JOLT Digest

Microsoft argues for a lower burden of proof for patent invalidity where prior art wasn’t before the PTO
By Abby Lauer – Edited by Matt Gelfand

Microsoft Corp. v. i4i Ltd. P’ship, No. 10-290 (U.S. 2011)
Transcript of Oral Arguments

On April 18, 2011, the Supreme Court heard oral arguments in Microsoft Corp. v. i4i Ltd. P’ship, a case involving a dispute over the evidentiary standard that must be met by a patent challenger in order to overcome the presumption of patent validity codified in 35 U.S.C. § 282. Microsoft’s position is that the standard should be reduced from one requiring clear and convincing evidence to one requiring a preponderance of the evidence, in the case where the evidence before the court is a prior art reference that was not considered by the PTO during patent prosecution. For further background on the case, see the Digest’s previous coverage of the proceedings at the Eastern District of Texas and the Federal Circuit.

Summaries and commentary on the oral arguments can be found at IPWatchdog and PatentlyO. (more…)

Sony Settles Lawsuit with PlayStation 3 Hacker
By Vivian Tao – Edited by Chinh Vo

Sony Computer Entm’t Am. v. Hotz, No. CV11-0167 (N.D. Cal. Apr. 11, 2011)
Final Judgment hosted by Electronic Frontier Foundation

On April 11, 2011, the United States District Court for the Northern District of California entered a final judgment for plaintiff Sony Computer Entertainment America (“Sony”), granting Sony a permanent injunction against defendant George Hotz. The injunction prevents Hotz, a notorious hacker, from engaging in any unauthorized access to Sony products, circumventing security measures in those products, or trafficking and posting any information, service, or product that would lead to such circumvention.

While a motion to dismiss regarding Hotz’s claim over lack of personal jurisdiction is pending, this final judgment comes on the heels of a March 31 settlement agreement between Sony and Hotz. Both parties have agreed to accept this judgment and to waive their rights to appeal.

Ars Technica provides an overview of the case. PC World criticizes the judgment, stating that the injunction’s effect will be constrained by other sites that have already listed and can continue to include information from Hotz’s hacking efforts.

(more…)

by Alea J. Mitchell

Obama Seeks Secure Online Identities

The White House Blog announced that President Obama released the “National Strategy for Trusted Identities in Cyberspace” (PDF), a plan to improve online security and e-commerce. The proposal is aimed at combating online fraud and identity theft, and calls on the private sector to design a trusted identity system to better protect an increasingly wired culture. Wired reports the proposal distances itself from a national ID approach and instead urges the private sector to develop ways for consumers to create privacy-enhancing secure identity credentials that will enable safer online transactions.

Senators Kerry and McCain Propose Online Privacy Legislation

Wired reports that Senators John Kerry (D-Massachusetts) and John McCain (R-Arizona) introduced on Tuesday the Commercial Privacy Bill of Rights, online privacy legislation that would allow web users to demand websites stop tracking and selling their online behavior.  The bill aims to regulate how identifiable information is used, stored, and distributed. Ars Technica reports that consumer groups criticize the bill for shying away from overt “Do Not Track” legislation, giving special interest treatment to social media marketers, and creating a conflict of interest by allowing the Department of Commerce to influence privacy policies.

House Votes to Repeal Net Neutrality Rules

Reuters reports that the House of Representatives voted last Friday to reject the FCC’s net neutrality rules, which were adopted last year and bar Internet service providers from blocking or interfering with traffic on their networks. The Hill reports that Republicans, who oppose the rules, claim the FCC lacks authority to regulate the Internet and that net neutrality rules impose unwarranted government regulation over an open and thriving Internet. The largely partisan effort is expected to fail once the legislation reaches the Democratic-controlled Senate. As Wired reports, the vote is largely symbolic, as President Obama has promised to veto any legislation proposing to reverse the rules.

Congress Revisits COICA

Ars Technica reports that the battle over the Combating Online Infringement and Counterfeits Act (COICA) is heating up again as both chambers draft amended versions of COICA, set to be rolled out in coming weeks. Last November, JOLT reported on the bill, which would grant the Attorney General power to seize domain names through in rem action and require online ad services and credit card companies to stop working with blacklisted sites, with the goal of targeting foreign piracy and counterfeiting sites not easily reached by US courts. While the Senate Judiciary Committee unanimously approved the bill, it never made it to the Senate floor, owing to efforts of Senator Ron Wyden, who has again vowed to oppose the bill. Wired reports that Google’s Kent Walker testified at one of two recently held House hearings to oppose the Act, particularly the private right of action a COICA claim would give rightsholders. The Citizen Media Law Project laments the bill’s return.

Second Circuit Holds that Submission of Entire Copyrighted Work in Judicial Proceedings Constitutes Fair Use

By Kaethin Prizer – Edited by Esther Kang
Hollander v. Steinberg, No. 10-1140-cv (2d Cir. Apr. 5, 2011)
Summary Order hosted by Scribd.com

The Second Circuit affirmed the decision of the District Court for the Eastern District of New York, which had granted summary judgment in favor of the defendant in a copyright infringement suit.

The Second Circuit applied the traditional four-factor fair use test, 17 U.S.C. § 107, to filings in judicial proceedings. The court held that the grant of summary judgment for non-infringement was appropriate, because the filing of an author’s essays in their entirety in judicial proceedings constituted fair use.

The Copyright Litigation Blog provides an overview of the case.  (more…)

Federal Circuit Hears Oral Arguments for Myriad Gene Patent Case

By Elina Saviharju – Edited by Esther Kang
Ass’n for Molecular Pathology v. USPTO, No. 2010-1406 (Fed. Cir. Apr. 4, 2011)
Oral Argument Recording

The Court of Appeals for the Federal Circuit heard oral arguments on April 4, 2011, for Ass’n for Molecular Pathology v. USPTO. The court focused on the issues of jurisdiction and patent-eligible subject matter under 35 U.S.C. §101, although it also briefly addressed the nature of the process claims.

The Digest has covered the earlier course of the proceedings on several occasions. The oral arguments before the court have also been discussed in Patent Docs, PatentlyO and by the Electronic Frontier Foundation, among others.  (more…)