the introduction of the Induce Act in the 108th Congress.

• 'Foreseeability' as a limit on doctrine of equivalents in patent law is the heart of the Supreme Court's Festo opinion. It was proposed in the amicus brief whose filing he supervised as chair of IEEE-USA's intellectual property committee."

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Federal Circuit grants FRAND supporters more time to file amicus briefs in Apple-Google case

This blog usually doesn't report on scheduling orders that are neither about trial dates nor about ruling dates. But yesterday's Federal Circuit decision on motions brought by Apple and the Business Software Alliance (BSA) is worth an exception, especially since many members of the standards community are among the most loyal readers of this blog.

I reported last month that the information and communications technology industry at large is extremely interested in the FRAND part of the cross-appeal of Judge Posner' Apple v. Motorola Mobility ruling. In a way it's regrettable that Google (through its wholly-owned and micromanaged subsidiary Motorola Mobility) is fighting against the best FRAND ruling to date. But there's an upside to every downside, and if the Federal Circuit upheld the substance of Judge Posner's position on FRAND, the industry would gain a far higher degree of legal certainty than a district court ruling provides. (Judge Posner is a circuit judge but he was sitting on a district court by designation to preside, as a volunteer, over the Apple v. Motorola Mobility case in Chicago.)

Apple's motion proposed a modification of the briefing schedule for amici curiae (third-party stakeholders submitting comments) with respect to the standard-esential patents issues in the case. Apple just filed its opening brief a few days ago, and amicus briefs in support of Apple's position would be due at around this time. But the FRAND issues won't come up in Apple's brief since Apple is appealing only certain non-FRAND parts of Judge Posner's ruling. Google's (Motorola's) brief, however, won't be due before March 20, 2013. And that will be the first pleading in which the FRAND issues get raised at all.

Apple ideally wanted the pro-Posner amici curiae to have until shortly after Apple's reply to Motorola's appeal (due in early May 2013). Google opposed this initiative categorically. More recently the Business Software Alliance (BSA) also brought a motion for an extension of time, but it said that this motion would be moot if Apple's motion was granted.

At first sight it appears that the appeals court has given Apple only a limited part of what it asked for and denied the BSA's motion entirely. At a closer look, however, Apple got roughly 90% of the benefit it was looking for, and the denial of the BSA's motion is a mere formality that means nothing at all. In fact, the BSA now has far more time than the extension it asked for. The appeals court just couldn't deny the BSA's motion as moot because it had not granted Apple's motion in its entirety. If the BSA had worded its motion in a way that would have applied to this scenario (such as declaring that its motion is moot in the event of any scheduling order that grants more time than requested), the motion would simply have been declared moot.

Apple has overwhelmingly prevailed here for the following reasons:

• The most important thing is that the pro-Posner amici curiae will get to see Google's (Motorola's) anti-Posner argument before they have to file. They will presumably prepare their filings, but they can then make adjustments (especially in terms of prioritization) based on what Google (Motorola) submits.

• This is far more important than for the amici to see Apple's filing. Any amici who will support Apple can coordinate their argument with Apple's counsel anyway, but not with Google.

• If one additionally looks at this as an extension of time (more time for Apple to marshal support, which is what Google's opposition brief says Apple is interested in and which is perfectly appropriate, as well as more time for the amici), the extension requested by Apple (early December to early May) would have been a five-month extension, and the extension that has now been granted (until late March) is almost a four-month extension.

The Federal Circuit took its time to rule on Apple's scheduling motion, and in the meantime some amici had already filed their briefs. I will report more on the positions that different industry players take on this important matter. There are also some public interest statements filed with the ITC (in the Samsung v. Apple investigation) that I have yet to blog about.

In connection with patent enforcement, the appeal of the FRAND part of Judge Posner's ruling will be the biggest issue in the Federal Circuit next year. In the wider intellectual property context, the API copyrightability part of the Oracle v. Google appeal will be no less important (it's hard to compare the two cases, but the transcendental improtance of the issues raised is enormous in both cases).

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HP, Nokia and industry associations write to ITC supporting Apple and Microsoft against Google

Google's (Motorola's) pursuit of U.S. import bans against the iPhone, the iPad and the Xbox over standard-essential patents has large parts of the information and communications technology industry concerned. Simultaneously with the Federal Trade Commission's public interest statement asking the ITC to refrain from outright exclusion orders over standard-essential patents (full text available here), industry leaders including Hewlett-Packard and Nokia as well as influential industry organizations including the Business Software Alliance (BSA), the Retail Industry Leaders Association (RILA) and the Association for Competitive Technology (ACT) have submitted letters that advocate strong intellectual property enforcement but argue at the same time that import bans should not be ordered against implementers of standard-essential patents (SEPs).

Here's an overview of the public interest statements that have shown up on the ITC docket thus far:

• Hewlett-Packard:

  HP filed the same statement in connection with the investigation against Apple as well as the one against Microsoft, asking the ITC to "decline to issue an exclusion order in these investigations":

  "While the Commission has viewed enforcing patent rights as important public interest, these investigations involve unique facts that weigh heavily against (and indeed override) the issuance of an exclusion order in these cases. First, as a participant in a standards-setting body, the complainant previously would have pledged to license the standards-essential patents at issue in these investigations to the respondents on 'fair, reasonable, and non-discriminatory' ('FRAND') terms. Permitting the complainant now to use these patents as a weapon to block the importation of respondents’ products into the United States, merely because they implement the standards at issue, would thwart competition, stifle innovation, and result in higher prices for consumers--thereby causing precisely the harms that Congress directed Section 337 should not inflict."

  HP, which is not a party to any of the current smartphone and tablet computer patent disputes between large players, is a major patent holder. Among other things, it holds a number of wireless patents thanks to its acquisition of Palm and its own R&D efforts.

  In addition to the FRAND issue, HP also points to the ecosystems around Apple's iOS products and Microsoft's Xbox that would be affected.

  HP argues that holders of SEPs should sue in federal court instead of excluding devices from the U.S. market.

• Nokia:

  Nokia's letter in support of Apple is remarkable for several reasons. The companies are competitors. Nokia and Apple were suing each other for almost two years until they settled in June 2011, and part of the dispute was that Nokia wanted to be paid for Apple's use of its SEPs on FRAND terms. Unlike Motorola, Nokia asserted only non-standard-essential patents in its ITC complaint. Very recently, Apple and Nokia disagreed on the next SIM card standard (Apple's proposal was adopted by ETSI, after modifications). On that issue, Nokia was actually on Motorola's (and RIM's), not Apple's, side.

  As a long-standing participant in standard-setting processes overseen by ETSI, Nokia is well aware of the FRAND rules relating to the 3G-essential patents Motorola is trying to enforce against Apple at the ITC. Nokia explains the "FRAND bargain" in detail and sums it up as follows:

  "In return [for contributing IP to a FRAND standard], the patent holder is entitled to FRAND compensation, terms, and conditions from those who implement the standard and practice its essential, valid, and enforceable patents. But where a manufacturer is a willing licensee under such essential patents, the patent holder is not entitled to other remedies -- such as an injunction or an exclusion order -- that would bar implementers from the market. This is the FRAND bargain and obligation."

  Nokia warns against the costs that would result from allowing SEP holders to abuse their rights for the purpose of hold-up.

  Last week, Google filed an EU antitrust complaint against Microsoft and Nokia. In its initial reaction, Nokia said that it didn't understand Google's concern since anyone interested in a FRAND license to its SEPs should simply call and sign up, as dozens of companies already have.

• Verizon:

  Verizon also supports Apple, but it is generally against ITC import bans, whether or not FRAND-pledged SEPs are involved. It also supported Samsung against Apple in a federal lawsuit in California.

• Microsoft supports Apple:

  Microsoft filed a letter in support of Apple. Microsoft faces the same kinds of royalty demands and lawsuits from Motorola.

• Business Software Alliance (BSA):

  The BSA filed letters in both investigations (Apple and Microsoft). The organization's members include: Adobe, Apple, Autodesk, AVEVA, AVG, Bentley Systems, CA Technologies, CNC/Mastercam, Cadence, Compuware, Corel, Dell, Intel, Intuit, McAfee, Microsoft, Minitab, Progress Software, PTC, Quark, Quest Software, Rosetta Stone, Siemens PLM, Dassault Systemes SolidWorks, Sybase, Symantec, and The MathWorks.

  While the BSA is known for a clearly pro-intellectual-property stance and notes that its members "hold hundreds of thousands of patents around the world" and "participate widely in standards-setting organizations", it "believes that the public's interest will be best served if an exclusion order is not issued in this investigation or any other investigation resting on similar facts and circumstances" and concludes:

  "When a patentee makes a commitment to license its technology for FRAND terms during a standard setting process if that technology is made part of the standard, the patentee should be held to its promise. Allowing companies to circumvent their promises by using the Commission's sole remedy of an exclusion order would have a detrimental effect on internationally recognized standards systems. The ultimate result of a less robust standards system will be fewer choices for consumers, higher prices, and diminished innovation. Thus, the public's interest will be best served if an exclusion order is not issued in this investigation or any other investigation resting on similar facts and circumstances."

• Retail Industry Leaders Association (RILA):

  RILA's member companies include some of the world's most well-known retail chains ("more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad").

  RILA's letter "urges the Commission to carefully consider how granting owners of standard-essential patents exclusion orders pursuant to section 337 investigations could undermine the process to license such patents on fair, reasonable and non-discriminatory terms and standard setting more generally". RILA declares itself "a strong supporter of enforceable intellectual property rights" and of the possibility of ITC import bans against infringing goods, but "in the case of standard-essential patents in particular, complainants could transform [Section] 337 exclusion orders from shields into swords, and use the process to undermine the balance between compensation for use of the technology and the public interest that the FRAND regime seeks to achieve".

  According to RILA, "[i]t would be antithetical to the public interest, consumer choice and affordability to permit the use of exclusion orders to force companies selling standard-compliant products to license asserted patents on non-FRAND terms (e.g., artificially high royalties) in order to sell those products in the U.S. market".

• Association for Competitive Technology (ACT):

  While ACT has support from large companies including Microsoft, Oracle and eBay, most of its members are small and medium-sized technology creators.

  ACT advocates strong intellectual property rights in order to protect innovative entities against infringers. In this spirit, ACT also submitted a public interest statement contradicting Google's and HTC's public interest arguments against a ban of Android devices over non-standard-essential patents asserted by Apple.

  ACT's letter stresses the organization's concern for "mobile app" companies. ACT notes that technology standards are "critical for independent app developers and the public", and says its "members are deeply concerned about the impact of an exclusion order in a case where a patent is the subject of a commitment to license on 'Reasonable and Non-Discriminatory' terms as part of a standard". ACT's letter concludes with the following statement:

  "We submit that the public interest should preclude any issuance of an exclusion order for a RAND committed patent. The appropriate remedy for infringement of a patent subject to a RAND commitment is RAND royalties collected in district court."

It's possible that additional public interest statements have been filed, or will be filed, in these investigations. I have just reported on all those that have shown up in the public record by the time I published this post. So far, there hasn't been even one third-party public interest statement in support of Motorola's pursuit of injunctive relief. If I ever see one, I will certainly report on it.

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