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Apple gets support from Nokia in court fight over Samsung sales ban

post #1 of 46
Thread Starter 
Nokia on Tuesday filed a brief with a U.S. federal appeals court supporting Apple's bid to block the sale of Samsung products a jury found to be in infringement of certain Cupertino-owned patents.

While the amicus brief tendered to the U.S. Court of Appeals for the Federal Circuit doesn't officially offer support for either party, it argues that Apple v. Samsung Judge Lucy Koh's decision to deny a permanent injunction request Apple lodged against the Korean company following the trial could set a "dangerous precedent."

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As noted by Reuters, the brief itself is currently sealed, but an accompanying motion supplies an overview of Nokia's argument. The company questions Judge Koh's December ruling requiring a patent holder to first establish a "causal nexus" between a patented feature and customer demand before securing a permanent injunction against offending products. If such a precedent were set, Nokia asserts, the ability of patent holders to obtain sales bans would be crippled.

The ?causal nexus? requirement as applied by the district court here, making the evidentiary standard for obtaining a permanent injunction so burdensome and strict that it may rarely, if ever, be met, will essentially lead to a compulsory-licensing system wherein patent holders are forced to license patented technology to competing firms, which could in turn harm incentives to innovate.


The summary filing goes on to cite a number of prior case determinations which offer findings contrary to Judge Koh's ruling.

Since the case landed at the CAFC in December, besides Nokia, no outside company or interest group has filed in support of Apple's appeal. The Finnish handset maker says its interest in the proceedings stems from the company's role in a number of U.S. patent suits.

"Nokia is thus both a significant patent owner that might seek an injunction to protect its patent rights, and a manufacturer in an industry in which patent owners routinely issue threats of injunctions for patent infringement," Nokia attorney Keith Broyles writes.

Samsung is scheduled to file a brief later this year, at which time companies and advocacy groups may enter filings in support of the Korean company. The CAFC has delegated Apple's appeal to a three-judge panel before the full court hears the case.

post #2 of 46

How the turns have tabled.

Originally Posted by helia

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post #3 of 46

Interesting.

post #4 of 46
So, Nokia can't tackle Samsung on its own and has to bring their lunch money to Apple.

"Pawn takes the Queen. Knight takes the Queen. Bishop takes the Queen. Gangbang!"
post #5 of 46
Quote:
Originally Posted by AppleInsider View Post

(Nokia) questions Judge Koh's December ruling requiring a patent holder to first establish a "causal next" between a patented feature and customer demand before securing a permanent injunction against offending products.

 

That's supposed to be "causal nexus", not "causal next".

 

In other words, the idea that a patented feature needs to be a reason why people choose one device over another, before it can be considered as a valid injunction reason.

 

Quote:
Originally Posted by bleh1234 View Post

So, Nokia can't tackle Samsung on its own and has to bring their lunch money to Apple.

 

Nothing to do with Samsung.

 

Nokia just wants the right to ask for injunctions themselves, in the future, if even the smallest of their patents is infringed by anyone.

 

For example, let's say Nokia had a patent on showing signal strength in the status bar.  Everyone infringes.  Should that be enough to grant an injunction ... instead of just royalties... against any other phone with a signal strength indicator?   Or is there not enough proof of a causal nexus that people choose a device based on whether or not it has such a feature.


Edited by KDarling - 3/6/13 at 2:40pm
post #6 of 46

The enemy of my enemy is my friend ;-)

post #7 of 46

Everybody is against Google/Samsung/Motorola these days. When will the fandroids get into their thick skulls that with everyone attacking Android and their vendors over various patents that maybe, just maybe, Android has an IP problem?

 

A ruling in Japan the other day between Apple & Samsung also reinforces Apple's (and most tech companies) positions on FRAND abuse. Another setback for Samsung, another win for Apple.

 

And now several companies and industry experts are speaking up about the Oracle vs Google appeal and are siding with Oracle over what Aslup ruled on in that case.

 

 

Can someone show me any other company filing an amicus brief or throwing their support behind Google or Samsung? Anyone?

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post #8 of 46
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Originally Posted by bleh1234 View Post

So, Nokia can't tackle Samsung on its own and has to bring their lunch money to Apple.

"Pawn takes the Queen. Knight takes the Queen. Bishop takes the Queen. Gangbang!"

"the jig is up!" "and gone!", I wonder how many people know what movie we're quoting.
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post #9 of 46
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Originally Posted by EricTheHalfBee View Post

Everybody is against Google/Samsung/Motorola these days. When will the fandroids get into their thick skulls that with everyone attacking Android and their vendors over various patents that maybe, just maybe, Android has an IP problem?

 

A ruling in Japan the other day between Apple & Samsung also reinforces Apple's (and most tech companies) positions on FRAND abuse. Another setback for Samsung, another win for Apple.

 

And now several companies and industry experts are speaking up about the Oracle vs Google appeal and are siding with Oracle over what Aslup ruled on in that case.

 

 

Can someone show me any other company filing an amicus brief or throwing their support behind Google or Samsung? Anyone?

Qualcomm, Ericsson, the Washington Legal Foundation, General Electric, Innovation Insights, RIM, ITC staff, Proctor & Gamble, and YES even Nokia have submitted briefs opposing efforts to either the right of the FTC to limit Google's SEP options or EU/US restrictions on SEP injunctions in general.

 

Particularly in Nokia's case they might look like they're playing on both sides of the fence. In essence they are not. Whether FRAND-pledged or otherwise they oppose any restrictions on the right to demand injunctions. Remember that they were asking for an injuction on Apple little more than a year ago for failing to take a license to certain Nokia SEP-pledged patents. Nokia's amicus brief is not in support of Apple. It's submitted to oppose any limiting of an IP holders right to injunctions.

 

Within just a few years if not sooner this will come back to bite Apple in the butt again. It was recently reported by Mueller that Nokia's FRAND licensing to Apple was for only 5 years IIRC


Edited by Gatorguy - 3/6/13 at 3:28pm
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post #10 of 46
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Originally Posted by Tallest Skil View Post

How the turns have tabled.

 

why?  Nokia is in bed with Microsoft and Microsoft with Apple.  Microsoft's friend is Apple's friend. 

post #11 of 46
Quote:
Originally Posted by EricTheHalfBee View Post

And now several companies and industry experts are speaking up about the Oracle vs Google appeal and are siding with Oracle over what Aslup ruled on in that case.

 

Do you have a link/source for this?  Not to question you, but because I've been following this case out of personal interest.

 
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post #12 of 46
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Originally Posted by dasanman69 View Post

"the jig is up!" "and gone!", I wonder how many people know what movie we're quoting.

I do! It's good to be the king! Now, back to talking like a politician: bullshit, bullshit, bullshit . . .
post #13 of 46
Quote:
Originally Posted by tooltalk View Post

 

why?  Nokia is in bed with Microsoft and Microsoft with Apple.  Microsoft's friend is Apple's friend. 

I disagree. This is all about Nokia protecting it's entire arsenal of negotiating pressure tactics in order to monetize it's extensive IP including even FRAND-pledged. They don't particularly care whether Apple can get an injunction on Samsung or not except in how it affects Nokia's right to the same relief. If it was Samsung instead being denied an injunction Nokia would likely be supporting them instead of Apple.

 

IP enforcement may be Nokia's cash cow for the next few years. Nokia's seeming Apple support is instead a self-serving effort.


Edited by Gatorguy - 3/6/13 at 3:42pm
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post #14 of 46
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Originally Posted by auxio View Post

 

Do you have a link/source for this?  Not to question you, but because I've been following this case out of personal interest.

There's been briefs supporting both Google's position and Oracles. There's no bright line to define the borders.

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post #15 of 46
Actually, Samsung has a closer working relationship with MS than Apple does.
post #16 of 46
My feeling is that the issue should swing, not on whether folks bought due to whatever, but on the FRAND issue. If the patent in question is a FRAND patent then no bans allowed, so long as damages are paid and royalties arranged in a reasonable time. If an offending company tries to drag things out then they should have a temporary ban that would end when they pony up.

But in regards to non FRAND patents, part of the holder rights is to choose to not license. Forcing them to take royalties rather than ban an item until the offending company can show they removed the offense is denying the patent holder their right to not share. And I think that is what Nokia is seeing as well and doesn't like

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post #17 of 46
Quote:
Originally Posted by Gatorguy View Post

I disagree. This is all about Nokia protecting it's entire arsenal of negotiating pressure tactics in order to monetize it's extensive IP including even FRAND-pledged. They don't particularly care whether Apple can get an injunction on Samsung or not except in how it affects Nokia's right to the same relief. If it was Samsung instead being denied an injunction Nokia would likely be supporting them instead of Apple.

IP enforcement may be Nokia's cash cow for the next few years. Nokia's seeming Apple support is instead a self-serving effort.

Nokia's difficulty is that so many of their patents are FRAND encumbered.

While the courts are still sorting things out, the way it's leaning in most cases is that you won't be able to get an injunction on a FRAND patent, but can on other patents - when the various requirements are met.
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post #18 of 46
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Originally Posted by wshuff4 View Post

I do! It's good to be the king! Now, back to talking like a politician: bullshit, bullshit, bullshit . . .

"you look like the piss boy" "and you look like a bucket of...."
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post #19 of 46
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Originally Posted by charlituna View Post

My feeling is that the issue should swing, not on whether folks bought due to whatever, but on the FRAND issue. If the patent in question is a FRAND patent then no bans allowed, so long as damages are paid and royalties arranged in a reasonable time. If an offending company tries to drag things out then they should have a temporary ban that would end when they pony up.

If that were the argument Nokia would fill a brief in opposition. They like SEP patent enforcement options just like they are and see no need to change a thing.

https://docs.google.com/viewer?url=http://www.itu.int/dms_pub/itu-t/oth/06/5B/T065B0000340004MSWE.docx

You won't find Nokia-friendly FOSSPatents posting that one. 

 

In fact the overwhelming majority of SEP holders commenting on Google's willing acceptance of the FTC limits oppose any extension of that agreement to their own FRAND enforcement.


Edited by Gatorguy - 3/6/13 at 3:56pm
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post #20 of 46
OOPS: Misread a post.
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post #21 of 46
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Originally Posted by dasanman69 View Post


"you look like the piss boy" "and you look like a bucket of...."

 

"We need a miracle!"

"Look! It's Miracle!"

post #22 of 46

Just buy out Nokia Apple.  Make a statement.  Really get the Government going.

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post #23 of 46
Judge Lucy needs to be spanked.

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post #24 of 46

Apple should buy Nokia and make their own phone...

 

...oh wait...

 
post #25 of 46
Quote:
Originally Posted by bleh1234 View Post

So, Nokia can't tackle Samsung on its own and has to bring their lunch money to Apple.

"Pawn takes the Queen. Knight takes the Queen. Bishop takes the Queen. Gangbang!"

 

Quote:
Originally Posted by dasanman69 View Post


"the jig is up!" "and gone!", I wonder how many people know what movie we're quoting.

 

Quote:
Originally Posted by wshuff4 View Post


I do! It's good to be the king! Now, back to talking like a politician: bullshit, bullshit, bullshit . . .

 

Quote:
Originally Posted by dasanman69 View Post


"you look like the piss boy" "and you look like a bucket of...."

 

Quote:
Originally Posted by bleh1234 View Post

 

"We need a miracle!"

"Look! It's Miracle!"

 

 

I really should study my "History" more!  1biggrin.gif  

post #26 of 46
Quote:
Originally Posted by auxio View Post

 

Do you have a link/source for this?  Not to question you, but because I've been following this case out of personal interest.

 

http://www.fosspatents.com/2013/02/industry-leaders-creatives-academics.html

 

This is one though there have been some updates as new documents have been made available.There are some big names and they have some very good points.

 

I'm surprised nobody in the news has picked up on this considering the implications.

 

 

 

There seem to be three positions companies have on using SEP's to get injunctions:

 

1. Apple, Microsoft, IBM, Intel, HP and Cisco take the position that you should never seek an injunction with SEP's.

2. Nokia and Ericsson think you should be able to seek injunctions with SEP's in "extreme circumstances".

3. Samsung and Motorola/Google think you can use SEP's to seek injunctions just like regular patents.

 

 

In this case, Nokia isn't really supporting Apple but just defending their right to seek injunctions if all other avenues of getting an agreement have failed. They also bring up an important issue that directly affects Samsung - that offenders shouldn't be allowed to use your IP for years while the case is tied up in the courts. This is exactly what Samsung is doing with Apple. By the time the case gets heard, Samsung has already moved on to their next product and they've gained more in terms of market share than they will lose in paying fines/settlements.

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post #27 of 46
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Originally Posted by EricTheHalfBee View Post

 

There seem to be three positions companies have on using SEP's to get injunctions:

 

1. Apple, Microsoft, IBM, Intel, HP and Cisco take the position that you should never seek an injunction with SEP's.

 

That's not exactly Apple's position. In their letter to the FTC they say that SEP injunctions should only be available in "exceptional" circumstances. Thy don't say they shouldn't be available at all, and leave an open definition for what would qualify as exceptional.

Quote from Apple: "SEP holders should not seek injunctions when they have made a FRAND commitment absent exceptional circumstances." 

 

That moves Apple to your second group I believe.

https://docs.google.com/viewer?url=http://ftc.gov/os/comments/motorolagoogle/563708-00029-85598.pdf

 

As for putting Nokia in group 2, I don't recall Nokia ever saying SEP injunctions should have any restrictions at all. To the contrary they put in writing just a few weeks back that they want no change in the rules allowing injunctions over SEP disputes, considering it too dangerous "to the delicate balance of the FRAND bargain" to even consider it. That moves Nokia goes to group three, right?

https://docs.google.com/viewer?url=http://www.itu.int/dms_pub/itu-t/oth/06/5B/T065B0000340004MSWE.docx

 

As for Google they agreed with the FTC proposal limiting the availability of SEP injunctive relief to exceptional circumstances, moving them into your group two...  right alongside Apple.


Edited by Gatorguy - 3/6/13 at 7:29pm
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post #28 of 46

Naturally companies with SEPs believe in injunctions, and those without, do not.  However, they not decide the outcome.

 

What really matters is what the courts and other authorities think.

 

  • The US based ITC reaffirmed last October that injunctions were always available to SEP holders.
  • The EU Commission investigating FRAND abuse specifically stated that injunctions were available in the case of unwilling licensees.
  • A German court ruled that FRAND is simply an offer to waive sole usage of a patent, and that basic patent rights such as injunctions were not given up.

 

On the other hand...

 

  • UK courts are not for or against SEP injunctions, but prefer forced negotiations.
  • The FTC and DOJ have also come out on the side of using forced negotiations.

 

And in the middle have been various judges who have thrown their hands up and said they would not be used as pawns in a global royalty negotiation.

post #29 of 46

In the end, it's still about companies with tons of patents vs. newer companies with few patents. They all act according to their self-interest. Let's not kid ourselves and think they truly believe in what's right or wrong. 

post #30 of 46
Originally Posted by drobforever View Post
Let's not kid ourselves and think they truly believe in what's right or wrong. 

 

I hope you're kidding.

Originally Posted by helia

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post #31 of 46

GG, still up to your old tricks carefully picking and choosing your sources. What about this letter from Apple?

 

http://www.scribd.com/doc/80899178/11-11-11-Apple-Letter-to-ETSI-on-FRAND

 

It clearly states "no injunction" and has no mention of "exceptional circumstances".

 

 

Here's Cisco's letter that references the above Apple letter and states they agree with it.

 

http://www.scribd.com/doc/80985517/12-01-31-Cisco-Letter-to-ETSI-Endorsing-Apple-Position

 

 

Here's a statement by Microsoft that they won't seek injunctions.

 

http://www.microsoft.com/en-us/legal/intellectualproperty/IPLicensing/ip2.aspx

 

 

I can go on all day. Bottom line is the companies I listed (Apple, MS, IBM, Cisco.....) DO NOT abuse FRAND patents. Samsung and Google/Motorola DO abuse FRAND patents and Nokia and Ericsson are still in the middle. This is not just based on public statements that they have made, but also on their actual behavior in court proceedings (with Apple having never sued over FRAND and Google/Motorola and Samsung suing over so many FRAND patents it's getting hard to keep track of them all).

 

BTW, I'm still waiting for someone to show me an amicus brief by anyone supporting Google/Motorola or Samsung in their abuses of FRAND or supporting Google in Oracle vs Google.

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post #32 of 46
Quote:
Originally Posted by KDarling View Post

Naturally companies with SEPs believe in injunctions, and those without, do not.  However, they not decide the outcome.

 

What really matters is what the courts and other authorities think.

 

  • The US based ITC reaffirmed last October that injunctions were always available to SEP holders.
  • The EU Commission investigating FRAND abuse specifically stated that injunctions were available in the case of unwilling licensees.
  • A German court ruled that FRAND is simply an offer to waive sole usage of a patent, and that basic patent rights such as injunctions were not given up.

 

On the other hand...

 

  • UK courts are not for or against SEP injunctions, but prefer forced negotiations.
  • The FTC and DOJ have also come out on the side of using forced negotiations.

 

And in the middle have been various judges who have thrown their hands up and said they would not be used as pawns in a global royalty negotiation.

 

Sorry, no. I just listed several patent powerhouses that do not believe in injunctions for SEP's.

 

Who believes in using SEP's for injunctions? I can put all the companies that do into two categories:

 

- Those who steal others IP and abuse FRAND patents when they get sued (Samsung, Google).

- Those with extensive portfolios who happen to be on the verge of disappearing from the smartphone market and are looking to monetize their few remaining assets (Nokia, Ericsson, Motorola).

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post #33 of 46
Quote:
Originally Posted by EricTheHalfBee View Post

 

Sorry, no. I just listed several patent powerhouses that do not believe in injunctions for SEP's.

 

It's fine that some companies don't believe in injunctions.

 

OTOH, I listed courts and agencies, and their beliefs, which matter far more.

 

They're the ones who make the decision whether or not to grant an injunction.

 

Quote:
Who believes in using SEP's for injunctions? I can put all the companies that do into two categories:

 

Okay, and what about the categories of companies who don't believe in injunctions for SEPs.

 

Some, like Microsoft, believe in mass cross-licensing to avoid injunctions in the first place.

 

Apple, who is quick to ask for injunctions over non-essential items, constantly tries to drag SEP negotiations through the courts, hoping to get a better deal than anyone else. At least one judge has thrown their case out with prejudice for this.

 

Last Fall, an ITC Judge  rejected Apple's claims that Samsung can't seek injunctions for relief of FRAND patent infringement.

 

Quote:
"He ruled that injunctions are definitely available at the ITC for standards-essential patents, and that there is zero evidence of any wrong behavior by Samsung. 

"Furthermore, the judge told Apple, which had claimed that the amount Samsung asked for licensing was too high to be a FRAND offer, that Apple can't unilaterally decide what is or is not a fair price.

"If it had objections, it could negotiate, which Apple failed to do, or there is a mediation process at ETSI it could have used, which it also apparently failed to do. Instead, the ruling says, the court battles are about negotiating a lower price."
 
post #34 of 46
Ar some point Nokia might sue Apple. And then it's nice to file for injunctions the easy way.
post #35 of 46
Quote:
Originally Posted by auxio View Post

 

Do you have a link/source for this?  Not to question you, but because I've been following this case out of personal interest.

 

Have you read this one?

 

The amicus curiae brief of Scott McNealy Sun founder and Brian Sutphin former executive Vice President of Sun.

 

It encapsulates nicely exactly why Alsup's ruling was wrong.

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post #36 of 46
Quote:
Originally Posted by KDarling View Post

blah, blah, blah

 

-Groklaw

 

 

Groklaw is a hopelessly irrelevant source ever since their fifteen minutes of fame ended with SCO.

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post #37 of 46
Quote:
Originally Posted by cykz View Post

Ar some point Nokia might sue Apple. And then it's nice to file for injunctions the easy way.

 

They already did, Apple fired back, they reached agreement and settled.

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post #38 of 46
Quote:
Originally Posted by EricTheHalfBee View Post

GG, still up to your old tricks carefully picking and choosing your sources. What about this letter from Apple?

 

http://www.scribd.com/doc/80899178/11-11-11-Apple-Letter-to-ETSI-on-FRAND

 

It clearly states "no injunction" and has no mention of "exceptional circumstances".

R-i-i-i-g-h-t. . . 

A letter from two weeks ago, the one I linked, would be at least as representative and a more current statement of Apple's stance on SEP injunctions than the  2011 letter you've trotted out as somehow disproving what Apple wrote this year..Seems you're up to YOUR old tricks.

 

As for the Oracle/Google amicus brief question I'm not aware of any that don't lean Oracle's way.


Edited by Gatorguy - 3/7/13 at 4:02am
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post #39 of 46
Quote:
Originally Posted by hill60 View Post

Groklaw is a hopelessly irrelevant source ever since their fifteen minutes of fame ended with SCO.

 

Likewise, FOSS has its own agenda.  The best idea is to use them both as references to find the real documents, and for technical law details, but make up your own mind.

 

--

 

Personally, I think that injunctions should be off the table for all software patents, FRAND or not. 

 

Alternatively, allow software patent injunctions, but only by judges who have programmed for a living.  

 

Remember when that non-programmer Oracle lawyer talked about how it would "take him a year" to write a number range check, and therefore his company was owed millions of dollars. The judge scoffed at him, pointed out that a high schooler could do it, and that he'd written a range check a hundred times himself.   What was seen as impossibly difficult by that lawyer, was common child's play for an actual coder.

 

Non-developers should not be involved in software patent determinations.  It's like asking someone off the street to do surgery.

post #40 of 46
Quote:
Originally Posted by hill60 View Post

 

Have you read this one?

 

The amicus curiae brief of Scott McNealy Sun founder and Brian Sutphin former executive Vice President of Sun.

 

It encapsulates nicely exactly why Alsup's ruling was wrong.

 

What a great read, thanks.  Unfortunately, the concept of technology (API) design being a creative process, the result of which needs to be protected from copying (the same way as music or art) is likely lost on most people (including Alsup).

 

I think the better way to explain it would be that it saved Google thousands of man-hours (by experienced/senior developers) to duplicate the Java APIs rather than design their own from scratch.  That's worth something.

 
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