Guest Post: Are APIs Patent or Copyright Subject Matter?

Guest Post by Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law at Berkeley Law School. I asked Professor Samuelson to provide a discussion of the recent Federal Circuit decision in Oracle v. Google. DC.

Application programming interfaces (APIs) are informational equivalents of the familiar plug and socket design through which appliances, such as lamps, interoperate with the electrical grid. Just as a plug must conform precisely to the contours of the socket in order for electricity to flow to enable the appliance to operate, a computer program designed to be compatible with another program must conform precisely to the API of the first program which establishes rules about how other programs must send and receive information so that the two programs can work together to execute specific tasks.

No matter how much creativity might have gone into the design of the existing program’s interfaces and no matter how many choices the first programmer had when creating this design, once that the API exists, it becomes a constraint on the design of follow-on programs developed to interoperate with it. Anyone who develops an API is, in a very real sense, designing that aspect of the program for itself and for others.

One of the many errors in Judge O’Malley’s decision in the Oracle v. Google case was her insistence that the merger of idea and expression in computer program copyright cases can only be found when the developer of an API had no choice except to design the interface in a particular way. If there is any creativity in the design of the API and if its designer had choices among different ways to accomplish the objective, then copyright’s originality standard has been satisfied and not just the program code in which the API is embodied, but the SSO of the API, becomes copyrightable. Indeed, harkening back to an earlier era, Judge O’Malley repeated the unfortunate dicta from the Apple v. Franklin case about compatibility being a “commercial and competitive objective” which is irrelevant to whether program ideas and expressions have merged.

The Ninth Circuit in the Sega v. Accolade case, as well as the Second Circuit in Computer Associates v. Altai, have rejected this hostility toward achieving software compatibility and toward reuse of the APIs in subsequent programs.

Although purporting to follow Ninth Circuit caselaw, Judge O’Malley in Oracle v. Google ignored some key aspects of the holding in Sega. Accolade reverse-engineered Sega programs in order to discern the SSO of the Sega interface so that it could adapt its videogames to run on the Sega platform. The principal reason that the Ninth Circuit upheld Accolade’s fair use defense as to copies made in the reverse engineering process was because “[i]f disassembly of copyrighted object code is per se an unfair use, the owner of the copyright gains a de facto monopoly over the functional aspects of his work—aspects that were expressly denied copyright protection by Congress,” citing § 102(b). To get the kind of protection Sega was seeking, the Ninth Circuit said it “must satisfy the more stringent standards imposed by the patent laws.”

Judge O’Malley in Oracle also ignored the Ninth Circuit rejection of Sega’s claim that Accolade infringed based on the literal copying of some Sega code insofar as that code was essential to enabling the Accolade program to run on the Sega platform. That Sega code might have been original in the sense of being creative when first written in source code form, but by making that code essential to interoperability, the expression in that program merged with its function, and hence Accolade’s reproduction of it was not an infringement.

The SSO of the Sega interface was almost certainly creative initially as well. Yet, once that interface was developed, it was a constraint on the design choices that Accolade and other software developers faced when trying to make videogames to run on Sega platforms. The Second Circuit similarly rejected Computer Associates’ claim that Altai had infringed the SSO of its program interface and suggested that patents might be a more suitable form of legal protection for many innovations embodied in software.

Under Sega and Altai, the SSO of APIs are not within the scope of copyright protection for computer programs. Subsequent cases—at least until the Federal Circuit decision in Oracle v. Google—have overwhelmingly endorsed this approach to compatibility issues in software cases.

Perhaps Judge O’Malley was worried that if she did not extend copyright protection to the Java APIs in Oracle v. Google, there would be too little intellectual property protection available to computer programs. After all, she was one of the Federal Circuit judges who would have upheld all of the patent claims for computer-implemented inventions in the CLS Bank v. Alice Corp. case that is now pending before the U.S. Supreme Court. She joined an opinion that warned that if courts struck down the claims in CLS Bank, this mean that hundreds of thousands of software and business method patents would be invalidated. Given the Supreme Court’s skepticism about the Federal Circuit’s rulings on patentable subject matter, there is reason to think that at least some software patents may indeed fall when the Court issues its opinion in Alice. Would such invalidations affect the scope of copyright protection for software?

In the most expansive interpretation of software copyright law since Whelan v. Jaslow, Judge O’Malley in Oracle v. Google endorsed dual protection for APIs from both copyright and patent law. This ignored an important statement from that court’s earlier ruling in Atari Games v. Nintendo that “patent and copyright laws protect distinct aspects of a computer program.” The Oracle opinion instead invoked the dicta from Mazer v. Stein that “[n]either the Copyright Statute nor any other says that because a thing is patentable it may not be copyrighted.”

While it may have been true that the statuette of a Balinese dancer in Mazer was eligible for both copyright as a sculpture and a design patent for an ornamental design of an article of manufacture (as a lamp base), nothing in that decision or any other has upheld utility patent and copyright protection in the same aspect of the same creation, and it seems unlikely that the Supreme Court would abrogate the longstanding tradition tracing back to Baker v. Selden that copyrights protects expression in works of authorship and patents protect utilitarian designs.

In “The Strange Odyssey of Software Interfaces as Intellectual Property,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1323818, I traced the tortuous evolution of the law in relation to the protection of software interfaces. At first, they were not treated as intellectual property at all. Firms published APIs so that others would make programs to run on their computing systems. As firms recognized that they could license interface information to generate revenues, APIs were protected as trade secrets. In the mid- to late 1980s, some argued that the “structure, sequence, and organization” (SSO) of APIs should be protected by copyright law, but by the early 1990s, courts decided they were unprotectable elements of programs, more suited to patent than to copyright protection. And so firms began patenting interface designs, as well as continuing to license them as trade secrets.

If Judge O’Malley’s opinion in the Oracle v. Google case is to be believed, APIs have migrated back into copyright’s realm big time. Unless overturned by the Supreme Court or repudiated or distinguished in subsequent cases, the Oracle decision may well reignite the software copyright wars that so many of us thought had died out after the Sega, Altai, and their progeny.

195 thoughts on “Guest Post: Are APIs Patent or Copyright Subject Matter?

  1. Hypothetically, let’s say that Carl invents a new motor. He even claims the motor in distinct structural terms, such that the structures responsible for the motor’s improved functionality are expressly recited in the claim.

    Question 1. Can Carl prevent people who purchase his motor from improving his motor by claiming, e.g., “the motor of claim 1, further comprising any structure which improves the motor’s efficiency or power.”

    Question 2. Can Carl prevent people who purchase his motor from making compatible parts for his motor by claiming, e.g., “The motor of claim 2, further comprising a compatible part that affects the effiency or power of the motor.”

    Question 3. Could Carl write a method claim that would achieve his goal of preventing people who buy his motor from attempting to make any improvements to his motor?

    Question 4: Can Carl copyright all aspects of his motor such that nobody can design parts for it?

    1. Your analogies are flawed.

      A closer one would be where Carl invents and claims a power output of the motor and a device that couples to the power output of the motor.

      In that case, Carl can prevent others from making devices that include the claimed device that couples to the power output, that is, devices that include the claimed device that couples to the power output that were not purchased or licensed by Carl.

      1. Your analogies are flawed.

        They are hypothetical questions, not analogies. There are no “flaws”. I’m asking exactly what I want to ask. They are serious questions.

        Carl can prevent others from making … devices that include the claimed device that couples to the power output that were not purchased or licensed by Carl.

        Which question are you attempting to answer? They were straightforward questions, each one separately identified. A reasonable answer repeats at least the question number, followed by your conclusion (yes,no,maybe) and an explanation if you are capable of articulating one.

        Remember, of course, that nobody is forcing you to answer anything.

        1. Strawmen is the better term.

          Nope. Not a strawman at all. The hypotheticals crystallize certain policy issues fundamental to our intellectual property laws, and this case in particular.

          1. Here’s my quick take on your questions:

            1) Clearly keeping others from improvement patents cannot work, not as the law provides for improvement patents, even when the underlying invention is patented by another. This goes to the negative nature of the patent right. Note, this is not a clearance for anyone with such an improvement patent to violate the underlying patent.

            2) Your question does appear to be flawed in that what you ask seems straightforward, until you get to the claim itself. The claim is flawed, and is so obviously a strawman as to negate any possible take-away. You might as well pull a Ned and claim Mozart’s Violin Sonata No. 21 in E minor, K. 304

            3) Same as 1)

            4) Once again you display your butchering of copyright law. Your question is just not intelligible.

            Overall, your “fundamental points” include one obvious point that no one is arguing about and a bunch of muddled hot mess.

            1. Good answers, anon, except for (4).

              Question 2. Can Carl prevent people who purchase his motor from making compatible parts for his motor by claiming, e.g., “The motor of claim 2, further comprising a compatible part that affects the effiency or power of the motor.”

              You said this claim is “flawed.” What do you think is flawed about it?

            2. LOL, except for 4)?

              Really?

              Your massacre of copyright law understanding continues.

              What do you think is flawed about [claim 2]?

              You mean, besides what I already told you that it is an obvious strawman?

              /face palm

            3. Your massacre of copyright law understanding continues.

              How does my question “massacre” copyright law?

              I note that you still haven’t answered it. It’s a yes or no question. Do you need additional information to answer the question? If so, let me know. I thought it was a pretty easy question to answer in the negative, myself.

            4. “What do you think is flawed about [claim 2]?”

              You mean, besides what I already told you that it is an obvious strawman?

              Nice try but as you know that’s not a flaw in the claim and my hypothetical is not a “strawman.” I could have predicted you would crawl under your rock and refuse to follow up your statement.

              Here is the claim again: “The motor of claim 2, further comprising a compatible part that affects the efficiency or power of the motor.”

              You said there was a flaw in the claim upthread (in addition to being a strawman). Please identify the flaw. If you now believe there is no flaw in the claim, then just say so. You can still cling to your strawman b.s. if you like. Doesn’t matter to me.

              Let everyone what flaw you see claim 2.

              You might as well pull a Ned and claim Mozart’s Violin Sonata No. 21 in E minor, K. 304

              That has nothing to do with claim 2. Please tell everyone what the flaw is in claim 2.

            5. Malcolm before we get to your additional questions, let’s see you give some actual answers (you seem never to get around to that…)

              Particularly, 9.1.2.1.1.

          2. “and this case in particular.”

            If, as I had previously assumed, and as you now admit, the questions were aimed at issues in this case in particular, then your questions are intended to present analogous questions in a different context.

            Therefore, contrary to your assertion, there are analogies in your questions, and, as I previously noted, they are flawed.

            1. “No. In other words, the analogies of his questions don’t align with the case.”

              Oh well yes, we all knew that from the get go. That doesn’t mean his analogies are flawed for doing what he wanted them to do: show what the policy underlying what the law actually is happens to be.

            2. That doesn’t mean his analogies are flawed for doing what he wanted them to do: show what the policy underlying what the law actually is happens to be

              Note 6, that Malcolm does not ever actually get to the point that you think he wants to get to – he never shows what the policy happens to be…

              The request in 9.1.2.1.1 is never answered.

            3. “Note 6, that Malcolm does not ever actually get to the point that you think he wants to get to – he never shows what the policy happens to be…”

              Because we all know what the policy is. He’s just holding retarded people’s hands through why the policy is the way it is to begin with.

              And, we also know that there are certain people that would like the policy to be different, based on the subject matter. The case at issue in this thread shows that quite well.

            4. Because we all know what the policy is.

              No 6, we do not all know what Malcolm thinks the policy is.

              Are you into mind-reading now?

              I would rather not ASSume something that you seem all to eager to ASSume.

            5. “No 6, we do not all know what Malcolm thinks the policy is.”

              That’s because you’re one of the aforementioned retards. Or, in your case, because you have psychopathy.

              The answers to all 1-4 are “no”. And they’re all very simple questions and the reason for the answer being no is that patent law has some policy behind it. Policy that is turned on its head in the instant case iirc. Though frankly I don’t care enough about the subject to get all into it anymore. If we’d have gone through this a few days ago maybe I’d be more in the mood to hold your hand. Maybe next time the subject comes up.

            6. That’s because

              That’s because he has not answered the question.

              The answer is not a simple yes/no. You are not looking at the right question being asked.

              Up your game son.

    2. MM, on the parts for the motor, they don’t need to claim the parts, but if they are material to the combination, not a staple, etc., then the sale could be an infringement under Aro II if the parts users does not have a license.

      But the issue in this copyright case is building a competitive motor without a license in so that my new cars might similarly reduce gasoline consumption, even though I could have designed a non infringing motor with a little more effort that would also reduce gasoline consumption.

      Huh?

      Are we to ban patenting of motors so that everyone can enjoy reduced gasoline consumption? How does that make sense?

      1. Ned: MM, on the parts for the motor, they don’t need to claim the parts, but if they are material to the combination, not a staple, etc., then the sale could be an infringement under Aro II if the parts users does not have a license.

        Different questions. The questions I asked relate to bona fide purchasers of Carl’s motor. The purchasers aren’t selling anything.

        the issue in this copyright case is building a competitive motor without a license

        Why should anyone need a license to improve a motor that they own?

        1. You do realize the “keep-out” exclusive nature of the patent right, right?

          Sure, we have exhaustion in play here – bona fide purshaser and no reselling involved, but it appears that you are trying to reach beyond that with your dust-kicking (you appear to be driving at the item I covered in 1) at 9.1.2.1.2 – a point that no one is arguing about (hence my calling your posts a strawman).

  2. “No matter how much creativity might have gone into the design of the existing program’s interfaces and no matter how many choices the first programmer had when creating this design, once that the API exists, it becomes a constraint on the design of follow-on programs developed to interoperate with it. Anyone who develops an API is, in a very real sense, designing that aspect of the program for itself and for others.”

    You seem to be operating under the assumption that others have the right to inter-operate with MY API. Why would that be the case? If I make a box that I want to sell and a set of cartridges that connect to my box that I also want to sell, what gives you the right to also make cartridges that connect to my box? What gives you the right to reverse engineer my box and steal my trade secrets? Go make your own box. What gives you the right to piggy-back on the success of my box?

    1. You seem to be operating under the assumption that others have the right to inter-operate with MY API. Why would that be the case?

      Are you going to try to sue everybody who buys a product with your “application programming interface” and then “inter-operates” with it?

      If I make a box that I want to sell and a set of cartridges that connect to my box that I also want to sell, what gives you the right to also make cartridges that connect to my box?

      Hey, remember that box you sold me? I just made a set of cartridges that connect to it.

      You have a problem with that? Exactly what is your problem with that and what are you going to do about it?

      1. MM forgot to add: yeah I saw your box and liked it so I decided to start making and selling them myself. So what. That is the american way.

      2. First of all, what you do in the privacy of your own home, with the one unit you bought from me, is your business and please don’t tell me about it.

        If on the other hand, you want to start selling cartridges in competition with me, piggy-backing on my API development, as well as the success of my box, without any of the risk associated with developing and marketing a box, I think I have the right to object.

        You are playing in my backyard and trespassing.

        Smithers, RELEASE THE HOUNDS!

        1. you want to start selling cartridges in competition with me, piggy-backing on my API development, as well as the success of my box, without any of the risk associated with developing and marketing a box, I think I have the right to object.

          Exactly what gives you the right to prevent me from competing with you?

          You have a successful box. That’s nice. You sell cartridges. That’s nice. So do I. My cartridges don’t infringe your patent on your box or your cartridges, nor do they infringe any creative expression of yours.

          So where is this right coming from exactly?

          Because you “took a risk”? Golly, somehow I’m not terribly impressed. People take risks all the time. It’s not exactly a “risk” if you’re relying on the government to coddle you when it turns out your business or marketing skills aren’t at the level possessed by all those successful people who took risks in the absence of government coddling.

          1. My cartridges don’t infringe your patent on your box or your cartridges, nor do they infringe any creative expression of yours.

            Nice movement of goalposts there Malcolm.

          2. “So where is this right coming from exactly?”

            In order to develop your cartridges you had to steal my trade secretes, determine my protocols, determine the pin outs of my cartridge connector. There was no way to do that without transgressing my copyrights or patents or stealing my trade secrets.

            Exactly there.

            1. In order to develop your cartridges you had to steal my trade secretes,

              There are no stolen “trade secrets” here.

              determine my protocols

              Perfectly legal.

              determine the pin outs of my cartridge connector

              Perfectly legal.

              There was no way to do that without transgressing my copyrights

              You have a copyright on a box? You have a copyright on a cartridge? What?

              There was no way to do that without transgressing my ….patents

              There’s no patent infringement. I own the box and my cartridges are different (and better) than yours.

              What gives you the right to stop me from making these cartridges for the box that I own?

            2. (sigh)

              Contrast Malcolm’s seeming amazement at Les “You have a copyright on a box? You have a copyright on a cartridge? What?” with his own inapt language of “copyright all aspects of his motor such that nobody can design parts for it?

              Hint: it is your original post that is causing the confusion Malcolm.

            3. “You have a copyright on a box? You have a copyright on a cartridge? What?”

              Yes, I have a copyright on the software that runs in my box and in my cartridge. That’s what we this thread is about, API’s

              “There was no way to do that without transgressing my ….patents

              There’s no patent infringement. I own the box and my cartridges are different (and better) than yours.”

              They may be different, but they include the patented aspects of my API. And during your reverse engineering activities you would have had to copy my copyrighted software implementing my patented interface process thereby both violating my copyright and infringing my patent.

              “What gives you the right to stop me from making these cartridges for the box that I own?”

              See the above.

  3. It is interesting that Lex Machina refers to their services as provided by a machine. They speak of the machine doing this and that in press releases. I think the position that it is a machine performing the work does not square with Lemley’s position that software has no structure. If software has no structure, then Lemley’s machine has the same structure has my laptop, and in the macro reality check, how can two machines with the same structure perform different functions?

    1. I would be interested in Lemley posting on how he protects the IP of his machine.

      Does he let the engineers/scientist publish papers explaining how the algorithms work?

      Does he freely share the software?

      Does he file patent applications?

      Does he make the employees sign non-compete agreements and non-disclosure agreements?

      Lemley put up. Let’s hear how he protects his machine.

      (This was prompted by an article over at ipwatchdog on the annual report from the “machine.”) (Odd to be talking about a machine when their machine has the same structure as any other laptop.)

        1. Just think about how odd that is. Use of Lemley’s “machine” with the same structure as my laptop and yet Lemley is charging $50K per year. Maybe we should file a complaint with the FTC for usury.

          I will bet ole Lemley is protecting his IP with draconian measures. ‘Cause it is his and people like Lemley want theirs and don’t mind burning down the commons to get theirs.

          1. And yes all of this is related to copyright as at the core of this argument is whether or not software has structure, which the Great and Powerful Lemley proclaims that software has no structure!!!

            1. …if software has no structure, then it cannot exhibit a fundamental requirement of obtaining copyright protection, as it would not be able to be fixed in a tangible media.

              …the aspect of being fixed in a tangible media reverberates back into the patent world through the mechanism of the controlling law concerning the exceptions to the judicial doctrine of printed matter (sorry Malcolm, but the legal sense of structure explicitly includes written matter structure that has a functional relationship – you can run all day long from this, but you cannot hide from it – not if you want to be intellectually honest and not if you want to acknowledge all material facts and law in any ethical legal discussion).

              Funny how Ned claims that Malcolm is always willing to address issues put on the table, and yet both he and Malcolm only run away from discussing this particular issue that shows that software is indeed a manufacture and machine component.

              Funny too how the fact of software being equivalent to firmware and being equivalent to hardware is never addressed by those two very same people.

              One has to wonder about the abject hypocrisy at the foundation of the software as patent eligible item discussion.

            2. Funny too how the fact of software being equivalent to firmware and being equivalent to hardware is never addressed by those two very same people.

              He’s your path0l0gical lying bl0gtr0ll, Dennis.

      1. I wonder why I can’t get my machine–the laptop–to print out the annual report. Odd as it has the same structure as Lemley’s machine. Lemley could you explain this to me?

          1. Then again, maybe not.

            (well, so much for Ned’s insistence that the issues are always addressed – like anyone would have believed that statement anyway)

  4. A stench of ivory-towerism abounds.

    Dennis, it sure would be nice if you could make this go away. I like to read the comments, but this kind of stuff is just vile. It’s one thing for anonymous commenters to crab at each other, but these pointless and inane attacks on professionals who actually stand behind their work is disgusting. I honestly don’t understand how you still get others to provide guest columns.

    1. DanH,

      Another Crybaby Veto attempt from you?

      There is nothing at all “vile” with sharing the opinion that an academic has, shall we say, less than an objective viewpoint?

      It is neither pointless nor inane to recognize a systematic bias that is present in any discussion.

      When one seeks to put themselves in a position to influence law, one should be open to such criticisms. When one climbs the bully pulpit and uses their credentials as a source of authority, then it is especially pertinent that such authority be reviewed.

      The plain fact of the matter is that the notion of “Ivory Towerism” is alive and well in our society today. Wanting to close your eyes to it is indeed your choice. Wanting to close everyone’s eyes to it is akin to censorship.

    2. Hey Dan –

      I agree with you that the comment could have been written in a more genteel way. However, it is somewhat unfortunate that you took the quote out of the context of the comment. The point of Anon’s comment was to highlight the fact that the author (Prof Samuelson) has a particular policy goal that is guiding her argument. The mere fact that some of us are ‘pure academics’ does not remove our biases or necessarily make our arguments more trustworthy.

      1. Also, we’re all human beings!

        Thank goodness Dennis has anon here to remind everyone of that in his wonderfully comical way.

      2. Dennis: it is somewhat unfortunate that you took the quote out of the context of the comment.

        Right, because Professor Samuelsen was totally pretending to be the most objective and pure person on earth until the great anon “outed” here.

        Give us a break, Dennis.

      3. The point of Anon’s comment was to highlight the fact that the author (Prof Samuelson) has a particular policy goal that is guiding her argument.

        Yes, that’s what anon, NWPA, and a few others say, over and over again. But so what? If there’s something wrong with her argument, then point that out. Accusing somebody of bias, without any support for it, is simply not productive.

        My concern is that there are many of us who like to see the mostly well-written commentary in your guests’ posts, whether or not we agree with them, and I expect most of us are grown up enough to understand that any author may have more or less of an axe to grind. I don’t see why your guests ever come back here, given that it is inevitable that they will bombarded with substance-free attacks, some of them considerably less genteel than anon’s latest offering.

        1. DanH–”If there’s something wrong with her argment, then point it out.”

          We do that ALL the time. The reason we get frustrated is that the academics on here dodge the issues raised. They will not address the issues that we raise. I have said over and over again that they do this because they are policy oriented and that there is no policing in the academic world. They publish articles that are not peer reviewed with apparently few ethical constraints on their writings.

          An example of an issue. Lemley says that software has no structure. He will not justify his position. The list is very long of real substantive issues with science and law that simply are not addressed by academics.

          1. Note the simple list of facts on the whiny “stop picking on academics” thread – points that could not be bothered with, even though they were simple to address, few in number, and basic to any intellectually honest conversation on the matter.

            Where is the umbrage from DanH on such a matter?

            1. Since DanH won’t answer the question of “Where is the umbrage from DanH on such a matter?,” the latest crawl of the site indicates a high probability that DanH is otherwise known as the poster LB (or Leopold Bloom), one long known to be wanting to tell only one side (and the wrong side) to “just shut up.”

              Indignation at a lesser offense (but that aligns with a personal philosophy) is as bogus as faux indignation.

          2. “Lemley says that software has no structure. ”

            Well in his defense the federal circuit does too. Now. After years of pretending otherwise.

        2. The fact is DanH that you need to readjust your thinking to the real world. There are plenty of academics that will tell you that what the patent academics do on here is more vulgar than anything I could write. The fact is that they use their position to dodge issues.

          That is the crux of the problem.

      4. Dennis,

        Valid points can be made without resorting to insults. It is your blog. You manage it as you want. But I offer you this advice. The only way to eliminate the occasional (frequent?) mud fight insult fest is to systematically delete all comments that are insulting in language or tone regardless of whether they also make valid points and regardless of whether you agree with their contents. People will learn how to make the exact same points in a more genteel way and the overall quality of discussion will increase.

        1. paul,

          A better idea: eliminate those posts that have NO redeeming quality whatsoever.

          Why don’t we start there? They are easy to spot, mostly being penned by Malcolm.

          1. A better idea: eliminate those posts that have NO redeeming quality whatsoever. Why don’t we start there? They are easy to spot, mostly being penned by Malcolm.

            Heh. And of course you can be the arbiter of which posts have “redeeming value” because you’re so objective and, as everyone knows, you’re overflowing with well-written constructive commentary devoid of hypocricy or insults. Why, every day we all learn (from you) that nobody except you and Don Chisum understands what the “actual” law is. Where would we be without your guiding hand?

            In addition, you entertain us by writing in such convulated prose that we are forced to guess whether you believe the words that you post here, or whether you are simply trolling in hopes that someone will take the bait and help you articulate your gibberish in English. And when that happens: shame on them! It’s truly the best way to move a conversation forward. Or we can waste 50 comments going back and forth with you about our own beliefs, after we’ve stated them in black and white 500 times only to see you lie about them and then (to top it off) smear the person based on the lie.

            If that weren’t enough, you’ve got all those nifty ideas about neutrons and registered mail. Lord knows you won’t find insights like those being handed down from the “ivory tower.”

            1. any objective determination by Prof Crouch would be fine with me.

              LOL. As if.

              How high do you have to be to convince yourself that anybody else would believe you when you say stuff like this?

        2. …and paul, you might check into the history of the First Amendment here in the states, the protection of that amendment has often necessarily stayed away from the suggestion of your to only allow “genteel” postings.

          And for a very good reason.

          1. First Amendment? IANAL but I know better than that to be a blog issue. There are plenty of posts deleted here that cross a line at the professor’s prerogative. I am fine with that, it is his place. His right, not ours.

            I am though, in disagreement with his reasoning at 6.3. It advocates a situational or ends justification that is not relevant. I think he simply missed the point that much is lost when posters, are pounced on and denounced merely for what they are perceived to represent rather than for what they are stating. Guest posters are indeed guests and it is simply rude to chase them away, but in spite of that consider the pragmatic loss of good debate degrading to rehashed polemics. There is an good amount of actual of substance here because there of argument but it is good to not discourage other points of view before the structure is stale.

            As to pragmatics maybe it can’t be a fair visceral fight anyway, at a public level when one side is a shell persona and the other is plainly visible with obligations and is a perceived representative of their institution (i.e. a separate public relations quagmire). So it can be seen as a prisoners dilemma–one in the public position cannot respond toe to toe ad hominem or address uninformative question begging insulticide (e.g. left/right wing, vapid, vacuous) without a backlash somewhere else. They can be vigorously held to defend their words though.

            I am not advocating sterility or even gentility (English roots of “gentlemanly conduct” or marching to battle wearing red coats in a line). In a perverse way the level field arguments are often entertaining too. But to the points- go at it, but at least make sense of what the point is, and please make the counterpoint instead of just claiming one.

        3. And what is your proposal paul to deal with posters that merely post to get time and refuse to address the issues raised?

          1. refuse to address the issues raised

            How many drugs do you have to take to get this deep into your fantasy world where your “issues” haven’t been addressed like 10,000 times in the past 5 years?

            Seriously. What is your freaking problem, man?

            1. “issues” haven’t been addressed..

              ‘oldbox’ and new capabilities without any change to ‘oldbox’….

              (yep, still waiting)

          2. NWPA: And what is your proposal paul to deal with posters that merely post to get time and refuse to address the issues raised?

            When this happens to me I politely point out the issue was not addressed. I explain the issue again from a different angle to make sure there is no misunderstanding. When all this fails I trust the intelligence of the readers. They will make up their own mind. People who ignore clearly explained issues and argue strawmen tend to discredit themselves. There is no need to pound on the table.

            Insults and mud fights put off readers that are not emotionally invested in the struggle. They degrade the quality of the discussion. When the fight gets intense the non belligerents stay away and all meaningful discussion stop. Insults are not needed to make any point that has value.

            1. People who ignore clearly explained issues and argue strawmen tend to discredit themselves. There is no need to pound on the table.

              Who said anything about ‘need?’ ;-)

              put off readers ” – um, sorry paul, but any such readers so easily turned off are not interested in the points and counterpoints being addressed anyway. Are you aware of how many lemmings there are?

              degrade the quality of the discussion” – you mean the discussion not being had? How exactly is that a degradation again? Thanks – but forcibly highlighting the cowards really does have a benefit.

              There is a time and a place for insults. Welcome to the brave new world.

            2. Paul, the people complaining about the tone are the ones that are not addressing the issues. And, much of what they complain about is when someone on this board points out a likely reason that they are not addressing the issue. Some professor or lobbyist telling me that a computer program is a law of nature is vulgar.

              The fact is that patents are under attack from big corporations. We have seen many other areas of law come under attack and fold. Now patents are in the sights of the corporations and they fund people each year to burn it down. The AIA was a good first step in destroying the system.

              This is not a nice fight Paul. These are not intellectual honest people.

            3. Much like Jane Fonda’s idealism, being civil is an admirable goal that ignores the reality of how those with a certain agenda will pursue that agenda.

              When you are dealing with people who really believe that the ends justify the means, any means, then there are times that choosing between being civil and being quiet plays into their game.

    3. And, DanH, what do you want? It sounds to me like the academics want what they have now. Journals where they publish whatever they want. Students that cower in front of them for fear of a lower grade. In other words, no one to challenge them. Here, the academics think they can just write whatever they want and then just ignore the issues raised by posters. They typically don’t even address the issues or arrogantly redefine the issue.

      1. the academics think they can just write whatever they want and then just ignore the issues raised by posters. They typically don’t even address the issues or arrogantly redefine the issue.

        Seems to me that the academics who guest post here are at least as inclined to participate in discussions about what they’ve written than the patent attorneys who guest post here.

        But query whether or why any academic would want to discuss anything with you or your li’l buddy TB after reading the b.s. that you two spew here on a daily basis.

        You guys do realize that there are entire blogs and interest groups devoted to furthering your More Patents, All the Time, Easier to Enforce agenda, don’t you? It’s not like you’re some marginalized betrodden minority struggling to get your opinions heard and starving in the meantime. But that’s how you act.

        1. Lovely AOOTWMD – considering what you dish on Mr. Qu1nn (who does not even post here) and on Chisum (who also does not even post here).

          The word for you Malcolm: hypocrite.

          1. considering what you dish on Mr. Qu1nn

            LOL.

            Be sure to give him a kiss next time you shine his shoes. He loves you, TB. He really does. You’re just like him.

        2. Nonsense from you MM. You are the person on this blog that violates civility more than anyone else. You threaten people, make racist remarks, accuse others of being racists, use vulgar language, etc.

          Give. Me. A. Break.

    4. ” I honestly don’t understand how you still get others to provide guest columns.”

      They want to be famous.

  5. A “scholarly” appeal to naked judicial activism…

    …has not worked well for Prof. Samuelson in the past. See Eldred.

    A review of the good professor’s cv reveals a (professional) life-long advocacy campaign, pushing a particular agenda that is simply anti-IP protection (both anti-patent and anti-copyright).

    A stench of ivory-towerism abounds.

    1. Yes anon. One thing that is almost unbelievable is that Samuelson is permitted to publish in ACM journal with no rebuttal. I wonder how many of those computer scientist don’t realize that without patents many of them are going to be terminated. Research labs are there mainly at this point in time because of patents.

      It never ends…

      1. Night: “With no rebuttal.”

        Now, I agree with that. One would expect Op Ed pieces at least that provide criticism.

        One of the benefits of this site is that one cannot state an opinion without immediate and sometimes valid criticism. People avoid us because of the somewhat vicious way we hammer each other, but we do flesh out the issues fairly well. I think people read the site to find really persuasive arguments all the time — as I see briefs being filed parroting things we first said here.

        1. but we do flesh out the issues fairly well

          …especially when valid counterpoints are raised and the only reply to those counterpoints is the roar of silence, right Ned?

          ;-)

            1. anon, as I said, there are many posts where you ask questions and it is not at all clear what you are talking about.

              Take Nazomi. I have no idea what you are talking about because you assume everyone knows what Nazomi stands for in your mind. But you have never explained what it stands for in your mind.

            2. Take Nazomi.

              LOL – yes, Ned, take a case that you have purposefully tried to NOT understand.

              How is your personal “not understanding” of that case coming along?

              Do you still (given the recent thread that you “threw me a bone” in helping you understand the Nazomi case, or are you still trying to portray that case as somehow (mysteriously) thinking that hardware only is in play?

              Really Ned – this whole anti-software crusade of yours is transparent.

              Given your self-professed knowledge of the industry, your self-professed knowledge of law, what PHOSITA means in this particular art field, and the bone that you were so ‘graciously’ willing to give to me, how is it that you still find yourself personally perplexed by the Nazomi case?

              The case is simply not that difficult to understand – unless of course you have a vested (read that a s third party) interest in not understanding.

              Of course, Ned, we both know that you refuse to discuss that aspect on these threads, right? That too, is rather transparent as to why (hint: the phrase “shilling” applies).

              But please, Ned, try to kick up more dust in your attempt to say “Gee, I don’t understand the simple counterpoints you raise…”

              Don’t be insulting that your unwillingness to take conversations to their logical conclusions has anything other than your representational interests as the driver. Such only further lowers your credibility.

            3. In simple points for you Ned:

              a) Software is not math, as math cannot earn copyright and software can.

              b) Software is not “totally in the mind” and must have some aspect of structure – again, because software can earn copyright, and a fundamental aspect of earning copyright is that the item must be fixed in a tangible media, which necessarily involves structure.

              c) the written nature of software – that writing in this particular art field IS structure in the patent sense flowing from the exceptions to the judicial doctrine of printed matter. There is the required functional relationship of the written matter, through the substrate (or physical, tangible media) to what the software is as an invention (pulling in ALL aspects of what software is, those aspects that may separately earn copyright protection AND those aspects that may separately earn patent protection.

              d) software is not (and never has been) a “1.” Your fallacy to this has been repeatedly debunked (in at least the Morse allowance of a “space,” and the mischaracterization of you of that “1″ as something ONLY as an abstract entity, and not including EITHER the proper notion of fixed in a tangible media, or that “1″ is bit an aspect of the building blocks of software (the tie in to the analogy of my big box of other building blocks such as electrons, protons and neutrons – and the necessary further treatment of configurations of the building blocks)

              e) your refusal to accept as fact that software is equivalent to firmware and is equivalent to hardware does not change that fact into being not a fact. Neither is the notion that I am saying this makes the fact merely my personal opinion. The fact is a fact and must be accepted as such.

              f) your repeated unwillingness to understand, to accept and to incorporate these points into legal discussions are a “you” problem. To the extent that you may understand these things and yet pursue mischaracterizations in order to promote a philosophical agenda, I would posit that such mischaracterizations of material fact (and ensuing mischaracterizans of law, as in the Alappat case) are unethical.

              Of course, there are several other points that I have chase you about on your little merry-go-rounds of CRP-ignore valid counterpoints-and CRP again crusades that you engage in (for example, your anti-business method crusades). But it is the same type of rhetorical nonsense you engage in there too.

              Yes, the issues do get fleshed out – but (and this was the point of my post at 5.1.1.1), the fleshing out stops – and your involvement in the discussions stop when those discussions broach the points that I present to you.

              That you pretend not to see what is so clear borders on the edge between ludicrously funny and nigh criminally insane. To throw you a bone, I am willing to entertain the thought that you do not finish the conversations out of your sense of duty to your clients.

              To me, this type of shilling is most distasteful and does run afoul of Prof. Crouch’s mandates for posting here, as the conversations no longer can be intellectually honestly said to be strictly of a personal nature. I have proffered the reason for this “personal nature” requirement is reflected in the fact that such non-personal impetus results in threads being derailed and that legal topics become prone to obfuscation.

              C’est La Vie.

            4. anon, you mistake me. I simply contend software is claimable as a method, a programmed computer as part of a larger machine or system.

            5. I do not mistake you Ned.

              The desire to use the crutch of “method” as opposed to “manufacture.” is something that you refuse to discuss in detail. (we do not even have to take that next step to how your view of methods as a category suffers some old-time bias as being some type of sub-tier category to the old-school hard goods categories – the coined phrase Story-English-anti-method bias).

              Plain fact: software IS a manufacture and a machine component all on its own.

              This must be accepted for the full benefit under patent law that such deserves.

              There simply is no such thing as software that is NOT meant to be a machine component.

              Such a thing does not exist.

              To understand this, is to understand exactly why anthropomorphication is such a beautiful word, and to understand exactly why the mental steps doctrine is a must-fail for properly understanding inventions in this art field.

              Each – and every one – of the points I present at 5.1.1.1.1.3 must be integrated into ANY intellectually honest conversation on the patent eligibility of software discussion.

              No mischaracterizations of these points should be undertaken.
              No conflation of these points should be undertaken.
              No denying of facts (or denigrating the facts as mere opinion) should be undertaken.

              Anyone wanting an intellectually honest conversation should start at the proper baseline – and NOT because it is merely I that says such is a proper baseline, but because such is a proper baseline.

              I am fully willing to listen to anyone that wants to propose changes to the law that incorporate the baseline items without conflation or obfuscation – even those that want to do so based on policy reasons, as long as the fact that facts and law are respected.

              If you want to say that yes, the facts are those facts, and yes, the law is that law, but for policy reasons a higher standard of invention is desired because software fundamentally alters the ease by which invention can be completed, such a post would earn my full respect. I might not agree with such a view, but such a view would be completely intellectually honest and worthwhile to discuss.

              And yet, the valid points I present are met with silence at best and met with obfuscation, conflation, mischaracterization (up to and including unethical mishcaracterizations) at worst.

              As I mentioned, I do give you the benefit of the doubt of a particular bone. Others, well, their posting does not have that apparent attribute.

        2. “I think people read the site to find really persuasive arguments all the time — as I see briefs being filed parroting things we first said here.”

          Mhmmm. Or else there are briefs that you can tell took what we said into consideration before writing what they wrote.

      2. I wonder how many of those computer scientist don’t realize that without patents many of them are going to be terminated.

        “I lost my job because there aren’t enough patents being granted.”

        ROTFLMAO

        Research labs are there mainly at this point in time because of patents.

        Complete and total b.s. And this nutcase wants to muzzle anybody who chooses to disagree with him! Your patent teabaggers, folks. They never fail to disappoint.

        1. MM again you fill the blog with vacuous nonsense. What experience do you have with research labs? Research budgets? Etc.???????

          You just blather on with no actual experience or education to base your blathering on.

          1. What experience do you have with research labs?

            Being the senior researcher in a research lab.

            Research budgets?

            Helping to prepare research budgets for a research lab.

            In addition, I know a lot of smart people, including a lot of inventors and a lot of people who have their own research labs. Also, I’ve invented plenty of stuff myself over the years and continue to do so. If you include the typical “computer-implemented” invention I’m inventing stuff pretty much every day (like most educated people who earn enough to afford decent computers).

            1. “What experience do you have with research labs?

              Being the senior researcher in a research lab.

              Research budgets?

              Helping to prepare research budgets for a research lab.”

              lulz.

            2. Also, I’ve invented plenty of stuff myself over the years and continue to do so

              You have also proudly boasted that you had in invention and started a company with the invention with our even bothering to check whether a patent existed, knowing full well that such was likely.

              Did Mr. Qu1nn shut you down on that? Is that why you are so bitter towards the man?

            3. MM you are chemical. We know the position of big pharma (which you hold to pretty tightly.) Patents for chemicals and not electrical. We know. Big pharma tried as hard as they could to get separate laws for chemical inventions. That is well known.

              So, how is that related to electrical inventions? You don’t know squat about electrical inventions and image that you do through your hind sight. I know you probably invented the Internet. Macro reality: information processing is full of people with IQ over 150 and they all say this is extremely hard stuff.

              So, now we know who you are. An out-to-pasture lobbyist for big pharma. Getting the retirement home paid for by burning down patents for electrical and mechanical inventions. Are you sure you are not a Texas Republican?

            4. We know the position of big pharma (which you hold to pretty tightly.)

              What’s the “position of big pharma”? What is your evidence that I “hold pretty tightly” to this position?

              we know who you are. An out-to-pasture lobbyist for big pharma.

              That’s funny. Keep guessing, gramps.

            5. Did Mr. Qu1nn shut you down on that?

              Rest assured that Quinn will never “shut me down” in any context. The opposite is far more likely to be true. Didn’t that guy try to patent an “automatic” method of writing a patent application?

              Pretty funny stuff. Tell him I said hi next time you polish his buttons.

            6. MM: Why don’t you make more derisive comments about the Church-Turing Thesis to show us how much you know about the information age.

              Apparently electricity is very hard for you to understand.

        1. “It is written.”

          What is that verb written? How is it that any different than building any other machine? Or circuit?

          1. “What is that verb written? How is it that any different than building any other machine? Or circuit?”

            I think generally speaking the word “written” means to write and the word “built” means to build. Consult your local dictionary if you need further clarification on the differences.

            1. Consult your local controlling law as to the exceptions to the judicial doctrine of written matter.

              Point blank 6, writing can be a form of building – when that writing has a functional relationship and really does create a manufacture and machine component in its own right.

              Please do more than just “think generally.”

            2. writing can be a form of building – when that writing has a functional relationship and really does create a manufacture and machine component in its own right

              Circular self-serving gibberish.

            3. Circular self-serving gibberish.

              Not at all.

              This seems to be a standard response of yours Malcolm and fails to meet any type of intellectually honest discussion of the law and facts involved.

              It is very much akin to other short-script items that you depend on.

              The principle [sic] problem for you with this and your inability to conform to an ethical discussion is that you have already volunteered admissions to knowing that this is NOT “circular self-serving gibberish” but is in fact controlling law.

              While Ned refuses to even acknowledge this, you have acknowledged this.

              Your (and Ned’s) further problem is that you refuse to integrate this properly into the discussion, as would be ethically required of attorneys – even when those same attorneys are advocating legal positions on a social media vehicle.

        2. What you mean to say Marty is that software is a manufacture and machine component, built by man and (typically) for a utility that falls within the Useful Arts.

          On this we shall agree, right?

            1. The problem with that view is that the ones claiming that software is “manufactured” are not, in general, the ones who are actually authoring any software.

            2. Wrong Dobu.

              Tell me, have you explored the exceptions to the judicial doctrine of printed matter yet?

              Do you realize that you really can build an object with words (at least, critical components of that object)?

              Have you read the immediate case here? Do you see that it is aspects of the whole – different aspects – that garner different forms of IP protection?

              Did you ever answer me as to whether you believe that you can copyright math?

              (still waiting)

            3. Anon,

              Tell me, have you explored the exceptions to the judicial doctrine of printed matter yet?

              Yes. And this is the third time I’ve responded to that question, and you have even replied to at least one of the two prior responses. AGAIN: printed materials that have an effect on the function of a machine might still qualify for patent protection under paragraph 101.

              We still disagree that loading data into a known computer changes its function.

              Do you realize that you really can build an object with words (at least, critical components of that object)?

              How so?

              Have you read the immediate case here? Do you see that it is aspects of the whole – different aspects – that garner different forms of IP protection?

              I have already answered that question in an earlier post to this article. Please do try to keep up, Anon. (Hint: the answer was “Yes”.)

              Did you ever answer me as to whether you believe that you can copyright math?
              (still waiting)

              Again, YES I DID. Reading is fundamental, Anon. But since you want to bring it up again, and disingenuously pretend that I am avoiding the question: no, mathematical concepts are not usually considered to be copyrightable. I’ll even help advance the conversation by also supplying that the mathematics being performed by software is not copyrightable. The expression of that software (source code) is copyrightable, just as the expression of math is. The expressiveness in user interfaces employed by software may also be copyrightable.

              Please, Anon, try to remember that I have thoroughly answered this question for you … AGAIN.

              Kindest regards,

              Dobu

              Opinions are not [necessarily] facts.

            4. Yes. And this is the third time I’ve responded to that question

              Then, for an equal number of times, you should amend your responses to show that you understand the concept.

              Thanks.

              (your “load data” meme just does not accord with the law)

              How so?

              (sigh) – you want to go another round, having just said that you ‘get’ what I have already said?

              Really?

              (hint: it is not I that needs to keep up Dobu – it is you, as you seem unable to integrate the individual points that you say that you understand, but clearly you do not).

            5. NWPA,

              I have written plenty of software.

              My presumption is that you derive significantly more income from participation in the patent bar than you derive from writing software. I believe the resulting bias is blinding you to the harm being done to the software industry and its workers by the caliber of software patents being issued by the PTO.

              I am aware that you consider that “harm” to be the imaginary constructs of “academics”. I am not anticipating our agreeing on much of anything, really.

            6. Dobu,

              Can you clarify something fo r me?

              When you state “harm being done to the software industry and its workers by the caliber of software patents being issued ” – what exactly do you mean by “caliber?”

              Do you mean patents that do not meet the legal requirements of 102/103/112?

              Do you mean patents that do not meet your version of 101? (that no matter how the patents meet any 102/103/112 level, that they are still not “of the proper caliber?”)

              Once we get that understood we then can try to get a better handle on what you consider “harm” (keeping in mind that “harm” is not likely to cover the ability of keeping others from merely copying)

            7. Anon,

              Could you clarify something for me?

              I was targeting that reply more for NWPA, who mostly ignores me (and I’m okay with that). I fear sharing my opinions with you is going to start a LONG debate, but since you’re being civil, I’ll “take the bait”. :)

              I was, for the moment, avoiding the 101 argument, and referring to the minefield being laid by the PTO’s granting of patents that software developers can (and do) trip over just in the course of performing their duties.

              The astounding degree of overlapping independent “invention” (without knowingly copying) makes it obvious there’s a 103 problem with what’s being granted, even if you’re of a mind that 101 is fine for software (which, as you know, I’m not).

              And if the 102 requirements were being met, we wouldn’t be seeing so many software patent claims being knocked out on re-examination for prior art.

              Regarding 112 … meh. Lawyers play games with enablement for all patent types, trying to get away with not enabling anything at all, but still enjoying all the protection a patent has to offer. Not just a software issue.

              If the PTO could get the funding and a rules set that would allow them to competently apply 102/103/112 to software patents, I don’t think this sneaking past 101 on a technicality (“process”? Please.) would be quite the debacle it’s turning out to be.

              If they can’t handle ‘em, they shouldn’t be forced to, and it’s time-and-past for 101 to be used for its appropriate and fitting gateway function.

              Just calling it like I see it. Flame away. :)

            8. Dobu, I have a reply to you that is hung waiting moderation for 6 hours.

              You might want to visit the “more on cloning” thread, post 14.

            9. Ned,

              Thanks for the feedback. I suspect “ssppaaddeess” is what snared your post in the moderation trap. (I keep getting caught on the word “jeneral”, as in “jeneral porpoise computer”.)

              I looked over your post 14. I like the quote from Justice Douglas. I’m guessing he’s probably not too popular with the vociferous patent-expansionist crowd here.

              It looks we do have some views in common. You’re doing fine over there, so I’ll my nose out of it. The Great Detractor isn’t posting anything worth responding to, anyway.

            10. I’m guessing he’s probably not too popular with the vociferous patent-expansionist crowd here.

              Quite in fact, Dobu, you might want to read up on the old history of a certain judicially activist court that was tagged with the line: “the only valid patent is one that has not yet appeared before us”

              Also from history, was the fact that this type of anti-patent judicial activism was one of the reasons that sparked the 1952 Act that throws Ned into his conniptions.

              (“worth posting” is obviously a relative term, right?)

            11. Dobu,

              I do think harm is being done by some poor patents being issued. I also think that the remedies that have been implemented and that are being implemented are nothing more than a pretext to burn the system down.

              Furthermore, a problem with patents does not justify making false statements about science and technology or intentionally misrepresenting the law. That is what many academics do on this board. E.g., software is a natural law, software has no structure, a functional limitation should be limited to the embodiments in the specification, etc.

              Also, I think that the SCOTUS is the body messing up patent law. TSM was the right solution to 103. Etc.

              Etc. Please try to think.

            12. Dobu,

              To your post at 5.1.3.3.1.8:

              First, the assumption that any response is “flame” is more than a bit off kilter. It is clear from what you state that you only have a passing familiarity with the law involved, and that you are not an attorney, nor do you prosecute applications as a patent agent. You seem to mouth the mantra that patents are bad and too easy to obtain with a sense that you are merely parroting what you have read, mumbling the mantra that lemmings mumble as they march up their hill.

              You seem to think that there being more than one party pursuing independent inventions or obtaining similar patents is a sign of de facto obviousness, when this is not what the law intimates. Rather, this is merely a sign of a crowded art field and the fact that there may be many racers in the race. As to any notion that this aligns with the Malcolm canard of “but-for,” the last sentence in 103 was meant to quash that notion.

              You deem to brush aside 112 concerns as “lawyer tricks, happening in all art field.” You fail to realize that all of your misgivings apply equally to all art fields, and there is history for every one of your qualms, repeated time and time again when innovation broaches widespread adaptation.

              You evidence a lack of understanding on PTO funding that renders your comment on such as unintelligible. I suggest you research a little bit before passing judgment on something that you clearly know nothing about.

              You lay a claim on re-examination, assuming the conclusion you want, when other viable alternatives (such as selection bias) can easily be present.

              I thank you for your willingness to clarify your views, and wish that you continue to seek clarity for those views (without merely assuming the conclusions that you may want to reach prematurely) based in more than kool-aid and group think.

            13. NWPA,

              I do think harm is being done by some poor patents being issued.

              Surprisingly, we have found a point upon which to agree: a problem exists. (Now, as to scope, impact, cause, solution … Oh, well. Makes for livelier debate.)

              I also think that the remedies … being implemented are nothing more than a pretext to burn the system down.

              I’m sure you have a much better grasp than I do of how the proposed remedies could affect how patents would operate in the future, but my impression is that these changes are coming around partly because patents are being asserted aggressively against people who have no practical way of knowing their actions would make them targets (“Main street”, “mom and pop”, etc.). Enough (voting) people are viewing this as unfair treatment that Congress is finally starting to take note and look for ways to dial back the perceived unfairness. I think trying to weaken patents is distinguishable from trying “to burn the system down”.

              Also, I think that the SCOTUS is the body messing up patent law.

              They’ve certainly been contributing. However, the CAFC’s land-grabs for more patentee’s rights are helping make a right mess of things, too (in my humble, not-a-lawyer opinion).

            14. Anon,

              (“worth posting” is obviously a relative term, right?)

              Agreed. I’ll (pedantically?) point out that the evaluation I offered was “worth [me] replying to” (with the “me” being implied). Not quite the same, but we can still consider it relative.

              First, the assumption that any response is “flame” is more than a bit off kilter.

              I’m sure you’re aware that most of your responses to those who disagree with you (including me) could reasonably be considered inflammatory. I’ll concede that in this exchange, you have been much milder than I have come to expect. It’s noted, and appreciated.

              … you only have a passing familiarity with the law involved, and that you are not an attorney, nor do you prosecute applications as a patent agent.

              Absolutely correct. You might even be demonstrating generosity with the “passing familiarity” estimate.

              … you are merely parroting what you have read, mumbling the mantra that lemmings mumble as they march up their hill.

              As I have not made a career out of law, my legal education is limited to what I’ve had the time and inclination to read. Favorite sources include Groklaw (I know, not your favorite blog), Ars Technica, Wikipedia, and, of course, Patently O. (I won’t comment on that dog-with-another-blog, other than to say I’ve been banned from posting there for petty reasons. At this point, I consider that a badge of honor.) I’ve seen pro and con arguments regarding software patents, and in my evaluation, the “cons” resonate better with the reality of developing software (an area in which I can claim some expertise).

              Rather, this [multitude of similar inventions/patents] is merely a sign of a crowded art field and the fact that there may be many racers in the race.

              If patents are to meet their constitutional mandate of promoting progress, then it doesn’t matter how many racers are in the race. Patents need to be reserved for those inventions that advance the state-of-the-art beyond what the rank-and-file are doing without regard to patents.

              You fail to realize that all of your misgivings apply equally to all art fields.

              Could be, I wouldn’t know. But I can see what field’s patents are getting the attention of news outlets, bloggers, the USSC …..

              You evidence a lack of understanding on PTO funding that renders your comment on such as unintelligible.

              How much understanding does it require to see the problem with a U.S. PTO application backlog approaching one million (if it hasn’t exceeded it yet)? “[the USPTO] desperately needs thousands of additional examiners and new IT systems. Indeed, it has needed them for years.” — U.S. federal judge Paul R. Michel.

              You lay a claim on re-examination, assuming the conclusion you want, when other viable alternatives (such as selection bias) can easily be present.

              Agreed, but I would like to add that selection bias could cut both ways. A patent owner bringing suit would most likely be asserting what he or she believes to be his or her strongest claims.

              I thank you for your willingness to clarify your views, and wish that you continue to seek clarity for those views …

              Okay, who are you, and what you have done with Anon?

              … based in more than kool-aid and group think.

              There you are. :)

              It’s too late for me, Anon. The Kool-Aid has taken over, and I’m making more for anyone who will drink with me.

            15. Dobu, your point rests on a fallacy.

              In particular “because patents are being asserted aggressively against people who have no practical way of knowing their actions would make them targets

              Sorry, but patents are public knowledge.

              Just because they may be difficult of being known, does not make them “no practical way” of being known.

              If your point were to hold, then the Office (not the patent holders) would be to blame for utterly failing their mandate of even having patents in the first place.

              You then enter a more difficult realm of looking at the system as a whole (which allows for the fact that not every single patent will be – or even can be – practically known by someone who will be judged an infringer.

              You really need to be careful at this point of how much Infringers’ Rights kool-aid you drink.

              Further, I outright dismiss your view of the CAFC as engaging in a landgrab – you are merely mouthing the lemming mantra that patent rights have been expanded without showing any actual basis in law or fact to support that view.

              could reasonably be considered inflammatory

              Reasonably is very much in the eye of the beholder, and it is highly questionable that those to whom I bring the fight to have been reasonable at all. Sorry, but the history of CRP-runaway from valid counterpoints-and CRP again removes the ‘reasonableness’ that you would want to have. If the counterpoints were addressed in an honest and forthright manner, you may have more traction on this point. As it is, you do not.

              Favorite sources include Groklaw (I know, not your favorite blog), Ars Technica, Wikipedia, and, of course, PatentlyO

              Thank you for proving my point about the lemming nature of your posts. I accept your surrender.

              Patents need to be reserved for those inventions that advance the state-of-the-art beyond what the rank-and-file are doing without regard to patents.

              Explicitly NOT. You buy into a canard and show a fundamental lack of understanding about how innovation works. As I recommended to Ned, so too I recommend you to read up a little on innovation and start with Christensen.

              Try not to bask in your choice of ignorance.

            16. Anon,

              Sorry, but patents are public knowledge. Just because they may be difficult of being known, does not make them “no practical way” of being known.

              You are, in effect, advocating that every consumer purchase be preceeded by consultation of a patent lawyer, or take the risk of being sued for using said purchase for its intended application. (Wireless access points and document scanners being two recent examples in the news.) NOT PRACTICAL.

              If your point were to hold, then the Office (not the patent holders) would be to blame for utterly failing their mandate of even having patents in the first place.

              Oh… oh… I ab shoooooh bahteeg mah tunk heah.

              You really need to be careful at this point of how much Infringers’ Rights kool-aid you drink.

              If the law is going to punish people who have no >> PRACTICAL << way of knowing they're in violation, THE LAW IS WRONG and needs to be changed.

              "Further, I outright dismiss your view of the CAFC as engaging in a landgrab ….

              Noted.

              Sorry, but the history of CRP-runaway from valid counterpoints-and CRP again removes the ‘reasonableness’ that you would want to have.

              Yeah, that would hold more water if I hadn’t already been subjected, multiple times, to your refusing to acknowledge the existance of any replies that don’t align with your views. You like to flame dissenters, EVERYONE here knows it, so just lay off the excuses and own it already. Jeez.

              Try not to bask in your choice of ignorance.

              Hmm… it’s feeling a little warm in here ….

            17. No Dobu, I am merely advocating that existing law be maintained.

              That you fail to see and understand this is a “you” problem.

              If you want to ignore the law and ignore reality for some notion of infringers rights and think that “Joe Average” should not be considered an infringer “just because,” well, you should expect to receive a little heat for such a view.

              Your expectation is just not real. Don’t take it so personally that it is I that is telling you this (you really should not have put so much faith in the kool-aid of the sources you have chosen to listen to).

            18. Dobu, see link to law.cornell.edu

              35 U.S. Code § 271(a) has no asterisk denoting the term “Whoever” in “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

              Wake up son.

            19. …asterisk denoting that “Joe Average” cannot be an infringer, or that only those entities that can afford to have a lawyer complete a freedom to use analysis are to be considered liable to classified as infringers.

              It just is not so. It ha never been so.

            20. If you want to ignore the law and ignore reality … well, you should expect to receive a little heat for such a view.

              Yeah, flame all you want. I can take it. Just don’t get all defensive about it when someone points it out to you.

              Don’t take it so personally that it is I that is telling you this ….

              I don’t. You flame everyone who disagrees with you. I ain’t nothing special. :)

              … “Joe Average” cannot be an infringer, or that only those entities that can afford to have a lawyer complete a freedom to use analysis are to be considered liable to classified as infringers.
              It just is not so. It ha never been so.

              I am not disputing that the letter of the law is as you say. I am saying I believe the law is now being mis-used in ways that were not considered by Congress when the law was written, and THIS is why Congress is being pressured to FIX IT now.

              Asserting patents against the end-users of off-the-shelf technology seems to be a recent phenomenon, in my narrow window viewing the patent scene. Are you aware of previous history of this kind of behavior by patent-holders, suing the consumers instead of the manufacturers or retailers?

              And is it really your position that the hotels offering wi-fi, or the offices using image scanners, are getting what they deserved, by NOT doing a free-to-use analysis before plugging in their new routers or scanners? Is this how you believe the law should work? Nothing there needing fixing?

            21. Yeah, flame all you want. I can take it. Just don’t get all defensive about it when someone points it out to you.

              Dobu, not all heat carries the same connotation of “flame”

              Context matters.

              And defensive is the wrong word. Thanks.

              law is now being mis-used

              How exactly? The only way to reach your version of mis-use is to place the asterisk that just is not (and never has been ) there.

              Try to comeback with something on point Dobu – merely repeating yourself is not working for you. You need to recognize the valid counterpoint and integrate that valid counterpoint into your view.

              The law is as it always was – Any change to the law would be change that you are advocating, and you need to do a better job of advocating to change the law (and because end users may be more held accountable to the law now then in times past is NOT an effective form of advocacy).

            22. Anon,

              How exactly? The only way to reach your version of mis-use is to place the asterisk that just is not (and never has been ) there.

              I think you’re on the wrong script, Anon. I have already agreed that the law, as written, is missing that asterisk.

              Try to comeback with something on point Dobu – merely repeating yourself is not working for you.

              If anybody else is still reading this old thread, you will almost certainly see those words coming back to you later.

              And if you ask the same question, without providing any new discussion points, you get the same answer: “… not considered by Congress ….”

              You need to recognize the valid counterpoint and integrate that valid counterpoint into your view.

              You need to recognize that I already agreed to your counterpoint (letter of the law, etc.).

              The law is as it always was – Any change to the law would be change that you are advocating, and you need to do a better job of advocating to change the law…

              In case you have forgotten, you were replying to my post offering a view to NWPA as to why the changes to the law are already happening. Reminders: Burning the whole system down. Main Street. Mom and Pop.

              … (and because end users may be more held accountable to the law now then in times past is NOT an effective form of advocacy).

              Looks like the U.S. House of Representatives disagrees. Now, if only the Senate would move their collective backsides, and get that bill out of committee ….

            23. I am not on “the wrong script” – I am asking you to do more than merely read your script. So far, nothing more than the typical empty lemming prattlings…

              Come Dobu, raise up your game – you are on a PATENT LAW blog – do more than just tell me your feelings. Do more than just pound the table.

              Remember, those that have the law on their side, pound the law. Those that have facts on their side, pound the facts. When you have neither, you pound the table.

              And note -when I say “you merely repeating” there is a clear difference between that (being you) and me repeating. Since I base my repetition on law and facts, not table pounding.

              You fall (again) into your fallacy that you think just because I say something, that it is merely opinion. You think that because I say something, it is only my opinion of a fact, or of the law.

              You are wrong.

              The law is not the law because I say it is the law.
              Facts are not facts because I say they are facts.

              I say the law, because the law itself is the law
              I say the facts, because the facts themselves are the facts.

              You want to say “don’t take it personal” and yet you argue the fallacy that what I put forth is only personal.

              You err grievously.

              But given your source material, and your admitted lack of legal training, this is not all that surprising.

              (and if you think Congress is listening to your arguments instead of $$$ – you really are hopelessly naive)

        3. It is written, to a plan.

          (hmm, writing, given the controlling law of the exceptions to the judicial doctrine of printed matter is equivalent to manufacturing, and to a plan indicates that the result of that plan is not something totally in the mind, and most likely has utility that falls within the Useful Arts – thanks Marty for joining our side)

          The good news evident in Mr. Snyder’s change of content is that it appears that he has perhaps talked with his council and now (hopefully) does understand the legal background a little better and – while perhaps still not personally liking the fact that software (as a manufacture and machine component in its own right) is patent eligible material, is not parading a level of massive ignorance that would impugn his own council in his own legal battles.

          sometimes baby steps are all we could hope for.

            1. Marty,

              Ask your counsel to explain to you the difference between the Useful Arts and the non-Useful Arts.

              (of course, to be proceeding in representing you, this probably should have already been covered for her to have your informed consent, but she may have missed it.

    2. A stench of ivory-towerism

      Are you sure that’s not Dennis? Maybe he switched deodorants now that the weather is getting warmer.

  6. I was struck also by the Federal Circuit’s summary of the law. Not a single subsequent court has treated computer interfaces as uncopyrightable as did the 1st Circuit in Lotus v. Borland. Not one.

    It appears that the error of the district court here was to follow the Lotus cases and not 9th Circuit cases that continue to focus on Learned Hand “abstraction, filtration, comparison” test.

    My I suggest that given that the 1st Circuit is standing alone, it will not be followed.

    But, because there are conflicts among the circuits, this case may go up to the Supreme Court to resolve the split. I say Hand wins this one.

    The only real question is whether the Supreme Court will wait until the cases in over, or will they take it now?

          1. we kind of already did this whole “that post was poor quality” thing already.

            Can you at least try to come up with some new clever schtick?

  7. It is unclear why Prof. Samuelson wrote a post based on interoperability. This is not a case about interoperability. The record indicates that Android is not interoperable with Java. The record shows that Google intentionally made Android non-interoperable with Java. So the professor’s statement that an API “becomes a constraint on the design of follow-on programs developed to interoperate with it” is completely inapplicable to the facts of the case. Consequently, whatever the merits of the interoperability argument, as applied to the facts of the case, Google’s reliance on them is akin to the admonission to “pay no attention to the man behind the curtain”.

    Furthermore, the facts of the Sega case are completely non-analogous to the facts of the present case. In Sega, Accolade copied (a small amount of) Sega code to make their own games compatible with Sega’s game console. Here, Google copied (a large amount of) Java code into Android. To make Android compatible with Java? No. No analogous compatibility reason for copying, so Sega is inapplicable.

    The professor states: “The SSO of the Sega interface was almost certainly creative initially as well. Yet, once that interface was developed, it was a constraint on the design choices that Accolade and other software developers faced when trying to make videogames to run on Sega platforms.” Again, Google did not fail to make Android compatible with Java despite their best efforts. Instead, Google purposely made Android incompatible with Jave. Completely different fact pattern. In fact, there is no secret as to how to make software compatible with Java. The entire Java specification is publically avaible. Google did not need to do any reverse engineering, unlike Accolade.

    If the professor believes that the Fed. Circuit opinion is inconsistent with precedent, then at least cite cases with analogous fact patterns rather than trying to fit pegs of a particular shape and size into openings with inconsistent dimensions.

    1. Agreed.

      If one were striving to make a compatible system, and Sun has a monopoly, there might be a fair use argument here. But Google did not take out the proffered license precisely because they did not want to maintain compatibility, a requirement that Sun was imposing.

    2. Great post Mister Bear. I have followed Ms. Samuelson’s writings for some time particularly in ACM. She is another one of these people that clearly does not understand technology and clearly does not understand business, and clearly has an agenda.

      I wish people would keep politics out of patent law (and copyright law.)

    3. Mister Bear: Here, Google copied (a large amount of) Java code into Android.

      No it was not a large amount of Java code. They copied the declarations. There is no executable code in declarations. Declarations are statements of how the various functions in a library are named. They allow third party code to access the functions through their name.

      The executable code was entirely rewritten from scratch. Google have copied strictly the part of the code that is needed to define the naming convention because they wanted to use compatible names. The issue is whether the SSO of the naming convention is copyrightable as a taxonomy. It is not whether the executable portion of the code is copyrightable.

      This is not a case about interoperability.

      It is a case about interoperability because portability is a form of interoperability. Google’s purpose is to allow third party programs written for Java to be ported to Android. This is much easier to do when the naming convention is the same. Not every Java program would port because some Java functions were not made available on Android. But to the extent a third party program uses the functions available on both platforms it is portable.

      Interoperability is not a binary yes or no question. There are degrees of interoperability and Google’s purpose was definitely to provide a significant degree of interoperability.

      Pr Samuelson description of the interoperability issues is spot on.

      1. Great comment, paul. This in particular:

        Google’s purpose is to allow third party programs written for Java to be ported to Android.

        Indeed. And why in the world would anybody want laws that make it more difficult for software to function on different platforms? It’s like someone patenting methods of teaching Spanish. Why should we allow thousands of roadblocks to be put up? Because Fat Buck Esquire, ambilingual patent attorney, thinks that people aren’t going to learn Spanish unless we do that?

        Interoperability is not a binary yes or no question. There are degrees of interoperability

        Of course there are. And it’s a moving target that changes all the time, and changes far more rapidly than the ridiculous lengths of protection afforded by both copyright and patent law. The softie wofties know this, too. That’s why the worst thing in the world would be to limit their functionally claimed junk to, e.g., a particular operating system where they demonstrated a working embodiment at the time of filing.

        1. I don’t think patent attorneys have anything to do with this case. This is a big corporation that doesn’t want anyone to interoperate with their software except under their chosen terms and conditions. Copyrighting an API is a great way to achieve this result.

          I am more worried about the Federal Circuit’s understanding of copyright law. Perhaps they did not fully understand what interoperability means in the software industry. Or maybe they did but still thought it is OK to give big corporations this kind of control over third party developers.

          This decision is a win for big corps that control dominant technologies and a loss for those who seek to develop alternatives.

          1. like the professor (and others) you too paul are overreacting and not noticing that defenses still exist.

            Take a closer look at what this court states.

          2. loss for those who seek to develop alternatives

            Last I checked, copying something is most definitely NOT developing an alternative.

          3. This is a big corporation that doesn’t want anyone to interoperate with their software except under their chosen terms and conditions. Copyrighting an API is a great way to achieve this result.

            Copyrighting anything is a great way to achieve control over that thing. We’ll see how long this “result” lasts.

            Make no mistake: both little corporations and big corporations love to feed on the scummy bottom. If there’s a way to push any IP law to its breaking point and profit from it for five seconds, these folks will figure out how to do it. It’s called freedum. It’s what the “founders intended.” Or so we’ll be told by the defenders of the latest nutty handout to those who already have quite a bit.

            1. “Make no mistake” MM will blather on as long as he is paid to blather on…right off his policy sheet.

              My guess is that the bio industry is paying you. Your policies seem to be squarely in alignment with big pharma.

          4. maybe they … thought it is OK to give big corporations this kind of control over third party developers.

            In the big scheme of things, this “control” you’re referring to is nothing compared to the control the FCC is preparing to give away. A teensy tiny drop in the bucket.

            There’s all kinds of things we could do to keep a lid on the power that large corporations and wealthy entities have in our lives. But this isn’t really the place to talk about them unless you want to listen to some kooky old guys frothing at the mouth over Jane Fonda.

            1. …on the other hand, Malcolm is known to occasionally froth at the mouth over (of all things) old discarded socks…

              (I guess he really has lost it over the old sockie thing… ;-) )

      2. >No it was not a large amount of Java code. They copied the declarations. >There is no executable code in declarations. Declarations are statements >of how the various functions in a library are named. They allow third party >code to access the functions through their name.

        This is a ridiculous statement. The API —clearly– defines the functionality of the software. The API does not just define how the functions are named, but what functions there are and how they operate and how the data is structured. Please. What sort of nonsense are you up to?

        “How they are named.” That is good for a belly laugh the way you are trying to misrepresent what an API is.

        1. NWPA: The API —clearly– defines the functionality of the software. The API does not just define how the functions are named, but what functions there are and how they operate and how the data is structured.

          Read what I wrote again. I said “declarations”, not “APIs”. There is a difference between the declarations and the APIs.
          Google did not copy the whole APIs. They only copied the declarations.

          From the Federal Circuit opinion, pages 10-11, bold added:

          Google copied the declaring source code from the 37 Java API packages verbatim . . .

          It is undisputed, however, that Google wrote its own implementing code, except with respect to: (1) the rangeCheck function, which consisted of nine lines of code; and (2) eight decompiled security files.

          When an outside program uses an API it must state the name of the function, the class where the function is located in the hierarchy, as well as the parameters that must be supplied to the function. This is a language convention that must be understood by both the API and the outside program to ensure they both work together. The declaration is the part of the code that defines this convention. There is no data structure and no executable code in declarations.

          The code defining the data structure and the instruction to perform the functions was rewritten from scratch by Google and put under the same declarations to ensure interoperability. Had Google used a different convention existing Java programs would not be portable to Android without rewriting all the lines of code calling the APIs.

          1. Paul, do you understand that defining what the functions do and the data structures they operate on is the API? That the declarations —as you say and the Fed. Cir. — is the API? That the API then is defining how the program is going to operate at a higher level than a moduler level, but still defining the functional interactions and the functions of the modules.

            Sheeesh Paul. Talk about trying to twist words. I see we have a new one here on patentlyo. Oh joy.

            1. There is indeed a confusion of terms. The term API can refer to many things depending on who you talk to. Some people will call a library of functions an API. Others will take the position you did and say the API is the same as the declaration. In this sense you have a point. But you still miss the more substantive issue.

              Declarative statements are NOT “defining how the program is going to operate at a higher level than a moduler level, but still defining the functional interactions and the functions of the modules.“. The elements that Google copied did NOT define the function of the program and the data structure it operates on.

              This is not a play on words. The Federal Circuit explains: (see page 8-9, bold added)


              Every package consists of two types of source code—
              what the parties call (1) declaring code; and
              (2) implementing code. Declaring code is the expression
              that identifies the prewritten function and is sometimes referred to as the “declaration” or “header.” As the district court explained, the “main point is that this header line of code introduces the method body and specifies very precisely the inputs, name and other functionality.” Id. at 979-80. The expressions used by the programmer from the declaring code command the computer to execute the associated implementing code, which gives the computer the step-by-step instructions for carrying out the declared function.

              To use the district court’s example, one of the Java
              API packages at issue is “java.lang.” Within that package
              is a class called “math,” and within “math” there are
              several methods, including one that is designed to find the larger of two numbers: “max.” The declaration for the “max” method, as defined for integers, is: “public static int max(int x, int y),” where the word “public” means that the method is generally accessible, “static” means that no specific instance of the class is needed to call the method, the first “int” indicates that the method returns an integer, and “int x” and “int y” are the two numbers (inputs) being compared. Copyrightability Decision, 872 F. Supp.
              2d at 980-82. A programmer calls the “max” method by typing the name of the method stated in the declaring code and providing unique inputs for the variables “x” and “y.” The expressions used command the computer to execute the implementing code that carries out the operation of returning the larger number.

              As you may see there is a clear distinction between the declaring code and the implementation. The declaring code identifies. It does not define the functionality. The implementation is the executable part. An outside program uses the names and parameters found in the declaration code to cause the implementation to execute. The declaration determines how the outside program communicates with the function. It does not define the functionality.

              As I have pointed out before it is undisputed that Google copied only the declarations. They did not copy but the implementation.

            2. Paul your position is ridiculous. The declaring code defines the functionality, the data structures, and the overall architecture.

              Please. You are talking to a former software engineer.

            3. NWPA: Please. You are talking to a former software engineer.

              And so do you.

              The declaring code defines the functionality, the data structures, and the overall architecture.

              I have backed up my position with the facts of the case as they are explained in the opinion. You are clearly not taking these facts into account. Please do so.

              It takes much more than declaring code to define the overall architecture of a system. The declarations that were copied do not define the overall system architecture. They define the entry points of a specific set of Java library functions that Google has chosen to independently implement in Android.

              This declaring code that was copied is the contents of headers of Java library functions and the data structures that are used by the function calling interface. Most data structures are not found in what was copied.

              These declarations do not define functionality. If by functionality you mean a functional description of what the function does this is found in the documentation, not in the code. If by functionality you mean the steps of the execution this is defined by the algorithms. There is no algorithm in the declarations.

              Anon: methinks you need to refresh your understanding of copyright law.

              I have said nothing about copyright law. The debate I have with NWPA is about the contents of the files that were copied by Google.

            4. I have backed up my position with the facts of the case as they are explained in the opinion. You are clearly not taking these facts into account. Please do so.

              Funny about that, paul, those same facts are used to come to a different conclusion in the actual case and it is your mere “I say so that is the actual difference here.

              Sorry, but I just don’t buy what you are attempting to sell.

              (whether it “takes more”or not is a non sequitur that part of what it takes is the very item you wish to remove from consideration)

              And the context here of copyright law is paramount to your discussion with NWPA. That is precisely why I gave you my recommendation. Please follow that recommendation.

            5. anon: those same facts are used to come to a different conclusion in the actual case

              I have read the court opinion and I do not find anywhere anything that disagree with what I have said.

              I have no idea of what is the “conclusion” you refer to and why you think it is different from what is said in the case.

              the context here of copyright law is paramount to your discussion with NWPA

              We are discussing what is actually copied. The contents of the copied material is what it is. No legal context changes what is copied.

            6. No legal context changes what is copied.

              (sigh) – but what is copied (and you both agree that something was copied) very much is impacted with the legal context…

            7. Anon: but what is copied (and you both agree that something was copied) very much is impacted with the legal context…

              I disagree.

              Which files and lines of code were replicated are facts that depend solely on the actions of Google. They are not impacted by the legal context. Moreover these facts are undisputed. We can just rely on the words of the parties, exactly like the courts did.

              NWPA and I were discussing what the copied code is doing. This is an issue of the meaning of the code in this particular programming language, in other words this is a technical issue. This is not impacted by the legal context.

              NWPA and I never discussed legal issues such as copyrightability or fair use. We just discussed which code is copied and what it is doing.

            8. paul,

              Just because you choose to disagree does not mean that it is not so.

              You can always close tight your eyes to reality – it remains in place.

    4. The case should not turn on whether Google copied the Java class definitions for interoperability, or simply because it wanted to leverage the fact that programmers were already familiar to them. The alleged motives of Google are simply atmospherics for justifying the result they reached that have no real relevance. If APIs should not be copyrightable because of broader policy concerns with interoperability, as courts have found for more than two decades, then the motives of one particular defendant shouldn’t matter.

      The statement that “Google copied (a large amount of) Java code into Android” is false. The stuff that was copied was what the Federal Circuit misleading called “declaring source code,” which is simply the statements that define the structure and arguments for the Java classes and methods. The actual code to implement the Java classes/methods was written anew by the Android creators. The “declaring source code” doesn’t do anything, it’s basically just a programming template (in the old days they would call this a “prototype”) to define the calling and access conventions of the Java classes. It’s not “source code” in the truest sense of the word because it doesn’t actually implement any of the actual functionality; if you compiled the “declaring source code,” it wouldn’t result in any workable program.

      I think attacking the professor on “ivory tower” grounds is baseless. Most professors tend to think that copyright protection shouldn’t extend to APIs. Just because they’ve written about this, and express this point of view, doesn’t undermine the credibility of their underlying arguments.

      1. Lode_Runner,

        I think your comments have been baseless (unless of course, you have decided to share which footnotes bothered you…).

        So I guess we are even.

      2. I think attacking the professor on “ivory tower” grounds is baseless.

        That’s because it’s a mindless smear from the mouth of a very, very small man. If it’s not “Ivory Towerism”, TB will gleefully accuse you of being a communist if he suspects you’re not fully on board his More Patents, All the Time, Easier to Enforce bandwagon.

        You’ll know he’s completely wacked when he starts accusing people who criticize his behavior of reciting rightwing talking points. Oh wait — that already happened! Try to believe it, folks.

      3. Lode_Runner: If APIs should not be copyrightable because of broader policy concerns with interoperability, as courts have found for more than two decades, then the motives of one particular defendant shouldn’t matter.

        If there are broader policy concerns for interoperability then it does matter that a particular defendant wants interoperability. It means the policy concerns are relevant to the case.

      4. Load_Runner, If APIs should not be copyrightable because of broader policy concerns with interoperability, as courts have found for more than two decades , then the motives of one particular defendant shouldn’t matter.

        I do not think that courts have been finding APIs uncopyrightable for more than two decades. That appears to have been the holding of the First Circuit in Lotus v. Borland, but is there another case from a different circuit that you can think of that supports this view?

        I thought the Federal Circuit made a very good point First Circuit stands alone on the on copyrightability of such interfaces, with every other circuit adopting Learned Hand`s “abstraction, filtration, comparison test” even with respect to APIs such that the API original expression was protectable, while its functionality might not be. Interoperability, which seemed to form the basis of the first circuit opinion in Lotus, is not a concern of copyrightability. It might be concern on fair use, but only to the extent that interface has become an industry standard and that the use of the expressive elements are essential for a competitor to use to develop a competing product. But that is all in under fair use and not under copyrightability.

  8. It seems that Ms. Samuelson recognizes that when an API has become an industry standard that there might be some better argument for fair use.

    But, consider Sun having constructed an API and first trying to market it before it became a standard. Would we not be offend if some big player simply ripped it off wholesale so that he or she could market a competitive product and drive Sun out of business? Sure we would.

    I am not sure whether there can ever be fair use when a competitor make wholesale copies for the very purpose of competition and avoiding paying a license fee or maintaining compatibility like Sun demanded. There was poor excuse for copying in this case: Incompatibility was the goal. There was no need to copy the expression, none at all. They simply wanted to shortcut their own programmers time in coming up with a completely original system.

    1. Ned,

      Popularity is discussed in the case. Your offered opinion indicates that you have not yet read the case.

      I suggest that you do so.

      1. OK, anon, just what did you want to say about popularity that is somehow different from the term “industry standard” that I used in my post.

        Is there a legal difference between popularity and essential to compete?

        I think there is. Which is why I didn’t confine myself to simply popularity.

  9. If Judge O’Malley’s opinion in the Oracle v. Google case is to be believed, APIs have migrated back into copyright’s realm big time.

    Hmmm, no.

    I think less a movement back and more a “never left.”

    Face it folks (including academics), clearly aspects of software can be protected by multiple areas of IP.

    (and yes, this is one of my long-standing points on the subject)

    1. When academic research is being funded by one side of the debate with a very real agenda, this is what you get.

      1. interesting, different anon…

        …but I doubt that research funding alone accounts for all of the various shades of proselytization that transpires under the guise of ‘academia.’

    2. clearly aspects of software can be protected by multiple areas of IP. (and yes, this is one of my long-standing points on the subject)

      Right. Just like “you can’t dissect claims when you look at subject matter eligibility” was one of your long-standing points. Now it’s toast.

      Clearly what is happening and what is going to continue to happen is that IP protecton for software is going to diminish, for all kinds of very good reasons. Is that going to hurt the “software industry”? No. Is it going to hurt grifters, bottom-feeders and monopoly-lurvin’ BigCorps? We can only hope.

      1. Is that going to hurt

        LOL – what possible connection is that?

        Oh yeah, the “but-for” reasoning.

        Go back and learn the basics Malcolm.

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