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This Just In: Judge O'Malley Doesn't Like Google's Case

It's been almost eight years since Oracle sued Google over the Java APIs. We've had all-star lawyer lineups, a trial judge who codes, testimony from Silicon Valley heavyweights, two jury verdicts and now the Federal Circuit throwing out both of those verdicts.

Today, Federal Circuit Judge Kathleen O'Malley ruled that when copying is verbatim, a mere change in format from desktop to smartphone “is insufficient as a matter of law to qualify as a transformative fair use.” That knocked the legs out from under Google's case.

It's fair to say the ruling had its supporters …

… and its detractors.

I thought I'd poll all of you on what's likely to happen next. Will …

A) The Federal Circuit take the case en banc and admonish the panel for failing to respect the limited nature of the appellate function?

B) The Supreme Court take up the case and completely rewrite the law of fair use, putting the case back to square one?

C) Judge William Alsup grudgingly proceed with a damages trial ending in a $750 million award, only to have Judge O'Malley send it back a third time because the amount is unreasonably low?

Email me your vote. My pick, of course, would be D) All of the above.

Seriously, could this case get the Supreme Court justices' attention? Haynes and Boone partner Jason Bloom told me for my story earlier today that while there's no apparent circuit split, “given the magnitude of this case and what it means for software developers, they might want to weigh in.”

O'Malley herself questioned whether fair use, an affirmative defense that's equitable in nature, should ever be put to a jury. “The Supreme Court has never clarified whether and to what extent the jury is to play a role in the fair use analysis,” she wrote, noting that its 1985 landmark Harper & Row Publishers v. Nation Enterprises was an appeal from a bench trial.

Might that be enough to hang a cert petition on?

We'll see. In the meantime, I think it's worth noting that Google did prevail on one hotly contested point. Moments before issuing its ruling Tuesday morning, the Federal Circuit granted Google's motion to modify the caption from Google Inc. to Google LLC

Olivia de Havilland and the Luck of the Draw

Yesterday I reported on a California Court of Appeal decision that rejected publicity right and false light claims brought by Olivia de Havilland against FX Networks. De Havilland complained that FX's Emmy-winning docudrama Feud falsely portrayed her as referring to “my bitch sister” and joking about Frank Sinatra's appetite for alcohol. De Havilland had defeated an anti-SLAPP motion in the trial court but a Second District panel led by Justice Anne Egerton reversed on First Amendment grounds. Even a living legend like De Havilland does not have the right to “control, dictate, approve, disapprove, or veto the creator's portrayal of actual people,” Egerton wrote.

A sharp-eyed reader points out to me that Egerton appears to have been an unlucky draw for the 101-year-old actor. Not only did Egerton once practice at FX counsel Munger, Tolles & Olson—albeit 28 years ago—she also was NBC's West Coast general counsel for 10 years before becoming a judge in 2001.

Who's Arguing?

Next week is a calendar week at the Federal Circuit. Here are a few of the cases on my radar screen:

➤ Power Integrations v. Fairchild Semiconductor. This is a major piece of a wide-ranging, big-dollar dispute between two competitors. Power Integrations won a $105 million verdict against Fairchild for infringing two patents on energy-saving power converters for electronic devices. After the Federal Circuit changed damages law in VirnetX, Fairchild obtained a new damages trial before U.S. District Judge Maxine Chesney, but Power Integrations won even more: $147 million. Fairchild has brought in Quinn Emanuel Urquhart & Sullivan for the appeal, with Kathleen Sullivan to argue April 2. Fish & Richardson partner Frank Scherkenbach, who's been litigating claims between the two companies since 2004, will argue for Power Integrations.

➤ Finisar v. Nistica. The latest trial—or more precisely, two trials—bubbling up from U.S. District Judge Beth Labson Freeman's patent-heavy San Jose courtroom. This is an optical networking case that turns on whether “focusing” spatially separated wavelength signals requires convergence in one or two dimensions. The first jury hung after requesting clarification. Following a new construction the second jury returned a defense verdict. David Radulescu of Radulescu LLP will argue Finisar's appeal on April 4. Dentons partner Robert Kramer will defend his trial judgment.

➤ Smartflash v. Apple, Samsung, Google. Aaron Panner must be psychic. The Kellogg, Hansen, Todd, Figel & Frederick partner knows he has an uphill battle because of a previous Federal Circuit ruling finding related Smartflash patent claims ineligible. But, he wrote in his brief last summer, “by the time this appeal is decided, there may be additional developments in the law interpreting Section 101 that would warrant a fresh look at the issue presented.” In February his prediction came true, when the Federal Circuit ruled in Berkheimer v. HP that patent eligibility involves fact issues that can't always be resolved before trial. Panner will square off with Gibson, Dunn & Crutcher partner Mark Perry, who says there are no disputed questions on eligibility, on April 5. PTO Associate Solicitor William LaMarca will also defend the series of CBMs decided against Smartflash.

➤➤ Are you enjoying Skilled in the Art? Click here to check out more new briefings from Law.com writers.

Me Olvide de Pagar

Did he forget how to live or did he forget how to pay his collaborators? I love the way my ALM colleague Samantha Joseph frames this copyright complaint against Julio Iglesias over “Me Olvide de Vivir.”

Another Win for Unified

Unified Patents keeps making life difficult for some of the country's biggest NPEs. On Monday the Patent Trial and Appeal Board found unpatentable five challenged claims of an Intellectual Ventures patent on improved methods for managing cached data.

There are some storm clouds brewing at the Federal Circuit over the model under which organizations like Unified and RPX Corp. bring IPRs that benefit their member companies. But for now Unified is on a tear, filing the fourth-most IPRs in 2017 and knocking out patent claims held by Dominion Harbor, Sportbrain Holdings and now IV in the last two months.

Unified's Roshan Suresh Mansinghani and Jonathan Stroud teamed up with Finnegan, Henderson, Farabow, Garrett & Dunner partner Lionel Lavenue and associate James Stein on Unified Patents v. Intellectual Ventures.

That's all the dictating of history I'm going to do today. Tune in Friday for more Skilled in the Art.