Letter from AmeriKat: No Supreme Court rescue for Google in Oracle dispute and Microsoft/Kyocera settlement

The AmeriKat giving tribute to Old Glory

Although she has spent the bulk of her life in the UK, the AmeriKat is undeniably American.  Her meows have a distinctive American twang, she is generally positive and she refuses to apologize if someone steps on her tail. But over 15 years later, on the eve of the Fourth of the July, Her Majesty's Government finally gave the AmeriKat permission to indefinitely stay in the UK.  The poetry of the timing was not lost on the AmeriKat as she celebrated her right to remain in the UK, but also her right to return to the US.  Although yesterday's celebrations did not see her watching as delicious aromas of charred vegetables and meat wafted over red, white and blue adorned revelers, the AmeriKat was still thinking about her Founding Fathers and the role intellectual property played with the introduction of the Copyright and Patent Clause in the US Constitution in 1787 and the first US patent being issued to Samuel Hopkins on 31 July 1790 .  Almost 230 years later, the US courts are still hard at work in striking the right balance for IP protection and the encouragement of innovation, but not always without criticism.

You say "potato", I say "potash":
the first US Patent

Last Monday, the US Supreme Court denied Google's writ of certiorari to re-examine the 2014 decision of the Court of Appeals for the Federal Circuit (CAFC) in favor of Oracle which held that application programming interfaces (APIs) in Java were subject to copyright protection.  APIs are protocols that allow third-party software to communicate with an application.  The CAFC's decision overturned that of Judge Alsup's in 2012 who had held that APIs were not protected by copyright law (see previous AmeriKat post here).  In referencing the merger doctrine (an exception to the idea-expression dichotomy whereby the courts "will not protect a copyrighted work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be a monopoly on the underlying idea"), Judge Alsup declared that:

"So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law."

No ordinary Joe in
the eyes of the CAFC

The CAFC overturned this decision last May holding that the merger doctrine did not apply as the evidence showed that Oracle had "unlimited options as to the selection and arrangement of the 7000 lines Google copied" (see Elmeownora's piece here).  Google, in utilizing Oracle's APIs as part of the Android mobile operating system it developed, infringed Oracle's copyright in the Java software.  In their petition, Google urged the Supreme Court to limit the the circumstances in which software makers are able to wield copyright law to restrict the use of basic software commands (an argument not out of kilter in the SEP/FRAND patent landscape). This argument would have been critical to the industry as APIs are widely used across the telecoms sector.  A 2014 Forbes article discussed the increasing strategic importance of APIs in the sector (see article here).

There has been an outcry from many commentators that the Supreme Court's ultimate denial, and the filing by the Department of Justice, was based on the CAFC's fundamental misunderstanding of the difference between APIs and software and will allow Oracle and others to "have an unprecedented and dangerous power over the future of innovation" (see the EFF's amicus brief which was signed on behalf of 77 computer scientists).  The case will now return back to federal court in San Francisco where the court will decide whether Google's use of the software was "fair use".

Microsoft has dropped its patent infringement suit against Kyocera which claimed that three of Kyocera's Android smartphones infringed seven of its patents.  The parties have now entered into a agreement which expands upon a previous licencing arrangement with Kyocera which "enables the companies to use a broader range of each other's technologies in their respective products through a patent cross licence" (see Microsoft press release here).  Kyocera follows Barnes and Noble, Foxconn, Invetec and Samsung in the line of companies that have recently settled with Microsoft.