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Corporate Counsel Connect collection

February 2015 edition

Google v. Oracle will have major implications at the Supreme Court

Jeremy Byellin, JD

Jeremy ByellinDuring the Supreme Court's last term, we got Alice Corp. v. CLS Bank International, a landmark intellectual property case that held that an abstract idea isn't patentable simply because a "generic computer implementation" was added to it. This term, the Court may make another landmark IP ruling in Google, Inc. v. Oracle America, Inc. And the ruling, should the Court agree to review the case, could bear quite a few similarities to Alice Corp. since Google is essentially arguing that Oracle is using the copyright system as a means to patent subject matter that Alice Corp. held was not patentable.

The facts of Google v. Oracle

Android, Inc. began working on the development of a mobile phone operating system in 2003. In 2005, Google purchased the company and continued development of the OS, a beta version of which was released in November of 2007. Google created its own version of the Java programming language for Android, but in order for third-party developers to create programs for the OS, Google needed to use Java "Application Programming Interfaces" ("APIs").

In technical terms, an API is a programmable function written into a particular operating system. APIs are universally recognized across different programs that can run on the operating system, and the better the APIs of a programming language, the easier it is to develop compatible software for the operating system.

In not-so-technical terms (credit to my brother-in-law for help in coming up with this), an API can be analogized to the different functions on a VCR, with the operating system being the VCR itself. The play button is one API, as is "load a tape," along with "fast forward," "rewind," etc.

However, there are also two sides to the API in this analogy: the "library" side and the "client" side. The client side is pressing the "play" button, while the library side is whatever happens in the VCR in response to that.

Back under the Java paradigm, programmers writing Java use the client side to ask the Java library to execute a particular function. In other words, the programmers are pressing those VCR buttons (e.g. the "play" button), and the Java platform performs the operations corresponding to those button pushes.

In terms of this particular case, when Google created its own version of Java, it used those standard APIs that were already in use across virtually all Java standards. Java, by the way, was developed by Sun Microsystems in the 1990s, and Sun Microsystems was acquired by Oracle Corporation in 2010, giving Oracle the rights to any intellectual property protections that may apply to the operating system.

Legal dispute

And that's where the legal dispute of the case comes in. Oracle is suing Google for using Java APIs in its Android operating system, claiming that Google is violating Oracle's copyrights to them. In terms of the "VCR" metaphor above, Oracle's claims would be analogous to the creator of the VCR claiming that the VCR's functions are protected by copyright, and that another manufacturer cannot use these same functions on its own version of the VCR.

Now, the analogy isn't entirely apt at this point because the original VCR manufacturer would have several patent protections available for the invention, so it wouldn't pursue copyright infringement claims to begin with. But, then again, Oracle cannot pursue patent infringement claims because such claims would very likely fail because of Alice Corp., which thus raises the question: Why should these functions be subject to copyright protection, when doing so would give Oracle a virtual monopoly on an entire programming language?

Aside from these pragmatic concerns, Oracle's getting copyright protection for the Java APIs would also create legal problems, since these copyrights would be on methods and systems – the subject matter that is covered by patents.

Extending copyright protection

This could potentially open the door to copyright protection extending a variety of other subject matter that are categorically excluded from patent protection – thus creating a back door to patent protection through copyright law.

Whether the Supreme Court agrees to review the case and how the high court comes down on the issue remain to be seen, but the high stakes of such a ruling are already plain to see.

About the author

Jeremy Byellin is a practicing attorney in the state of Minnesota and a writer for the Westlaw Insider blog. His articles for the blog cover a wide range of legal topics, with a specific focus on major legal developments and cyberlaw.