API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess

82 Pages Posted: 27 Oct 2016 Last revised: 31 Oct 2017

Date Written: April 30, 2017


Like Dickens’ tale of Jarndyce and Jarndyce, the Oracle v. Google litigation has droned on for what seems like generations in the software industry with no clear end in sight. The litigation is on an especially wasteful and perilous course due to its peculiar jurisdictional posture. As a result of patent infringement allegations lodged in the complaint, the Federal Circuit has exclusive appellate jurisdiction notwithstanding that neither party appealed the rejection of the patent causes of action. Hence, the only issues presented to the Federal Circuit were copyright issues governed by Ninth Circuit, as opposed to Federal Circuit, jurisprudence. The Federal Circuit misinterpreted Ninth Circuit (and general) copyright law, thereby steering the case into a needless fair use retrial.

Congress did not provide a mechanism short of Supreme Court review for ensuring that the Federal Circuit properly interpreted regional circuit law. After tracing the history of the Oracle v. Google litigation and critiquing the Federal Circuit’s analysis, this article evaluates a range of potential reforms to the appellate jurisdictional mess presented by software intellectual property litigation and proposes several solutions to this Dickensian predicament.

Keywords: Copyright, API, Oracle, Google, 102(b)

JEL Classification: K19, K29, K39

Suggested Citation

Menell, Peter S., API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess (April 30, 2017). Berkeley Technology Law Journal, Forthcoming, UC Berkeley Public Law Research Paper No. 2859740, Available at SSRN: https://ssrn.com/abstract=2859740 or http://dx.doi.org/10.2139/ssrn.2859740

Peter S. Menell (Contact Author)

UC Berkeley School of Law ( email )

2240 Bancroft Way
Berkeley, CA 94720-7200
United States

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