A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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By Kassity Liu

India’s Stringent Patentability Standards Cause Corporate Dissatisfaction

On February 12, the WSJ Law Blog reported that India’s standards for patentability may be leading to a lack of significant patent protection for important pharmaceutical drugs. Before 2005, India offered patent protection to processes for making pharmaceutical drugs, but no protection to the products themselves. After the patent system was extended to cover the products, a large number of multinational drug companies began to market their products in India. However, as time passed, many companies became dissatisfied as they found that the new laws were not as protective as the U.S. and Europe. The WSJ post notes several examples of inadequate protection, including the recent Deli High Court’s refusal to ban a competitor’s copy of Bayer’s cancer drug Nexovar. However, one executive of an Indian generic drug manufacturer favors India’s high standard for patentability, claiming that “[t]he U.S. would grant a patent to a piece of toilet paper.”

FBI Challenges Probable Cause Standard for Cell-Phone Data

On February 11, the WSJ Law Blog reported that Third Circuit panel in Philadelphia was set to hear an appeal on February 12 of a lower court decision denying the government’s request to access cell phone records without probable cause. Newsweek’s Michael Isikoff reports that the FBI has increasingly been obtaining cell-phone records for criminal investigations without a showing of probable cause. Advocacy organizations such as the Electronic Frontier Foundation and ACLU support the probable cause standard, and argue that Fourth Amendment requires the government to “show that it has good reason to think such tracking will turn up evidence of a crime” before it can pull private cell-phone data. However, the government believes that the Fourth Amendment does not protect cell-phone data which they consider to be “routine business records.”

P2P File-Swapper Thomas-Rasset Set to Face Third Jury Trial

On February 9, Ars Technica reported that Jammie Thomas-Rasset is set to face a third trial on the issue of damages. In her last trial, a jury returned a $1.92 million verdict against Thomas-Rasset, which the judge reduced to $54,000 on remittitur. The RIAA refused to accept the new award out of concern that the judgment would effectively cap statutory damages for individuals who illegally download and upload music to $2,250 per song. The new trial comes as a surprise to many, since the amount of damages is the only issue at stake, and the judge has already held that anything over $54,000 would be excessive.

Posted On Feb - 15 - 2010 Comments Off READ FULL POST

Federal Circuit Affirms Infringement but Reverses Findings of Damages in Software Patent Case
By Andrew Segna – Edited by Gary Pong

ResQNet.com, Inc. v. Lansa, Inc., No. 2009-1030 (Fed. Cir. Feb. 5, 2010)
Slip Opinion

The United States Court of Appeals for the Federal Circuit, in a per curiam decision, affirmed in part, vacated in part, and remanded for further proceedings a patent infringement decision made by the United States District Court for the Southern District of New York. The Federal Circuit affirmed the district court’s finding that Lansa had infringed ResQNet’s Patent No. 6,295,075 (the ‘075 patent). The court also affirmed the finding that Lansa had not infringed Patent No. 5,831,608 (the ‘608 patent).

However, the court vacated the district court’s award of damages and remanded for a redetermination of damages. The court criticized the district court’s accepted royalty rate of 12.5% as being artificially inflated and disagreed with the process used to arrive at that rate. The court held that the “reasonable royalty rate” used in calculating damages must not be “speculative” and must not rely on royalty rates derived from licenses that are different from the current patents in dispute. Finally, the Federal Circuit also reversed the district court’s imposition of Rule 11 sanctions upon ResQNet and its counsel.

Law.com has an overview of the decision. PatentlyO analyzes the damages aspect and its relation to the Lucent v. Gateway decision by the Federal Circuit. The Patent Prospector offers a breakdown of the decision and thoughts on the disparity between the majority and Judge Newman. (more…)

Posted On Feb - 12 - 2010 Comments Off READ FULL POST

The Digest Staff is thrilled to announce that the newest volume of the Harvard Journal of Law and Technology, volume 23, is now available online, featuring:

Timothy Holbrook, “Equivalency and Patent Law’s Possession Paradox
This paper explores the paradox of the doctrine of equivalents — that the patentee is afforded protection for that which she did not possess — and offers two possible means of reconciling it: first, that patentees should only be protected under the doctrine of equivalents for changes in technology that arise from outside their field of technology (the status quo); and second, that patentees should be protected by the doctrine of equivalents if the patent’s disclosure would enable the asserted equivalent at the time of infringement, thus allowing the patent’s disclosure to grow over time.  This paper advocates that the second approach offers a better fit with the doctrine as traditionally understood.

Oren Bar-Gill & Rebecca Stone, “Mobile Misperceptions
This Article studies three central design features of cell-phone service contracts, arguing that rational-choice explanations of these contractual features fall short and that they are better understood as a rational market response to the imperfect rationality of cell-phone users. After verifying the theoretical claims empirically, this Article finds that the identified consumer mistakes and providers’ responses to these mistakes generate substantial welfare costs.  As a solution, this Article proposes mandated disclosure of use-pattern information, including average-use and, more importantly, individual-use information that, by directly targeting the identified consumer mistakes, can enhance efficiency and increase consumer surplus in the cellular service market.

Natalie Ram, “Assigning Rights and Protecting Interests
This Article proposes a new model for adjudicating disputes between individuals providing tissue for research and researchers accessing that tissue.  Drawing on intellectual property doctrines, this Article advocates the creation of “informational property,” a property right to one’s own genetic information. Guided by a framework of the interests of tissue providers, researchers, and society in the control and use of human tissue in research, this Article advocates an informational property approach modeled on Creative Commons licensing and reinforced by enhanced privacy protections in tort.

Kevin Werbach, “Higher Standards: Regulation in the Network Age
This Article proposes that the Federal Communications Commission (FCC) remake itself as a standards organization, making its mission to catalyze the adoption of open standards that promote its regulatory objectives.  This Article then explains how a standards-based approach offers a better solution to the network issues faced by the FCC, such as network management practices of broadband access providers and unlicensed wireless devices adjacent to broadcast television frequencies.

Jon Darrow, [“The Neglected Dimension of Patent Law's PHOSITA Standard”] (Student Note)
Modern invention bears little resemblance to inventive activities of the nineteenth century.  Today, invention typically involves teams of highly-trained specialists provided with funding and equipment, who devote months or years to developing an invention. As a result, when judges look at a patent from the perspective of a “person having ordinary skill in the art,” the “art” they consider is the art of innovation.  This is a shift from early patent jurisprudence, however, which considered patents from the perspective of practitioners. The change has resulted in the withholding of patents on deserving inventions.  By restoring the traditional meaning to the word “art,” patent law can appropriately motivate socially valuable inventions that are currently being neglected.

Chris Johnson, [“Leveraging Technology to Deliver Legal Services”] (Student Note)
This paper examines technological solutions and tech-enabled business models for the delivery of legal services to those with limited incomes and specific needs. In particular, it considers several existing websites as case studies, and then proceeds to discuss the potential future commoditization of legal services and the coming transformation in the legal profession.

Sarah Sorscher, [“A Longer Monopoly For Biologics?: Considering the Implications of Data Exclusivity as a Tool for Innovation Policy”] (Student Note)
Analyzing the Access to Life Saving Medicines Act, currently under consideration by Congress, explaining how it will create a regulatory pathway for follow-on biologics that will likely include an extended period of data exclusivity for innovator brands and exploring the conflicts between and overlap of patent protection and data exclusivity protection, focusing especially on the impact of these new protections on the market for follow-on biologics.

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

Third Circuit Panels Rule Differently on MySpace Parody Cases
By Abby Lauer – Edited by Alissa Del Riego

Layshock v. Hermitage School District, No. 07-4465 (3d Cir. Feb. 4, 2010)
Slip Opinion

Snyder v. Blue Mountain School District, No. 08-4138 (3d Cir. Feb. 4, 2010)
Slip Opinion

Two different Third Circuit panels handed down seemingly contradictory decisions last week after considering whether offensive parody profiles of school principals created by students using MySpace outside of school were protected by the First Amendment.

In Layshock v. Hermitage School District, a unanimous, three-judge panel upheld the district court’s decision in favor of the student, holding that the offensive MySpace profile he created in the principal’s name was protected free speech under the First Amendment. The court based its decision on the fact that the student had created the profile off school grounds and had not substantially disrupted the school with his behavior.

By a vote of 2-1, a different three-judge panel upheld a district court’s decision against the plaintiff student in Snyder v. Blue Mountain School District. The court in Snyder held that the student’s vulgar parody profile of the principal was not protected free speech under the Constitution, and therefore the School District had a right to suspend the student. The court emphasized that the suspension was appropriate because the school had well-founded reason to believe that the student’s parody profile would cause substantial disruption.

Law.com provides a summary and analysis of the two cases. Litigation & Trial discusses why the panels came to opposite conclusions. (more…)

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

By Tyler Lacey

Australian State Backpedals on Anonymous Online Political Speech Ban

On February 2, Ars Technica reported that following a harsh public reaction, South Australia’s Attorney General Michael Atkinson has pledged to repeal a recently enacted law that banned anonymous online political speech. The new law is particularly controversial because it applies specifically to bloggers and online commentators, but not to online newspapers or magazines. Atkinson noted that “the blogging generation believes that the law supported by all [Members of Parliament] and all political parties is unduly restrictive” and promised to make efforts to repeal the law. Ars Technica’s Nate Anderson concluded the article with the thought that while the vow to repeal the law was a “victory for people power,” the dangers inherent in anonymous speech should not be ignored.

United States Patent and Trademark Office to Receive Budget Increases

On February 1, Reuters reported that President Obama’s new budget proposal includes a 23% increase in the operating budget of the United States Patent and Trademark Office (PTO) in 2011 as compared to 2010. The proposal also includes a 15% increase in statutory patent application fees and an allowance for the PTO to invest all of its fee revenues internally rather than turning over a portion of them as it had done in the past. The budget proposal urges the PTO to invest its increased budget and fee allowance in efforts to “improve the speed and quality of patent examinations.” According to the article, the PTO currently takes an average of 34.6 months to fully review a patent application and is hampered by an “antiquated” computer system and high staff turnover.

British Online Surveillance Website Stalled While Under Review

On January 28, the BBC reported that the Internet Eyes website has been restricted from offering surveillance camera feeds pending an investigation by the Information Commissioner’s Office (ICO). The ICO is a United Kingdom government agency that takes responsibility for “uphold[ing] information rights in the public interest” and “promoting openness by public bodies and data privacy for individuals.” Internet Eyes’ business model is to pay interested citizens to spot and report crime that they spot in surveillance camera feeds on the Internet Eyes website. The ICO is reportedly reviewing Internet Eyes’ compliance with the United Kingdom’s Data Protection Act by verifying that the footage is used appropriately and that the citizen observers are properly trained. Internet Eyes has promised to comply with any demands issued by the ICO as a result of the investigation.

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