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Nintendo Wins Summary Judgment Based on Doctrine of Prosecution History Estoppel

By Yaping Zhang – Edited by Stacy Ruegilin

On July 17, 2015, the Northern District Court of California granted a summary judgment motion in Nintendo’s favor in a patent suit, construing disputed term in accordance with Nintendo’s interpretation and finding that the patent had not been infringed. The court based its decision on prosecution history estoppel, highlighting differences between the processes of obtaining and enforcing a patent.

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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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New York Appellate Court Rejects Demand for Facebook Records
By Irina Oberman – Edited by Ian C. Wildgoose Brown

McCann v. Harleysville Ins. Co. of N.Y., No. 10-00612, 1179 (N.Y.A.D. 4 Dept. Nov. 12, 2010)
Slip Opinion

The Appellate Division of the Supreme Court of the State of New York affirmed the Supreme Court’s denial of defendant’s motion to compel disclosure of photographs on Facebook and defendant’s motion for authorizedaccess to plaintiff’s Facebook account. The Supreme Court had ruled that defendant’s first request was “overly broad,” and that the amended request had failed to establish a factual predicate that the Facebook account was relevant. The Appellate Division agreed with the Supreme Court, noting that defendant was simply engaging in a “fishing expedition” to find relevant evidence. The Appellate Division modified the Supreme Court’s order, however, allowing defendant to file future discovery requests relating to plaintiff’s Facebook account.

The New York Personal Injury Law Blog provides an overview of the case and contrasts it with the Romano v. Steelcase ruling in September. Internet Cases blog warns that although the ruling is significant, it merely addresses overly-broad discovery requests and should not be construed as a decision to protect private personal information per se. (more…)

Posted On Nov - 28 - 2010 Comments Off READ FULL POST

USPTO Patent Denial Lawsuits Subject to FRE and FRCP
By Harry Zhou – Edited by Ian C. Wildgoose Brown

Hyatt v. Kappos, No. 07-1066 (Fed. Cir. Nov. 8, 2010) (en banc)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit, sitting en banc, vacated and remanded the decision of the U.S. District Court for the District of Columbia, which had ruled that a patent applicant is barred from introducing new facts into evidence in a civil action against the United States Patent and Trademark Office (“USPTO”) brought under 35 U.S.C. § 145. The district court had ruled that the new facts should have been produced to the USPTO in the original application.

The Federal Circuit reversed its precedent, holding that a district court does not review a decision of the USPTO under the Administrative Procedure Act (“APA”)’s deferential court/agency standard on issues where the applicant offers new facts in evidence. The only limitations on the admissibility of new evidence in a § 145 civil action are those “contained in the Federal Rules of Evidence and Federal Rules of Civil Procedure.” The court remanded the case for further proceedings.

271 Patent Blog offers a brief summary of the decision. Patently-O features an analysis of the decision’s likely impacts. IPWatchdog provides a survey of the case law and statutory background relevant to the decision. (more…)

Posted On Nov - 23 - 2010 Comments Off READ FULL POST

By Lauren Henry

Senate Judiciary Committee Approves Anti-Piracy Bill

Ars Technica and CNET report that the Senate Judiciary Committee has unanimously approved a bill that would blacklist websites deemed to be “pirate websites” from the Domain Name System, ban credit card companies from processing US payments to such sites, and forbid online ad networks from working with the sites. The bill — known as the Combating Online Infringement and Counterfeits Act, or COICA — received the strong support of content industry leaders, who perceive it as protecting their intellectual property, and the vociferous opposition of free speech advocates. Peter Eckersley at EFF’s Deeplinks blog argues that COICA fails to monetize content distribution for intellectual property holders, increases data traffic costs, and unconstitutionally restricts freedom of speech.

Limewire: Pirate Edition Provokes Search for Its Creator

Ars Technica reports that the RIAA and LimeWire are attempting to identify the creator of LimeWire: Pirate Edition. Days after a federal judge ordered LimeWire to shut down all software and cease distribution, LimeWire: Pirate Edition appeared. The new version of the program is functionally equivalent to LimeWire, as it is based on LimeWire’s open-source code. RIAA and LimeWire are conducting independent investigations to find the culprit.

Democrats Propose Cybersecurity Bill to Empower DHS to Punish Tech Firms

CNET reports that Democrats have proposed legislation that would give the Department of Homeland Security the power to fine technology companies $100,000 a day for failure to comply with the agency’s directives. The bill, known as the Homeland Security Cyber and Physical Infrastructure Protection Act, would give the DHS broad authority to enforce cybersecurity measures upon any “system or asset” deemed to be a “component of the national information infrastructure.” Critics argue that DHS lacks the institutional competency to effectively administer such powers, and that private companies need no additional incentives to enact security measures.

Posted On Nov - 23 - 2010 Comments Off READ FULL POST

Federal Circuit rules that prosecution laches requires evidence of prejudice
By Jonathan Allred – Edited by Elizabeth Akerman

Cancer Research Technology Ltd. v. Barr Laboratories, Inc., No. 2010-1204 (Fed. Cir. Nov. 9, 2010)
Slip Opinion

The Federal Circuit overturned the District Court of Delaware, which had ruled that the plaintiff’s patent was unenforceable for prosecution laches, and, in the alternative, invalid for inequitable conduct.

Prosecution laches is an equitable defense to infringement when the plaintiff has delayed the prosecution of a patent application unreasonably. In this case, the Federal Circuit held that prosecution laches requires a finding of prejudice – evidence that the accused infringer “invested in, worked on, or used the claimed technology during the period of delay” – in addition to an unreasonable delay in prosecution.

As the opinion notes, the usefulness of the doctrine will be limited now that patent terms are measured from the effective filing date and not the date of refilling.

The Federal Circuit also overturned the Delaware court’s ruling on inequitable conduct.

Patently-O offers a synopsis and disagrees with the dissent. Inventive Step summarizes the opinion. The Patent Prospector provides the text of the opinion with commentary sympathetic with the dissent interjected throughout. (more…)

Posted On Nov - 17 - 2010 Comments Off READ FULL POST

­­The U.S. Government’s View on Gene Patentability Likely Changed
By Harry Zhou — Edited by Matt Gelfand

Brief for the United States as Amicus Curiae Supporting Neither Party, Association for Molecular Pathology v. USPTO, No. 10-1406 (Fed. Cir.)
Brief hosted by the New York Times

On October 29, the U.S. Department of Justice (“DOJ”) filed an amicus curiae brief in the U.S. District Court for the Federal Circuit in Association for Molecular Pathology v. USPTO, No. 10-1406. In its brief, the DOJ advocates for a change in policy for the patentability of genomic DNA.

The DOJ brief draws a distinction between “human-engineered DNA molecules” and “isolated but otherwise unmodified genomic DNA.” While recognizing engineered DNA molecules as patentable “human invention,” the DOJ nonetheless argues that genomic DNA isolated from human cells without further manipulation or alternation should not constitute patentable subject matter. This bifurcated position of the DOJ is in conflict with the Patent and Trademark Office’s longstanding practice of granting patents for isolated genomic DNA.

JOLT Digest previously reported on the district court’s opinion and examined the decision’s possible implications. Summaries of the DOJ brief are available from Patently-O and The Patent Prospector. The New York Times provides coverage of the patent law community’s reaction to the brief. (more…)

Posted On Nov - 12 - 2010 Comments Off READ FULL POST
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