FCC Approves Unlicensed White Space Use
By Dmitriy Tishyevich – Edited by Miriam Weiler

Action by the Federal Communications Commission, by Second Report and Order (FCC 08-260)

On November 4, the Federal Communications Commission unanimously approved the use of unlicensed wireless devices that operate in “white spaces,” the unused spectrum between licensed broadcast television channels that can be used to provide broadband connectivity and other services similar to Wi-fi. The Commission’s approval extends to all WSDs that include a geolocation capability and a spectrum-sensing technology that will allow the device to determine what spectrum may be accessed at the particular location.

The decision comes after four years of debate, pitting an alliance of technology companies against parts of the entertainment industry. Companies such as Microsoft, Google, and Motorola urged the Commission to open the channels for general usage. A coalition comprised of broadcasters, theaters, sports franchises and other cell phone operators opposed the decision, arguing that white space devices (WSDs) operating within the unlicensed spectrum will cause interference in the neighboring licensed channels.

The New York Times, the BBC and ars techinca provide a summary of the Commission’s order. Larry Page, co-founder of Google and proponent of opening up white spaces, comments on the Commission’s approval. Andrew Seybold of FierceWireless, the wireless industry’s daily monitor, warns that despite the precautions undertaken by the Commission, the new devices will likely cause interference with current services. TechCrunch suggests that Google’s push for open use of white spaces is part of its strategy to create more connection points for mobile devices, including those powered by Android, the Google mobile device platform. (more…)

An End to Business Methods Patents?
By Anthony Kammer – Edited by Anna Lamut

In re Bilski
CAFC, October 30, 2008, No. 08/833,892
En Banc In re Bilski opinion
Amicus Brief, En Banc Order, BPAI opinion  (hosted by Electronic Frontier Foundation)

On October 30, 2008, an en banc panel of the Federal Circuit upheld a ruling by the Board of Patent Appeals and Interferences that a business method developed by Bernard Bilski and Rand Warsaw for hedging risks in commodities trading is not patentable under the U.S. Patent Act, 35 U.S.C. § 101.

The decision comes only a decade after the Federal Circuit first allowed business method patents in State Street Bank v. Signature Financial Group, by granting patent protection to a system for managing mutual fund accounts.

In the majority opinion, Chief Judge Michel explicitly rejects the “useful, concrete and tangible result” test the Federal Circuit had set forth in State Street in 1998.  Relying on the Supreme Court opinions in Gottschalk v. Benson and Diamond v. Diehr, the court in Bilski states that in order to be eligible for a patent, a process must fulfill the “machine-or-transformation” test.   According to this test, a process is patentable under 35 U.S.C. § 101 if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”

Patently-O explores the case with detailed commentary, including potential applications to biotechnology and life sciences, software claims, and tax strategies.
Daniel Crowe, a patent litigator at Bryan Cave, states that it remains uncertain what will happen to the business-method patents that have been approved since 1998 that might not hold up under the Bilski test.
Randy Lipsitz, a patent specialist at Kramer Levin in New York predicts that the number of patent applications from the financial and software industries will decrease as a result of the decision.
Steve Seidenberg of InsideCounsel believes that State Street’s many critics, who see business patents as opening the doors to patent trolls, low-quality patents, and excessive litigation costs will be pleased with the Bilski decision.

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Google Library Project Lawsuit Settles
By Tyler Lacey — Edited By Anna Lamut

Authors Guild, Inc. v. Google Inc.
S.D.N.Y., No. 05 CV 8136
Settlement Agreement

On October 28, 2008, the Authors Guild, Association of American Publishers, and Google reached a settlement that, pending approval by the court, will end a lawsuit that began three years ago when the Authors Guild filed a class action against Google on behalf of more than eight thousand authors in the U.S. District Court for the Southern District of New York. The Authors Guild alleged that Google infringed many authors’ copyrights by scanning and indexing their works as part of Google’s Library Project in order to display parts of these works in search results on Google’s Book Search product.

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Appeals Court Rules Against Import Ban on Patent-Infringing Chips 
Slip Opinion

This Tuesday the Federal Circuit ruled against an International Trade Commission (“ITC”) ban on imports of cell phone chips that allegedly infringed on a rival’s patent. The chips, made by Qualcomm Inc., contained technology that the ITC had previously held infringed on a patent owned by Broadcom Corp. In its ruling the court stated that the ITC lacked authority to ban such imports.

Report by the Associated Press available here. Coverage by Reuters is available here.

From Across the Pond…

UK Considers Communications Data Bill
Speech

On Thursday, United Kingdom Home Secretary suggested legislation that would create a massive government database containing information on mobile phones and e-mail in order to combat terrorism.  Information collected would include the location and identity of the parties communicating, but not the content of the communications themselves.

BBC offers more coverage of the controversy surrounding the proposal, which critiques have called “Orwellian.”

UK Court Rejects Self-Incrimination Defense for Encryption Key
Slip Opinion

A UK court required defendants to offer the encryption key protecting a data disk that had been seized by police in a criminal investigation. Suspects were arrested for breaching an order under the Prevention of Terrorism Act of 2005. The court rejected their argument that disclosure would violate the privilege against self-incrimination, stating in its holding that an encryption key is no different than a physical key.

LinuxWorld offers more coverage here.

Oregon State Appeals Court Finds Frozen Embryos ”Personal Property” in Divorce Proceeding 
By Anna Lamut – Edited by Stephanie Weiner 

Dahl v. Angle
Or. Ct. App., October 8, 2008, A133697
Slip Opinion

The Court of Appeals of the State of Oregon upheld the decision of the trial court to enforce a contract made between a now-divorced husband and wife regarding six frozen embryos resulting from the couple’s attempt to conceive in vitro. The contract provided that, in the event of a disagreement, the wife would have the right to decide what would happen to the embryos. Necessary to the Court of Appeals’ decision was a finding that the contractual right to determine the fate of frozen embryos is personal property.

While married, the parties had unsuccessfully tried to conceive a child via in vitro fertilization, a process that left six frozen embryos at the Oregon Health and Science University (“OHSU”). The parties executed an “Embryology Laboratory Specimen Storage Agreement” at the time that they underwent the procedure, which gave the wife, Dr. Laura Dahl, the “sole and exclusive right” to instruct OHSU to transfer or dispose of the embryos in the event that the parties were not able to agree. Dr. Dahl chose to have the embryos destroyed, while her ex-husband, Dr. Darrell Angle, denied having initialed or read the agreement. He claimed that “embryos are life” and did not want the embryos destroyed because “there’s no pain greater than having participated in the demise of your own child.”

The Associated Press and CBS provide overviews of the case. 

Andy Dworkin of the Oregonian provides commentary. 

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