Congratulatory Statements do not Create Implied License

Following a jury verdict of noninfringement, the court found that defendant's implied license defense was not supported by the evidence. "An implied license requires a finding of an affirmative grant of consent or permission. Though rare, consent can be inferred from a course of conduct between parties. . . . [Defendant's] equitable defenses rest primarily on a . . . blog post by [plaintiff's] CEO congratulating [defendant] on the release of Android, as well as similar positive statements by [plaintiff's] executives thereafter. Congratulatory statements do not fall under the narrow circumstances proscribed by our court of appeals. Even if [defendant] understood [plaintiffs'] conduct to condone use of the [patented technology] packages, the 'course of conduct' must be assessed for an affirmative grant of such consent. None is apparent from the evidence [defendant] presented here. . . . Furthermore, from the present record it would be impossible to determine the scope of any implied license. Under [defendant's] theory, infringement is excused as to any aspect of Android because the whole of the platform was generally applauded by [plaintiff]. Such a finding is not supported by precedent. The parties negotiated for a real license but the talks collapsed and no license was given. It would be most bizarre to somehow find an implied license in this scenario."

Oracle America, Inc. v. Google Inc., 3-10-cv-03561 (CAND May 31, 2012, Order) (Alsup, J.).