Google preparing to appeal Oracle's copyright win to Supreme Court, Oct. 6 deadline for petition

Last month Google decided not to seek an en banc (full-court review) of Oracle's appellate victory in the high-profile Android-Java copyright case (initial reaction to ruling, follow-up, and detailed refresher Q&A), resulting in a formal mandate to the district court. At the time I wrote it was "still not certain that proceedings [would] resume in district court in the very short term," given that "Google [could] file[] a petition for writ of certiorari with the Supreme Court of the United States." And that's what's apparently going to happen now (as always, absent a settlement).

On July 9, Google submitted to the Chief Justice of the United States an application to extend the time to file a petition for a writ of certiorari from August 7, 2014 (i.e., three months after the Federal Circuit opinion) to October 6, 2014. The Chief Justice granted the application the following day (July 10).

I have explained before (see the links further above) why I think the Federal Circuit got the copyrightability decision absolutely right. But Google and a number of Google-aligned individuals and organizations apparently can't accept the Federal Circuit decision as the last word. Whether the Supreme Court will ultimately hear the case is another question. A high-profile case it definitely is, and an important issue -- but the Federal Circuit, unlike the district judge, correctly interpreted the law (including the Ninth Circuit opinions in the Sega and Sony fair-use cases), and from a policy point of view, this outcome is in the interest of honest software developers seeking a reasonable degree of intellectual property protection for the most creative parts of their creations. Copyrightability is neither the only level at which interoperability can be ensured nor the best option because denying copyrightability to highly-creative, original, declaring API code would do way too much damage to software copyright. The best decision the Supreme Court will be able to make after Google files its petition is to deny certiorari in order for the case to resume in district court at the earliest opportunity.

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Apple drops cross-appeal, forever accepts denial of injunction in first Samsung case

While a global, comprehensive settlement of the patent spat between Apple and Samsung has not materialized yet, the dispute continues to lose steam every month, and noticeably so. Not only has no new complaint between these parties been filed in about two years (unless something was filed somewhere in the world without being reported in the media) but the parties' litigation fatigue is increasingly visible at the appeals courts. Last month they agreed to drop each other's appeals of the final ITC ruling on Apple's complaint. Today Apple filed a motion with the United States Court of Appeals for the Federal Circuit to drop a cross-appeal in its first California case against Samsung. The deadline for Apple's opening brief would have been today.

The cross-appeal Apple has now dropped (which Samsung was fine with) had been filed in March. While the 2012 California jury trial had gone extremely well for Apple (in front of a jury that thought looking at prior art references was just a waste of time), Judge Koh had just denied Apple a permanent injunction against Samsung -- for a second time -- over the multi-touch software patents it asserted in the 2012 trial (where other intellectual property rights were also at issue). Apple had filed a renewed motion after a partly-successful, but ultimately insufficiently-successful, appeal to the Federal Circuit. It could now have tried to convince the Federal Circuit that Judge Koh applied a standard that was too high, but apparently Apple has decided to focus on its pursuit of a permanent injunction in the second California case, in which a trial was held a few months ago (and a hearing on the parties' post-trial motions, including Apple's motion for permanent injunction, took place a few weeks ago, with a ruling most likely coming down this summer).

Apple's withdrawal of its cross-appeal changes nothing about Samsung's own efforts to get the 2012 jury verdict overturned in whole or in large parts. Those efforts continue regardless.

Here's the text of Apple's motion:

Pursuant to Federal Rule of Appellate Procedure 42(b), Plaintiff-Cross Appellant Apple Inc. ("Apple") moves to voluntarily dismiss its cross-appeal, No. 2014-1368.

Apple further moves to reform the official caption of the remaining appeal (No. 2014-1335) to reflect the dismissal of Apple's cross-appeal.

Counsel for Apple has conferred with counsel for Samsung Electronics Corporation, Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (collectively, "Samsung") regarding the substance of this motion. Samsung does not oppose the relief requested in this motion and will not file a response.

Apple accordingly requests that the Court grant its motion and dismiss its cross-appeal and reform the official caption to reflect the dismissal. A proposed order is attached.

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U.S. patent examiner stands by rejection of Apple's pinch-to-zoom API patent claims

A hearing was held last week on the parties' post-judgment motions in their second California case. There wasn't any new information in the reports I read (the fact that Apple's injunction request is feature-centric is old news), so the next step there will probably be Judge Koh's ruling on those motions. While I don't know what Judge Koh indicated at the hearing, the validity of certain patents asserted by Apple continues to be a key issue (even the key issue, at least on the liability side) -- not only in the post-trial proceedings in the second case but also in the first one (on appeal).

On Tuesday, Samsung filed a notice with the United States District Court for the Northern District of California regarding recent developments in Apple's PTAB (Patent Trial and Appeals Board) appeal of an examiner's rejection (on reexamination) of the '915 pinch-to-zoom API patent, particularly its claim 8, which a Silicon Valley jury found Samsung in 2012 to have infringed and deemed valid (at least one juror later told reporters the jury didn't even look at the prior art after evaluating the first one of a dozen patents-in-suit).

The relevant rejection was communicated on a "final" basis about a year ago. Apple kept on trying to salvage the patent, but the examiner didn't change his stance. In December 2013, Apple's only remaining option was to appeal (within the USPTO, for the time being) this rejection. Meanwhile, Judge Koh has handed down an appealable final judgment in that first California Apple v. Samsung case, the parties appealed, and Samsung has already filed its opening brief with the Federal Circuit (the part concerning design patent damages -- the bulk of the billion-dollar verdict, or "$929 million verdict" after a limited damages retrial, to be precise -- has significant support in the U.S. legal community). If the Federal Circuit also held claim 8 of the '915 patent invalid, that fact alone would require a third trial in the first Apple-Samsung case (and unlike in the second one, the majority of all products would be at issue in that event).

Samsung's notice is nonjudgmental. It merely informs the court of three filings: Apple filed its appellate brief with the PTAB in February; the examiner handling the reexamination filed an answer in May; and about two weeks ago Apple filed a reply brief. The examiner could have withdrawn rejections or brought up new grounds of rejection, but elected to do neither. He stands by last year's decision (based on which the claim-in-suit is anticipated by one prior art reference and -- though one ground would be enough to render it invalid -- additionally obvious over the combination of two other prior art references) and defends it against Apple's allegations that his reasoning is flawed. The next step is going to be a PTAB hearing.

All three filings with the PTAB are attached to Samsung's notice (just in case you're interested in the details):

14-07-15 Samsung Notice Re. Developments in Apple's '915 PTAB Appeal by Florian Mueller

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Samsung argues two Apple patents-in-suit are invalid in light of Alice v. CLS Bank decision

Two weeks after the Supreme Court of the United States handed down its opinion in Alice v. CLS Bank, Samsung has just filed a motion with the United States District Court for the Northern District of California, requesting permission to file a supplemental brief that argues two of the patents on which Apple prevailed at the recent California trial are invalid because they don't constitute technological innovation and merely represent generic computer implementations of abstract ideas. The patents Samsung is challenging on abstract subject-matter grounds are the '959 "unified search" patent and the '721 slide-to-unlock patent. Samsung has attached to its motion a copy of the brief it wishes to file (this post continues below the document):

14-07-03 Samsung's Proposed Supplemental Brief Re. Alice Opinion by Florian Mueller

Considering that the same district court allowed Apple to leverage a couple of recent Supreme Court opinions concerning fee-shifting in connection with its pursuit of a recovery of attorneys' fees from Samsung, it would seem just fair for Samsung to be allowed to make an Alice argument now, just in time before Judge Lucy Koh will decide on the parties' motions for judgment as a matter of law (JMOL) following the recent $119 million jury verdict (which was disappointing enough for Apple to request a retrial).

Samsung notes that the United States Patent and Trademark Office (USPTO) deemed the Alice decision important enough to provide related instructions to its examiners. That USPTO document does show that the Alice decision was important, but it also states that Alice "neither creates a per se excluded category of subject matter, such as software or business methods, nor imposes any special requirements for [patent-]eligibility of software or business methods." In my opinion the problem for patent holders is not in what the Alice decision says. It's in the fact that the Supreme Court has recently issued a number of decisions that weaken patent rights and run counter to the Federal Circuit's approach. It will take time before it's clear how much will really change. Samsung is not the first litigant to point to Alice, and countless others will do so in the years ahead.

I have formed a first and preliminary opinion on the merits of Samsung's abstract subject-matter arguments:

• I tend to agree with Samsung as far as the '959 "unified search" patent is concerned. As Samsung notes, that patent "describes using 'heuristics' – something Apple considers simply 'good ideas' – to locate information in multiple locations". It would indeed be hard to reconcile with the spirit and the letter of the Supreme Court's Alice decision to let Apple monopolize "the abstract concept of 'some rule of thumb,' or the use of 'good ideas' or 'rules of thumb' to find information."

• I doubt that Alice is an appropriate basis -- and it's certainly not the best basis -- for striking down the slide-to-unlock patent. Samsung argues that "moving a lock into an unlocked position" is an "abstract concept" and a "basic 'method of organizing human activity'" that is not patent-eligible in this post-Alice world. I don't think so. Unlocking a device is a reasonably technical activity to me.

  That said, the slide-to-unlock patent should be invalidated, but on the grounds of anticipation (non-novelty) or obviousness. After ten European judges determined that Apple did not deserve a patent on slide-to-unlock in light of the prior art, Judge Koh would be the first judge in the world to find this thing patentworthy if she denied the related part of Samsung's JMOL motion. Such a decision would not reflect favorably on the quality standards of the U.S. patent system.

[Update on July 4, 2014] Judge Koh has just asked Apple to respond to Samsung's motion on July 17 (with a limit of 10 pages) and given Samsung five pages for its reply brief, which will be due on July 24. For now, Judge Koh does not see a need for a hearing on this matter. [/Update]

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