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

By Anne Woodworth

UK Court Allows Safari Users to Sue Google over Privacy Settings

FTC Responds to Allegations that it Ignored Staff Recommendations to Sue Google

Citigroup Report Criticizes Law Firms for not Reporting Hacking

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Federal Circuit Rejects En Banc Review of Infringement Willfulness Standard

By Paulius Jurcys – Yaping Zhang

The Federal Circuit rejected a motion for en banc review of a patent infringement case evaluating the willfulness standard and whether the standard should be changed in order to meet the interpretation provided by the Supreme Court in the Octane decision.

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The FCC’s Net Neutrality Rules on Protecting and Promoting Open Internet

By Shuli Wang – Edited by Yaping Zhang

Two weeks after voting on regulating broadband Internet service as a public utility, on March 12, the Federal Communications Commission (”FCC”) released a document (the FCC Order and Rules) on net neutrality, which reclassifies high-speed Internet as a telecommunications service rather than an information service, thus subjecting Internet service providers (ISPs) as common carrier to regulations under Title II of the Communications Act of 1934. The purpose of the new rules is to ensure the free flow of bits through the web without paid-for priority lanes and blocking or throttling of any web content.

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White House releases administration discussion draft for Consumer Privacy Bill of Rights Act of 2015

By Lan Du – Edited by Katherine Kwong

On February 27, 2015, President Obama released an administration draft of a proposed Consumer Privacy Bill of Rights Act. The proposed bill’s stated purpose is to “establish baseline protections for individual privacy in the commercial arena and to foster timely, flexible implementations of these protections through enforceable codes of conduct developed by diverse stakeholders.”

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Federal Circuit Flash Digest: News in Brief

By Patrick Gallagher

Federal Circuit Affirms Denial of AT&T Motion to Extend or Re-open Filing Period for Appeal in Patent Infringement Suit

In Patent Suit Against Apple, Federal Circuit Affirms in Part, Reverses in Part

Federal Circuit Reverses DNA Sequencing Technology Patent Construction

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Federal Circuit Holds that Solo’s Marking of Lids after Patent Expiration Did Not Violate False Marking Statute
By Ian B. Brooks – Edited by Matt Gelfand

Pequignot v. Solo Cup Co., No. 2009-1547 (Fed. Cir. June 10, 2010)
Slip Opinion

On June 10, 2010, the Federal Circuit affirmed the judgment of the U.S. District Court for the Eastern District of Virginia, which had entered summary judgment in favor of Solo for “false marking” related to Solo’s practice of marking expired patents on its beverage cup lids.

The Federal Circuit held that a product embodying an expired patent is indeed an “unpatented article” under 35 U.S.C. § 292(a), but a plaintiff must demonstrate that the defendant intended to deceive the public in order to succeed under § 292. The court stated that a rebuttable presumption is created when a plaintiff shows that the defendant knowingly made false statements; a defendant may rebut this presumption if it shows by a preponderance of the evidence that it did not intend to deceive the public. The court also noted that the presumption is weaker in cases where the markings are for expired patents that once covered the marked products. Solo, which had relied on advice of counsel and weighed the high costs of removing the markings, was able to rebut Pequignot’s evidence that it intended to deceive. Finally, the Federal Circuit vacated the district court’s construction of “offense” under § 292, which was at odds with its decision in Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295 (Fed. Cir. 2009).

Dabney Carr at Virginia IP Law provides an overview of the case. Patently-O and Daily Herald provide background on the case and other cases that have recently been filed claiming violations of § 292. A chart of false marking cases and their status is available at Gray on Claims. (more…)

Posted On Jun - 14 - 2010 Comments Off READ FULL POST

Stored Communications Act Protects Facebook and MySpace Users’ Private Communications
By Kathryn Freund – Edited by Jad Mills

Crispin v. Christian Audigier, Inc., CV 09-09509-MMM-JEMx (C.D. Cal. May 26, 2010)
Order

The Central District of California reversed and quashed Magistrate Judge McDermott’s order granting a subpoena to obtain private Facebook and MySpace messages and vacated and remanded his order granting a subpoena to obtain Facebook wall postings and MySpace  comments.

Judge Morrow held that private messages sent using Facebook and MySpace fall under the protections of the Stored Communications Act (“SCA”), 18 U.S.C. 2701, which limits the government’s ability to compel Internet service providers to “disclose information in their possession about their customers and subscribers.” He further held that the wall postings and comments also fall under the SCA, but only to the extent that the communications are not public, and remanded to determine the public access allowed under the user’s privacy settings. In so holding, the court provided a detailed analysis of the SCA and noted the difficulty of applying the SCA to modern internet communications.

The Technology & Marketing Law Blog provides an overview of the order and comments on the difficulty of gathering evidence from private Facebook profiles and messages through subpoenas. The Federal Lawyer describes some of the restrictions the SCA places on discovery. (more…)

Posted On Jun - 11 - 2010 1 Comment READ FULL POST

By Chinh Vo

Spyware Vendor Settles Suit with FTC, Promises To Take Steps To Reduce Misuse

Ars Technica reports that software company Cyber Spy has agreed to cease marketing its keystroke-logging spyware in a way that attracts malicious users. The company’s promise is part of a settlement with the FTC, which charged Cyber Spy in 2008 with unfair selling and advertising because its Remote Spy product provided customers with instructions for attaching spyware to emails in order to track a target’s keystrokes and online activities. The district court in the case issued an injunction, temporarily banning Cyber Spy from selling Remote Spy. Under this settlement, Cyber Spy promises to stop promoting its Remote Spy application as a “100% undetectable” way to “Spy on Anyone. From Anywhere.” The company must also warn purchasers that using the software improperly may violate the law and take other steps to prevent malicious use of its product.

Lawyers Claim Google Deliberately Collected Data from Wi-Fi Networks

Wired reports that lawyers suing Google have claimed that a 2008 patent application demonstrates that the company deliberately programmed its Street View cars to collect private data from open Wi-Fi networks. Google is facing several class action lawsuits following its disclosure that its Street View cars intercepted Wi-Fi traffic, an action that the internet giant attributes to coding error. According to the lawyers, the patent application describes a method for increasing the accuracy of location-based services by intercepting data. Google spokeswoman Christine Chen stated that, despite the lawyers’ claims, the patent application “is entirely unrelated to the software code used to collect Wi-Fi information with Street View cars.” She added that not all of the patent applications that Google files “mature into real products or services,” but did not comment on whether Google has actually used the methods described in the particular patent application in question.

USPTO Proposes Fast Track To Expedite Patent Application Review

The Wall Street Journal reports that the U.S. Patent and Trademark Office is proposing a new three-track system that would allow applicants to pay an undisclosed premium, on top of the $1090 filing fee, to expedite review of their applications. Currently, the USPTO reviews patent applications mostly on a first-come, first-served basis. In a press release, USPTO Director David Kappos stated that “traditional ‘one-size-fits-all’ examination timing may not work for all applicants” and emphasized a goal of promoting efficiency. The USPTO has faced growing complaints from businesses due to its increasing backlog; last year it took 34.6 months on average for patent applications to be reviewed. The proposal could go into effect next year following a public comment period.

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

Federal Circuit Chooses Absurdity Over Judicial Claim Redrafting
By Chinh Vo – Edited by Jad Mills

Haemonetics Corp. v. Baxter Healthcare Corp., No. 2009-1557 (Fed. Cir. June 2, 2010)
Slip Opinion

On June 2, 2010, the Court of Appeals for the Federal Circuit reversed the claim construction of the District Court for the District of Massachusetts and vacated a jury verdict in favor of the plaintiff in a patent infringement suit.

Haemonetics Corp. (“Haemonetics”) had filed a patent infringement lawsuit against Fenwal Inc. (“Fenwal”) alleging infringement of its patent for a compact blood centrifuge device. The district court, after construing the last two references to the term “centrifugal unit” in claim 16 as referring to only the centrifugal vessel and not also its adjoining tubing, had awarded over $11.3 million in lost profits damages and over $4.3 million in reasonable royalty damages. The appeals court disagreed with the district court’s claim construction, noting that language from the claim preamble clearly defined a centrifugal unit as including both “a centrifugal component and a plurality of tubes.” The court then vacated and remanded the jury verdict, the district court’s grant of judgment as a matter of law (“JMOL”) that claim 16 was not indefinite, the district court’s denial of JMOL that claim 16 was neither anticipated by prior invention nor obvious, and the district court’s award of prospective remedies, finding that all of these determinations relied on the district court’s erroneous claim construction.

The Patent Prospector provides an overview of the case. Top Legal News summarizes the holdings in the case. (more…)

Posted On Jun - 6 - 2010 Comments Off READ FULL POST

Federal Circuit Affirms Dismissal of Patent Infringement Suit on Grounds of Equitable Estoppel
By Abby Lauer – Edited by Chinh Vo

Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., No. 2009-1147 (Fed. Cir. May 24, 2010)
Slip opinion

In a recent opinion, the Federal Circuit affirmed the U.S. District Court for the Southern District of New York, which had granted defendant Clariti’s summary judgment motion to dismiss a patent infringement lawsuit brought by plaintiff Aspex.

The Federal Circuit held that Aspex’s lawsuit was properly dismissed on grounds of equitable estoppel. Because Aspex waited three years after initially accusing Clariti of patent infringement to bring a lawsuit, the court agreed with the district court that the elements of equitable estoppel had indisputably been established. In so holding, the court revived an infrequently-applied doctrine first established by the Federal Circuit’s 1992 en banc decision in A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020 (Fed. Cir. 1992).

IPWatchdog and Inventive Step provide an overview of the case. (more…)

Posted On Jun - 2 - 2010 Comments Off READ FULL POST
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