A student-run resource for reliable reports on the latest law and technology news
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U.S. Marshals Service Uses Airborne “Dirtboxes” to Collect Cell Phone Data

By Katherine Kwong – Edited by Mengyi Wang

The U.S. government has been using “dirtboxes” to collect cell phone data. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on numerous Americans not suspected of any crime. While many commentators express concern about the program’s legality, others argue that the program is an effective method of catching criminals.

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Federal Circuit Flash Digest: News In Brief

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

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Silk Road 2.0 Takedown Indicates Law Enforcement May Have Developed a Method to Trace Hidden Tor Websites

By Steven Wilfong — Edited by Travis West

The complaint filed against Blake Benthall, the alleged operator of Silk Road 2.0, indicates that the FBI identified a server that was used to host the popular drug market website, despite the fact that the website’s location was hidden by the Tor anonymity software.  Law enforcement may have developed a method of compromising Tor anonymity, a possibility that would prove useful in future operations, but that also raises concerns for legitimate users.

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Federal Circuit Flash Digest: News in Brief

By Ken Winterbottom

Motion to Dismiss in Hulu Patent Infringement Suit Affirmed

“Virtual Classroom” Patent Infringement Case Remanded for Further Determination

Attorney Publicly Reprimanded for Circulating Email from Judge

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Spain Passes a “Google Tax,” Analysts Predict it Will be Short-Lived

By Michael Shammas — Edited by Yixuan Long

Spain recently amended its Intellectual Property Law and Code of Civil Procedure to levy fees on aggregators that collect snippets of other webpages. It is at least the third example of a European government fining search aggregators to support traditional print publishing industries, a practice often labeled a “Google tax” because of the disproportionate impact such laws have on the search giant. Some analysts are already predicting that Spain’s new law will fail.

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By Kassity Liu

Judge Orders Copyright Plaintiff to Justify Joining Thousands of Defendants in a Single Lawsuit

Ars Technica reports that Federal Judge Rosemary Collyer ordered the US Copyright Group to explain why joining thousands of anonymous “John Does” into one lawsuit is permissible under the Federal Rules of Civil Procedure (FRCP). The judge, after encountering one case that was filed against 4,577 anonymous P2P defendants, issued the order requiring the Group to “convince [her] within two weeks that jamming 4,577 people into a single lawsuit is a proper use of the court system.” In an amicus brief filed by the ACLU and EFF, the two organizations argued that this type of joinder is improper according to FRCP 20, which states that a plaintiff may only join a defendant in a lawsuit if the plaintiff is able to “assert . . . relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences.” If it permits this suit, the court runs the risk of denying a fair trial to a large number of defendants; however, forcing the plaintiff to pursue a case against each individual defendant may result in undue delay and expense.

Ninth Circuit Decision may Swallow the Protections Afforded by the First Sale Doctrine

Ben Sheffner reports in his blog that the Ninth Circuit recently posted the oral arguments given by the opposing parties in UMG Recordings, Inc. v. Augusto. The case will address the scope of the first sale doctrine, which places limitations on the control of copyright owners over the reselling or distribution of their products. The Electronic Frontier Foundation provides an overview of the case. In 2007, Universal Music Group (UMG) sued Troy Augusto for reselling its promotional CDs, alleging that the reselling violated “its exclusive right to distribute its works under 17 USC § 106(3)” because these CDs were only licensed “for a limited purpose to a limited group.” The district court had relied upon an obscure postal statute that “characterize[d] unordered merchandise as a gift” (internal quotations omitted) to find that the reselling was protected by the first sale doctrine and thus did not violate U.S. copyright law. If the Ninth Circuit rules for UMG, then copyright owners would gain the power to limit the distribution of their products using limited license labels.

FTC to Launch Investigation in Apple’s Exclusionary Practices with its Mobile Operating System

Ars Technica reports that the FTC is investigating whether Apple’s decision to allow only certain third-party compilers to place software and data on its mobile operative system constitutes a violation of U.S. antitrust law. The investigation is still in its early stages and has not become public, but inside sources suggest that the FTC and the U.S. Department of Justice settled their rumored debate over which agency would investigate Apple’s practices. Last month, Ars Technica reported on the discussions between the two agencies regarding “which one [would] launch the antitrust inquiry” that preceded the current FTC investigation. It is unknown which companies are behind the complaint to the FTC; both Adobe and Google are listed as potential parties.

Posted On Jun - 14 - 2010 Comments Off READ FULL POST

Federal Circuit Holds that Solo’s Marking of Lids after Patent Expiration Did Not Violate False Marking Statute
By Ian B. Brooks – Edited by Matt Gelfand

Pequignot v. Solo Cup Co., No. 2009-1547 (Fed. Cir. June 10, 2010)
Slip Opinion

On June 10, 2010, the Federal Circuit affirmed the judgment of the U.S. District Court for the Eastern District of Virginia, which had entered summary judgment in favor of Solo for “false marking” related to Solo’s practice of marking expired patents on its beverage cup lids.

The Federal Circuit held that a product embodying an expired patent is indeed an “unpatented article” under 35 U.S.C. § 292(a), but a plaintiff must demonstrate that the defendant intended to deceive the public in order to succeed under § 292. The court stated that a rebuttable presumption is created when a plaintiff shows that the defendant knowingly made false statements; a defendant may rebut this presumption if it shows by a preponderance of the evidence that it did not intend to deceive the public. The court also noted that the presumption is weaker in cases where the markings are for expired patents that once covered the marked products. Solo, which had relied on advice of counsel and weighed the high costs of removing the markings, was able to rebut Pequignot’s evidence that it intended to deceive. Finally, the Federal Circuit vacated the district court’s construction of “offense” under § 292, which was at odds with its decision in Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009).

Dabney Carr at Virginia IP Law provides an overview of the case. Patently-O and Daily Herald provide background on the case and other cases that have recently been filed claiming violations of § 292. A chart of false marking cases and their status is available at Gray on Claims. (more…)

Posted On Jun - 14 - 2010 Comments Off READ FULL POST

Stored Communications Act Protects Facebook and MySpace Users’ Private Communications
By Kathryn Freund – Edited by Jad Mills

Crispin v. Christian Audigier, Inc., CV 09-09509-MMM-JEMx (C.D. Cal. May 26, 2010)
Order

The Central District of California reversed and quashed Magistrate Judge McDermott’s order granting a subpoena to obtain private Facebook and MySpace messages and vacated and remanded his order granting a subpoena to obtain Facebook wall postings and MySpace  comments.

Judge Morrow held that private messages sent using Facebook and MySpace fall under the protections of the Stored Communications Act (“SCA”), 18 U.S.C. 2701, which limits the government’s ability to compel Internet service providers to “disclose information in their possession about their customers and subscribers.” He further held that the wall postings and comments also fall under the SCA, but only to the extent that the communications are not public, and remanded to determine the public access allowed under the user’s privacy settings. In so holding, the court provided a detailed analysis of the SCA and noted the difficulty of applying the SCA to modern internet communications.

The Technology & Marketing Law Blog provides an overview of the order and comments on the difficulty of gathering evidence from private Facebook profiles and messages through subpoenas. The Federal Lawyer describes some of the restrictions the SCA places on discovery. (more…)

Posted On Jun - 11 - 2010 1 Comment READ FULL POST

By Chinh Vo

Spyware Vendor Settles Suit with FTC, Promises To Take Steps To Reduce Misuse

Ars Technica reports that software company Cyber Spy has agreed to cease marketing its keystroke-logging spyware in a way that attracts malicious users. The company’s promise is part of a settlement with the FTC, which charged Cyber Spy in 2008 with unfair selling and advertising because its Remote Spy product provided customers with instructions for attaching spyware to emails in order to track a target’s keystrokes and online activities. The district court in the case issued an injunction, temporarily banning Cyber Spy from selling Remote Spy. Under this settlement, Cyber Spy promises to stop promoting its Remote Spy application as a “100% undetectable” way to “Spy on Anyone. From Anywhere.” The company must also warn purchasers that using the software improperly may violate the law and take other steps to prevent malicious use of its product.

Lawyers Claim Google Deliberately Collected Data from Wi-Fi Networks

Wired reports that lawyers suing Google have claimed that a 2008 patent application demonstrates that the company deliberately programmed its Street View cars to collect private data from open Wi-Fi networks. Google is facing several class action lawsuits following its disclosure that its Street View cars intercepted Wi-Fi traffic, an action that the internet giant attributes to coding error. According to the lawyers, the patent application describes a method for increasing the accuracy of location-based services by intercepting data. Google spokeswoman Christine Chen stated that, despite the lawyers’ claims, the patent application “is entirely unrelated to the software code used to collect Wi-Fi information with Street View cars.” She added that not all of the patent applications that Google files “mature into real products or services,” but did not comment on whether Google has actually used the methods described in the particular patent application in question.

USPTO Proposes Fast Track To Expedite Patent Application Review

The Wall Street Journal reports that the U.S. Patent and Trademark Office is proposing a new three-track system that would allow applicants to pay an undisclosed premium, on top of the $1090 filing fee, to expedite review of their applications. Currently, the USPTO reviews patent applications mostly on a first-come, first-served basis. In a press release, USPTO Director David Kappos stated that “traditional ‘one-size-fits-all’ examination timing may not work for all applicants” and emphasized a goal of promoting efficiency. The USPTO has faced growing complaints from businesses due to its increasing backlog; last year it took 34.6 months on average for patent applications to be reviewed. The proposal could go into effect next year following a public comment period.

Posted On Jun - 7 - 2010 Comments Off READ FULL POST

Federal Circuit Chooses Absurdity Over Judicial Claim Redrafting
By Chinh Vo – Edited by Jad Mills

Haemonetics Corp. v. Baxter Healthcare Corp., No. 2009-1557 (Fed. Cir. June 2, 2010)
Slip Opinion

On June 2, 2010, the Court of Appeals for the Federal Circuit reversed the claim construction of the District Court for the District of Massachusetts and vacated a jury verdict in favor of the plaintiff in a patent infringement suit.

Haemonetics Corp. (“Haemonetics”) had filed a patent infringement lawsuit against Fenwal Inc. (“Fenwal”) alleging infringement of its patent for a compact blood centrifuge device. The district court, after construing the last two references to the term “centrifugal unit” in claim 16 as referring to only the centrifugal vessel and not also its adjoining tubing, had awarded over $11.3 million in lost profits damages and over $4.3 million in reasonable royalty damages. The appeals court disagreed with the district court’s claim construction, noting that language from the claim preamble clearly defined a centrifugal unit as including both “a centrifugal component and a plurality of tubes.” The court then vacated and remanded the jury verdict, the district court’s grant of judgment as a matter of law (“JMOL”) that claim 16 was not indefinite, the district court’s denial of JMOL that claim 16 was neither anticipated by prior invention nor obvious, and the district court’s award of prospective remedies, finding that all of these determinations relied on the district court’s erroneous claim construction.

The Patent Prospector provides an overview of the case. Top Legal News summarizes the holdings in the case. (more…)

Posted On Jun - 6 - 2010 Comments Off READ FULL POST
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U.S. Marshals Servic

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