“The World Series of IP Cases” Appears About to Head for Extra Innings

Oracle America, Inc. v. Google LLC is a series of related intellectual property law cases making its way through the courts for almost a decade, with the latest decision issued by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in the spring of 2018, and discussed in my previous article, Oracle v. Google, on June 14, 2018. The Federal Circuit’s decisions in this series of cases has established the following two points of law:

• Aspects of (software) application programming interfaces (APIs), including declaring code and structure, sequence and organization, are copyright-eligible (Fed. Cir. 2014; cert. denied by U.S. Supreme Court); and
• Google’s use of Java APIs did not constitute fair use under federal copyright law (Fed. Cir. 2018).

As noted in my June 14, 2018 article, Google still had available options, including an en banc rehearing or an appeal to the U.S. Supreme Court. We now know that Google has chosen the latter; on Thursday, January 24, 2019, Google filed a petition for certiorari with the U.S. Supreme Court. The questions presented were:

• Whether copyright protection extends to a software interface.
• Whether, as the jury found, Google’s use of a software interface in the context of creating a new computer program constitutes fair use.

Google is requesting reconsideration on appeal of both Federal Circuit decisions.

Whether the Supreme Court decides to hear either or both of these questions remains to be seen. I predict that the Supreme Court will hear arguments on at least one of these questions, particularly in view of disagreements among the federal circuit courts.

In the meantime, stay in your seats, as this long ride continues.