Letter from AmeriKat: Samsung's Silicon friends, Nintendo triumph, Jay-Z copyright battle & Oracle's Google request

The AmeriKat: lost in a Norwegian Wood

As the court term draws to a close and trial bundles are put away, the AmeriKat has taken the opportunity to revisit some old loves - sleep, cooking, painting and music.  A dinner conversation last week reminded the AmeriKat that her first musical obsession took the form of The Beatles.  When she was only a very tiny kitten, the AmeriKat memorized the lyrics of every song on her overplayed cassette tape of Rubber Soul.  While cleaning up her post-trial Kat basket at the weekend she revisited the sixth studio album of the Fab Four.  As George's mystical chords echoed through the speakers and Paul and John's vocals jostled for attention, the AmeriKat was transported to conversations with her boy-band obsessed peers who would only stare blankly at the AmeriKat when she raised her equally fanatic love of The Beatles.  This all changed in 2004 when DJ Danger Mouse created The Grey Album - a mash-up between Jay-Z's The Black Album and The Beatles' The White Album which needless to say caused EMI some copyright consternation.  With 35 years between the two albums, the collision of four lads from Liverpool with a popular rapper from the Brooklyn made the music that the AmeriKat had loved suddenly relevant for her age group.  The Grey Album also came at the height of the copyright wars that a few years earlier had diverted the AmeriKat from a career in medicine to intellectual property.  The title of the stories from the AmeriKat this week are a tribute to these early loves.

With a little help from my friends (click here):  A gaggle of Silicon Valley goliaths including Facebook, Google, HP and Dell have filed an amici brief with the US Federal Circuit Court of Appeals (CAFC) in support of Samsung urging the court to grant an en banc hearing in order to reverse the court's panel's damages decision which held that Samsung had to pay Apple almost $550 million.  Why the concern about the damages award?  Because Samsung's infringement concerned only three of Apple's design patents which accounted for a small proportion of the entire Samsung phone. The filing stated that if allowed to stand such a decision would lead to "absurd results and have a devastating impact on companies, including the amici, who spend billions of dollars annually on research and development."   The filing continued:

"A design patent may cover the appearance of a single feature of a graphical user interface, such as the shape of an icon. That feature—a result of a few lines out of millions of code—may appear only during a particular use of the product, on one screen display among hundreds. But the panel’s decision could allow the owner of the design patent to receive all profits generated by the product or platform, even if the infringing element was largely insignificant to the user and it was the thousands of other features, implemented across the remainder of the software, that drove the demand generating those profits."

Apple's response was that Google, in any event, had strong personal motives for joining the amici given that its Android operating system runs on Samsung's Galaxy phones.  Given its commercial interest, it is understood that Apple will be urging the court to ignore Google's amicus brief otherwise the court would be permitting Samsung to expand its "word limit under the guise of an amicus brief".

Get back to where you once belonged (click here):  Last week, California federal court Judge Saundra Armstrong held that eight of Nintendo's hand-held systems, including the Nintendo 3DS, DSi, DS and Game Boy Advance systems, did not infringe patents asserted by Quintal Research Group, a company that some reports have dubbed a patent assertion entity.  Quintal's alleged status was somewhat alluded to in a statement by Nintendo America's general counsel, Devon Pritchard who declared that "[t]he result in this case continues to prove that Nintendo will vigorously defend its innovations against patent lawsuits and will not pay to settle cases simply to avoid litigation.  Nintendo continues to support patent reform efforts that reduce the unnecessary and inefficient burden cases like this one place on technology companies in the United States."


99 problems, but a judge ain't one (click here)  Last Friday, US Magistrate Judge Ronald Ellis in Manhattan refused to recuse himself from the $7 million copyright lawsuit brought against Jay-Z  by Bronx clothing designer Dwayne Walker over his Roc-A-Fella Records logo.  A piece of work design by Walker in 1995 became the basis for Roc-A-Fella logo.  Walker accused Magistrate Judge Ellis of issuing inconsistent rulings favoring Jay-Z, including one such order that was purportedly founded on a private call with the defense team's lawyers.  In dismissing the motion, Magistrate Judge Ellis held that there was no evidence that he demonstrated "deep-seated favoritism or antagonism".   The latest motion in this case comes after Judge Schofield awarded Jay-Z and Roc-A-Fella Records approximately $253,000 in attorney fees in a different case brought against the rap mogul by sound engineer, Cauncey Mahan.  Mahan unsuccessfully claimed he was the joint author and co-owner of copyright in Jay-Z's songs from 1999 and 2000 but is appealing the decision.

As I write this letter, send my request to you (click here):  Last Wednesday, following the US Supreme Court's refusal to hear its Java copyright challenge against Google (see post from AmeriKat here), Oracle has asked for permission to file a request to amend its complaint to include claims that Google continues to infringe its copyright in updated versions of Android and a nice jury story about Google's continuing market dominance, which is assisted by its use of the Java platform.  In a letter to Judge William Alsup, Oracle stated that since the complaint was filed in 2010:

"Google has released six major versions of Android encompassing at least forty total releases. In the last three years, Android has come to permeate the fabric of our society: it is in 80% of smartphones,in tablets, in televisions, on wearables, and even in cars. Google continues to infringe Oracle’s copyrights with these new versions. Android now has a billion users; Google reaps untold profits from these users through a variety of means. At the same time that Android has become truly ubiquitous, the Java platform has suffered more than ever. And, meanwhile, Google itself has adopted an express anti-fragmentation strategy, implicitly conceding what Sun and later Oracle long contended were necessary aspects of maintaining a vibrant development platform. 

The record of the first trial does not reflect any of these developments in the market, including Google's dramatically enhanced market position in search engine advertising and the overall financial results from its continuing and expanded infringement."

The following day, both parties filed the joint status report setting out the issues and timeline for the matters (i.e. fair use) that have been remanded back to the court following the Supreme Court's refusal.  The parties have not agreed on a trial date yet, but it is likely to be in Spring 2016.