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Google Files for Permission from FISA Court to Tell Us More ~pj
Tuesday, June 18 2013 @ 10:43 PM EDT

The Washington Post reported today that Google has filed with the US Foreign Intelligence Surveillance Court in Washington a motion for a declaratory judgment that Google has a First Amendment right to publish aggregated statistics on FISA orders it has received. Good for Google. I hope they prevail.

I have done it as text for you from the Washington Post's embedded copy, because I know you are interested in what happens, and I wanted to point out one small correction. Well, it's probably not small to The Guardian.

read more (1785 words) 32 comments  View Printable Version
Most Recent Post: 06/30 02:29AM by Anonymous

Ladies and Gentlemen, SCO v. IBM Is Officially Reopened ~pj
Saturday, June 15 2013 @ 05:46 PM EDT

The Hon. David Nuffer has ruled on the SCO v. IBM motions, granting SCO's motion for reconsideration and reopening the case, which IBM did not object to. Judge Nuffer apologizes to the parties for the error in his previous order refusing to reopen the case. Sounds like a mensch to me. I love it when judges don't pretend something is the lawyers' fault when it's really the judge's fault. He's newly assigned to this case, and it's been going on for over a decade, so he specifically tells the parties not to assume his familiarity, asking them to provide him with enough detail in the various briefs going forward to work with. And he has essentially accepted the IBM suggestions on how to go forward, which SCO did not want to happen. I was fairly confident he would, though, precisely because he's new and he surely needs some time and help from the parties to get up to speed. So it's going to go like this:
1. SCO must file a brief statement identifying the claims it agrees are foreclosed by the SCO v. Novell judgment, the one that found that Novell did not transfer the UNIX copyrights to SCO in 1995. That wiped out all of SCO's claims, IBM asserts; SCO says it has two left.
2. IBM can then object to that list, which I'm sure it will.
3. IBM can then, by July 15, file a new motion for summary judgment on the remaining claims and counterclaims. This is what SCO did *not* want to happen.
4. After that motion is decided, there will be a process and schedule set up for the parties to respond to the court's request that they identify summary judgment motions filed before the current judge was assigned that they still want to be decided, which this judge will then do.
Here's what *won't* happen, what SCO wanted, namely that the old summary judgment motions filed 5 years ago that were stalled all this time by SCO's bankruptcy be ruled on without SCO having to do any more briefing.

Here's what *could* happen: The whole thing could be over after step number 3.

read more (1268 words) 428 comments  View Printable Version
Most Recent Post: 06/26 01:44AM by m_si_M

Naturally Occurring Human Genes Not Patentable - Myriad Loses - Our Genes Belong to Us ~pj Update 3Xs
Thursday, June 13 2013 @ 12:00 PM EDT

Here [PDF] it is! The opinion in Association for Molecular Pathology v. Myriad Genetics, Inc. striking down patents on naturally occurring human genes, even if they've been isolated. It was unanimous! I have done it as text for you. From the opinion:
... Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.
From the Syllabus:
Myriad’s patent descriptions highlight the problem with its claims: They detail the extensive process of discovery, but extensive effort alone is insufficient to satisfy §101’s demands.
No patent on sweat of the brow. You have to actually invent something. Details from SCOTUSblog here:
The Court held that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but manmade cDNA is patent eligible because it is not naturally occurring.
You can find all the earlier filings here and some analysis on what the case was all about by Lyle Denniston here. As you can see from the Petition for a Writ of Certiorari [PDF], this successful challenge was brought by Dan Ravicher and his Public Patent Foundation and the ACLU.

What does it mean? Our genes belong to us. Here's what Dan Ravicher tweeted when he heard the news:

Diagnostic genetic testing is now free from any patent threat, forever, and the poor can now have their genes tested as freely as the rich.
I lost two grandmothers to breast cancer, and I want to say thank you to Dan and ACLU for taking this on for us. I am very grateful. It's not just that we can now afford to have genes tested. We can now get a second opinion instead of having only one option. Can you imagine a patent blocking that, even when it was known that the Myriad test sometimes gave false positives? That would be a patent forbidding coming up with a better mousetrap, you could say.

It would be a great time to donate to PubPat, to show appreciation for all it does. It's community supported, and could there be a better time? There were patent lawyers who mocked them for even bringing the case. Remember?

read more (9515 words) 545 comments  View Printable Version
Most Recent Post: 06/18 05:09PM by Anonymous

Microsoft's Amicus Brief in Support of Apple in Appeal of Posner Ruling - A Change in Tune on Injunctions ~pj
Tuesday, June 11 2013 @ 11:54 PM EDT

Microsoft has now filed an amicus brief in support of Apple in the appeal of Judge Richard Posner's ruling in which the judge tossed out both Apple and Motorola's claims with prejudice, saying neither had proven damages and saying injunctive relief when there was no demonstrable harm would be against the public interest. Interestingly, Microsoft here argues in its brief that the judge didn't rule out injunctive relief for FRAND patents. That's news to me, that Microsoft holds that view. Here's Motorola's appeal brief that Microsoft references repeatedly. In it, Motorola argued that Judge Posner implied a "no-injunctions for FRAND patents" rule, and that it ought not to be followed:
As to the denial of any injunctive relief to Motorola, the district court set forth a seemingly categorical rule against injunctions for infringement of essential patents whose holders commit to SDOs to offer licenses on fair, reasonable and non-discriminatory (“FRAND” or “RAND”) terms. Under this rule, the district court declined to examine Apple’s refusal to accept a license over years of infringing use. That ruling requires this Court’s reversal, because the district court’s automatic rule that injunctions are never available for SEPs is contrary to the Patent Act, which provides injunctions as a statutory remedy; to the equitable principles of eBay; and to Motorola’s FRAND commitments to the SDOs at issue here, which did not waive its rights to injunctive relief. Subject to the terms of the FRAND commitments at issue, the same injunction rules should apply to SEPs as to all other patents, and while the traditional factors reaffirmed in eBay set a high bar, Motorola should be given the chance to surmount it.
No they shouldn't, Microsoft argues. Judge Posner already applied the eBay [PDF] elements. He didn't, Microsoft now claims, say there could never be an injunction for a RAND patent, just that Motorola didn't deserve one in this particular case, so the court shouldn't dig too deeply into the standard-essential patents issues that Judge Posner didn't dig deeply into himself.

The Essential Patent Blog has the filing [PDF]. The article tells us that Microsoft claims it just cares about ensuring that standards are implemented for the benefit of the public:

Last week, the Federal Circuit granted a motion by Microsoft for permission to file an amicus brief in the Apple-Motorola appeal (No. 12-1548, Judge Posner edition). Microsoft then filed its amicus brief, becoming the latest in a long time of companies (see, e.g., here, here, here, and here) to weigh in on the case. Today, the public version of Microsoft’s brief became available. In it, Microsoft supports Apple and Judge Posner, but cautions the Federal Circuit against making an overly broad ruling and deciding issues related to standard-essential patents and RAND licensing obligations that are not present before the court.

Microsoft pulls no punches — it argues at the outset that Motorola’s positions “are wrong as a legal matter and terrible as a policy matter.” That should come as no surprise, given Microsoft’s current litigation disputes with Motorola (as well as ongoing competition with its parent company, Google). But Microsoft claims that its interest in this case goes far beyond its adversarial relationship with Motorola, arguing that as an active participant in many SSOs and implementer of many standards, Microsoft wants to ensure that standards are broadly implemented for the benefit of the public.

Perhaps recognizing that the Federal Circuit could rule in a way that might conflict with various district court rulings on similar standard-essential patent issues (i.e., Judge Robart’s RAND-setting decision), Microsoft seems to want the court to tread lightly here. It asserts first that because Judge Posner generally based his decisions on damages and injunction relief without doing deep dives into issues unique to standard-essential patents, the Federal Circuit could resolve this appeal without making sweeping pronouncements regarding RAND or SEP issues.

Groklaw watched Microsoft closely in the standards battle of OOXML v. ODF, literally day by day with particularity from 2005 to 2013, and I don't think any of us who watched that play out would conclude that Microsoft was seeking the public benefit. So excuse my curled lip.

Rizzolo is very polite, but I'll translate the Microsoft legalese into my own plainer English: Microsoft doesn't want the appeals court to dig too deeply into standards because it loves the no-injunctions-allowed ruling it got in its own backyard from a Seattle judge recently. It would like it to be the last word. It totally doesn't want a higher court to come out with a conflicting ruling, because the higher court ruling would trump a district court. So that's why it is asking the court not to rule on any of that.

read more (9158 words) 221 comments  View Printable Version
Most Recent Post: 06/16 09:12AM by Anonymous

SCO Replies to IBM on Motion for Reconsideration: Skip Briefing. Let's Go to Trial Quickly. We're Running Out of Money ~ pj
Tuesday, June 11 2013 @ 04:43 AM EDT

SCO has filed its reply to IBM's response to SCO's motion asking the judge to reconsider his refusal of SCO's motion to reopen SCO v. IBM.

It will not surprise you that SCO doesn't like IBM's suggestions on how the case should go forward. IBM suggested a couple of rounds of a process, first tossing out whatever both sides agree are mooted claims, due to the Novell victory over SCO, then IBM would bring a summary judgment motion on the rest, and that would require briefing, IBM suggested, because there are new cases decided in the interim that are relevant.

SCO's argument in opposition goes like this, its list of three reasons it thinks IBM's proposal of further briefing and the summary judgement motion is improper -- 1) the parties already briefed the court on the effect of the Novell judgment, so just look it up; 2) if there are new cases, let IBM file a notice of supplemental authorities; and 3) SCO can't afford to wait while all that briefing goes on. Its cash supply is such, it's now or never. It wants a quick ruling on the pending 5-year-old motions, and then it wants a trial on whatever claims survive. Ah. A trial. The perpetual dream that it can get a jury to see it SCO's way. This case is its final asset, SCO whines, so the Court, it argues, "should proceed to adjudicate the pending summary judgment motions without the need for the improper rounds of additional briefing that IBM proposes."

However, judges don't decide matters based on how long one side can hold out. If the judge thinks IBM's proposal makes further briefing the way to go, it will happen. You are supposed to plan appropriately when you initiate litigation.

SCO complains of delay in the case, but the delay was caused entirely by SCO, who filed for bankruptcy and then just floated around on its back a leisurely long while in the pool, as all its money flowed out in rivers to lawyers, accountants, and other "helpers" for years, while it pretended to reorganize, which in the end never happened, as indeed was predictable from the start. Meanwhile, IBM was blocked by law from going forward. Hence the "delay". So the judge's heart strings may not be touched in quite the way SCO hopes by its tale of prejudice if there is a delay.

If one deliberately shoots oneself in the foot, complaining about pain in one's foot may cause onlookers to suggest not shooting oneself in the foot next time.

read more (1902 words) 193 comments  View Printable Version
Most Recent Post: 06/13 08:37PM by Anonymous

EFF and ACLU Request FISA Court Unseal Its Opinions on Legality of Surveillance Conducted Under FISA Amendments, Patriot Act ~p
Monday, June 10 2013 @ 03:12 PM EDT

Because the President has said he welcomes discussion about the recent NSA surveillance revelations, I thought you'd want to know about a motion EFF brought in FISA court, which is being opposed by the government in a rare public document [PDF] -- relevant, EFF says, to the latest news. And there is also an ACLU motion [PDF] as well, requesting "that this Court unseal its opinions evaluating the meaning, scope, and constitutionality of Section 215 of the Patriot Act."

EFF asked the government for a copy of "any written opinion or order" of the FISA court in which the court held that the surveillance conducted under the FISA Amendments Act (2008 version) "was unreasonable under the Fourth Amendment" or had "circumvented the spirit of the law." After some of the usual back and forth in discovery, the government revealed that it had found one such [!], but it refused to provide it on the grounds that it had no authority under FISC rules "to release FISC opinions to a FOIA requester or any other member of the public without a FISC order." So that's why EFF is now approaching the court itself, asking for a ruling that the government is allowed to provide it. The ACLU asked, and was denied, once before for the same relief it now is asking for, but now, after the latest events and the President's encouragement of public debate saying it's healthy for a democracy, it is renewing its request.

The three filings being public give us a window into the secretive court that we would not otherwise have.

read more (6552 words) 55 comments  View Printable Version
Most Recent Post: 06/17 04:55AM by Anonymous

Themes ~pj
Sunday, June 09 2013 @ 01:09 AM EDT

We've got something new at Groklaw. When you arrive at the homepage now, you'll see a new widget in the upper right corner, with a drop-down choice of themes, and it's available to everyone now, members and non-members. The default is Woodlands2, but now you can choose something else if you want to, even if you are not logged in. Just choose from the drop-down list and then click the GO button. You have to have cookies enabled, or the software doesn't know what to do for you. If you don't want to use cookies, just don't and use the default theme forever. It's your choice.

The purpose is two-fold: first, to make it possible for folks on mobiles to arrive and get to the two themes that are best suited for mobiles, the themes titled Mobile and Grokporate. Both should be better suited for small screens and I'm hoping for anyone using screen readers. Feedback welcome.

And second, we have a new one now for tired eyes, especially mine, called Woodnight, with a black background and cream text. We're still working on Grokporate and Woodnight, and Woodnight in particular still has really rough edges, but we wanted to go live so we can incorporate feedback.

135 comments  View Printable Version
Most Recent Post: 06/14 02:23AM by Anonymous

The President's Executive Action Addressing Overbroad Functional Claiming ~pj
Thursday, June 06 2013 @ 08:59 PM EDT

When President Obama announced several moves he's intending to make to address the patent mess trolls have made, the biggest news was that he said out loud that it's a mess, that patent trolls are damaging the US economy. I've been reading what others have written about the announcement, and reactions have varied. Those who adore patents are calling for their smelling salts. The head of Intellectual Ventures, I read the other day, wonders why people don't realize patent trolls like IV contribute to the economy. He didn't say the word trolls, but now that the President has, I guess we are all free to do so too. And some cynics say the Congress won't do anything anyhow.

That part is likely true, unless a lot of folks contact their representative and raise the roof. But I thought I'd explain why it doesn't matter, even if Congress proves the cynics right. Because one executive action on the list has the capability to make a real difference, and it doesn't require Congressional approval or action at all. That's the beauty of executive actions.

The President has absorbed and accepted Professor Mark Lemley's suggestion that the USPTO look at functional claims more closely and make sure patent applications are for something specific, not claiming broad functions instead of specific implementations.

You can't build a better mousetrap if someone has already gotten a patent on "trapping mice", regardless of how or what device is used.

read more (3373 words) 457 comments  View Printable Version
Most Recent Post: 06/13 09:42PM by BitOBear

App Developers File Amicus Brief in Support of Google ~pj
Tuesday, June 04 2013 @ 11:45 PM EDT

Here is the final amicus brief [PDF] in support of Google in the appeal at the Federal Circuit of Oracle v. Google, the API case. This one is from app developers, specifically the Application Developers Alliance, with Rackspace, TMSOFT, and Stack Exchange, and I've done it in text for you. They tell the court that Oracle is trying for something new in copyright law, contrary to the expectations of the industry:
Software is a mix of both functional and expressive components. For the past forty years, the common understanding in the industry has been that the “declaring code”—the code used to define interfaces and APIs—is functional and not copyrightable. In contrast, the “implementing code”—the code needed to provide the underlying functionality—is expressive and protected by copyright. Oracle’s position, that the declaring code used to define an API is protectable under copyright, is contrary to the current and historical practice and expectations in the software industry and would have a devastating impact on the software business as a whole. Thousands of businesses, developers, and even end users would be faced with legal uncertainty if declaring code were afforded copyright protections....

What’s more, similar attempts at aggregating control over APIs have been recognized by developers, the United States, and the European Union as dangerous to the app developer and cloud-computing industries. Copyright protection for declaring code would act as a tax on software development, leaving the public with lower-quality, less innovative software products....

Understanding the extent to which the software industry depends on the free exchange and use of API declaring code is necessary to comprehend the chilling effect that Oracle’s position would have on software innovation and development.

So they explain APIs and how they work in the industry -- and have worked for 40 years or so. APIs, they say, are the building blocks of software, like Lego® bricks. They can be all kinds, colors and shapes, but one thing they all have, and have to have to be able to put them together, are the bumps and holes that make them fit together, and those bumps and holes only work if they are all the same size. Software is like that too. They need a standard interface so they can fit together.

And your smartphone or other device communicates with the cloud entirely through APIs. APIs are that vital now. Developers have always felt legally free to use APIs, as long as the implementing code was their own. "For example," the brief states, "even Microsoft has re-implemented the UNIX APIs in the 'Interix' subsystem included with its server products." It did the same with WordPerfect, back when WordPerfect was more popular than Microsoft Word. Of course, Linux used UNIX APIs also, as did many other projects. And the Wine project has been re-implementing Microsoft's Windows APIs since 1993, the brief tells the court. This is an accepted business practice. Oracle is trying to extend the reach of copyright law.

This is the only amicus brief attempting to explain the Open Source viewpoint to the court, to help it understand exactly why it matters so much that APIs be available for the cloud. And it lets the court know that Open Source does not need copyright protection for APIs:

Rackspace’s involvement in both the open source and cloud computing markets lends the Court a unique perspective on the copyright issues raised in this appeal. Open source development is a driving force behind software innovation and fosters the creation of peer-reviewed, higher-quality code. The open source community is a perfect example of why copyright protection for APIs is unnecessary for continued innovation and why the monopoly Oracle seeks would in fact hamper that innovation. Further, the cloud computing market depends heavily on the use of APIs because all cloud functionality is delivered to the end user via APIs.
Of course, that may just be why Oracle -- along with Microsoft, EMC, and NetApp, who filed amicus briefs in support of Oracle -- wants to make them proprietary.

read more (8757 words) 287 comments  View Printable Version
Most Recent Post: 06/09 09:35AM by myNym

BREAKING: Why the Obama Administration’s Actions Against Patent Trolls Should Make a Difference ~ Matt Levy
Tuesday, June 04 2013 @ 01:26 PM EDT

Why the Obama Administration’s Actions Against Patent Trolls Should Make a Difference
by Matt Levy (Cross-Posted on and on DisCo.)

This is a very big day: the Obama Administration has just entered the fray to help deal with patent trolls, and it’s taking steps that have the potential to be a major part of the solution to the patent troll problem.

The early press reports on the Administration’s efforts have missed the real story: the President and the Administration are publicly recognizing that the problem with patent trolls stems from the problems with software patents. You cannot deal with patent trolls without dealing with software patents.

The President’s Executive action to tighten functional claiming does exactly that. It recognizes that in order to stop issuing bad and overbroad patents that wind up in the hands of patent trolls, we need to specifically address software patent applications.

read more (953 words) 258 comments  View Printable Version
Most Recent Post: 06/10 07:43AM by ukjaybrat

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