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

By Daniel Etcovitch – Edited by Emily Chan

Florida Judge Rules Bitcoin Is Not Equivalent to Money

Illinois Governor Signs Bill Restricting Use of Stingrays

DMCA DRM Circumvention Provision’s Constitutionality Being Challenged

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Federal Circuit Flash Digest

By Yuan Cao – Edited by Frederick Ding

Mere Commercial Benefit Not Enough to Trigger The On-Sale Bar

Technology-Based Software Solution Can Be Patentable 

Patent Disputes about Siri, iTunes, Notification Push, and Location

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Sixth Circuit Finds Privacy Interest in Mugshots under FOIA

By Filippo Raso – Edited by Ariane Moss

A split en banc Sixth Circuit reversed the lower courts’ ruling, holding individuals have a privacy interest in their booking photos for the purposes of Exemption 7(C) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In so doing, the Court overruled Circuit precedent established two decades ago. The case was remanded with instructions to balance the public interests against the individual’s privacy interest.

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The EFF Challenges the DMCA Anti-Circumvention Provision: A First Amendment Fight

By Priyanka Nawathe – Edited by Kayla Haran

On July 21, 2016, the Electronic Frontier Foundation sued the United States government to overturn DMCA Section 1201, commonly referred to as the anti-circumvention provision. The EFF argues that this provision, designed to prevent circumvention of “technological protection measures,” actually chills research and free speech, and thus is a violation of the First Amendment.

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By Jaehwan Park – Edited by Kayla Haran

Bipartisan Lawmakers Introduce Bill Encouraging U.S. Government Agencies to Use the Cloud as a Secure Alternative to Legacy Systems

Snapchat Accused of Violating Illinois Biometric Information Privacy Act

The Office of the U.S. Trade Representative Announces New Policy Group to Promote Global Digital Trade

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Fed. Cir. Flash DigestBy Kayla Haran – Edited by Ken Winterbottom

Court Finds Negative Claim Limitation Meets Written Description Requirements

In Inphi Corporation v. Netlist, Inc., 2015-1179 (Fed. Cir. Nov. 13, 2015), the United States Court of Appeals for the Federal Circuit unanimously affirmed the Patent Trial and Appeal Board’s finding that Netlist Inc.’s amended patent claims met the written description requirements of 35 U.S.C. § 112, ¶1. Netlist amended and narrowed its claims on the patent at issue, introducing a negative claim limitation after the Board’s inter partes reexamination, which was initiated by Inphi Corporation. The Board had previously rejected several of Netlist’s claims as obvious in view of the prior art, but withdrew its rejections after Netlist’s amendment.

The Federal Circuit previously held in Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344 (Fed. Cir. 2012) that negative claim limitations require an adequate description of a reason to exclude the relevant limitation, and Inphi argued that Netlist’s amendment failed to provide such reasons. The Board rejected this argument, finding in Netlist’s amended specifications implicit reasons for its exclusions. Inphi appealed the Board’s denial of Inphi’s request for rehearing. The Federal Circuit found that, contrary to Inphi’s arguments, Santarus did not create a heightened written description standard for negative claim limitations. The court affirmed the Board’s decision, holding that properly describing alternative features as Netlist did, even without articulating the advantages and disadvantages of those features, can properly constitute a reason for exclusion under the Santarus standard. For these reasons, the court upheld the Board’s finding that Netlist’s negative claim limitation properly met the written description requirements of 35 U.S.C. § 112, ¶1.

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Posted On Nov - 23 - 2015 Comments Off READ FULL POST

Fed. Cir. Flash DigestBy Patrick Gallagher – Edited by Ken Winterbottom

TOR Project Head Alleges FBI Paid Carnegie Mellon for Hack in Connection with Silk Road 2.0 Investigation

Roger Dingledine, director of the TOR Project, a free online software that protects the anonymity of its users online, claims that the FBI paid Carnegie Mellon University $1 million to reveal the identities of its users as part of the FBI’s Silk Road 2.0 investigation. Silk Road 2.0 was formed as the successor to Silk Road, described by the FBI as a website “designed to enable its users to buy and sell illegal drugs and other unlawful goods and services anonymously and beyond the reach of law enforcement.” Last year, Carnegie Mellon was scheduled to host a speech on how to break the TOR Project’s software at the Black Hat hacker conference; however, the talk was cancelled. Subsequently, an anonymous source provided federal investigators with the IP addresses of online users tied to Silk Road 2.0 raising suspicions that Carnegie Mellon acted as the anonymous source. Dingledine’s accusation further alleges that the hack by Carnegie Mellon was part of a much broader breach made in cooperation with law enforcement in which the institute hacked a large number of TOR Project users, then sifted through their profiles in order to determine which had committed crimes. This allegation, if true, may implicate legal issues regarding online privacy rights.

DOJ Decides Not to Support FCC in Efforts to Preempt States Laws Limiting Municipal Broadband Projects

On Monday, November 9, the Department of Justice announced that it will not support the Federal Communications Commission in its legal efforts to combat state laws that restrict community-based broadband projects. Community broadband projects allow municipalities to establish their own broadband services outside of the private market to ensure access to fast, affordable Internet service.  The current legal battle centers on a February vote by the FCC to “preempt state laws in North Carolina and Tennessee that prevent municipal broadband providers from expanding outside their territories.” The FCC derived its authority for this action from Section 706 of the Telecommunications Act of 1996, which empowers the agency to utilize “measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment” in order to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” However, such authority is limited by considerations including public policy and necessity.

If upheld, the FCC’s decision could be expanded to apply to 17 other states where similar restrictions on local broadband projects exist. The FCC’s legal brief can be read here. Ars Technica provides further commentary.

D.C. Court of Appeals Permits Continuation of Bulk Domestic Phone Data Collection

Following a ruling Monday, November 10, by Judge Richard J. Leon of the U.S. District Court for the District of Columbia that blocked the bulk collection of domestic phone data by the NSA, the U.S. Court of Appeals for the District of Columbia Circuit stayed the order on Tuesday. The decision was issued in response to an emergency motion to stay by the government, which cited national security concerns if the program were disrupted. The NSA is currently in the process of transitioning to an alternative method of phone data collection that relies on a 4th Amendment probable cause standard. The current surveillance program is set to expire on November 29.

Posted On Nov - 21 - 2015 Comments Off READ FULL POST

CybersecuritySenate passes Cybersecurity Information Sharing Act

By Frederick Ding — Edited by Yunnan Jiang

S. 754 — Cybersecurity Information Sharing Act of 2015

The text of the bill is available here, and has been summarized by GovTrack.us.

On October 27, 2015, the Senate passed the Cybersecurity Information Sharing Act (CISA) of 2015. CISA enables companies to share cyber threat indicators with each other and the federal government, and immunizes companies from liability for sharing under the act. The bill was originally introduced by Senator Richard Burr (R-NC), Chairman of the Senate Select Committee on Intelligence, on March 17, 2015, and was also sponsored by Senator Dianne Feinstein (D-CA). The Intelligence Committee voted 14 to 1 to report the bill favorably, S. Rep. 114-32 (2015). Prior to its passage, the Senate rejected a number of proposed amendments that would have limited its scope. The act now heads to conference to be reconciled with the Protecting Cyber Networks Act, H.R. 1560, which the House passed on April 22, 2015.

According to the Intelligence Committee report, the purpose of the legislation is to protect private companies, critical infrastructure, and government systems from hostile cyberattacks by facilitating a “voluntary cybersecurity information sharing process that will encourage public and private sector entities to share cyber threat information, removing legal barriers and the threat of unnecessary litigation.” S. Rep. 114-32 at 2.

This legislation directs the Department of Homeland Security (DHS) to operate as an entry point for entities to share “cyber threat indicators” with the federal government and to disseminate shared indicators with other agencies through an automated, real-time process. It also enables companies to share information with each other, and establishes reporting requirements for agencies that are involved in the information sharing. Controversially, CISA also provides liability protection, immunizing entities that share cybersecurity information with each other or the government.

A summary of the history surrounding the Senate bill is available at Congress.gov, including several failed amendments. CNN calls CISA a “historic” bill, quoting a former NSA employee who said that CISA “doesn’t do anything except help . . . defend our companies better,” but notes that “tech companies were suspicious of the bill.” The Guardian and Wired provide further commentary.

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Posted On Nov - 18 - 2015 Comments Off READ FULL POST

Senate Judiciary CommitteeBy Bhargav Srinivasan – Edited by Olga Slobodyanyuk

In October, Senators Orrin Hatch (R-UT) and Christopher Coons (D-DE) introduced pending legislation S. 1890 – “Defend Trade Secrets Act of 2015” (the Bill) to the Senate Judiciary Committee. If passed, the Bill would provide a federal civil cause of action for the misappropriation of trade secrets related to a products and services used in interstate commerce.

The Bill serves two primary purposes: (1) to provide pathways to injunctive and monetary relief that would prevent loss of evidence and economic harm to victims; and (2) to create a uniform standard for misappropriation of trade secrets.

In a recent article, The Hill notes that the Senators had in mind cyber theft from Chinese competitors when drafting the Bill. In September 2015, the Obama administration reached an agreement with China President Xi Jinping that neither country would support economic espionage on private firms. However, beliefs that the agreement is toothless have led proponents of the Bill to argue for its importance in fighting cyber theft.

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Posted On Nov - 18 - 2015 Comments Off READ FULL POST

3293465641_b6c5081e87_qBy Keke Wu – Edited by Yunnan Jiang

Federal Circuit Rejects-in-part the District Court’s Claim Construction

On October 29, 2015, the U.S. Court of Appeals for the Federal Circuit ruled in two separate cases related to an Atlas patent on a protocol for controlling wireless network communications between a hub and multiple remotes, in which Atlas sued Medtronic and St. Jude Medical for patent infringement. In Atlas IP, LLC v. Medtronic, Inc., 2015-1071, 2015-1105 (Fed. Cir. Oct. 29, 2015), the Federal Circuit affirmed-in-part, reversed-in-part, and remanded the district court’s summary judgments. The Court first affirmed the district court’s non-infringement finding, where the dispute lies in how to construe the term “establish”. Rejecting Atlas’s argument that “establish” should be construed according to its “plain meaning,” the Court noted that, in the context of the particular patent, a more proper definition is “set up (an organization, system, or set of rules) on a firm or permanent basis.” The Court then reversed the district court’s finding of no anticipation and no obviousness on the ground of the incorrect claim construction. In Atlas IP, LLC v. St. Jude Med., Inc., 2015-1190 (Fed. Cir. Oct. 29, 2015), the Federal Circuit vacated and remanded the district court’s decision, which stated that the term “in advance” required a communication be sent before the communication cycle began. The Federal Circuit instead concluded that nothing in the claim language required the communication to be sent before the start of the communication cycle, and that other claims and the specification suggested information may be sent during the communication cycle.

No Jurisdiction to Claim Reputational Harm after Settlement

In Tesco Corp. v. National Oilwell Varco, L.P., 2015-1041 (Fed. Cir. Oct. 30, 2015), the United States Court of Appeals for the Federal Circuit held that it possessed no jurisdiction over attorneys’ claim of reputational harm from the district court judge’s critical remarks after the parties reached a settlement. Tesco Corporation and its attorneys filed the appeal from a decision of the United States District Court for the Southern District of Texas dismissing Tesco’s patent infringement suit with prejudice pursuant to the court’s inherent authority to sanction. At trial, Tesco’s attorneys made a representation to the court that later discovered to be false. The district court found that the representation justified a finding of bad faith and sanctioned Tesco by dismissing its case with prejudice. In the order, it called Tesco’s attorneys’ conduct “troubling.” During the pendency of the appeal, Tesco and defendant-appellees entered into a settlement resolving all outstanding issues. Tesco’s attorneys, however, continued to appeal the district court judge’s order alleging reputational harm. Because the settlement makes it unnecessary to decide whether the sanctions order can be considered a formal reprimand, the Federal Circuit held that Tesco no long had standing and dismissed the appeal. The Court explained that the settlement agreement ended the dispute and none of the parties had any interest in the underlying order, except for Tesco’s attorneys for reputational reasons.

Federal Circuit Affirms-in-part PTAB in Belden vs. Berk-Tek

In Belden Inc. v. Berk-Tek LLC, 2014-1575, -1576 (Fed. Cir. Nov. 5, 2015), the United States Court of Appeals for the Federal Circuit affirmed-in-part and reversed-in-part a inter partes review decision made by the Patent and Trademark Office’s Patent Trial and Appeal Board. The decision concerns U.S. Patent No. 6,074,503 owned by Belden Inc., which claims a method for making a communications cable. The Federal Circuit affirmed the Board’s decision to reject claims 1–4 of the ’503 patent. The Court stated that the Board was entitled to rely on its own reading of Japanese Patent No. 19910 to find that a skilled artisan would have understood the importance of aligning the core and conductors and the connection between achieving such alignment and preventing the core from twisting at the aligning die. The Federal Circuit, however, reversed the Board’s upholding of claims 5 and 6. In reaching its conclusion, the Federal Circuit reasoned the Board’s disregard of the insulation-independent alignment teaching of Japanese Patent No. 19910 violated the principle that “[a] reference must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect.” The Board erred in determining that Berk-Tek had not proven the obviousness of the methods of claims 5 and 6 of the ’503 patent by a preponderance of the evidence.

Posted On Nov - 18 - 2015 Comments Off READ FULL POST
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