A student-run resource for reliable reports on the latest law and technology news
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Silk Road 2.0 Takedown Indicates Law Enforcement May Have Developed a Method to Trace Hidden Tor Websites

By Steven Wilfong — Edited by Travis West

The complaint filed against Blake Benthall, the alleged operator of Silk Road 2.0, indicates that the FBI identified a server that was used to host the popular drug market website, despite the fact that the website’s location was hidden by the Tor anonymity software.  Law enforcement may have developed a method of compromising Tor anonymity, a possibility that would prove useful in future operations, but that also raises concerns for legitimate users.

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Federal Circuit Flash Digest: News in Brief

By Ken Winterbottom

Motion to Dismiss in Hulu Patent Infringement Suit Affirmed

“Virtual Classroom” Patent Infringement Case Remanded for Further Determination

Attorney Publicly Reprimanded for Circulating Email from Judge

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Spain Passes a “Google Tax,” Analysts Predict it Will be Short-Lived

By Michael Shammas — Edited by Yixuan Long

Spain recently amended its Intellectual Property Law and Code of Civil Procedure to levy fees on aggregators that collect snippets of other webpages. It is at least the third example of a European government fining search aggregators to support traditional print publishing industries, a practice often labeled a “Google tax” because of the disproportionate impact such laws have on the search giant. Some analysts are already predicting that Spain’s new law will fail.

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Federal Circuit Tightens Patent Standing Requirement in Azure Networks

By Kathleen McGuinness – Edited by Sabreena Khalid

In Azure Networks, LLC v. CSR PLC, the Federal Circuit ruled that patent owners who had licensed “all substantial rights” to a third party could not be joined as plaintiffs in a suit on that patent. The court also reaffirmed the high bar to proving that a patentee has redefined a well-understood technical term.

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Flash Digest: News in Brief

By Viviana Ruiz

Russia’s Intellectual Property Court affirms denial of Ford’s trademark application

Contrary to its advertising efforts, Red Bull does not give you wings

Federal Court rules that food flavors are not trademarkable

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By Mengyi Wang – Edited by Suzanne Van Arsdale

X2Y Attenuators, LLC v. Int’l Trade Comm’n, No. 2013-1340 (Fed. Cir. July 7, 2014)

Slip Opinion

The United States Court of Appeals for the Federal Circuit unanimously affirmed a decision of the International Trade Commission (“ITC”), which had held that Intel Corporation and other intervenors (“Intel”) did not violate 19 U.S.C. § 1337, because patents held by X2Y Attenuators, LLC (“X2Y”) did not cover their products. X2Y Attenuators, LLC v. Int’l Trade Comm’n, slip op. at 2. While the language of the claims encompassed the accused products, the Federal Circuit affirmed the ITC’s narrow claim construction based on specification disavowal.

The dispute involved three of X2Y’s  patents—U.S. Patents No. 7,609,500 (“the ’500 patent”), No. 7,916,444 (“the ’444 patent”), and No. 8,023,241 (“the ’241 patent”)—which relate to structures for reducing electromagnetic interference in electrical circuits. Id. at 2–3. X2Y initially filed a complaint with the ITC, alleging that Intel had illegally imported certain microprocessor products in violation of 19 U.S.C. § 1337. Id. at 5. The dispute centered on the construction of the electrode terms. While the patents disclose alternating arrangements of shielded and shielding electrodes, they do not specify their relative configuration. Id. at 3, 5. The ITC construed the claims narrowly to require the “sandwich” configuration, asan arrangement of three electrodes in which a center conductor is flanked by paired differential, or oppositely charged, conductors.” Id. at 5–6. X2Y conceded non-infringement according to the ITC’s claim construction and appealed the determination. Id. at 6.

On appeal, the Federal Circuit endorsed ITC’s construction of the electrode terms based upon specification disavowal. Citing GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304 (Fed. Cir. 2014) and Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002), the court explained that the patents’ specification referring to the sandwich configuration as an “essential element among all embodiments or connotations of the invention” and“universal to all the embodiments” plainly indicates an intention to limit the claim scope. Id. at 7–8. This intention was buttressed by the passage stating that the general sandwich configuration stays the same regardless of change of material. Id. at 8. Accordingly, the exacting standard of finding disavowal was met. Id. at 8.

X2Y further contended that the disclaimers appearing only in priority patents were inapplicable to asserted patents related to them only as continuations-in-part. However, the court rejected that argument, noting that, not only does the ’500 patent explicitly contain the “essential element” label, but the ’500 and ’444 patents also incorporate, by reference, priority patents that include the “feature universal” and “essential element” disavowals. Id. at 8–9. Since the disclaimers of the incorporated patents become part of the asserted patents, and the context of the disclosure of the host patent is insufficient to rebut the disclaimers, the court found that ITC has correctly construed the electrode terms. Id. at 9–10.

Judge Reyna joined the court’s opinion in its entirety but wrote a concurrence, stating that the administrative law judge and the ITC reached the correct construction through an erroneous path by failing to “objectively construe the asserted claims before deciding whether the claims were entitled to priority.” Id. at 12 (Reyna, J., concurring).

Patently-O notes that the decision unfortunately reinforces the current patent drafting norm that decreases the disclosure value of a patent: no elements are disclosed as “necessary, critical, preferred, or even discouraged” so that patentees can conceal their inventions’ true characteristics to minimize their susceptibility to narrow constructions of claims. 

 

Posted On Jul - 15 - 2014 Comments Off READ FULL POST

Icon-newsBy Kellen Wittkop

Dismissal of Suit for Violation of False Marketing Affirmed Due to Lack of Standing after Elimination of qui tam Provision

The United States Court of Appeals for the Federal Circuit in Stauffer v. Brooks Brothers Group, Inc., 13-1180 (Fed. Cir. July 10, 2014) affirmed the United States District Court for the Southern District of New York’s decision to dismiss the suit for lack of standing, holding that after elimination of the qui tam provision of the false-marketing statute by the America Invents Act (“AIA”), the pro se plaintiff-appellant no longer had standing in the pending litigation.  Stauffer at 14.  The AIA “made three significant changes to the false-marketing statute that affected Mr. Stauffer’s claim,” the most influential of which was the elimination of the statute’s qui tam provision making it so that “only a ‘person who has suffered a competitive injury’ may bring a claim.”  Id. at 3 (citing AIA § 16(b)(2)).  Mr. Stauffer argued that, first, the retroactive application of the AIA amendments constituted a mass pardon which Congress could not grant, and, second, that the retroactive amendments violated the common-law principle of prohibiting use of a pardon to negate theaction once it has begun, id. at 7, but the Federal Circuit disagreed on both points, id. at 11–12.  Milbank provides an in-depth discussion of the case.

Summary Judgment Affirmed for Subject Matter Ineligibility of Claims for Infringement of “Device Profile” Generation and Use

The United States Court of Appeals for the Federal Circuit in Digitech Technologies v. Electronics for Imaging, Inc., 13-1600 (Fed. Cir. July 11, 2014) affirmed the United States District Court for the Central District of California’s grant of summary judgment to several defendants, concluding that the device profile in the ’415 patent does not fall within any category of eligible subject matter.  Digitech Technologies at 7.  The patent at issue (U.S. Patent #6,128,415) covers “the generation and use of an ‘improved device profile’ that describes spatial and color properties of a devise within a digital image processing system.”  Id. at 5.  Consistent with the findings of the District Court, the Federal Circuit held that under 35 U.S.C. § 101, a device profile did not fall within any eligible categories of subject matter because it was not tangible or physical.  Id. at 7.  Additionally, the Federal Circuit applied the recent Supreme Court ruling in Alice Corp. v. CLS Bank Int’l, 573 U.S. ___, No. 13-298 (June 19, 2014), which concluded that fundamental concepts are by themselves ineligible abstract ideas. Id. at 10.  Law360 provides coverage of the case.

Posted On Jul - 15 - 2014 Comments Off READ FULL POST

Icon-newsBy Olga Slobodyanyuk

BP Fails to Trademark the Color Green in Australia

British Petroleum (“BP”) lost its 22-year-old legal battle in Australia to trademark the dark green shade that dominates its logo, reports The Guardian. The governmental agency that administers intellectual property rights, IP Australia, found that BP did not show “convincing evidence” that the fuel company was linked in consumers’ minds with the green shade known as Pantone 348C. According to Corporate Council, despite the failure in Australia, BP has trademarked the color in the UK and Europe, and has protected its use in marketing fuel and service stations in the U.S.

The FTC Sues Amazon over Children’s Purchases in Apps

The Federal Trade Commission (FTC) filed a lawsuit against Amazon.com, alleging that the online retailer allowed children to make purchases within apps and online games without their parents’ permission, reports Forbes. The FTC is seeking refunds for consumers for all such purchases, as well as changes to Amazon’s in-app commerce policies, according to The Washington Post. In a public letter to the FTC, Amazon responded that it has consistently improved it’s in-app buying services and has been promptly responding to customer concerns. Forbes reports that Amazon keeps 30% of in-app purchase revenue and keeps all sales final and non-refundable. FTC has investigated similar problems with Apple and had a multimillion dollar settlement with the company earlier this year.

Leaked Code Reveals that NSA is Targeting Users of Privacy Services

An analysis of leaked code used to conduct internet surveillance reveals that users who visit privacy and anonymity websites are targeted by the NSA, reports the Electronic Frontier Foundation (EFF). The code, a tool called Xkeyscore, “fingerprints,” or marks for further investigation, users who access privacy services such as Tor, Tails, HotSpotShield, FreeNet, Centurian, and Linux Journal, a monthly magazine about the open-source operating system (which the NSA labeled as an “extremist forum” for advocating for privacy services use), reports Wired. Privacy services are used by journals, human rights advocates, and political dissidents, among others. According to the general deputy council of the EFF, visiting privacy websites and reading Linux Journal are protected First Amendment activities, essential to freedom of expression, which cannot be targeted under the Foreign Intelligence Surveillance Act.

Posted On Jul - 15 - 2014 Comments Off READ FULL POST

The PCLOB’s Recommendations for a More Reasonable Surveillance Program
By Max Kwon – Edited by Sarah O’Loughlin

Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act

Report

Security CameraOn July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued a report analyzing the legal and policy implications of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Section 702 was introduced by Congress through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to “jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United State, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information.”  Report at 6. The PCLOB concluded that “the core Section 702 program is clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” Id. at 15, but noted that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.” Id. at 11. In order to “ensure that the program remains tied to its constitutionally legitimate core,” the PCLOB outlined a set of ten policy proposals aimed at increasing accountability, transparency, and efficacy of the surveillance program. Id. at 9.

Pursuant to Section 702, the Attorney General and Director of National Intelligence can make annual certifications that identify categories of information to be collected without specifying the particular non-U.S. persons who will be targeted. Id. Although Section 702 requires the government to develop targeting and “minimization” procedures in order minimize “incidental” or “inadvertent” surveillance of U.S. persons, the PCLOB stated that “certain features of the [Section 702] program implicate privacy concerns” regarding the scope and usage of U.S. person communications that are collected. Id. at 6–10.

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Posted On Jul - 14 - 2014 Comments Off READ FULL POST

By Max Kwon – Edited by Sarah O’Loughlin
USPTO Memo on Alice Corporation Pty. Ltd. V. CLS Bank International, et al. (June 25, 2014).

Memorandum.

IdeaIn response to the Supreme Court’s recent decision to invalidate four software patents in Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014) (“Alice”), Andrew H. Hirshfeld, Deputy Commissioner for Patent Examination Policy for the U.S. Patent and Trademark Office (USPTO), issued a memorandum to the Patent Examining Corps “to provide preliminary instructions…relating to subject matter eligibility of claims involving abstract ideas, particularly computer-implemented abstract ideas, under 35 U.S.C. § 101.”

In the memorandum, Hirshfeld stated that in accordance with Alice, the USPTO will now require “all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101” to be analyzed under the framework outlined in  Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) (“Mayo”). Id. at 1.

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Posted On Jul - 7 - 2014 2 Comments READ FULL POST
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