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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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Flash Digest: News in Brief

By Gia Velasquez – Edited by Ken Winterbottom

Federal Court Grants Uber’s Class Action Certification Appeal

Independent Contractor Classification of Uber Drivers May Violate Antitrust Laws

Self-Driving Car Will Be Considered Autonomous Driver

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Appropriation artist found to have infringed copyrights after failing to show transformative use
By Matthew Becker – Edited by Chinh Vo

Cariou v. Prince, No. 08 Civ. 11327 (DAB) (S.D.N.Y. March 18, 2011)
Slip Opinion
hosted by Scribd

In a closely watched copyright case, the United States District Court for the Southern District of New York granted summary judgment for the plaintiff, Patrick Cariou, ruling that the appropriation artist Richard Prince, in conjunction with the Gagosian Gallery, infringed Cariou’s copyrighted works.

The Southern District held that Prince’s works, paintings and collages that incorporated significant portions of Cariou’s published photographs, were not entitled to defense under the doctrine of fair use. Most relevant in this analysis was a consideration of the purpose and character of the use, with a focus on whether Prince’s works were “transformative,” requiring that they “in some way comment on, relate to the historical context of, or critically refer back to the original works.” The court concluded from Prince’s testimony that he did not have an interest in the original meaning of Cariou’s photographs, but simply wanted to reproduce them to send his own message, and therefore the transformative content of his works was “minimal at best.”

The NYT Arts Beat provides an overview of the case. The Art Law Blog criticizes the decision for its narrow interpretation of transformative use, noting that other cases, such as Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), have found works to be transformative even when they did not comment directly on the original copyrighted work. (more…)

Posted On Apr - 3 - 2011 1 Comment READ FULL POST

Federal Judge Rejects $125m Google Books Settlement
By Philip Yen – Edited by Chinh Vo

The Authors Guild, et al. v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y. Mar. 22, 2011)
Opinion
hosted by The Authors Guild

Circuit Judge Denny Chin, sitting for the United States District Court for the Southern District of New York, rejected the $125 million Google Books class action settlement agreement between the Internet giant and groups representing authors and publishers. The court said that the deal went “too far” and held that the settlement was not fair, adequate, and reasonable.

Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. This will only be given if the court determines that the settlement was “fair, adequate, and reasonable.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). Although recognizing the many benefits that the Google Book Project could yield, the district court identified a number of countervailing policy considerations that weighed against approving the agreement. In particular, the court was concerned that the proposed settlement would release claims well beyond the scope of the pleadings, overreach into copyright regulation (a realm better left to Congress), give Google a monopoly on certain types of books, and implicate international law. Additionally, the court found that the plaintiffs had not adequately represented the interests of certain class members.

The Copyright Litigation Blog provides an overview of the case. The Electronic Frontier Foundation praises the court’s acknowledgment of privacy concerns and class action analysis, but takes issue with some of the its treatment of copyright law. (more…)

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

Federal Circuit Rules Federal Law Trumps State Law in Interpretation of Patent Ownership Rights
By Flora Amwayi – Edited by Jonathan Allred

Abraxis Bioscience, Inc. v. Navinta LLC, 2009-1539, 2011 WL 873298 (Fed. Cir. Mar. 14, 2011)
Slip Opinion

The Federal Circuit denied a petition for an en banc rehearing of a Federal Circuit panel order dismissing Abraxis’ patent infringement case against Navinta. The court dismissed the case on the grounds that Abraxis did not have standing to sue for infringement since it did not own the patents at the time the original complaint against Navinta was filed. The original panel order hinged on whether interpretation of patent ownership should be governed by New York state law (as outlined in choice of law provisions) or by federal rules of patent ownership and assignment (Federal Circuit law). See 35 U.S.C. § 261.

By denying the en banc rehearing, the court affirmed the panel’s holding that the resolution of ownership and assignment question is an issue of Federal Circuit law since it determines a plaintiff’s standing to sue for patent infringement. In so holding, the court stated that “state law cannot retroactively override federal law to revive failed agreements.”

The Patent Law Blog provides an overview of the case. The Patent Prosecutor criticizes the decision as a refusal to correct the Federal Circuit’s intrusion into state contract law. (more…)

Posted On Mar - 28 - 2011 Comments Off READ FULL POST

By Nathan Lovejoy

Lime Wire Damages Limited To One Statutory Damage Award Per Work

Judge Kimba Wood ruled on March 10th that the statutory damages provision of the Copyright Act authorizes only one damage award per work infringed rather than one award for every infringement. Wood noted that had she adopted the record industry plaintiff’s interpretation the potential damages against the file-sharing software company would be “more money than the entire recording industry has made since Edison’s invention of the phonograph in 1877.” Wood granted summary judgment against Lime Wire in May, and issued an injunction in October which required Lime Wire to cease distribution of its popular program. The trial for damages is set for May 2nd.

AT&T’s Acquisition of T-Mobile May Face Serious Scrutiny

An FCC official indicated to the Wall Street Journal that AT&T’s planned acquisition of T-Moble — which would make the company the largest mobile phone service, surpassing Verizon — would undergo serious scrutiny, saying “[i]t will be a steep climb.” This likely comes as no surprise to AT&T, as the WSJ notes elsewhere that “AT&T seems to understand what it’s up against.” The acquisition deal was announced last week.

Netflix’s Customer Data Practices Challenged

Five plaintiffs have alleged that Netflix has violated the Video Privacy Protection Act (“VPPA”) through its practice of collecting and retaining records of streaming and rental activity of its customers. The VPPA mandates that video rental companies destroy old records that contain personally identifiable information. This law was passed in the wake of Judge Robert Bork’s Supreme Court nomination hearings, during which his video rental history was published.

Righthaven Lawsuit Dismissed On Fair Use Grounds

At a hearing last week, U.S. District Judge James Mahan said that he would dismiss a copyright infringement claim brought by the private enforcement outfit Righthaven on behalf of the Las Vegas Review Journal (“LVRJ”). After the Oregon-based non-profit Center for Intercultural Organizing posted a full-text copy of a LVRJ article on their website, Righthaven filed suit last August without any prior contact or take-down requests. In November, Judge Mahan requested that the parties brief the fair use issue. Righthaven’s for-profit approach to copyright enforcement has been heavily criticized; Mahan’s ruling was welcomed by critic EFF, who represent defendants in other Righthaven cases. Righthaven has filed 250 lawsuits since March 2010, and has suffered one other loss on a fair use claim.

Posted On Mar - 26 - 2011 Comments Off READ FULL POST

Federal Circuit Requires Pleading with Particularity in False Marking Lawsuit
By Raquel Acosta – Edited by Jonathan Allred

In re BP Lubricants USA Inc., No. 960 (Fed. Cir. March 15, 2011)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit granted in part the petition for a writ of mandamus filed by BP Lubricants USA Inc. (“BP”), reversing in part the District Court for the Northern District of Illinois, which had denied BP’s motion to dismiss on the grounds that the particularity requirement of Fed. R. Civ. P 9(b) was not met.

The Federal Circuit held that in qui tam false marking suits, cases must be plead with particularity in accordance with Rule 9(b) requirements regarding the circumstances constituting fraud or mistake. The court goes on to state that conclusory allegations are not entitled to an assumption of truth, citing Exergen in support of their holding that a proper pleading cannot merely aver substantive elements of a fraud complaint. Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 (Fed. Cir. 2009) (holding in cases involving fraud, plaintiff must plead in specific detail the “who, what, when, where, and how” of the circumstances surrounding the intent to deceive). The court reasoned that there must be facts in support of the allegation that BP acted with knowledge or intent to defraud the public. Merely alleging that BP dealt with patents often enough that they knew or should have known the patents had expired was insufficient.

The Inventive Step Blog provides an overview of the case. PatentlyO presents a brief legal analysis on why this decision establishes that the recent influx of false marking lawsuits will not be a lasting trend. (more…)

Posted On Mar - 23 - 2011 Comments Off READ FULL POST
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