Posts Tagged: "Google"

Computer Programs are Different, Says SCOTUS in Landmark Ruling that Google’s Use of Oracle’s API Packages Was Fair

The U.S. Supreme Court this morning found Google’s use of Oracle’s Java application programming interface (“API packages”) a fair use as a matter of law, with Justices Thomas and Alito dissenting. The decision reverses a 2018 Federal Circuit ruling in favor of Oracle. Google appealed that decision to the Supreme Court in January 2019, and three attorneys made arguments to the High Court in October 2020: Thomas Goldstein of Goldstein & Russell argued for Google; Joshua Rosenkranz of Orrick argued for Oracle; and Deputy Solicitor General Malcolm Stuart argued on behalf of the U.S. Government. Although the justices’ questioning at that hearing seemed skeptical of Google’s arguments, it also revealed that the Court wanted to avoid upending industry practices in computer programming.

Concerns Surface Over Big Tech Ties of Biden’s Pick to Head DOJ Antitrust Division

Yesterday, Rep. Beth Van Duyne (R-TX-24) sent a letter to President Joe Biden explaining her concerns over recent reports that the leading candidate for the top antitrust post at the Department of Justice (DOJ) is likely to go to long time Democrat antitrust official Renata Hesse, who served in the DOJ Antitrust Division during the Obama Administration as a Deputy Assistant Attorney General and as Acting Assistant Attorney General. Hesse, who has gone in and out of government, has represented both Google and Amazon, companies that are facing antitrust scrutiny from the DOJ, European Union and dozens of state Attorneys General.

Pardon Me? Levandowski Case Highlights Need for Proactive Approach to Avoid Trade Secret Problems in Hiring

My head was turned by the recent news of President Trump’s final-day pardon of Anthony Levandowski, the former head of Google’s self-driving car unit who was recruited into Uber with full knowledge that he had downloaded 14,000 confidential files on his way out, and who was later convicted of trade secret theft. I was struck by the White House statement of justification. It said that Levandowski – who hadn’t yet served a day of his 18-month sentence – “has paid a significant price for his actions.” I have no doubt that Levandowski has “paid a significant price” for his misdeeds, but it caused me to think about the price paid by others who were involved in this fiasco of a hiring, most specifically Uber. Salacious stories like this one serve as a reminder of all the things that can go wrong when we hire someone from the competition. Especially when we stop thinking about risk and see only upside. So, let’s talk about that risk and what you can do to keep yourself out of trouble – and never, ever need a presidential pardon.

Federal Circuit Holds Google Forfeited Claim Construction Arguments Not Presented to PTAB

On November 13, the Federal Circuit affirmed a decision of the Board in In re: Google Technology Holdings LLC. In particular, the CAFC upheld a decision of the Board affirming a patent examiner’s final rejection and holding that Google forfeited the arguments put forth on appeal. Google’s U.S. Patent Application No. 15/179,765 was directed to “distributed caching for video-on-demand systems, and in particular to a method and apparatus for transferring content within such video- on-demand systems.” During prosecution, the examiner finally rejected the claims of the ‘795 application as being obvious under Section 103.

District Court Finds Google Patent Ineligible Under Alice

On November 2, the United States District Court for the Northern District of California, in Google LLC v. Sonos, Inc., issued an order granting Sonos’s motion to dismiss a cause of action for infringement of Google’s U.S. Patent No. 8,583,489 (the ‘489 patent). The court found that the ‘489 patent was patent ineligible as being directed to an abstract idea. Google filed a patent infringement suit against Sonos alleging that Sonos infringed five of Google’s patents, including the ‘489 patent, which is directed to systems and methods for bookmarking media content for future availability. Sonos moved to dismiss the cause of action with respect to the ‘489 patent on the ground that it was directed to ineligible subject matter under 35 U.S.C. § 101 as an abstract idea. The ‘489 patent relates to a method of “determining if media content is available from different content sources” and “notifying a user when the availability of the media content changes.”

DOJ Takes Key Step Toward Breaking Up Big Tech with Antitrust Complaint Against Google

The U.S. Department of Justice and Attorneys General from 11 U.S. states filed a complaint on Tuesday in the United States District Court for the District of Columbia against Google, alleging the company is “unlawfully maintaining monopolies in the markets for general search services, search advertising, and general search text advertising in the United States through anticompetitive and exclusionary practices.” The complaint maintains that Google has for years entered into exclusionary agreements and used anticompetitive practices to “lock up distribution channels and block rivals,” and comes after more than a year of investigation.

Justices Look for Reassurance That the Sky Won’t Fall When They Rule in Google v. Oracle

Google and Oracle each got to have their say in U.S. Supreme Court today, when eight justices heard oral argument in the closely-watched battle between the two tech giants. The questioning revealed some strong skepticism of Google’s arguments, but also potent fear that a ruling for either side might upend industry practices in computer programming. Both sides claim that a ruling for the other will harm innovation.  The High Court agreed to hear Google’s petition for a writ of certiorari last year. The Court is considering the questions: 1) Whether copyright protection extends to a software interface; and 2) Whether Google’s use of a software interface in the context of creating a new computer program constitutes fair use.

Google’s Fair Use Shell Game

Google has admitted it copied over 11,000 lines of Oracle’s creative Java code to build its Android smartphone platform, that it makes commercial use of the code it copied, and that it uses the code for the same purpose as Oracle and those who license its products. Now, Google wants the Supreme Court to hold that this is fair use under American copyright law. Stripping away the diversions that Google and its amici offer the Court, these are the core facts which show how extreme Google’s invocation of fair use in this case truly is…. As the October 7 oral argument date nears in Google v. Oracle, I’d like to build on the fair use discussion by Washington, D.C. attorney Terry Campo published in August to further analyze Google’s claims of fair use to excuse its copying. The company’s claims aren’t just insufficient, they’re undermined by Google’s own arguments.

Google: An Oracle of Wisdom in its Fascinating Submission to the European Commission

On June 2, the European Commission launched a far-reaching consultation as part of its examination of a forthcoming Digital Services Act (DSA), aimed at identifying areas where new rules at the European level might advance the interests of European societies. Part of that examination was specifically aimed at considering the application of ex ante regulation of dominant platforms. To this end, the impact assessment will examine different policy options for the effective ex ante regulatory framework that ensures that online platform ecosystems controlled by large online platforms that benefit from significant network effects remain fair and contestable, in particular in situations where such platforms may act as gatekeepers. I do not intend to address the framing of the consultation here, nor to discuss the potential relative merits and/or drawbacks of ex ante regulations in this area. Perhaps another day. For the moment, I just want to focus on Google’s fascinating response to this request for comments.

Google v. Oracle Perspective: Google’s Android ‘Cheat Code’ was to Copy Oracle’s Code

In two months, the Supreme Court will hear the oral argument in the long-running Google v. Oracle software copyright case. At issue is the availability of copyright protection for computer programs and in particular the copyright protection of code in Oracle’s Java platform, which Google admits it copied for its Android operating system without obtaining a license. Google also claims its commercial use of that code in competition with Oracle is protected under copyright law’s fair use doctrine, but that is a subject for another day. If adopted by the Supreme Court, Google’s arguments would undermine the Constitutional purposes and specific Congressional intent in enacting the Copyright Act, and along with them the fundamental incentives for new creative expression in software, a building block of so many consumer and industrial products. To better understand how, it helps to start at the beginning: Apple’s groundbreaking release of the iPhone.

Are Machines ‘Agents’ for Purposes of the Patent Venue Statute? (Part II)

Part I of this article provided an overview of the Federal Circuit’s understanding of the patent venue statute after the Supreme Court’s decision in TC Heartland, and especially the meaning of In re: Google LLC, 949 F.3 1338 (Fed. Cir. 2020) (“SIT”) in this analysis. Part II of the article will address the impact that “machines” may be considered a factor in the analysis of whether venue in a patent infringement can be asserted in a particular location, as raised by the court in Personalized Media Communications LLC v. Google, Netflix, 2:19-CV-00090-JRG (Lead Case). As more and more companies move at least part of their operations online, especially now in response to the COVID-19 crisis, companies, as part of this process, should consider whether this will increase the chances that they will be sued in a district that they regard as unfavorable.

Google Wins Mandamus at Federal Circuit in EDTX Venue Dispute

The Court believed the time was now appropriate to address this issue through a writ of mandamus noting that several similar cases had now been heard in various district courts with conflicting results. The Court identified two issues that should be addressed: (1) whether a server rack, a shelf, or analogous space can be a “place of business,” and (2) whether a “regular and established place of business” requires the regular presence of an employee or agent of the defendant conducting business. Finding that a defendant must have regular, physical presence of an employee or other agent of the defendant conducting the defendant’s business at the alleged “place of business,” the Court concluded that the Eastern District of Texas was not a proper venue for this case because Google does not have an employee or agent regularly conducting its business within the District.

Google Gets Green Light at PTAB in Challenge to Variable Media Playback Patents

On February 21, the Patent Trial and Appeal Board (PTAB) issued a pair of institution-phase decisions in inter partes review (IPR) proceedings petitioned by Internet tech giant Google, both of which challenge claims of a patent owned by Virentem Ventures and asserted in a District of Delaware infringement case against Google subsidiary YouTube. Although the PTAB denied institution to one of the IPRs, institution of the other Google IPR threatens each patent claim that has been asserted against variable speed audio/video playback services enabled by YouTube and Google products. With the IPR proceeding instituted, Virentem Ventures is now facing IPR proceedings instituted upon six of its patents asserted against Google in Delaware.

Oracle Files Opening Brief at U.S. Supreme Court in Copyright Fight with Google

In the latest stage of the Supreme Court battle between Oracle America, Inc. (Oracle) and Google, Oracle filed its opening brief with the Court on February 12. Google’s petition for a writ of certiorari was granted in November 2019 and asks the Court to consider: “1. Whether copyright protection extends to a software interface” and “2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.” The Court of Appeals for the Federal Circuit (CAFC) previously unanimously reversed a district court decision that held Oracle’s code as uncopyrightable, finding it well established that copyright protection for software programs can extend to both code and their structure or organization. Oracle is suing Google for $8.8 billion in lost revenue.

CAFC Rules PTAB Did Not Err in Finding Philips Patent Obvious in Light of General Knowledge of POSITA

On January 30, the Court of Appeals for the Federal Circuit (CAFC) affirmed the Patent Trial and Appeals Board’s (PTAB) decision rendering claims 1-11 of U.S. Patent No. 7,529,806 (the ‘806 patent) obvious. The ‘806 patent, owned by Koninklijke Philips (Philips) is directed toward improved playback of digital content on a client device through reducing delay. The patent covers a method for forming media presentations using a control information file that does two things: (a) provides the media presentation in various alternative formats, allowing a client device’s media player to “choose the format compatible with the client’s play-out capabilities” opposed to using two way intelligence between the client and server software; and (b) provides the presentation in multiple files so that subsequent files download at the same time as files are played back.