Software

Essay: What Remains of Fair Use for Software after Oracle v. Google?

Essay: What Remains of Fair Use for Software after Oracle v. Google?

Download a PDF version of this article here.

Simon J. Frankel and Ethan Forrest*

Two recent decisions from the Federal Circuit in the long-running litigation between Oracle and Google have upended the scope of copyright protection afforded to software. In both decisions, the court weighed in heavily on the side of strong copyright protection, even protecting the relatively functional code comprising application programming interfaces (APIs). In its most recent decision, the court found that Google’s use in its Android software of certain APIs from Java was not fair use as a matter of law—notwithstanding a jury verdict of fair use. This essay focuses on how the Federal Circuit treated the four statutory fair use factors and suggests that the court’s analysis, if applied by other courts, will make it very difficult for any use of software to qualify as a fair use. This is because, at every turn, the court’s application of the fair use factors favors the copyright owner, creating copyright risk for any borrowing of copyright code in a new program. It remains to be seen if this approach will impact how software developers build on preexisting programs.

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Brief of Amici Curiae Law, Business and Economic Scholars in Support of Respondents in Alice Corp. Pty. Ltd. V. CLS Bank International, et. al.

Brief of Amici Curiae Law, Business and Economic Scholars in Support of Respondents in Alice Corp. Pty. Ltd. V. CLS Bank International, et. al.
By Jason M. Schultz* and Brian J. Love** A PDF version of this brief is available for download here. More →

Software Developers, On Guard!: Offering Software for Sale Can Trigger a Bar to Patentability Even If the Software Is Untested and Incomplete

By Paul A. Ragusa and Jack Chen* A pdf version of this article may be downloaded here. In Pfaff v. Wells Elecs., Inc.[FN1] the Supreme Court formulated the now well known test for determining when an invention cannot be patented due to a sale or offer for sale more than one year prior to the filing of a patent application. Specifically, the Court held that an invention need not be “reduced to practice” at the time of the sale or offer to create a statutory bar against patent protection. [FN2] Instead, a sale or offer of an invention “ready for patenting,” is sufficient to raise a statutory bar. [FN3] The purpose of the on-sale bar is to encourage early disclosure of inventions to the public as well as to prevent a de facto patent term extension by those who would commercially exploit an invention for an extended period of time prior to filing a patent. During the past twelve years, the courts have applied the Pfaff test to various technologies, some with more clarity than others. One thorny area involves the application of the Pfaff test in the context of software related inventions. Although the Pfaff Court rejected precedent that an invention needed to be “substantially complete” to provide a statutory bar, [FN4] it did not address how a software related invention can be ready for patenting where the code is incomplete, and untested. As a practical matter, how is a court to determine whether an unfinished software-related invention is ready for patenting and therefore can operate to trigger an on-sale bar? A recent district court decision addresses this issue head-on and is discussed below. More →