JOLT Digest

N.D.Cal. Grants Preliminary Injunction Requiring ODNI to Turn Over FISA-Related Documents

By Yelena Shagall — Edited by Wen Bu

Electronic Frontier Foundation, Inc. v. Office of the Director of National Intelligence, No. C 07-5278 SI
District Court for the Northern District of California, November 27, 2007
Order

On November 27, the District Court for the Northern District of California granted in part and denied in part a motion by the Electronic Frontier Foundation (EFF) for a preliminary injunction against the Office of the Director of National Intelligence (ODNI) ordering release under the Freedom of Information Act (FOIA) of communications concerning proposed amendments to the Foreign Intelligence Surveillance Act (FISA). The court ordered ODNI to provide an initial release by November 30, to provide a final release of all documents by December 10, and to provide an affidavit with its final release explaining why it withheld any withheld documents.

The court first held that a preliminary injunction may be granted in FOIA cases. It then found that EFF was entitled to a preliminary injunction. The court reasoned that EFF would likely prevail on the merits of its FOIA claim and suffer irreparable injury in the absence of relief; ODNI would not be burdened; and the public interest favored the injunction.

The court noted ODNI’s failure to justify its request to extend its response time from 20 days to 4 months and the irreparable harm to the public that would result from its inability to access information on the pending FISA amendments until after the Congressional vote expected before the end of the year. The court suggested that ODNI’s objections to the burdens imposed by compliance with FOIA should be addressed to Congress rather than the courts.

EFF issued a press release touting the importance of the order, as well as an earlier release explaining its pursuit of the case.
Kim Curtis of the Associated Press calls the order a “minor victory” in EFF’s challenge to the Bush administration’s domestic surveillance program.
Glenn Greenwald of Salon.com considers the order a significant victory for EFF, and argues it will provide the public with vital information concerning extensive lobbying and donations from the telecommunications industry to influence Congress to grant immunity from “past lawbreaking.”
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Federal Circuit Decides to Rehear Important Design Patent Case En Banc

By Andrew Ungberg - Edited by Wen Bu

Egyptian Goddess, Inc., v. Swisa, Inc.
Federal Circuit, November 26, 2007, No. 2006-1562
Order

On August 29, a panel of the Federal Circuit affirmed the District Court for the Northern District of Texas’s grant of summary judgment for Swisa, Inc, on the grounds that no jury could reasonably find Swisa’s nail-buffer infringed Egyptian’s design patent. Writing for the panel, Judge Moore held “for a combination of individually known design elements to constitute a point of novelty, the combination must be a non-trivial advance over the prior art.” He reasoned that because Egyptian’s design combined elements in a trivial way, the product failed the “points of novelty” test.

On November 26, the Federal Circuit issued an order vacating the panel’s decision and agreed to re-hear the appeal en banc. The order directs the parties to address three specific questions in the rehearing, concerning the “points of novelty” test and claim construction with respect to design patents. Those questions are elaborated after the jump.

Dennis Crouch of Patently-O believes the order signals that the court will review established design patent law, which both Crouch and John L. Welch of TTAblog find muddled and confusing.
MVS FileWrapper has posted a summary of the August 29 panel decision.

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Federal Circuit Clarifies Rule on Completeness of Patents in a Sequence

By Sarah Sorscher — Edited by Johnathan Jenkins

Zenon Environmental, Inc. v. United States Filter Corp.
Federal Circuit, November 7, 2007, No. 2006-1266
Slip Opinion

On November 7, the Federal Circuit reversed the District Court of the Southern District of California, which had found Zenon’s patent for a water filtration device not invalid by reason of anticipation in a bench trial.

The Federal Circuit held that, because an intervening patent failed to contain an essential element of the patent at issue, the patent at issue was indeed invalid by reason of anticipation. At issue was the correct application of 35 U.S.C. § 120, which entitles an inventor to maintain the benefit of the filing date of the earliest patent in a sequence, provided subsequent patents remain linked to that first patent by an unbroken chain of disclosures.

Dennis Crouch of Patently-O provides further details on the holding.
PLI’s Gene Quinn takes issue with the court’s decision to resolve the case as a matter of law.

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Ninth Circuit Allows Individuals to Use Devices to Decrypt Satellite Television Signals

By Nick Bramble — Edited by Wen Bu

DirecTV, Inc. v. Huynh
Ninth Circuit, No. 05-16361, September 11, 2007
Slip Opinion

Faced with the question of how to resolve a provision of the Federal Communications Act banning the assembly and modification of devices primarily designed for the unauthorized decryption of satellite signals, the Ninth Circuit held on September 11 that this provision applies only to “assemblers, manufacturers, and distributors of piracy devices” and not individual end users of such devices.

Jennifer Granick expects that the ruling will “prevent[] satellite and cable TV companies from piling on excessive damages that would punish and chill legitimate encryption research.”
Declan McCullagh discusses the various legal and illegal uses of the smart card devices purchased by defendants.

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