27 thoughts on “

  1. 27

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  2. 26

    The Film Tec case is apples and oranges to the immediate discussion.

    Further, I disagree with your characterization that the Supreme Court heavily criticized the Federal Circuit decision. I note your (repeated) tendency to take a position from a dissenting view and ascribing far too much authority and weight to it, far more than is merited.

    Further, Breyer’s dissent is plainly incorrect. He ignores the plain fact that the turns of phrases, the actual words chosen and used in contract law are important. He would dismiss as “what seem only slight linguistic differences” and he would re-write the actual contract. This is naked judicial activism of the most deplorable kind. In the Stanford case, there was nothing stopping either party from actually using other language if that indeed was what the parties wanted to contract to.

    Be that as it may, it appears that you are still striving for something that has no basis in law (patent law, the Bayh-Dole act, or contract law).

  3. 24

    Many companies have applicants sign present assignments of future inventions. These assignments typically are not recorded. When later an invention is made, we usually obtain an assignment of the invention after the application is complete and record that assignment against the patent application on or shortly after filing where we insert the application number.

    Query: If, has the Feds have held, the first assignment of future inventions operates as a legal assignment, the second assignment is attempting to assign an invention that has previously been assigned. What is the legal effect of the second assignment of the same invention?

    Now consider the Roche case. Assume the employee entered service and assigns to company X all future invention related to technology A for a period made within 10 years. That agreement is recorded the first time the employee files a patent application for company X.

    The employee moves to company Y in the same technology field. Who owns the employee inventions made for company Y in the technology field? Is the recording good against all inventions made by the inventor in the technology field for the 10-year period by operation of the statute so that the second company cannot claim BFP status?

  4. 22

    Still, I assume you did not understand my concession, made eons ago, that an owner could not name himself the inventor.

    The topic at hand is whether the owner of the invention can file the application for patent as the applicant. In 1793 he could. That was changed to “only the inventor can be the applicant” in 1836.

    I think we can go back to 1793.

  5. 21

    Still, I know and I agree with you on this. You might want to clip this note and paste it in your scrapbook for historical purposes.

    But, did you know that the fricken Federal Circuit has held that a contract to assign future inventions not even conceived is a present legal assignment of such future inventions? Yes they have. So, if such an assignment is recorded, it should now appear that there can be no BFP from an inventor who executed such an assignment until he obtains a release and records that.

    But, as you and I would agree, the Federal Circuit position here, heavily criticized by the Supreme Court in the recent decision Standford v. Roche decision, makes no sense at all.

  6. 20

    apples and oranges Ned – check out your own words: future invention [not] yet in existence.

    Even prior to the so-called cataclysmic change, you could not assign what you don’t have.

    You never could.

  7. 19

    Exactly what “state” was that? Do you really think that at any time in the history of US patent law a non-inventor could be listed as the inventor because of ownership?

    Are you really a lawyer? When was the last time you did a filing?

  8. 18

    Ah, but there is a problem. See, Gibson v. Cook, 2 Blatch. 144, set forth at page 167 of Curtis (1867 ed.).

    There as assignment of a future invention yet in existence was discussed. The assignment, even though recorded, was not good notice against a subsequent BFP from the inventor after the invention was complete and filed. The reason being was that there was no description of the thing covered by the assignment, as it as yet, did not exist.

    Such an assignment thus is not a legal assignment at all, even though recorded.

  9. 16

    I still, Still, don't get your point.  The 1793 act required an assignment from the inventor and that that assignment be recorded.  The assignee could then do all acts and make all statements required of the inventor.  The point is that the assignee can be the applicant and doesn't further need the consent of the inventor.

    They apparently changed the law in 1836 for some reason to limit the ability to apply for a patent to the inventor alone.

    The version of the law as it existed in 1793 is what I advocate.  I do not find it at all surprising that Jefferson saw it the same way I do.  What I find surprising is that the PTO absolutely resists putting the law back to its state as it existed in 1793 despite no apparently good reason not to given that first to invent is history.

  10. 15

    Definitely off topic and in no way supports your previous posts, even on that toppic, as you still must start with the inventor, and you are conflating “owner” and “inventor” still.

  11. 14

    Off topic here just a bit, but in the Patent Act of 1793, Section 4, the assignee of the invention, who had recorded, had the absolute right to file and obtain a patent with interference from the inventor.

    Seems absolutely right.

  12. 13

    Nice try. But the APIs are not patentable as a whole, and may not be copyrightable because they are functional.

    Assuming this is true, why is this a bad thing? Why must this be “fixed” with legislation? With all the kvetching from the software industry about the so-called evils of software patents, why give them more of what they don’t want?

  13. 12

    Groklaw has an extensive day-to-day coverage of the case with reporters on-site for most hearings. They also have all the filings.

    For the ‘104 patent the court construction required that symbolic references were contained in the instructions and resolved dynamically during execution of the instructions. Google contended their symbolic references were not contained in the instructions and were resolved statically before execution.

    For the ‘520 patent a static array must be initialized by simulating the execution of instructions. Google contended their initialization was done by pattern matching.

    The technical folks at Groklaw thought Oracle was misstating the meanings of the relevant terms of art and their case wouldn’t work out if the proper meanings were used.

    The jury asked a lot of questions on the constructions of terms. They seemed to have worked hard to understand what the claims meant.

    The foreman of the jury talked to the media. It appears most in the jury didn’t believe Oracle’s evidence. At last the foreman was the lone holdout and he decided that if he couldn’t convince anyone to switch position the Oracle had failed to meet their burden of proving their case.

  14. 11

    If they are functional but not patentable, why do they deserve protection?

    If they are functional they are clearly excluded from being copyrightable because copyright is expressly not for functional [pun intended].

    The wheel works. You are trying too hard to make things too complicated.

    Functional: patent
    Expressive: copyright

    Class over. Let’s get rolling.

    And people, Hey, let’s be careful out there.

  15. 10

    Nice try.  But the APIs are not patentable as a whole, and may not be copyrightable because they are functional.  This issue, however, is yet to be decided by Alsup.

  16. 9

    I think, to submit a bill.

    The bill already exists. It’s called a patent. Patents cover functionality. Copyrights cover expression.

    Shouldn’t this already be understood?

  17. 8

    If Google gets away with this, the phrase “getting away with murder” will come to mind.

    This does seem to illustrate that copyright does not adequately protect software the wholesale copying of its functional aspects (APIs), and patents are not tailored to protect barely novel functional aspects such as APIs from wholesale copying.

    Back in the day, it was proposed to give software a untility model-like protection for its functional aspects against copying. It is time, I think, to submit a bill.

  18. 7

    Both sides agree that Google copied Oracle’s APIs as a question of fact, so all the jury needed to decide was whether the infringement was fair use or not. However, it is not settled law as to whether APIs are copyrightable in the first place, and the judge was (and may still) going to decide that himself.

  19. 6

    I know that for one of the patents, can’t remember which at the moment, non-infringment was because the patent was on symbolic references when initializing static arrays, and Dalvik uses pattern matching and numeric references instead.

  20. 5

    Sure–but we certainly see cases where the outcome turns on the construction of a few important terms, . . . . or where the accused infringer wins because, while they do 80% of what’s in a claim, they don’t do the remaining 20% . . . e.g., there’s a method claim with steps (a)-(e) and all they have to show is that they don’t do step (e), that kind of thing.

    I appreciate that we can’t get in the jurors’ heads–I’m just curious re: what Google’s argument was.

  21. 4

    It’s all speculation and we’ll likely never know what was dispositive with the jury. The questionnaire contains the only official determinations they make.

  22. 3

    Does anyone know what Google’s (successful) theory of non-infringement was–i.e., which specific elements in the claims did they say they didn’t practice and why?
    (I’m familiar with Java technology generally (though not with the Dalvik JVM or Android specifically), and I read the claims at issue–it seemed to me, based on my general knowledge of Java, that there was a decent chance that Google was infringing.)

    I’ve skimmed a ton of articles out on the Internets but haven’t been able to find any that provide any details to speak to the above question–most are pretty high level.

  23. 2


    Now if the judge will just agree that there is no copyright in the nine lines of code that were allegedly copied, and then fine Oracle for wasting Google’s and the court’s time with this b.s., the world will be a better place.

  24. 1

    For better or for worse, that still leaves the copyright claims. An article on Ars Technica seemed to indicate that the judge outright instructed the jury that Google WAS violating Oracle’s copyrights on the APIs, and that as a result, they only discussed the merits of fair use — for which the judge required a unanimous verdict.

    link to arstechnica.com

    I realize this is a patent law blog, but I hope someone well-informed on copyright litigation would enlighten me on the odds of this holding up.

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