Here’s the latest.

Supreme Court Hears Copyright Battle Between Google and Oracle

Reported by Adam Liptak from the New York Times

Described by many as “the copyright case of the decade,” Google LLC v. Oracle America, Inc. was presented before the Supreme Court on Wednesday. The issue in the case concerns whether Google’s use of Java in its Android operating system, without permission from Oracle, amounts to copyright infringement. Oracle acquired Java in 2010 after it bought Sun Microsystems, the original developer of the programming language. In 2016, a jury found that Google made “fair use” of the software code. The Federal Circuit disagreed. Earlier this week, the Supreme Court justices heard arguments from both sides by telephone. Adam Liptak notes that several justices expressed their concern that all computer code would be at risk of losing protection, while others focused on the effect this case would have on the tech industry if the Supreme Court were to side with Oracle. Liptak details the series of analogies used by the justices to understand this case, which combines computer programming language and copyright law.

Chief Justice Roberts used a different analogy in questioning E. Joshua Rosenkranz, a lawyer for Oracle. Could a restaurant, the chief justice asked, copyright the structure of a menu that separated appetizers, entrees and desserts?

Mr. Rosenkranz responded that “if it’s a standard way of doing things, it is not protected.” The Java code, he added, was entirely different.

For more on this case, see our coverage.

Fed. Circ. Orders Redo In ‘Extremely Frustrating’ Patent Case

Reported by Dani Kass on Law360

On Wednesday, a three-judge panel refused to decide a claim construction fight until co-owners of an antenna patent work out fundamental issues, which would determine if the suit is permitted in the first place. The patent in this case involves portable antenna positioners. Part of what makes this case “extremely frustrating” is the confusing party structure. According to Dani Kass, the infringement case cannot move forward if the patent’s co-owner “doesn’t join as a plaintiff, and if the patent was properly licensed by that co-owner.” However, the patent co-owner is currently a defendant in this case and a parent company of another defendant.

“This exercise has been an extremely frustrating one for the court. We suspect the district court will feel the same way,” the panel said. “But just as bad facts can make bad law, misdirected lawyering can do the same. We refuse to take the parties’ invitation to rule on these issues in the first instance and on an incomplete record.”

The Federal Circuit said the lower court is in the best position to resolve these issues. The panel stated that it needs underlying factual findings from the district court as a threshold matter.

If the patent claim doesn’t stand up after this redo, then the rest of the case belongs in state court, the Federal Circuit added.

Rently Makes Section 101 Bid to High Court

Reported by Eileen McDermott on IP Watchdog

The invention at issue is a secure automated entry system that involves a coordination of codes, software, and lockboxes. The district court found that the patent claims were directed at an abstract idea and were therefore patent-ineligible. The Federal Circuit issued a Rule 36 judgment affirming the decision of the district court. Rently, a small property management company, has now filed a petition with the Supreme Court.

In its Supreme Court petition, Rently further argues that, while Alice v. CLS Bank “provided a welcome clarification to the law of Section 101” and overall “has been effective in stemming the flood of patents directed to nothing more than age-old ideas applied on a computer,” the unfortunate way in which it has been misapplied by lower courts has led to the invalidation of patents on “real innovation”, hurting small inventors and startups the most.

Eileen McDermott illustrates Rently’s attempt to distinguish itself from other Section 101 petitioners who have been denied cert. According to McDermott, Rently’s petition attacks the Federal Circuit’s approach to addressing issues of preemption. The petition further discusses the effect on small businesses.  

The petition concludes: “When the patent system fails and legitimate rights are revoked, it fails the small businesses that need the system the most, to the benefit of large corporations.”