N.D.Cal. Grants Preliminary Injunction Requiring ODNI to Turn Over FISA-Related Documents

By Yelena Shagall — Edited by Wen Bu

Electronic Frontier Foundation, Inc. v. Office of the Director of National Intelligence, No. C 07-5278 SI
District Court for the Northern District of California, November 27, 2007
Order

On November 27, the District Court for the Northern District of California granted in part and denied in part a motion by the Electronic Frontier Foundation (EFF) for a preliminary injunction against the Office of the Director of National Intelligence (ODNI) ordering release under the Freedom of Information Act (FOIA) of communications concerning proposed amendments to the Foreign Intelligence Surveillance Act (FISA). The court ordered ODNI to provide an initial release by November 30, to provide a final release of all documents by December 10, and to provide an affidavit with its final release explaining why it withheld any withheld documents.

The court first held that a preliminary injunction may be granted in FOIA cases. It then found that EFF was entitled to a preliminary injunction. The court reasoned that EFF would likely prevail on the merits of its FOIA claim and suffer irreparable injury in the absence of relief; ODNI would not be burdened; and the public interest favored the injunction.

The court noted ODNI’s failure to justify its request to extend its response time from 20 days to 4 months and the irreparable harm to the public that would result from its inability to access information on the pending FISA amendments until after the Congressional vote expected before the end of the year. The court suggested that ODNI’s objections to the burdens imposed by compliance with FOIA should be addressed to Congress rather than the courts.

EFF issued a press release touting the importance of the order, as well as an earlier release explaining its pursuit of the case.
Kim Curtis of the Associated Press calls the order a “minor victory” in EFF’s challenge to the Bush administration’s domestic surveillance program.
Glenn Greenwald of Salon.com considers the order a significant victory for EFF, and argues it will provide the public with vital information concerning extensive lobbying and donations from the telecommunications industry to influence Congress to grant immunity from “past lawbreaking.”
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Federal Circuit Decides to Rehear Important Design Patent Case En Banc

By Andrew Ungberg – Edited by Wen Bu

Egyptian Goddess, Inc., v. Swisa, Inc.
Federal Circuit, November 26, 2007, No. 2006-1562
Order

Update: On September 22, 2008, the en banc Federal Circuit affirmed the decision of the District Court for the Northern District of Texas, which had granted summary judgment in favor of Swisa, Inc, finding that no jury could reasonably find Swisa’s nail-buffer design infringed Egyptian Goddess’s design patent. Digest covers the recent decision here.

For more history on the original Federal Circuit opinion and order to vacate, read on.

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Federal Circuit Clarifies Rule on Completeness of Patents in a Sequence

By Sarah Sorscher — Edited by Johnathan Jenkins

Zenon Environmental, Inc. v. United States Filter Corp.
Federal Circuit, November 7, 2007, No. 2006-1266
Slip Opinion

On November 7, the Federal Circuit reversed the District Court of the Southern District of California, which had found Zenon’s patent for a water filtration device not invalid by reason of anticipation in a bench trial.

The Federal Circuit held that, because an intervening patent failed to contain an essential element of the patent at issue, the patent at issue was indeed invalid by reason of anticipation. At issue was the correct application of 35 U.S.C. § 120, which entitles an inventor to maintain the benefit of the filing date of the earliest patent in a sequence, provided subsequent patents remain linked to that first patent by an unbroken chain of disclosures.

Dennis Crouch of Patently-O provides further details on the holding.
PLI’s Gene Quinn takes issue with the court’s decision to resolve the case as a matter of law.

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Ninth Circuit Allows Individuals to Use Devices to Decrypt Satellite Television Signals

By Nick Bramble — Edited by Wen Bu

DirecTV, Inc. v. Huynh
Ninth Circuit, No. 05-16361, September 11, 2007
Slip Opinion

Faced with the question of how to resolve a provision of the Federal Communications Act banning the assembly and modification of devices primarily designed for the unauthorized decryption of satellite signals, the Ninth Circuit held on September 11 that this provision applies only to “assemblers, manufacturers, and distributors of piracy devices” and not individual end users of such devices.

Jennifer Granick expects that the ruling will “prevent[] satellite and cable TV companies from piling on excessive damages that would punish and chill legitimate encryption research.”
Declan McCullagh discusses the various legal and illegal uses of the smart card devices purchased by defendants.

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European Court of First Instance rejects Microsoft challenge to European Commission decision

Edited by Johnathan Jenkins

Judgment T-201/04
Full opinion
European Court of First Instance summary and press release

On September 17, the European Court of First Instance rejected Microsoft’s challenge to the European Commission’s 2004 determination that Microsoft “abused a dominant market position” by:

1. refusing to supply competitors with proprietary “interoperability information” necessary to develop products that would compete with Microsoft workgroup server products, and
2. bundling Windows Media Player with Windows operating systems, without an unbundling option, between 1999 and 2004.

In its 2004 determination, the Commission imposed a fine of nearly €500 million, which the Court left unchanged. Microsoft may appeal the decision to the European Court of Justice within 60 days.

The court sided with Microsoft on one procedural issue, holding that the Commission exceeded its authority in requiring Microsoft to appoint a monitoring trustee with powers independent of the Commission at the company’s own expense. Microsoft itself acknowledged, however, that the trustee issue was relatively unimportant.

BBC News summarizes the decision.
Microsoft issued a statement shortly after the decision was issued.
The EU Law Blog comments on the trustee issue.