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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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Court Invalidates Gene Patent
By Elizabeth Akerman – Edited By Davis Doherty

Assn. for Molecular Pathology, et al. v. USPTO, et al. Case no. 09-CV-4514 (S.D.N.Y. Mar. 29, 2010)
Slip Opinion
(hosted by PatentlyO)

The United States District Court for the Southern District of New York held the patents issued to Myriad Genetics for isolated versions of two human genes to be “directed to a law of nature,” and therefore invalid pursuant to 35 U.S.C. § 101.

Judge Sweet granted the Plaintiffs’ motion for summary judgment to invalidate 15 claims in 7 patents relating to the BRCA1 and BRCA2 genes.  The court reasoned that isolated DNA containing naturally occurring sequences is not markedly different from the native DNA, and thus falls within the “product of nature” exception to patentable subject matter under § 101. Additionally, Judge Sweet held that the claims regarding comparisons of BRCA sequences to determine whether a mutation is present are invalid under § 101, as they only refer to “abstract mental process.”  The court further notes that even if the claims-in-suit included the physical transformations associated with isolating DNA, this would merely constitute a data-gathering step and would not satisfy § 101.

A brief review of the decision is available at Patent Docs Biotech & Pharma Patent Law & News Blog. PatentlyO suggests that this decision is likely to be reversed by the Federal Circuit. (more…)

Posted On Apr - 3 - 2010 Comments Off READ FULL POST

Federal Circuit Says Patent Preamble Not Limiting
By Debbie Rosenbaum – Edited by Jad Mills

Marrin v. Griffin, Appeal 2009-1031 (Fed. Cir., Mar. 22, 2010)
Slip Opinion

On March 22, 2010, the Federal Circuit affirmed the district court’s summary judgment that U.S. Patent No. 5,154,448, which related to a beverage cup scratch-off label, was invalid because it was anticipated under 35 U.S.C. § 102(b).

Judge Dyk, writing for the majority held that the use recited in the preamble, namely that the scratch-off label was “for permitting a user to write thereon without the use of a marking implement.” was not to be treated as a claim limitation. In finding that this use statement in the preamble was not limiting, the court noted that “use descriptions such as this are rarely treated as claim limitations.” The court held that “the mere fact that a structural term in the preamble is part of the claim does not mean that the preamble’s statement of purpose or other description is also part of the claim.”  Because the preamble was not limiting, the patent owner could not use it to distinguish the patent from the prior art, thus allowing the court to invalidate the patent under section 102(b).

Inventive Step and Patent Hawk both offer good overviews of the case. Patent Case Review provides a summary of the legal issues.  Gary Odom of Patent Hawk argues that “Judge Newman got it right, which is to say that this nicely self-contained issue is ripe for en banc review. The inconsistent treatment of preambles begs for clarity.” (more…)

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

By Davis Doherty

GoDaddy Follows Google out of China

On March 25, the Washington Post reported that GoDaddy.com would cease registering Chinese domain names in response to intrusive new regulations. The leading Internet registrar’s decision was spurred by concerns that the rules, requiring registrants to provide extensive personal information and photos, would strengthen China’s ability to censor its citizens. CNET reports that GoDaddy has also been the subject of an increasing number of cyber attacks based in China. Reuters provides analysis connecting GoDaddy’s move to Google’s decision to relocate its search services to Hong Kong.

The “Hot News” Doctrine — Not Dead Yet

The Citizen Media Law Project (“CMLP”) blog reports that a recent decision in the District Court for the Southern District of New York, Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar. 18, 2010), may revive the flagging “hot news” doctrine. That doctrine, based on unfair competition laws, provides some protection against copying of time-sensitive facts that are uncopyrightable. TheFlyOnTheWall.com fell afoul of the rule by including the plaintiffs’ stock recommendations in real time on its financial newsfeed, and under the court’s ruling must now delay publication of that information by several hours. CMLP discusses the possibility that the court’s reasoning may apply to news aggregators, but ultimately argues that the ruling will not apply to such websites.

Not-So-Trusted Authorities?

On March 24, computer security specialists released a research paper suggesting that Certificate Authorities (“CAs”) may be assisting government efforts to spy on encrypted communications. The Electronic Frontier Foundation analyzes the report and extensively discusses CAs — a collection of over 100 companies and governments who provide electronic certificates for secure websites such as Gmail and Bank of America. These certificates verify that no third party is impersonating either end of the communication in a “man-in-the-middle” attack, an approach that would bypass the encryption normally protecting the user’s data against interception. Since web browsers only check whether a certificate issuer is on the trusted list, one CA could provide false certificates that would enable attacks at any secure site.

Wired’s Threat Level reports that Arizona company Packet Forensics manufactures hardware to automate this sort of attack, suggesting that false certificates may indeed be available. Commentators are also concerned that some CAs may be particularly vulnerable to governmental pressure to issue forged certificates, which could then be used to spy on dissidents or steal intellectual property.

Posted On Mar - 27 - 2010 Comments Off READ FULL POST

Federal Circuit Reaffirms Separate Written Description and Enablement Requirements for Patents
By Tyler Lacey – Edited by Jad Mills

Ariad Pharm., Inc. v. Eli Lilly & Co., Appeal 2008-1248 (Fed. Cir., Mar. 22, 2010)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), in a 9-2 en banc decision, affirmed a panel decision holding Ariad’s patent claims invalid for lack of written description. In so holding, the Federal Circuit reaffirmed that the first paragraph of 35 U.S.C. § 112 (“§ 112”) contains  two separate requirements: written description and enablement.

The patent, which related to “the regulation of gene expression by the transcription factor NF-κB,” encompassed a genus of substances. In holding the patent invalid for lack of written description, the court agreed that the ”doctrine disadvantages universities to the extent that basic research cannot be patented,” because of the difficulty of providing a written description for a complete invention embodying basic research, but noted that this is the law’s “intention”.

Patently-O provides an overview of the case. Inventive Step argues that § 112 is “not a model of clarity” and that the court errs when it “seems to argue that the statute is not ambiguous and that its interpretation is clear from the language.” Chris Holman, a law professor at the University of Missouri-Kansas City who filed an amicus brief arguing against separate requirements, criticized the decision by noting that “any positive policy aspects of [written description] can be better accomplished using the enablement requirement, and that the courts have failed to articulate any coherent standard for compliance with [written description] beyond the requirements of enablement.” Holman believes that the court retained the separate written description requirement because “it has developed into a useful tool for invalidating clearly objectionable patent claims precisely because it lacks any coherent standard.” (more…)

Posted On Mar - 26 - 2010 Comments Off READ FULL POST

By Kassity Liu

Third Circuit Dismisses “Sexting” Charges Against Minor

On March 18, the WSJ Law Blog reported that the Court of Appeals for the Third Circuit dismissed charges against a teenage girl for distributing sexually explicit images of herself. The court had originally stated that they would address whether the First Amendment protects minors from sending these types of images of themselves through their cells phones, but the court refused to consider this issue in the case. Instead, the three-judge panel concluded that the prosecutor could not charge her for appearing in a sexually explicit photo without evidence that she had helped to distribute it. The court’s ruling appears to protect minors from liability for “sexting,” the act of “sending or posting sexually suggestive text messages and images . . . via cellular telephones or over the internet,” so long as there is “no evidence as to whether that person possessed or transmitted the photo.” The case name is Miller v. Mitchell, No. 09-2144 (3d. Cir. Mar. 17, 2010).

California Appeals Court Holds Threatening Online Speech is not Protected

On March 18, Wired reported that a California appeals court held that hateful and threatening online speech was not protected by the First Amendment. The father of the student who was targeted by the online postings had sued six students and their parents after hearing from the police that the threatening comments posted to his son’s website were protected forms of speech and could not be criminally prosecuted. One of the defendant students claimed that he had made the comments jokingly and did not seriously intend them to be harmful. However, the appellate court refused to accept this defense and instead upheld a lower court’s finding that the defendant had failed to “demonstrate that the posted message is free speech.” The majority judges felt that the defendant’s posting was “a serious expression of intent to inflict bodily harm” both because the posting contained a clear threat and the defendant student spent ample time writing it. The case name is D.C. v. R.R., No. BC332406 (Cal. Sup. Ct. Mar. 15, 2010).

Science Journalist fights libel suit in effort to campaign for British libel law reform

On March 15, the Citizen Media Law Project reported that science journalist Simon Singh has given up his Guardian column to fight a libel lawsuit that the British Chiropractic Association (“BCA”) brought against him for writing an article that denounced some of the BCA’s medical claims. Singh plans on using his case to campaign for British libel law reform, which currently places the entire burden of proving the truth of an allegedly libelous statement on the defendant. The lawsuit, which has been ongoing for two years, has garnered a significant amount of public attention and generated some talks of reform within the British Parliament. Last May, an English court had ruled that Singh would have to prove that the BCA was being “consciously dishonest” when it made the medical claims that Singh had called “bogus” in his article. Singh has appealed this ruling and foresees that his case could “easily continue for another two years.”

Posted On Mar - 22 - 2010 Comments Off READ FULL POST
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By Olga Slobodyanyuk ICANN responds to terrorism victims by claiming domain ...

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