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Comment by theptip | Hacker News Reader

Agreed, it sounds like by the letter of the law Google's use was not "fair use", if you grant the assumption that APIs are copyrightable in the first place.

What recourse does Oracle have now? Didn't the Supreme Court decline to take this issue up last time round? Does that mean this case is closed?

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> it sounds like by the letter of the law Google's use was not "fair use"

One of the many things that makes fair use tricky is that the statutory factors aren't exclusive: 17 USC 107 just says that "the factors to be considered shall include" the 4 factors.

The letter of the law for fair use is often not all that helpful.

They've got post-verdict motions at the trial court, if that fails they can speak to the Circuit Court (I think this will go to the Ninth Circuit now rather than the Federal Circuit, but that may be incorrect.) If they fail their, they can petition to have the Supreme Court take up the case (their refusal to take up a different question in an interlocutory -- prior to final judgement -- appeal previously shouldn't be considered a strong signal of whether they would take the same or a different question on appeal of a final judgement.)

At the Circuit and Supreme Court level, expect Google to cross-appeal against the copyrightability issue again (the Ninth Circuit might well rule differently than the CAFC did applying -- in theory -- Ninth Circuit precedent, and in any case I think they'll need to do so at the Circuit level to keep the issue alive for the Supreme Court, which may week take the issue up on a final speak though it declined to do so on an interlocutory one.)

> I think this will go to the Ninth Circuit now rather than the Federal Circuit, but that may be incorrect.

Sadly, it won't. Ars Technica has Oracle's general counsel saying "we plan to bring this case back to the Federal Circuit on appeal"

Yes, it will go back to the federal circuit because they interpret anything that once, ever, had patent claims in the complaint as arising under the patent laws of the united states.

I wish Gunn v. Minton had been more expansive.

Of course. They all want to get paid, and that's really what this is about from Oracle's perspective.

As Rayiner mentions, first they'll be a post-trial motion to vacate or overrule the jury verdict. Regardless of how those motions are decided the losing side will appeal to the Ninth Circuit. Only after a Ninth Circuit panel and perhaps en banc panel rules will one side or the other try for a cert petition to the Supreme Court.

I wonder whether this time the appeal will go to the Ninth Circuit, or whether instead it will return to the Federal Circuit?

Since Oracle hasn't dropped its patent claims from the complaint (despite the fact that they've already been defeated), doesn't Oracle get to bypass the 9th circuit and vault the case back to the CAFC?

Good point. That's a corner of the federal rules I'm not nearly familiar enough with to give you a confident answer.

It will return to the federal circuit. The patent issues were not even appealed to the federal circuit the first time.

"Because this action included patent claims, we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1)"

...

"The jury found no patent infringement, and the patent claims are not at issue in this appeal. "

See Oracle America v. Google, Inc. (http://www.cafc.uscourts.gov/content/oracle-america-inc-v-go...)

The federal circuit will, in turn, pretend to apply ninth circuit law.

> What recourse does Oracle have now

Your parent already answered that question (although I don't blame you for not noticing):

https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...

I wonder what would happen if they try the Supreme Court now.

Well they can't really 'try' the Supreme Court - the Court has to decide to take up the case. Oracle can't demand that they do so.

So, they can try, they just have an additional opportunity to fail that they wouldn't have at the Circuit Court level.

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