United States v. Google, Inc.
By Casey Holzapfel – Edited by Charlie Stiernberg

United States v. Google, Inc., No. CV 12-04177 SI (N.D. Cal. Nov. 16, 2012)
Slip Opinion

The United States District Court for the Northern District of California approved a proposed consent order between the United States and Google that requires Google to pay a $22.5 million civil penalty. Amicus curiae Consumer Watchdog was granted leave to submit a brief challenging the stipulated consent order, after it was filed in August. District Judge Susan Illston was not persuaded by Consumer Watchdog’s brief, however, and rejected its challenge.

The settlement is the result of allegations by the United States that Google violated a previous consent order with the Federal Trade Commission (“FTC”) by overriding Safari software that blocked cookies and secretly collecting cookies from Safari users without authorization. The settlement includes a $22.5 million civil penalty as well as an injunction against Google; however, Google is not required to admit liability.

Bloomberg provides an overview of the order. Newsday details Consumer Watchdog’s other allegations, including a suggestion that FTC’s separate antitrust investigation of Google may be weak. Forbes provides an overview of the settlement proposed in August.

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By Craig Fratrik

USPTO Director Kappos to Leave in January

David Kappos, the director of the United States Patent and Trademark Office (“USPTO”) announced he would leave his position in January, reports Ars Technica. He has served since being confirmed in August, 2009. During his tenure, he successfully reduced the backlog of pending applications, as the chart at PatentlyO shows. In the week before his departure, he spoke strongly in defense of software patents, and the patent system as it stands generally.

SCOTUS to Hear Case on Patentability of Human Genes

In the case, Association for Molecular Pathology v. Myriad Genetics, Inc., the Supreme Court granted certiorari on the question, “Are human genes patentable?” The patent concerns genes which are somewhat predictive of breast and ovarian cancer. In March, the Court remanded the case back to the Federal Circuit in light of their ruling in Prometheus. In August, the Federal Circuit reaffirmed their ruling. PatenltyO does not anticipate a decision until the end of the spring term. See also Wired and Ars Technica.

Syria Cut Off from Internet for 38 Hours

Ars Technica reports that the country of Syria was cut off from the Internet for more than 38 hours starting on Thursday. The blackout was more thorough than the one in Egypt in January, probably because Syria had consolidated its network traffic to a greater extent. Government claims that “terrorists” were the cause were viewed skeptically by many, including the EFF. The EFF further reports on the ways in which Syrians have worked around the blackout to connect to the outside world.

District Court Rules Against Injunctions from RAND Standards Patents

A district court judge in Seattle ruled that Motorola could not get injunctive relief against Microsoft based on patents that were used in open standards, AllThingsD reports. Such patents are required to be licensed in a “reasonable and non-discriminatory” (“RAND”) manner. Ars Technica points out that this hurts Google and Android-based manufacturers who were hoping to use such patents as to defend themselves in lawsuits against competitors. Further, the question remains how the ITC will rule, since it can’t award monetary damages, but can ban imports, which is very similar to an injunction.

Novartis AG v. Kappos
By Kathleen McGuinness – Edited by Jennifer Wong

Novartis AG v. Kappos, No. 10-cv-1138 (D.D.C. Nov. 15, 2012)
Slip opinion

In a lawsuit challenging the U.S. Patent and Trademark Office’s (“USPTO”) determination of patent term adjustments for twenty-three Novartis patents, the United States District Court for the District of Columbia granted partial summary judgment in Novartis’s favor on four patents. However, the court rejected tolling arguments that would have allowed challenges regarding the other nineteen patents to survive, granting partial summary judgment in favor of the USPTO on the remaining complaints.

Patent Docs explains the facts and holding of the case in more detail. PharmaPatents outlines the significant legal issues decided.

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Edwards Lifesciences v. CoreValve
By David LeRay – Edited by Dorothy Du

Edwards Lifesciences v. CoreValve, No. 2011-1215, -1257 (Fed. Cir. Nov. 13, 2012)
Slip opinion

The Federal Circuit affirmed in part and remanded in part the United States District Court for the District of Delaware, which had found that CoreValve infringed upon Edwards Lifesciences’ heart valve patent and awarded lost profits damages, but did not issue an injunction.

The Federal Circuit affirmed the lower court’s claim construction and the findings of validity and infringement. The patent at issue was Patent No. 5,411,552, entitled “Valve Prosthesis for Implantation in the Body and a Catheter for Implanting Such Valve Prosthesis.” The patent relates to prosthetic heart valves that can be implanted without open heart surgery, known as transcatheter aortic valve implantation (TAVI).

Businessweek and Reuters both provide an overview of the case. Patent Hawk argues the decision was overly favorable to the patent holder plaintiff because of the low enablement threshold and the forgiving analysis of the eBay injunction factors.

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Fox Broad. Co. v. Dish Network L.C.C.
By Charlie Stiernberg – Edited by Laura Fishwick

Fox Broad. Co. v. Dish Network L.C.C., No. CV 12-04529 DMG (C.D. Cal. Nov. 12, 2012)
Slip opinion (hosted by Scribd)

The District Court for the Central District of California denied plaintiff Fox Broadcasting Company’s (“Fox”) motion for preliminary injunction against defendant Dish Network’s (“DISH”) “PrimeTime Anytime” (“PTAT”) and “AutoHop” set-top box (“STB”) features, finding that while Fox established a likelihood of success on the merits of some of its claims, it failed to demonstrate irreparable harm in the absence of an injunction.

Addressing the merits of each of Fox’s claims, Judge Dolly M. Gee held that Fox failed to establish a likelihood of success on the merits of its derivative infringement, reproduction right and breach of contract vis-à-vis PTAT, and distribution right claims, but successfully established a likelihood of success on the merits with respect to its reproduction right and breach of contract claims vis-à-vis the AutoHop feature. However, because the alleged harms that Fox would suffer were essentially contractual in nature, the court found that the injuries would be compensable with money damages and would therefore not support a finding of irreparable harm.

The Hollywood Reporter provides an overview of the order. Techdirt opines that the decision was a net win for DISH and criticizes the court’s fair use analysis with respect to the AutoHop feature. FierceCable includes a short statement from DISH Executive Vice President and General Counsel, R. Stanton Dodge.

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