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

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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Stephen Hawking™: Famed Physicist Seeks Trademark Protection For His Name

By Amanda Liverzani – Edited by Saukshmya Trichi

Stephen Hawking is posed to leverage his physics fame as a brand name. The renowned theoretical physicist has filed an application to register his name as a trademark with the U.K. Intellectual Property Office. The trademark, if approved, will give Hawking greater control over how his name is used in connection with certain goods and services including charitable endeavors, scientific research, and medical devices.

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Flash Digest: News in Brief

By Jeanne Jeong

European Regulators and Watchdogs Increase Investigation of “Technology Giants”

Snapchat Published Transparency Report Revealing Government Data Sharing

New Senate Cyberbill Measure to Protect Americans from Cybercrime

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Australian Parliament Passes Data Retention Law Requiring Storage of User Metadata

By Jenny Choi – Edited by Katherine Kwong

On March 26, 2015, the Australian Senate passed the Telecommunications Amendment Bill 2015. The bill requires the Internet Service Providers (“ISPs”) and telecommunication providers to encrypt and retain user metadata for two years, and prohibits a person from disclosing or using information about the existence or non-existence of a warrant. The purpose of the Bill is to ensure national security and provide law enforcement agencies adequate access to the information they need.

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By: Yunnan Jiang

Federal Circuit denies appeal in Baraclude patent case

On October 20, the Federal Circuit declined to hear an appeal by Bristol-Myers Squibb Co.’s (“BMS”). The denial follows a United States District Court for the District of Delaware decision that held the composition of matter patent covering entecavir, US patent 5,206,244 invalid as obvious, which would allow Israel-based Generics giant Teva Pharmaceutical Industries to launch generic production upon the FDA’s final approval. Entecavir is the active ingredient of Baraclude, which is an antiviral medicine developed by scientists at BMS. Baraclude is approved in the United States for the treatment of hepatitis B in adults who have active virus and liver damage and is the global market leader in oral treatments for hepatitis B, with global sales of over $1 billion in 2013.  The district court decided that the invention of entecavir was obvious at the time of its effective filing date and rejected evidence postdating the invention to establish unexpected results.

Federal Circuit denies fee-shifting sanction in patent infringement action over Pfizer

In AntiCancer, Inc. v. Pfizer, Inc, No. 13-1056 (Fed. Cir. October 20, 2014), the United States Court of Appeals for the Federal Circuit remanded the United States District Court for the Southern District of California’s decision to grant summary judgment for Pfizer and impose a fee-shifting sanction on AntiCancer as a condition of supplementing their infringement contentions. AntiCancer field a lawsuit against Pfizer in the United States District Court for the Southern District of California for breach of a license agreement, which the district court found “woefully insufficient”, “vague”. However, on appeal, the Federal Circuit rejected such evidence as basis for bad faith and held that the district court exceeded their discretionary authority in imposing such fee-shifting sanction.

Federal Circuit rejects patent infringement for products sold oversees

In Halo Electronics, Inc., v. Pulse Electronics Inc., No. 13-1472 (Fed. Cir. October 22, 2014), the United States Court of Appeals for the Federal Circuit affirmed the United States District Court for the District of Nevada’s decision finding no direct infringement of the Halo patents for products Pulse manufactured, shipped, and delivered outside the U.S. The Federal Circuit further affirmed district court’s decision finding direct infringement of the Halo patents for pulse products delivered in the United States and inducement for products Pulse delivered outside the United States but were imported into the United States by others. In this decision, the Federal Circuit court rejected Halo’s argument that domestic sale reduction resulted from Halo’s oversee sale and sales negotiations conducted within the United States for sales oversees constituted evidence for patent infringement.

 Yunnan Jiang is a 1L at Harvard Law School.

Posted On Nov - 12 - 2014 Comments Off READ FULL POST

By Cristina Carapezza

Federal Appeals Court Weighs NSA’s Surveillance Program

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit on Tuesday heard arguments over whether the National Security Agency’s surveillance of millions of Americans’ phone records violates the Constitution’s protection against unreasonable searches and seizures. The panel questioned whether the program, which is conducted under the Patriot Act, is an invasion of privacy if the NSA merely collects the data without using it. Arguing against the NSA program, attorney Larry Klayman argued that the program represents “possibly the biggest violation of freedom in constitutional history.”  Klayman won the first ruling last December when U.S. District Judge Richard Leon, ruled that the NSA’s surveillance program “almost certainly” violates the Constitution.

Argentine Supreme Court Rules on Liability of Internet Intermediaries

The Argentine Supreme Court in R.M.B. c/Google y ot. s/ Ds y Ps (Fallo R.522.XLIX) issued a ruling largely favorable to search engines on whether internet intermediaries, in this case Google and Yahoo, are liable for linking in search results to third-party content that violates fundamental rights or infringes on copyright. At the end of October, the Court established that intermediaries would only be liable for not removing third-party infringing content after being notified by a court of its illegality and the affected party. In this case, the plaintiff did not notify Google and Yahoo prior to the lawsuit. The Court also ruled that search engines are not required to proactively monitor search engines to permanently block links to infringing content.

3D Printed Plastic Guns Withstand New Ammunition Design

Michael Crumling, a 25-year old amateur gunsmith from Pennsylvania, developed a new type of ammunition designed specifically for a 3D printed plastic gun. Typically, the plastic cannot hold up after multiple shots of an exploding metal bullet. However, Crumling constructed a thicker steel shell to house the lead bullet inside. The shell acts as a buffer between the exploding round’s gunpowder and the plastic of the gun by absorbing much of the impact. The U.S. Bureau of Alcohol Tobacco and Firearms has stressed the unreliability and danger of 3-D printed weapons. Selling your own manufactured ammunition in the United States requires a Federal Firearms License. Crumling has no plans to sell the ammunition but is sharing his ammunition designs online.

Posted On Nov - 11 - 2014 Comments Off READ FULL POST

By Michelle Goldring – Edited by Paulius Jurcys

President & Fellows of Harvard v. Lee, No. 2013-1628 (Fed. Cir. October 29, 2014)

Slip Opinion

The United States Court of Appeals for the Federal Circuit affirmed the United States District Court for the Eastern District of Virginia, which had granted summary judgment to the Patent and Trademark Office. Slip op. at 2. On de novo review, the Court of Appeals upheld the district court’s finding that Harvard’s third patent on a gene sequence used to make research animals more susceptible to cancer had expired and was not eligible for new claims under 37 C.F.R. § 1.530(j). Id. at 4.

In affirming the grant of summary judgment, the United States Court of Appeals for the Federal Circuit applied the arbitrary and capricious standard in the Administrative Procedure Act to prior court’s determination that the second patent had expired. Id. at 5. Harvard had filed a terminal disclaimer with the second patent, which was intended to run with the patent and any related patents. Id. at 3. It “disclaimed any portion of the term ‘of any patent granted on the above-identified application or on any application which is entitled to the filing date of this application under 35 U.S.C. § 120.” Id. (citing J.A. 1271–72). However, Harvard then argued that the disclaimer was invalid because Harvard had never paid the related fee and the PTO had not properly entered it. Id. at 56. The court reasoned that the rational basis standard had been met, based on the evidence Harvard provided. Id. at 9.

PatentDocs.org provides a detailed overview of the decision and the underlying patents.  (more…)

Posted On Nov - 11 - 2014 Comments Off READ FULL POST

By Michelle Goldring – Edited by Jesse Goodwin

Letter from ACLU and EFF to Williamson Cnty. Sch. Dist. (Oct. 27, 2014) (letter hosted by EFF.org)

Williamson County Schools Technology Policy

The American Civil Liberties Union of Tennessee (“ACLU”) and Electronic Frontier Foundation (“EFF”) wrote a letter to the superintendent and board of Williamson County Schools (“WCS”) in response to its new technology policy, protesting certain provisions and asking the board to alter those terms. In the letter, the ACLU and EFF raise concerns about specific portions of the policy that would limit students’ right to freely use social media even when outside the school and which would permit students’ devices to be searched with very few restrictions. In particular, they argue that these portions of the policy offend students’ First and Fourth Amendment rights, respectively.

The Washington Post and The Tennessean provide overviews of the ACLU and EFF’s concerns.  Wired includes some additional factual background. EFF also released its own summary of the letter. (more…)

Posted On Nov - 10 - 2014 Comments Off READ FULL POST

By Michael Shammas

High-Profile Patent Attorney Edward Reines Publically Reprimanded by Federal Circuit for Sharing Email Including Former Chief Judge Randall Rader’s Effusive Praise

Following a high-profile scandal in which US Circuit Judge Randall Rader stepped down for an “ethical breach” in which he emailed effusive praise to an attorney who appeared frequently before his court, the Federal Circuit issued an order publically reprimanding the compliments’ recipient for disseminating Rader’s email to prospective clients. The email read, in part, “You were alone and IMPRESSIVE in every way. In both cases, you knew the record cold and handled every question with confidence and grace.” Reines told clients that such praise was “quite unusual,” which the Federal Circuit interpreted as implying an improper relationship with a Federal Circuit judge. Because of a spotless past, discipline was limited to the public reprimand.

Federal Circuit Affirms Court of International Trade’s Decision in a Loss for Victoria’s Secret, in Case Where the Level of “Coverage” and “Support” Offered by Intimate Apparel Proved Key

The Court of Appeals for the Federal Circuit (“CAFC”) affirmed the Court of International Trade’s decision holding that the proper classification for one line of the company’s cotton tops is under 6114.20.00 as “other garments.” CAFC reasoned that the intimate apparel has two purposes, “coverage and support,” and that it cannot be classified as a brassiere because it can be worn in public. Victoria’s Secret brought the litigation because it disagree with Customs and Border Protection’s decision to classify the cotton garments as “tank tops” with a 16.5 percent duty. CAFC’s affirmation of the Court of International Trade decision is a middle of the road approach.

Fee-Shifting Reversed in AntiCancer, Inc. v. Pfizer (Fed. Cir. 2014), as Contentious Legal Battle Expected to Continue

AntiCancer, Inc. owns patents for technology linked to gene expression imaging using a green fluorescent protein related to a gene promoter. The protein comes from Aequorea victoria, a species of green-glowing jellyfish, and the patented inventions are thought to be useful for, among other things, cancer treatment. The district court entered summary judgment of noninfringement on a procedural aspect, then imposed a fee-shifting sanction as a condition of permitting AntiCancer, Inc. to supplement the Preliminary Infringement Contentions and overcome summary judgment. On Oct. 20, the Federal Circuit vacated the condition and remanded the case, finding that there was no reasonable basis for the finding of bad faith required to sustain the fee-shifting sanction.

Posted On Nov - 10 - 2014 Comments Off READ FULL POST
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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...

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Pass the Patented Pe

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Stephen Hawking™:

By Amanda Liverzani – Edited by Saukshmya Trichi Application Stephen Hawking is ...

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Flash Digest: News i

By Jeanne Jeong European Regulators and Watchdogs Increase Investigation of “Technology ...

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Australian Parliamen

By Jenny Choi – Edited by Katherine Kwong Telecommunications (Interception and ...