Friday, May 31, 2013

"Sadly, This Is Not The Onion" Added to List of Humor Links

Along the left side of the blog, I have a list of interesting links.  Today I added to the list of humor links the web site "Sadly, this is not The Onion."  The real Onion has been there for quite some time, but I added this new twist on that site.  As you know, The Onion features fake stories that sound real.  To be the ying to The Onion's yang (or is it yang to the ying?  I can never get those two straight), "Sadly, this is not The Onion" features real stories that sound fake.

There is a related subreddit, r/nottheonion, which appears to be a feeder site to the real "Sadly, this is not The Onion."  Or maybe vice versa, it's hard to tell.

Time for Some Baby Ducks

This isn't really humor.  But I bet that these baby ducks make you smile anyway.  Good way to start the weekend!

Computer Scientists' Brief in Oracle v. Google

Yesterday EFF filed the latest amicus brief on which I worked, in the Oracle v. Google appeal.  As I previously discussed, Judge William Alsup of the Northern District of California had ruled that Java APIs are not copyrightable, at least to the extent of Google's limited use of the APIs in Android.  Judge Alsup relied on the Lotus v. Borland case I worked on many years ago, and other similar cases, to reject Oracle's copyright claim.

Oracle appealed the case to the U.S. Court of Appeals for the Federal Circuit, and it is now being briefed.  Groklaw has detailed discussions of Oracle's opening brief and of Google's brief.

EFF's amicus brief is filed on behalf of 32 notable computer scientists, including Larry Roberts (one of the inventors of ARPANET), Tim Paterson (who wrote the original MS-DOS program), Bjarne Stroustrup (the inventor of C++), and many others.  Their bios are here.  EFF's press release about the brief is here; Groklaw's article is here.

 The computer scientists' brief traces the history of APIs in the computer industry, starting with the original IBM PC thirty years ago, and continuing up until the present.  The brief shows that the exclusion of APIs from copyright protection has been essential to the development of modern computers and the Internet, and the key to competition and progress in the computer field.  Examples include PC clones, operating systems such as UNIX and Linux, programming languages such as "C,", Internet network protocols, and cloud computing.  Because APIs are open, developers can create compatible new programs, and users can use their data in different applications without being locked into a single platform.

The brief also explains that the uncopyrightable nature of APIs encourages the creation of new software that otherwise would have been written, and also helps rescue users when software goes "orphan" because its original creators have abandoned their product.  In both cases, the open nature of APIs enables the creation of compatible software.

The case is being heard in the Federal Circuit because Oracle had also sued Google on patent claims.  Oracle lost those at trial, but is only appealing its copyright loss.  The Federal Circuit must apply Ninth Circuit copyright law, which together with the First Circuit's decision in Lotus strongly suggests that Google should win this case.


Monday, May 27, 2013

Giant Rubber Duck Update

In early May, a Dutch artist created a giant rubber duck and let it go sailing in Hong Kong harbor.  Sadly, a few weeks later, the duck deflated.

Good news: this 54-foot tall duck has returned!  One can only hope that the duck will now go on a world tour and someday visit the San Francisco bay.  If so, this blog will be there.

Wednesday, May 15, 2013

Hamlet: The Short Clips Version

Want to see Hamlet, but you only have 15 minutes?  Watch THIS video

Friday, May 10, 2013

CLS Bank v. Alice Corp.: Abstractness Seems to Be a Problem With No Easy Solution

Today the Federal Circuit Court of Appeals released its decision in CLS Bank v. Alice Corp.  As I explained in a previous post about the case, in recent years, both the Federal Circuit Court of Appeals and the U.S. Supreme Court have struggled on what  35 U.S.C. § 101 means and how and when it limits what can be patented.  As EFF explains on its Abstract Patent Litigation page, things like laws of nature, natural phenomena, and abstract ideas can't be patented.  I helped write EFF's amicus brief in the case.

Today, the struggle continued.  Rather than decide anything, the Federal Circuit's opinion is a mess.  All the court agreed on was this brief "per curiam" decision:

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.

Ten judges decided the case (newly-appointed Judge Taranto did not participate) and there was one vacancy at the time.  As a result, it's not clear this case has any precedential value whatsoever.  (See footnote 1 of Chief Judge Rader's dissent/"concurrence".)  There is a 5-judge plurality opinion by Judge Lourie that holds all the claims patent ineligible.  Two other judges agreed the method and computer-readable medium claims were patent ineligible, but for different reasons than Judge Lourie's plurality.  See Chief Judge Rader's dissent/"concurrence".  Five judges believed the system claims were patent eligible, leading to a 5-5 tie and an affirmance by an equally divided court on that issue. 

Judge Lourie's plurality opinion contains some nice language about when things won't be patent eligible.  For example:

An “inventive concept” in the § 101 context refers to a genuine human contribution to the claimed subject matter. “The underlying notion is that a scientific principle . . . reveals a relationship that has always existed.” Flook, 437 U.S. at 593 n.15. From that perspective, a person cannot truly “invent” an abstract idea or scientific truth. He or she can discover it, but not invent it. Accordingly, an “inventive concept” under § 101—in contrast to whatever fundamental concept is also represented in the claim—must be “a product of human ingenuity.” See Chakrabarty, 447 U.S. at 309.

In addition, that human contribution must represent more than a trivial appendix to the underlying abstract idea. The § 101 preemption analysis centers on the practical, real-world effects of the claim. . . . Limitations that represent a human contribution but are merely tangential, routine, well-understood, or conventional, or in practice fail to narrow the claim relative to the fundamental principle therein, cannot confer patent eligibility.

In a claimed method comprising an abstract idea, generic computer automation of one or more steps evinces little human contribution. . . . Furthermore, simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility. . . . Because of the efficiency and ubiquity of computers, essentially all practical, real-world applications of the abstract idea implicated here would rely, at some level, on basic computer functions—for example, to quickly and reliably calculate balances or exchange data among financial institutions. At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.
But since that opinion only got 5 votes out of 10, it's not binding precedent.  Either the Federal Circuit or the Supreme Court will have to work on this issue some more. 

Here are discussions by EFF (suggesting that the Supreme Court decide the case), Patently-O, and Techdirt (which called the opinion "one of the most bizarre and useless rulings ever concerning software patents").

Saturday, May 4, 2013

"Does Size Matter?"

A strip club sued the City of San Antonio to try to enjoin a statute requiring exotic dancers to wear larger pieces of fabric.  A highly entertaining opinion denied the request for a preliminary injunction. 

Some of the best lines in the opinion:

Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?

Plaintiffs clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of unconstitutional power.

The Court infers Plaintiffs fear enforcement of the ordinance would strip them of their profits, adversely impacting their bottom line.

While the Court has not received amicus curiae briefs, the Court has been blessed with volunteers known in South Texas as "curious amigos" to be inspectors general to perform on sight visits at the locations in question.

An Appendix is attached for those interested in a lengthy exposition, those who wish to appeal and those who suffer from insomnia.

To bare, or not to bare, that is the question.

Indeed, this case exposes the underbelly of America's Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis.

Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending.

Friday, May 3, 2013

"How to Play Chess Properly"

I was on the chess team in high school.  It was nothing like this video.