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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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TiVo Wins Five Year Battle Over Patent Infringement with EchoStar
By Katy Yang – Edited by Kassity Liu

TiVo Inc. v. EchoStar Corp., No. 2009-1374 (E.D. Tex., March 4, 2010)
Slip Opinion

The United States Court of Appeals for the Federal Circuit affirmed a decision by the United States District Court for the Eastern District of Texas, which had found EchoStar in contempt of a permanent injunction order that was issued by the court in an earlier judgment in which two types of EchoStar receivers were found to infringe on TiVo’s time-shift technology patent. The order had required EchoStar “to stop making, using, offering to sell, and selling the receivers”  and “to disable the DVR functionality in existing receivers, with the exception of select receivers that had already been placed with its subscribers.”

The Federal Circuit held that the district court did not abuse its discretion in holding contempt proceedings for adjudicating the continued infringement of EchoStar’s redesigned receivers, nor did it commit clear error in finding continued infringement by these receivers. It also held that the district court’s injunction was clear enough to provide reasonable notice of the order to disable the DVR function in all infringing receivers, and upheld the provision of the injunction requiring EchoStar to notify the court of additional redesign attempts and to seek approval before executing a design-around.

Bloomberg and the Associated Press provide overviews of the case.  Gordon Patent Cases summarizes some of the legal issues in the decision, and Beta News provides a detailed comparison of the majority and dissenting opinions. (more…)

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

Supreme Court Holds That Federal Courts Have Jurisdiction over Unregistered Copyright Claims
By Debbie Rosenbaum – Edited by Gary Pong

Reed Elsevier v. Muchnick, No. 08–103 (U.S. Mar. 2, 2010)
Slip Opinion

In a unanimous 8-0 decision, the United States Supreme Court overturned a Second Circuit Court of Appeals decision which held that the district court lacked jurisdiction to certify either the class or the settlement in a case involving holders of unregistered copyrights. The Court of Appeals for the Second Circuit had held in a sua sponte decision that a copyright holder’s failure to comply with § 411(a)‘s registration requirement deprives a federal court of subject-matter jurisdiction to adjudicate his copyright infringement claim. The Supreme Court disagreed.

Justice Sotomayor did not take part in the decision, perhaps because she was a member of the Second Circuit Court that decided not to rehear the case en banc.  The Supreme Court decision revived a possible $18 million settlement between freelance writers, publishers and electronic database owners, involving payment to freelance writers for online use of their work — even when some writers have not registered their copyright.

The New York Times and TechDirt both provide overviews of the decision.  The Legal Information Institute at the Cornell University Law School provides a detailed analysis of the issues underlying this case. (more…)

Posted On Mar - 5 - 2010 Comments Off READ FULL POST

By Tyler Lacey

RealNetworks Won’t Appeal Decision Declaring Its DVD Copying Software in Violation of DMCA

On March 4, Wired reported that RealNetworks plans to cease litigation of a lawsuit filed by the Motion Picture Association of America (“MPAA”) alleging that its DVD copying software, RealDVD, violates the Digital Millennium Copyright Act (“DMCA”).  RealNetworks had initially planned to appeal a California district court’s decision that the software illegally circumvented the DVD encryption technology, Content Scramble System. However, after two years of litigation, RealNetworks has decided not to appeal in an effort to cut its losses, which according to Wired amount to “millions of dollars, including $4.5 million to reimburse the MPAA for its legal costs.”  Wired argues that “RealNetworks’ admitted defeat solidifies the DMCA’s power.”

Google Obtains Patent on Location-Targeted Advertising Method

Mashable reports that Google obtained a patent for “determining and/or using location information in an ad system” on February 23. The patent, which Mashable characterizes as “broad,” was filed on April 12, 2004.  Mashable also reports that since the patent’s filing date, several companies have started practicing a method of targeting advertisements based on an individual’s location, with AdMob and Quattro Wireless “leading the charge.”  Quattro Wireless has been acquired by Apple, which Mashable notes is “quickly becoming [Google’s] primary rival” in mobile advertising.  The patent abstract states in part that the patented method “may be used in a relevancy determination of an ad” and that “[a]d performance information may be tracked on the basis of location information.”

Canadian Government to Allow Increased Foreign Investment in Telecommunications Industry

On March 4, CBC News reported that the Canadian government is planning to loosen foreign ownership restrictions on telecommunications companies as a part of its new budget proposal.  The new rules will initially allow foreign startups and acquisitions of small companies, and will allow foreign takeovers of larger companies within five years. According to the article, there are currently restrictions in place designed to ensure Canadians are in control of any telecommunications carriers that operate in Canada, including minimum levels of Canadian board membership and ownership of voting shares. Industry experts argue that the old rules are “archaic and anti-competitive,” and are the reason “prices have been high and service levels low.” According to Canada’s Governor General Michaëlle Jean, the new rules will give “Canadian firms access to the funds and expertise they need.”

Posted On Mar - 5 - 2010 Comments Off READ FULL POST

Court Excludes Litigation Fees from Calculation of Damages under DMCA § 512(f).
By Debbie Rosenbaum – Edited by Gary Pong

Lenz v. Universal Music Corp., Case No. 5:07-cv-03783-JF (N.D. Cal., Feb. 25, 2010)
Slip Opinion
(Hosted by the Citizen Media Law Project)

On February 25, 2010, Judge Fogel for the Northern District of California held that a plaintiff suing over a wrongful Digital Millennium Copyright Act (“DMCA”) takedown notice can only recover for damages that were proximately caused by said notice.  This effectively limits the plaintiff’s recovery to attorney’s fees for pre-litigation activities such as the filing of the DMCA counter-notification.  To recover for attorney’s fees incurred in the actual § 512(f) suit, the plaintiff’s only recourse is in 17 U.S.C. § 505 of the Copyright Act – providing that “the court in its discretion may allow the recovery of full costs … [or] reasonable attorney’s fee to the prevailing party.”  In so holding, the court  may actually be discouraging 512(f) plaintiffs from bringing suit by limiting their compensable damages.

Ars Technica and Copyrights & Campaigns provide a general overview of the decision.  The Citizen Media Law Project offers briefs of all portions of the case. (more…)

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

For in rem Jurisdiction, Ninth Circuit Holds That Domain Names Are Located Where the Registry is Located
By Elizabeth Akerman – Edited by Gary Pong

Office Depot, Inc. v. Zuccarini, Case No. 07-16788 (9th Cir., Feb. 26, 2010)
Slip Opinion

The U.S. Court of Appeals for the Ninth Circuit affirmed the decision by the District Court for the Northern District of California to grant DS Holdings’ motion to appoint a receiver to auction off Zuccarini’s domain names and use the proceeds to satisfy an earlier judgment against him.

To arrive at its conclusion, the court held that under California law “domain names are intangible property subject to a writ of execution” and that “domain names are located where the registry is located for the purpose of asserting quasi in rem jurisdiction.” The court also noted in dicta that for in rem jurisdiction, domain names are located where the relevant registrar is located.

The Seattle Trademark Lawyer provides an overview of the case and the Technology & Marketing Law Blog provides an analysis of the decision. (more…)

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