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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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DC District Court Orders a Halt to Federally Funded Embryonic Stem Cell Research
By Jessica Palmer – Edited by Ryan Ward

Sherley v. Sebelius, 2010 U.S. Dist. LEXIS 86441 (D.D.C. August 23, 2010)
Memorandum Opinion

On August 23, the United States District Court for the District of Columbia granted a preliminary injunction blocking the implementation of the National Institutes of Health (NIH)’s July 2009 guidelines for human embryonic stem cell (hESC) research. Judge Royce Lamberth held that “because the Guidelines allow federal funding of ESC [Embryonic Stem Cell] research, which involves the destruction of embryos,” federal funding for hESC research “clearly violate[s]” the Dickey-Wicker Amendment.

The Dickey-Wicker Amendment, an appropriations bill rider originally passed in 1996 and renewed each appropriations cycle thereafter, prohibits the use of appropriated funds for “research in which a human embryo or embryos are destroyed.” P.L. 111-8 § 509 (2009). Judge Lamberth rejected the government’s argument that, under Dickey-Wicker, NIH could support research on hESCs, as long as federal funding did not support the initial derivation of the stem cell lines from human embryos. Judge Lamberth reasoned that the NIH’s interpretation of the Dickey-Wicker Amendment did not deserve Chevron deference because the statute is unambiguous: “the language of the statute reflects the unambiguous intent of Congress to enact a broad prohibition of funding research in which a human embryo is destroyed. This prohibition encompasses all ‘research in which’ an embryo is destroyed, not just the ‘piece of research’ in which the embryo is destroyed.”

Professor Glenn Cohen of Harvard Law School criticized the order at Concurring Opinions, arguing that “it is hard to find that the statute is ‘unambiguous’ in Chevron terms in the way Lamberth says.” Professor Russell Korobkin of UCLA, writing at The Volokh Conspiracy, found the grant of a preliminary injunction “troubling” because “the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced.” Both Cohen and Korobkin predicted that the Court of Appeals for the District of Columbia Circuit will reverse the district court’s grant of an injunction. (more…)

Posted On Sep - 6 - 2010 1 Comment READ FULL POST

By Emily Hoort

Attorneys General Demand Removal of Craigslist’s “Adult Services” Section

ScrippsNews reports that attorneys general in at least 18 states have demanded that Craigslist remove its adult services section. A failure to comply with this request will likely lead to a court battle, with possible charges that Craigslist is aiding and abetting illegal activity. There may also be legislative action calling for reforms of the Digital Millennium Copyright Act and Communications Decency Act. These statutes generally protect websites, such as Craigslist, from third parties’ illegal actions on their sites. Some observers point out that removing the adult services section will likely shift illegal sexual solicitations elsewhere, and will result in losing many of the screening benefits of a website such as Craigslist. Indeed, according to The Boston Globe, Craigslist has many screening and tracking safeguards in place that are stronger than other classified advertisement platforms.

Update: The New York Times reports that Craigslist has blocked access to its “adult services” content, replacing the link with a “censored” label.

Individuals Can Pursue Lawsuits Against Companies Who Label Products with Expired Patent Numbers

The Wall Street Journal reports that on Tuesday the U.S. Court of Appeals for the Federal Circuit in Washington held, in Stauffer v. Brooks Brothers, that patent lawyer Raymond Stauffer can pursue claims against Brooks Brothers stemming from the apparel chain marking its bow ties with expired patent numbers. It is illegal to erroneously label products with the wrong patent numbers, and individuals are allowed to sue for such mislabeling on the government’s behalf. Penalties range up to $500 per item, and successful plaintiffs are allowed to keep one-half of all penalties; they must submit the other half to the government. The Federal Circuit’s decision reversed a lower court ruling that dismissed Mr. Stauffer’s case for lack of standing. Bloomberg notes that this decision strengthens similar lawsuits against more than 350 companies.

Hewlett-Packard to Pay $55 Million to Settle Kickback Allegations

The Wall Street Journal reports that Hewlett-Packard has agreed to pay the U.S. Government $55 million to settle allegations that H-P paid illegal kickbacks to other companies for recommending H-P products to federal agencies. The Economic Times notes that this Justice Department case arose after whistleblowers revealed that H-P and other companies paid each other “influencer fees” for recommending their products to U.S. government agencies. H-P denies any wrongdoing, stating that it entered this $55 million settlement because it believes it will be best for stakeholders to resolve the matter and move forward.

Posted On Sep - 4 - 2010 Comments Off READ FULL POST

Lawyer Violates Telephone Consumer Protection Act with Outsourced Newsletters
By Ian B. Brooks – Edited by Jad Mills

Holtzman v. Turza, No. 08-C-2014 (N.D. Ill. Aug. 3, 2010)
Opinion hosted by Google

The United States District Court for the Northern District of Illinois ruled that a lawyer makes unsolicited advertisements under the Telephone Consumer Protection Act (“TCPA”) when his primary purpose for hiring a company to distribute his materials via facsimile was to advertise his services.  Granting the plaintiff’s summary judgment motion, the court noted that the defendant hired a marketing company to send newsletters for the purpose of developing business and not for the purpose educating recipients.  The court further noted that although the primary advertising portion of the solicitation comprised only 25% of the fax, its prominence relative to the remaining portion of the fax countered the argument that the fax was not an advertisement.

Carolyn Elefant provides an overview of the case.  Eric Goldman provides an analysis of the facts and outcome. (more…)

Posted On Aug - 31 - 2010 Comments Off READ FULL POST

Federal Circuit Reverses Summary Judgment Finding Non-Infringement
By Leocadie Welling – Edited by Jad Mills

Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., No. 2009-1556 (Fed. Cir. Aug. 18, 2010)
Slip Opinion

On August 18, 2010, the Federal Circuit reversed in part, affirmed in part, vacated in part, and remanded the decision of the United States District Court for the Southern District of Texas, which had granted summary judgment in favor of Maersk on issues of invalidity and non-infringement for three of Transocean’s deepwater drilling patents.

The Federal Circuit reversed the district court’s grant of summary judgment of invalidity for lack of enablement because there were factual issues precluding summary judgment. The court also reversed the summary judgment of invalidity for obviousness because the district court failed to consider objective evidence of nonobviousness.  Although Transocean had presented contrary objective evidence of obviousness, the court held that the issue could not be resolved at summary judgment.  The court also held that the district court had erred in granting summary judgment of non-infringement.  Importantly, in so holding, the court stated that “a contract between two U.S. companies for performance in the U.S. may constitute an offer to sell within the U.S. under § 271(a)” regardless of whether the contract had been negotiated and/or signed outside of the U.S.

The 271 Patent Blog provides an overview of the case and quotations from the opinion.  Patently O provides a summary of the decision. (more…)

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

By Ian B. Brooks

Lexmark Sues 24 Companies for Patent Infringement

CNET reports that Lexmark is once again attempting to stop sales of aftermarket printer cartridges. In its latest attempt, Lexmark has filed suit against 24 companies in the International Trade Commission and a U.S. district court alleging infringement of at least 15 patents related to laser printer technology. In its ITC complaint, Lexmark seeks the exclusion of imported goods that infringe the company’s patents. The district court case seeks an injunction and damages. The company was previously unsuccessful in its attempt to combat aftermarket cartridge sales when it filed suit under the Digital Millennium Copyright Act. Lexmark’s press release is available here.

Philadelphia Bloggers Asked to Pay for Business Licenses

The City of Philadelphia is requiring bloggers who operate websites with ads to obtain business licenses, CNN reports. The city, in its attempt to ensure that all locally run commercial businesses operate with the required license, sent letters to various businesses — including bloggers — requiring that they obtain a license. The licenses cost $50/year or $300 for life. The Philadelphia Citypaper reports that the letters upset many bloggers who do not view their blogs as businesses. Many have made less than $50 during several years of operation. Some bloggers see the move as restricting free expression. Some other cities, including Boston and Washington, D.C., similarly claim to require a business license for blogging websites, though Los Angeles reportedly does not require such a license.

RIAA President Sees Failure in Copyright Law

CNET reports that Cary Sherman, the Recording Industry Association of America President, stated that U.S. copyright law ”isn’t working” for content providers. Sherman believes that the DMCA contains loopholes, allowing web companies to function without active concern for illegal activities performed on their websites. Sherman is seeking informal agreements with broadband providers and web companies to address his concern with the DMCA. If unable to form those agreements, Sherman would support further modifications to copyright law. YouTube’s product counsel Lance Kavanaugh disagreed with Sherman, stating that Congress foresaw and intended the current consequences of the DMCA, striking a balance between imposing liability and allowing the freedom to innovate.

Posted On Aug - 26 - 2010 Comments Off READ FULL POST
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Federal Circuit Flas

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