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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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Written by Matt Gelfand
Edited by Harry Zhou
Editorial Policy

A major criticism of the current copyright system is the overbreadth of the protections it affords, in terms of duration, works covered, and uses covered. With the Copyright Act of 1976 and subsequent international treaties and legislation, copyright has become quasi-permanent, and breadth-limiting formalities such as notice and registration requirements have been eliminated.[1] Virtually any use of the creative expressive content in a work is subject to control by a copyright-holder,[2] and attempts to invoke the “Fair Use” exception can result in protracted legal disputes. The result is near-constant technical infringement of copyright, made bearable only by virtue of limited enforcement.

These concerns about breadth highlight the fundamental balance that an intellectual property system must strike between its goals, generally related to a creator or his/her work, and the ways in which it limits use of an idea or expression by the general public or another creator. Debates about copyright law often focus on the success of the copyright system at promoting the goals to which it is directed — incentivizing creation, rewarding creators, protecting artists’ personality interests in their work, and stimulating cultural development — in the context of a modern, networked society. Among these different goals, and among a diverse set of creators, different forms of copyright protection are justified.

Take breadth of protection, for example. A commentator concerned with incentives (the goal) for the creation of high-budget commercial films by movie studios (the users) might argue for a level of protection that is sufficiently strong to provide that incentive, but not so strong as to unnecessarily increase the difficulty of creating films down the line. A commentator concerned with the development of a cultural zeitgeist through the manipulation of popular symbols might argue for weak protections against derivative uses of the work, while at the same time recognizing that protections against verbatim copying provide a useful incentive to create the symbols themselves. The focus of this sort of criticism is on finding an ideal system that does the best job for a commentator’s favored goal or user.

But maybe we should be asking a more fundamental question: should copyright continue to take a one-size-fits-all approach? Perhaps the differently-motivated participants in our modern society would be best served by different copyright systems altogether. For creative professionals and corporations making a substantial investment of time, resources, and/or risk in a creative enterprise, the existing system of economic rights (with exceptions for unprofitable and socially beneficial uses[3]) is at least somewhat appropriate. But for the tortured artist who considers his work to be a reflection of his own personality, a strong system of moral rights may be better. For a fame-obsessed YouTube phenom, a right of attribution alone would suffice; a computer programmer who wants her work to keep serving society, on the other hand, would prefer robust copyleft-style protections to prevent the proprietization of downstream derivative works. A blogger writing purely for the satisfaction of expressing herself might not need any protection at all! The existing copyright system does a bad job serving most of these groups.

This comment begins with a description of the most well-known system of alternative rights designations: the Creative Commons (“CC”) licenses. Different CC licenses will be discussed in the context of the users who are likely to choose them and the real aims of those users. Next, some drawbacks of using the CC license system to carve different rights reservations out of the existing copyright system will be addressed. Finally, this comment will propose two solutions to the homogeneity of the existing system: a radical move to a heterogeneous copyright system, and a more modest change to the copyright registration system.[4] (more…)

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

It’s once again that time of year: The Digest will be taking a short break from our regular coverage over the coming weeks as our Staff Writers take their spring examinations.

While we take our hiatus from regular coverage, we have the pleasure of re-introducing our Comments feature. Comments are longer opinion pieces on especially significant issues. These pieces are written entirely by members of our staff, on topics they believe warrant closer examination and study. From now until the week of May 15th, we will publish a Comment every week. We have some especially interesting pieces this May and we hope you enjoy them!

We’ll be back the week of May 15th with our usual coverage.

We sincerely hope you’ve enjoyed our work this year!

The Digest Staff

 

Posted On May - 2 - 2011 Comments Off READ FULL POST

Microsoft argues for a lower burden of proof for patent invalidity where prior art wasn’t before the PTO
By Abby Lauer – Edited by Matt Gelfand

Microsoft Corp. v. i4i Ltd. P’ship, No. 10-290 (U.S. 2011)
Transcript of Oral Arguments

On April 18, 2011, the Supreme Court heard oral arguments in Microsoft Corp. v. i4i Ltd. P’ship, a case involving a dispute over the evidentiary standard that must be met by a patent challenger in order to overcome the presumption of patent validity codified in 35 U.S.C. § 282. Microsoft’s position is that the standard should be reduced from one requiring clear and convincing evidence to one requiring a preponderance of the evidence, in the case where the evidence before the court is a prior art reference that was not considered by the PTO during patent prosecution. For further background on the case, see the Digest’s previous coverage of the proceedings at the Eastern District of Texas and the Federal Circuit.

Summaries and commentary on the oral arguments can be found at IPWatchdog and PatentlyO. (more…)

Posted On Apr - 22 - 2011 Comments Off READ FULL POST

Sony Settles Lawsuit with PlayStation 3 Hacker
By Vivian Tao – Edited by Chinh Vo

Sony Computer Entm’t Am. v. Hotz, No. CV11-0167 (N.D. Cal. Apr. 11, 2011)
Final Judgment hosted by Electronic Frontier Foundation

On April 11, 2011, the United States District Court for the Northern District of California entered a final judgment for plaintiff Sony Computer Entertainment America (“Sony”), granting Sony a permanent injunction against defendant George Hotz. The injunction prevents Hotz, a notorious hacker, from engaging in any unauthorized access to Sony products, circumventing security measures in those products, or trafficking and posting any information, service, or product that would lead to such circumvention.

While a motion to dismiss regarding Hotz’s claim over lack of personal jurisdiction is pending, this final judgment comes on the heels of a March 31 settlement agreement between Sony and Hotz. Both parties have agreed to accept this judgment and to waive their rights to appeal.

Ars Technica provides an overview of the case. PC World criticizes the judgment, stating that the injunction’s effect will be constrained by other sites that have already listed and can continue to include information from Hotz’s hacking efforts.

(more…)

Posted On Apr - 17 - 2011 1 Comment READ FULL POST

by Alea J. Mitchell

Obama Seeks Secure Online Identities

The White House Blog announced that President Obama released the “National Strategy for Trusted Identities in Cyberspace” (PDF), a plan to improve online security and e-commerce. The proposal is aimed at combating online fraud and identity theft, and calls on the private sector to design a trusted identity system to better protect an increasingly wired culture. Wired reports the proposal distances itself from a national ID approach and instead urges the private sector to develop ways for consumers to create privacy-enhancing secure identity credentials that will enable safer online transactions.

Senators Kerry and McCain Propose Online Privacy Legislation

Wired reports that Senators John Kerry (D-Massachusetts) and John McCain (R-Arizona) introduced on Tuesday the Commercial Privacy Bill of Rights, online privacy legislation that would allow web users to demand websites stop tracking and selling their online behavior.  The bill aims to regulate how identifiable information is used, stored, and distributed. Ars Technica reports that consumer groups criticize the bill for shying away from overt “Do Not Track” legislation, giving special interest treatment to social media marketers, and creating a conflict of interest by allowing the Department of Commerce to influence privacy policies.

House Votes to Repeal Net Neutrality Rules

Reuters reports that the House of Representatives voted last Friday to reject the FCC’s net neutrality rules, which were adopted last year and bar Internet service providers from blocking or interfering with traffic on their networks. The Hill reports that Republicans, who oppose the rules, claim the FCC lacks authority to regulate the Internet and that net neutrality rules impose unwarranted government regulation over an open and thriving Internet. The largely partisan effort is expected to fail once the legislation reaches the Democratic-controlled Senate. As Wired reports, the vote is largely symbolic, as President Obama has promised to veto any legislation proposing to reverse the rules.

Congress Revisits COICA

Ars Technica reports that the battle over the Combating Online Infringement and Counterfeits Act (COICA) is heating up again as both chambers draft amended versions of COICA, set to be rolled out in coming weeks. Last November, JOLT reported on the bill, which would grant the Attorney General power to seize domain names through in rem action and require online ad services and credit card companies to stop working with blacklisted sites, with the goal of targeting foreign piracy and counterfeiting sites not easily reached by US courts. While the Senate Judiciary Committee unanimously approved the bill, it never made it to the Senate floor, owing to efforts of Senator Ron Wyden, who has again vowed to oppose the billWired reports that Google’s Kent Walker testified at one of two recently held House hearings to oppose the Act, particularly the private right of action a COICA claim would give rightsholders. The Citizen Media Law Project laments the bill’s return.

Posted On Apr - 16 - 2011 Comments Off READ FULL POST
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Draft Guideline for

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Insuring Patents

By Yaping Zhang Edited by Jennifer Chung and Ariel Simms Despite its ...

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By Suyoung Jang – Edited by Mila Owen S.1890 - Defend ...

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