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Supreme Court Reviews Google v. Oracle Petition; Interoperability Ruling Under Scrutiny

01/12/15 Update: The Court issued an invitation calling for the views of the U.S. Solicitor General, an act that shows interest in the case.  It suggests the Court is more likely to grant the petition, although it is now very unlikely to be heard this Term.


Today the Supreme Court conferences over whether to review the Federal Circuit’s decision in Google v. Oracle America. This is a welcome development because it provides the Supreme Court with the opportunity to overturn the Federal Circuit’s flawed decision relating to the protectability of the Java Application Program Interfaces (APIs) under copyright.

We previously discussed the Federal Circuit’s May 2014 decision here, here, here, and here. Google incorporated elements of the Java API in the Android API. Oracle acquired the rights in Java when it purchased Sun Microsystems, the company that developed Java. After the acquisition, Oracle sued Google for patent and copyright infringement. The district court dismissed the patent claims, and the case presently centers on the copyright claims.

The district court found that the elements of the Java API copied by Google were not protectable under section 102(b) of the Copyright Act, which withholds copyright protection from any idea, procedure, process, system, or method of operation. Particularly convincing to the district court was that the copied elements represented a command structure or system that enabled a degree of interoperability between Java and Android.

The Federal Circuit reversed, finding that the copied elements were not a system or method of operation. Further, the Federal Circuit held that whether an element was necessary for interoperability should have no impact on whether that element was protectable. Interoperability is relevant only in assessing whether the replication was a fair use. The Federal Circuit also concluded as a factual matter that the Java and Android APIs were not interoperable.

Google filed a petition for a writ of certiorari with the Supreme Court. Google argued that there was a circuit split; that the Federal Circuit had joined the Third Circuit in holding that interoperability was not relevant to protectability, while the First, Second, Sixth, and Ninth Circuits had all found that program elements necessary for interoperability were not protectable. Google further argued that this was an issue of great significance to the technology industry. By discounting the importance of interoperability, the Federal Circuit disrupted settled expectations and long-established practices of programmers copying and building upon the APIs developed by an earlier generation of programmers.

Numerous entities filed amicus briefs in support of Google’s cert. petition:

  • The Computer & Communications Industry Association;
  • Hewlett-Packard, Red Hat, and Yahoo;
  • Public Knowledge;
  • 77 computer scientists represented by the Electronic Frontier Foundation;
  • The Open Source Initiative, Mozilla, and Engine; and
  • 41 intellectual property law professors represented by Pam Samuelson of U.C. Berkeley Law School.

These briefs largely focused on the potentially adverse impact of the Federal Circuit’s decision on interoperability and competition in the information technology industry.

Not surprisingly, Oracle opposed cert., arguing that there was no split in the circuits and that Google exaggerated the significance of the Federal Circuit’s decision. The only amicus brief opposing cert. was filed by the Software Freedom Law Center and the Free Software Foundation. This brief asserted that although the Federal Circuit’s decision was wrong, cert. should be denied because the decision was narrowly factbound and there was no public interest in the continued adjudication of this dispute.

The anti-competitive impact of the Oracle-Google dispute resonates in a suit filed in December 2014 by Cisco against Arista Networks. Arista makes Ethernet switches that compete with those developed by Cisco. In the suit Cisco claims, among other things, that Arista copied 500 multi-word command lines, which constitutes half of the Arista command line interface. Cisco’s general counsel asserted that “While simple, single-word commands (“Copy”, “Paste”, “Delete”, for example) may not be protectable under copyright, unique multi-word commands like “aaa group server radius”, “dot1x max-reauth-req” and “clear ip igmp group” are not self-evident.” (Cisco also filed a separate suit against Arista alleging patent infringement.)


Some, if not all of society’s most useful innovations are the byproduct of competition. In fact, although it may sound counterintuitive, innovation often flourishes when an incumbent is threatened by a new entrant because the threat of losing users to the competition drives product improvement. The Internet and the products and companies it has enabled are no exception; companies need to constantly stay on their toes, as the next startup is ready to knock them down with a better product.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.