Days like this are when I really miss Groklaw. I refuse to click on a link to FOSSPatents, and I don't have another reliable source for tech-legal news.
The appeals court argument seems reasonable, if applied in a more typical context of creative end user content. Mickey Mouse is copyrightable because he's not just any old mouse, but rather a specific one.
But as for API's? Although Sun might have had choices, there is no a priori added value derived from the specific choices they did make, other than the fact that they have become standardized, so engineers are used to working with them.
Mickey is Mickey because the specific qualities Disney gave him, in and of itself makes him rather more interesting than some randomly chosen rodent. Which language API's, as even the court (or the article author, I'm unclear) acknowledges, generally are not.
The appeals court looked to a decades-old "abstraction, filtration, comparison" test. In essence, that test requires the judge and jury to play the role of a patent examiner. See slip opinion at pages 23, 40. The expense and uncertainty aren't much fun for either party (or for the judge, jury, and law clerks for that matter). But yippee, say the IP litigators, because cases like this require lots of billable hours.
There's something I can't fathom: Isn't Java supposed to have a Free Software incarnation? How could Google possibly infringe on it's API if it's the case?
I wonder what the implications might be to .NET? There's a large part of it's library that's pretty much lifted straight from Java - both the good and the bad. Flush with success might Oracle go after Microsoft next?
There's an important procedural aspect to this that I haven't seen mentioned yet. This was appealed to the Court of Appeals for the Federal Circuit, not the 9th Circuit which is where copyright cases from the 9th Circuit would normally go.
I believe that it ended up in the CAFC because it was also a patents case, and CAFC handles all patent appeals from the Federal district courts.
This is significant because CAFC sets precedent for all circuits. If there had been no patent case, so that the appeal would have went to the 9th Circuit instead of the CAFC, then it would only set precedent for the 9th Circuit. The Courts of Appeal in the other circuits might decide similar API copyright cases differently, and then there would be a good chance the Supreme Court would take up the issue to resolve the differences between the different circuits.
The Supreme Court can, of course, still take up this issue, but they are much more likely to take a case if there is split among the circuits. Here's the Court's statement on this [1]:
Review on a writ of certiorari is not a matter of
right, but of judicial discretion. A petition for a
writ of certiorari will be granted only for
compelling reasons. The following, although neither
controlling nor fully measuring the Court’s
discretion, indicate the character of the reasons
the Court considers:
(a) a United States court of appeals has entered a
decision in conflict with the decision of another
United States court of appeals on the same important
matter; has decided an important federal question in
a way that conflicts with a decision by a state
court of last resort; or has so far departed from
the accepted and usual course of judicial
proceedings, or sanctioned such a departure by a
lower court, as to call for an exercise of this
Court’s supervisory power;
(b) a state court of last resort has decided an
impor tant federal question in a way that
conflicts with the decision of another state court
of last resort or of a United States court of
appeals;
(c) a state court or a United States court of
appeals has decided an important question of federal
law that has not been, but should be, settled by
this Court, or has decided an important federal
question in a way that conflicts with relevant
decisions of this Court.
A petition for a writ of certiorari is rarely
granted when the asserted error consists of
erroneous factual findings or the misapplication of
a properly stated rule of law.
As we've seen with the recent patent case that reached the Supreme Court, once again because the Federal Court overturned the lower Court's ruling, it seems the Appeals Courts are a lot more inclined to be pro-patents, while the lower Courts (other than the East-Texas ones) and the Supreme Court aren't.
That being said, I hope this forces Google to deprecate Java on Android and start pushing developers to using Go. They should've been working on this since the trial with Oracle started, and not rest on their laurels.
Ugh, but Go is slow compared to Java and it's missing a lot of features.
Why not something like Mono? It's faster than their current Dalvik/ ART VM and it would allow for many more languages to be used natively than just Java or Go.
The last time I looked, Mono was in an even more precarious legal situation than Harmony, but who knows? Since Google is already paying Microsoft, they might just work something out.
Or just reach some licensing agreement with Oracle, which would finally make Android real Java. That would be a big win for the Android community: better performance, better compatibility, more supported languages.
