During Wednesday’s hearing, Perry argued that the foundational legal errors made by the trial court require the reversal of the infringement findings and the vacatur of the injunction. He cited the Second Circuit’s 2019 decision in Universal Instruments Corp. v. Micro Systems Engineering to support his Section 117(a) defense arguments.
Oracle’s counsel, Raechel Kummer of Morgan Lewis & Bockius LLP, argued that Rimini is a “recidivist contemptuous infringer” and that the company has continued infringing Oracle’s derivative works despite the court’s injunction and past appellate court losses. She emphasized that Oracle has never granted Rimini a license to use its software and that the licenses Oracle grants to customers are non-transferable and prohibit sharing with third parties or accessing the software outside of facilities.
However, U.S. Circuit Judge Jay Bybee questioned Oracle’s arguments, calling Oracle’s position regarding its licensing restrictions “entirely circular.”
“I don’t understand what they get to do here … I don’t understand how they can possibly update anything in [the software] without it being infringing under your definition,” Judge Bybee said.
