A student-run resource for reliable reports on the latest law and technology news
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On August 14, 2014, the U.S. Food and Drug Administration (FDA) issued Draft Guidelines on the direct de novo classification process, a means of accelerating the approval of new types of medical devices posing only low to moderate health risks.[1]  The FDA created de novo classification in 1997, but after the process failed to achieve its purpose of expediting approval, the FDA introduced an alternative de novo process called “direct” de novo.

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Insuring Patents

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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By Daniel Robinson

Wikileaks Plans to Sue Credit Card Companies for Blocking Payments

Wikileaks intends to sue Visa and Mastercard for blocking payments to the site, CBS News reports. The credit card companies have blocked all donations and payments to WikiLeaks since last December, allegedly in response to pressure by the United States government. Wikileaks claims that the companies’ actions violated the Competition Rules of the European Union, and it intends to file a complaint with the European Commission and file suit in Denmark, according to its press release.

Google Fails to Acquire Nortel Patent Portfolio

Reuters reports a consortium of technology companies acquired the patent portfolio of Nortel Networks, the bankrupt Canadian telecom, last week in an auction. The portfolio contains more than 6,000 patents, many of which concern mobile technology, and was sold for $4.5 billion. Google, which had mystified onlookers by bidding approximations of mathematical constants such as pi, had been expected to win after placing a $900 million “stalking horse” bid in April. According to CNN Money, the winning consortium contained several of Google’s major competitors, including Apple, Microsoft, Ericsson, and RIM, and the winning bid was the largest sum ever paid for an intellectual property portfolio.

Judge Rules Wiretapping Case Against Google Street View Can Go Forward

A federal judge in Silicon Valley has denied Google’s motion to dismiss a wiretapping claim against it, Wired reports. The plaintiffs claim that Google’s Street View vehicles, which travel across public streets recording images to improve Google’s Street View service, intercepted and stored communications from unencrypted Wi-Fi networks, in violation of the Electronic Communications Privacy Act. Google has claimed that the vehicles, which record the locations of Wi-Fi networks to improve Google’s location services, only stored communications gathered from those networks by mistake, and had further argued that because the networks were not password-protected, intercepting them did not constitute wiretapping.

Amazon Terminates Associates Program in California in Response to Sales Tax Bill

A new California law will, for the first time, require online retailers with no physical stores in the state to collect sales tax on purchases by California residents, Ars Technica reports. In order to avoid being subject to the law, Amazon has sought to reduce its contacts with the state by eliminating its affiliate program in California. According to the Los Angeles Times, online purchases have always been subject to sales tax in California, but consumers, rather than retailers, have previously been responsible for paying it, which has made collection difficult. Amazon has argued that the law is unconstitutional, and is currently fighting a similar New York law in court

Posted On Jul - 6 - 2011 Comments Off READ FULL POST

Supreme Court Holds California Ban on Violent Video Games Violates First Amendment
By Raquel Acosta – Edited by Dorothy Du

Brown v. EMA, No. 08-1448 (June 27, 2011)
Slip Opinion via supremecourt.gov

The Supreme Court affirmed a Ninth Circuit decision that had found that a California law that restricted the sale or rental of violent video games to minors did not comport with the First Amendment and permanently enjoined its enforcement.

Justice Scalia delivered the opinion of the Court.  In a 7-2 decision, the Court upheld the lower court decisions and repealed California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746-1746.5 (West 2009) (“the Act”) (a law passed in 2005 by the California State Legislature which required more stringent rating standards on video games), banned the sale of violent video games to anyone under the age of 18, and imposed a maximum $1000 per violation.  The Supreme Court held that video games were afforded the same First Amendment protections as other forms of communication.  Areas in which restrictions on free speech are allowed are limited to obscenity, incitement, and fighting words.  In so holding, the Court rejected the Government’s argument that a balancing test may be used to justify restrictions, holding that a legislature may not add new categories of unprotected speech.

The Virtual World Law Blog provides an overview of the case.  David Kopel, writing for the Volokh Conspiracy, examines the “the weapons effect” (the theory that being exposed to aggressive stimuli will make ordinary individuals more inclined towards aggressive behavior) and uses the Brown decision in his critique of legislative anti-gun laws. Wikipedia provides a thorough analysis of the case and is informative as to the case history and the context in which Brown arises. SCOTUSblog contains an interesting commentary on the litigation strategies used.

(more…)

Posted On Jul - 5 - 2011 Comments Off READ FULL POST

House Passes Patent Reform – Keeps Senate’s “First-To-File”, Differs on PTO Funding
By Albert Wang – Edited by Matt Gelfand

H.R. 1249 – Leahy-Smith America Invents Act
Bill

Govtrack.us Summary

On June 23, 2011, the House passed the Leahy-Smith America Invents Act. Sponsored by House Judiciary Committee Chairman Lamar Smith (R-Tex.) and passed by a vote of 304 to 117, the legislation implements a first-to-file system, a post-grant review system, and a fund for PTO fees, among other procedural changes. Smith promised in a statement that the bill would help “to encourage innovation, job creation and economic growth” by reducing the application backlog and attacking frivolous patent litigation. The Act’s purpose is to “promote industries to continue to develop new technologies that spur growth and create jobs across the country which includes protecting the rights of small businesses and investors from predatory behavior that could result in the cutting off of innovation.”

Originally passed in the Senate by a vote of 95 to 5 (previous Digest coverage), H.R. 1249 includes a number of changes relative to its Senate counterpart, S. 23. Of note, H.R. 1249 retains the Senate bill’s first-to-file regime, which makes the “effective filing date” of a claimed invention the actual filing date, thus dismantling the existing first-to-invent regime. First-to-file has been criticized by the Inventors Network of the Capital Area and Tea Party politicians like Phyllis Schlafly for unfairly advantaging large companies, foreign actors, and other parties with the resources to file patents quickly, according to Mother Jones. Your Patent Guy argues in contrast that resource advantages already work to bias interference proceedings, and that the bill gives institutional actors no advantage that they did not already enjoy under the existing system. (more…)

Posted On Jul - 5 - 2011 1 Comment READ FULL POST

by Vivian Tao

House Passes Patent Reform Bill; Senate and House Versions To Be Reconciled

A few months after the American Invents Act had passed in the Senate, the House voted to pass its version of the bill this week. The controversial bill would overhaul certain areas of the patent system, such as switching from a first-to-invent to a first-to-file system. However, according to Patent Docs, the ACLU and other groups are more concerned that passage of the bill could signal Congressional approval of gene patenting, which could preclude individuals from seeking a second opinion for genetic evaluations. The Hill also notes that there is controversy on whether the bill’s streamlining of the patent process would lead to “efficient infringement” or truly better protection. Despite these issues, Patently O reports that the House and the Senate will likely work together to reconcile differences in their separate versions of the bill and vote on a final version soon. The Digest will have more in-depth coverage of the bill this week.

Oracle Seeks Billions in Damages from Google; Another Oracle Patent Is Severely Narrowed in Rexam

The U.S. Patent Office’s latest findings have helped Google’s case in the latest chapter of Oracle’s ongoing lawsuit against Google for alleged patent infringement regarding the Android operating system. According to Groklaw, the U.S. Patent Office rejected 17 of Oracle’s 21 claims on one of Oracle’s asserted patents. Search Engine Watch reports that this comes on the heels of Google’s motion to place the case under seal to protect confidential information and shareholder confidence, which may have already started to suffer. However, the crux of the case may lie in the damages figure. PCWorld reports that arguments revolve around the damages that Oracle has claimed, between $1.4 and $6.1 billion, which Google says is a gross overestimate. Among the many counterarguments advanced by Google, the Wall Street Journal notes the figure takes Google’s Android advertising revenue into account, but could be disputed since the advertisements and software at issue can run independently. Trial is set to begin in October.

Supreme Court To Hear Prometheus Again

The Supreme Court has agreed to hear Prometheus Laboratories v. Mayo Clinic, a multi-year suit involving the patentability of medical diagnostic tests (the Digest covered the original Federal Circuit ruling). The Supreme Court vacated the Federal Circuit’s original ruling in light of their ruling in In re Bilski, but the Federal Circuit affirmed its original ruling of validity, according to Courthouse News Service. As Techdirt notes, opponents of patenting such tests argue those patents threaten the right to observe natural phenomena, and issuing such patents would also drive up costs and make bedside diagnoses difficult to administer. However, Prometheus asserts that their test “transforms” a blood sample into something that is no longer human and is thus protected by the machine-or-transformation test of patentability. Prometheus also argues that a holding for Mayo might be broad enough to eliminate all diagnostic and therapeutic patents. The Wall Street Journal notes that this could damage the incentives for private investment into therapeutic medicine. Ultimately, when the case is decided, it will have an effect on a range of other patented medical tests that currently exist.

Posted On Jun - 27 - 2011 Comments Off READ FULL POST

Third Circuit holds that vulgar MySpace profile created off school grounds did not cause “substantial disruption” at the school to justify student’s ten-day suspension
By Michael Adelman – Edited by Abby Lauer

J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011)
Slip Opinion

The Third Circuit, sitting en banc, reversed and remanded the Middle District of Pennsylvania’s ruling that suspension was an appropriate punishment for a student who created a fake MySpace account that made fun of her middle school principal. The court also affirmed the District Court’s ruling that the school district’s policies were not overbroad or void-for-vagueness.

The Third Circuit held that the fake MySpace profile, while vulgar and offensive, did not cause the type of “substantial disruption” which would have justified the ten-day suspension of the student. The profile was not accessible on any school computers (due to a filter), and while the school district asserted that the profile caused “general rumblings,” it could not point to any major disruption of classroom activities caused by the profile. The court applied the framework from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), to analyze whether the student’s posting materially interfered with school activities, but it declined to directly address whether Tinker is limited to speech that occurs on campus.

Education Tech News provides an overview of this case, and the companion case Layshock v. Hermitage School District, No. 07-4465 (3d Cir. June 13, 2011) (involving another student who created a fake MySpace profile making fun of his principal). The Digest previously covered these cases when they were heard by Third Circuit panels and resulted in seemingly contradictory decisions. Wired provides a thorough analysis of the decision, noting that the Supreme Court “has not squarely addressed the student-speech issue as it applies to the digital world” and speculating that these “decisions might give the justices fodder to do so.” (more…)

Posted On Jun - 21 - 2011 Comments Off READ FULL POST
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