Novell requests a copy of the oral argument recording so that it may be transcribed and referenced during the future course of Novell's dispute with Appellee Microsoft Corp.

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.

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 *could* happen: The whole thing could be over after step number 3.

... 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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

Why the Obama Administration's Actions Against Patent Trolls Should Make a Difference
by Matt Levy (Cross-Posted on PatentProgress.org 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.

It's a more sophisticated level of argument than some of the others. Oracle, the brief says, is asking to overturn longstanding principles concerning the scope of copyright protection for computer programs, posing serious anticompetitive concerns for the tech industry. Oracle could, if successful, control who can interoperate with its products, leading to a broad monopoly. "The United States and over 40 other countries have recognized that permitting copyright law to impede interoperability would harm legitimate competition in the computer industry and impair the growth of the Internet economy." Amen to that.

"Free trade agreements mandate protections for interoperability," CCIA uniquely points out. "In addition to the reverse engineering exceptions adopted pursuant to the FTAs, legislation favoring interoperability has been adopted in over 40 countries, including many major U.S. trading partners," including the EU, the Pacific Rim, Canada, India, Israel, Kenya, and many others. Trading partners rely on a type of interoperability too, only in the law, not in computer code. If the US makes a sudden 180 turn in its view of copyright protections on interoperability, what happens to that trading partnership? To those free trade agreements? "CCIA, its members, and several litigants and amici here played a major role in creating this global legal environment that fosters interoperability and innovation. This case should not provide a basis for relitigating or legislating against more than two decades of established international law and jurisprudence," the brief concludes.

And the CCIA brief responds to some of the amici supporting Oracle, including Eugene Spafford [PDF] and the the BSA [PDF]. I'd like to do the same, and I'll show you a connection I see between Oracle and SCO Group's theories of copyright, and why I think they are pretty much the same and equally toxic.

This brief, on behalf of 39 intellectual property professors, and written and signed by Pamela Samuelson, outlines three legal errors they all believe Oracle is making:

• that Oracle takes an unduly narrow view of 17 U.S.C. § 102(b)

• it takes an overbroad view of the copyrightability of the structure, sequense and organization, or SSO, of computer programs -- so did SCO, I can't help but add, also represented by David Boies, and SCO's larks were partly funded by Microsoft, who is supporting Oracle, and

• it misunderstands the merger doctrine as it applies to interoperability.

Here's where you can find the "Brief of Amici Curiae Intellectual Property Professors in Support of Defendant-Cross Appellant and Affirmance." That's the title of the brief, and it is available on SSRN.

Oracle has struck an ominous chord with its claims, and the alarm they and other amici are expressing is sincere and deep. And what they are saying in chorus is: Oracle is wrong about the law on APIs. In fact, one case Oracle hangs its hat on, Apple Computer, Inc. v. Franklin Computer Corp., isn't binding precedent for Oracle, the brief highlights. It's a Third Circuit case (it was also merely dicta and the facts were distinguishable), and Oracle's case is in the Ninth. The court of appeals is supposed to give deference to the Ninth Circuit precedent. And dicta isn't precedential anyway. The cases that are more binding are cases Oracle ignores, like Computer Associates Int'l, Inc. v. Altai, Inc. and Sega Enterprises, Ltd. v. Accolade, Inc., and under their teaching, "the Java APIs should be deemed unprotectable by copyright law" because the district court found that these Java APIs were necessary to achieve interoperability.

Further, the brief cites Sony Computer Entertainment, Inc. v. Connectix, Inc. , where Connectix emulated the Sony functionality of the Playstation, but the court ruled that the Sony interface procedures were unprotected elements, even though the Connectix software "aimed to be a substitute for the plaintiff's product" and was not fully compatible with the Playstation games. That should put a sock in Oracle's mouth about compatibility, methinks. It keeps saying that Java and Android are not fullly compatible. The answer to that from these IP law professors is, the Ninth Circuit already handled a case like that, and it didn't alter the unprotectability of the interfaces.

They ask the appeals court to affirm Judge William Alsup's decision:

Oracle has invited this Court to ignore or radically reinterpret more than two decades of copyright jurisprudence concerning the application of copyright law to elements of computer programs that are essential to achieving interoperability among programs. This Court should decline this invitation.

Some days $30 million seems like a lot of money, and other days it's just a bit of a letdown. Vringo is a once-upon-a-time ringtone company that's now basically a holding company for search patents dating back to the Lycos days, and it used those patents to sue Google. In November, a federal jury found that the patents were infringed, but Google should pay just $30 million, far less than the nearly $700 million it was seeking.

Investors had big dreams for Vringo, but that too-small payday, combined with an assurance of a lengthy appeal by Google, has left the stock price disappointingly stagnant.

In January Vringo unveiled its wholly predictable backup plan-sue the one other viable search engine, Microsoft's Bing. Now that case has settled for $1 million, plus five percent of whatever Google ultimately pays, according to a Vringo regulatory filing yesterday...

The five percent addendum is an interesting twist to this early settlement. One has to wonder if Microsoft really fought very hard. The company has effectively paid $1 million for an "option" to see its chief competitor hurt 20 times as bad as it is.

The settlement also provides for Microsoft to transfer six patents to I/P engine, the patent-holding subsidiary of Vringo. "The assigned patents relate to telecommunications, data management, and other technology areas," stated Vringo in its filing.

Why? Because it would represent a change in the way copyright has worked since at least 1879, when Baker v. Selden was decided. "The scope of copyright protection for computer programs has always been carefully and purposefully limited," the brief notes. Remember Lotus v. Borland where the court found that a menu command hierarchy was an uncopyrightable method of operation "because it was essential to making use of the program's functional capabilities"? "The Java API elements at issue here are comparable to the menu hierarchy in Lotus: uncopyrightable because they constitute the method of operation through which a user's program accesses, controls, and makes use of the functional capabilities of the Java API," they tell the court. So why is Oracle trying to upset this careful balance?

Jennifer Urban, with the Samuelson Law, Technology and Public Policy Clinic at the U.C. Berkeley School of Law is representing this group, and here's their amicus brief [PDF] in support of Google. They tell the court why they care about this case and how they hope to be helpful to the court:

Amici are software innovators, start-ups, and investors. The signatories on this brief include innovators, and founders of software and Internet companies that actively innovate in and compete across a wide array of markets. Signatories also include investors who invest in, and are expert in assessing the risks of investing in, companies that rely on APIs and other interoperability tools. Amici have broad first-hand experience in the role of interoperability-and the balanced and stable copyright rules on which it depends-in driving innovation in the technology sector. A full list of amici with individual descriptions can be found at http://www.law.berkeley.edu/amici.htm.

Amici's shared interest in this case is in preserving the deliberate balance Congress and the courts have established for software copyright, including longstanding limits on copyrightability that enable innovation by fostering interoperability and competition. Amici join to explain the importance to innovation and investment in innovation of upholding the District Court's careful application of these limitations to the Java API elements at issue in this case.