A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

The United States Court of Appeals for the Federal Circuit in American Calcar, Inc. v. American Honda Motor Co., 13-1061 (Fed. Cir. September 26, 2014) affirmed the United States District Court for the Southern District of California’s finding that three multimedia car system patents (U.S. Patents #6,330,497, 6,438,465, and 6,542,795) were unenforceable because the defendant had proved inequitable conduct. Calcar at 12. The court applied the two-pronged standard it established in Theranese, which requires a defendant alleging inequitable conduct to demonstrate that a patent applicant “(1) misrepresented or omitted information material to patentability, and (2) did so with specific intent to mislead or deceive the PTO.” Id. at 5, citing Ohio Willow Wood Co. v. Alps S., LLC, 735 F.3d. 1333, 1344 (Fed. Cir. 2013).  The district court found that information withheld during the patent application process would have caused the PTO to reject the claims, id. at 8, and that one of the inventors “possessed undisclosed information, . . . knew it was material, and deliberately decided to withhold [it] from the PTO.”  Id. at 10.  The Federal Circuit held that neither conclusion was clearly in error, and that both the materiality and the intent prongs of the Theranese standard were  thereby satisfied.  Id. at 1112.  Law360 provides an in-depth discussion of the ruling.

ITC’s ruling that uPI violated Consent Order affirmed

The United States Court of Appeals for the Federal Circuit in uPI Semiconductor Corporation v. ITC, 13-1157 (Fed. Cir. September 25, 2014) affirmed the International Trade Commission’s ruling that uPI violated a Consent Order, uPI at 3, and reversed the Commission’s finding that the violation did not extend to “products allegedly developed and produced after entry of the Consent Order,” id. at 5. The Consent Order mandates that uPI will not “knowingly aid, abet or induce importation” of DC current converter products infringing three patents (U.S. Patents #7,315,190, 6,414,470, 7,132,717).  Id. at 4.  Appealing the Commission’s findings, uPI argued that the Consent Order cannot apply to third-party imports absent a general exclusion order, citing Kyocera Wireless Corp. v. International Trade Commission, 545 F.3d 1340 (Fed. Cir. 2008).  Id. at 10.  They also argued that the Commission did not prove that the imports in question did not derive from sales prior to the Consent Order being issued.  Id. at 10-11.  The Federal Circuit found that Kyocera did not necessitate an exclusion order, id. at 13, and that evidence related to upstream sales, downstream sales, and import lag times were sufficient to establish that sales of accused products occurred after the Consent Order issued.  Id.  The Federal Circuit also ruled that the uPI’s evidence of compliance for post-Consent Order products was “grossly inadequate,” and reversed the Commission’s finding that these products were independently developed.  Id. at 19.

Court rules that VeriFone devices did not infringe on payment terminal software patents

The United States Court of Appeals for the Federal Circuit in CardSoft, LLC v. VeriFone, Inc., 14-1135 (Fed. Cir. October 17, 2014), reversed the United States District Court for the Eastern District of Texas’s ruling that VeriFone devices infringed two patents describing payment terminal software (U.S. Patents #6,934,945 and 7,302,683).  CardSoft at 2-3.  The Federal Circuit found that the district court’s construction of the term “virtual machine” as “a computer programmed to emulate a hypothetical computer for applications relating to transport of data” was incomplete, id. at 6, citing Cardsoft, Inc. v. VeriFone Holdings, Inc.,  No. 2:08-cv-98, 2011 WL 4454940, at *8 (E.D. Tex. Sept. 29, 2011), because this definition omits reference to a virtual machine’s “ability to run applications that [do] not depend on any specific underlying operating system or hardware,” id. at 7.  The court described this ability as a virtual machine’s “defining feature.” Id.  The Federal Circuit reversed because of the district court’s construction of the term, id. at 5. Because CardSoft did not address Appellants’ argument of no infringement under an updated construction, the court granted judgment of no infringement as a matter of law.  Id. at 10.  Law360 provides a discussion of the ruling.

Posted On Oct - 21 - 2014 Add Comments READ FULL POST

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

The Chuck Taylor All Star sneakers are undoubtedly Converse’s most iconic shoes. However, many retailers and competitors have been employing similar looks for years. Converse has filed suits against 31 retailers on trademark infringement grounds, requesting damages and injunctions, which could prevent competitors from selling similar shoes. Since shoes are not subject to copyright protection in the US, Converse’s claims are limited to the trademark arena. This may be a difficult case for Converse, however, since it needs to show evidence that customers bought the defendant’s shoes thinking they were manufactured by Converse. Moreover, Converse could be jeopardizing his signature trademark if it is not able to demonstrate public opposition against the widespread existence of similar products.

French Court rules that shoe design copyright was not infringed

Can shoe designs be protected under copyright law? Not in the US, but certainly in France. While US shoe designers must protect their creations through “trademarks,” “trade dress” or “design patent,” French law establishes that shoes can be protected as copyrights, provided that they are “original.” The term “original” has not been clearly defined, but French courts have established that a work is considered “original” when it reflects the personality of the author. Recently, the Paris Court had to determine the originality of a shoe in a case of copyright infringement filed by Apple Shoes against Sonia Rykiel. Defendant argued that the Plaintiff had failed to produce evidence on the creative process leading up to the model of shoes. The Court ruled that the shoes were original, but that  the defendant’s shoes were not similar and hence did not infringe on the plaintiff’s copyright.

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

Oklahoma’s highest civil court ruled that a Facebook message alone does not satisfy the notice requirement, reversing the lower courts’ rulings. Justice Douglas Combs, writing from the majority, expressed that [Facebook] is an unreliable method of communication… This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.” In a dissenting opinion, Justice Winchester considered Facebook notifications as valid, pointing out that even letters or by faxes may not reach the recipient.

Posted On Oct - 21 - 2014 Add Comments READ FULL POST

By Travis West — Edited by Mengyi Wang

Order, United States v. Ulbricht, No. 14-cr-68 (S.D.N.Y. Oct. 10, 2014).

Slip opinion

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish that he had any privacy interest in the server.

The Silk Road was a website accessed through The Onion Router (“Tor”) that was used for the sale of drugs and other illegal goods. Slip op. at 2–3. Ulbricht is alleged to have created the site, using the moniker “Dread Pirate Roberts.” Id. at 1. The US government investigated the site, eventually imaging the server in Iceland and using information found on that server, and received multiple warrants for pen-registers and searches of Ulbricht’s personal email accounts and social network accounts. Id. at 3–4. Ulbricht alleged that the government illegally hacked the Icelandic server, and that all of the evidence that came from that illegal hacking should be suppressed. Id. at 4–5. However, the judge found that since Ulbricht had not established a personal privacy interest in the server, which likely could only be established by admitting he owned or accessed the website, he could not contest the search of the Icelandic server. Id. at 6–7.

The case has attracted attention due to questions about how the government actually accessed the Icelandic server. The defense tried to have all of the evidence suppressed since it suspected that the government had illegally hacked the Icelandic server. In response, the government offered a declaration from one of the FBI agents who accessed the server. Memorandum of law in opposition to defendant’s motion to suppress evidence, obtain discovery anda bill of particulars, and strike surplusage at 12. The declaration claimed that Ulbricht had improperly configured the front page of the Silk Road, so that it leaked the IP address of the server. Id. Using this information, the agent was able to have the Icelandic police secretly image the server, whose information was then used by the FBI to obtain warrants for Ulbricht’s personal accounts. Id. at 13. However, multiple technical experts and Ulbricht’s attorneys disputed this series of events, arguing that it was technically implausible. The prosecution then responded in a motion by arguing that even if the FBI had hacked the Silk Road’s server, it would be legal since the site was facilitating blatantly illegal activities. Government response tothe declaration of Joshua Horowitz at 1.

Wired provides an overview of Ulbricht’s legal saga to date. Ars Technica explains how Ulbricht is in a legal quandary by being unable to admit that he owned the Silk Road website. Gizmodo summarizes the government’s argument that it could hack the Silk Road’s server without breaking any laws. Krebs on Security provides more information about the technical challenges with the FBI’s story of how it found the Silk Road’s server’s IP address.

(more…)

Posted On Oct - 21 - 2014 Add Comments READ FULL POST

By Yunnan Jiang – Edited by Paulius Jurcys

Brief for the Fourth Circuit as Amicus Curiae Supporting Plaintiffs-Appellants, the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568 (4th Cir.)

Brief hosted by the Washington Post.

free-speechOn October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint amicus curiae brief in the U.S. Court Of Appeals For The Fourth Circuit for the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568. In its brief, the EFF and the ACLU urge that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”.

The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression. They further assert that such use of trademarks is “noncommercial”. By holding the use of a trademark in a blog post title liable for trademark infringe and dilution, the brief argues that the District Court allows trademarks to trump freedom of speech. (more…)

Posted On Oct - 20 - 2014 Add Comments READ FULL POST

By Jens Frankenreiter – Edited by Michael Shammas

Twitter, Inc. vs. Eric Holder et al, No. 14-04480 (N.D. Cal. Oct. 07, 2014)

Complaint hosted by The Washington Post

Twitter.png?t=20130219104123Twitter on October 7 sued the U.S. Department of Justice and the Federal Bureau of Investigation, asking the federal district court for the Northern District of California to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail than currently approved by the government.

The complaint challenges the requirements for the publication of data on surveillance requests set out by the government as violating Twitter’s rights under the First Amendment. The lawsuit is part of the efforts of Twitter and other companies to obtain the government’s approval for the reporting of information on the numbers of surveillance requests received by these companies. These efforts were largely triggered by former intelligence contractor Edward Snowden’s revelations about the existence of large-scale data gathering programs by the government relying, among other things, on surveillance requests to Internet content providers. In its lawsuit, Twitter seeks approval to provide more fine-grained data than the government is willing to consent to. Particularly, it objects to an alleged refusal to allow the reporting that it did not receive any surveillance requests of a particular type.

A summary of the complaint and the preceding events is provided by Reuters, The Washington Post, and Wired. American Civil Liberties Union in a press statement welcomed Twitter’s move and expressed hope that “that other technology companies will now follow Twitter’s lead”. (more…)

Posted On Oct - 20 - 2014 Add Comments READ FULL POST
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