A student-run resource for reliable reports on the latest law and technology news
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U.S. Marshals Service Uses Airborne “Dirtboxes” to Collect Cell Phone Data

By Katherine Kwong – Edited by Mengyi Wang

The U.S. government has been using “dirtboxes” to collect cell phone data. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on numerous Americans not suspected of any crime. While many commentators express concern about the program’s legality, others argue that the program is an effective method of catching criminals.

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Federal Circuit Flash Digest: News In Brief

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

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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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By Sharona Hakimi

EU Court Advisor Supports Google Keyword Searches in Trademark Suit

On September 22, Reuters reported that an advocate general to the European Court of Justice, the EU’s highest court, stated that Google did not infringe trademark rights of luxury goods maker Louis Vuitton (LVMH). Google sells keywords that use the company’s trademarks, but Advocate General Poiares Maduro concluded that trademark protections do not extend to search advertising keywords because they are not considered a product sold to the public. ZDNet’s Richard Koman argues that this decision does not account for brand confusion arising from keyword searches, and demonstrates the court’s “misunderstanding of the Web as something tangential to ‘real’ commerce.” Although the Luxembourg-based court follows the opinions of its advocates general in most cases, the judges will give their final judgment at a later date.

Facebook Shuts Down Beacon Ad Software as Part of Lawsuit Settlement

Ars Technica reports that on September 18, Facebook announced it will shut down its controversial Beacon ad software as part of a settlement for a class-action privacy suit. The Beacon software, launched in November 2007, allowed off-Facebook activities to be published in users’ news feeds without their explicit consent. After over a year of legal disputes regarding the software, Facebook decided to settle with complaining users, agreeing to discontinue Beacon and offering $9.5 million to create a foundation that would “fund projects and initiatives that promote the cause of online privacy, safety, and security.” Facebook’s director of policy communications said that the company has “learned a great deal from the experience.” The settlement proposal still awaits a district court judge’s approval.

FCC Proposes Net Neutrality Rules for Internet Service Providers

The New York Times reports that on September 12, the chairman of the Federal Communications Commission proposed new regulations regarding net neutrality for Internet service providers. The proposal would bar providers from blocking or slowing Internet traffic on the basis of content. Consumer advocates of the policy say networks should not be able to deter users from accessing lawful Internet content or applications by restricting bandwidth. Wired’s Dylan Tweeny warns that the proposed rules may be difficult to enforce, stifle overall service due to capacity limitations, and decrease innovation in a market that has flourished without government intervention. The rules will formally be proposed in an open FCC meeting in October.

Posted On Oct - 5 - 2009 Comments Off READ FULL POST

The Federal Circuit Provides Protection to Medical Diagnostics
By Brittany Blueitt – Edited by Caity Ross

Prometheus Labs., Inc. v. Mayo Collaborative Servs., Case No. 2008-1403 (Fed. Cir. Sept. 16, 2009)

The United States Court of Appeals for the Federal Circuit (“Federal Circuit”) reversed the ruling of the United States District Court for the Southern District of California granting summary judgment of invalidity of U.S. Patents 6,355,623 (“the ’623 patent”) and 6,680,302 (“the ’302 patent”) under 35 U.S.C. § 101.

Circuit Judge Lourie delivered the opinion of the court, holding that patents claiming a method of treatment were drawn to patentable subject matter based on transformative administering and determining steps of the process. In so holding, the court noted that the “key issue for patentability” is “whether a claim is drawn to a fundamental principle or an application of a fundamental principle.” Prometheus Labs., Inc. v. Mayo Collaborative Servs., No. 2008-1403, slip op. at 8 (Fed. Cir. Sept. 16, 2009).

Patently O provides an overview of the case. Patent Docs features a thorough analysis of the decision. (more…)

Posted On Oct - 3 - 2009 Comments Off READ FULL POST

Dear Readers -

Digest is back! Our site has been down the past 3 weeks due to a server crash, but thanks to our wonderful online editors, it is back up and running. We appreciate your patience and apologize for any inconvenience our downtime may have caused. We will be publishing all of the content we have produced during our time offline in the next couple of days.

Thank you for continuing to read the site – we look forward to a great Fall semester filled with the same quality of content you have come to expect.

Best,

Digest Masthead

Posted On Oct - 3 - 2009 Comments Off READ FULL POST

CAFC Requires a Clear and Convincing Intent to Deceive
By Adrienne Baker – Edited by Stephanie Young
In re Bose Corp., No. 2008-1448, 2009 WL 2709312 (Fed. Cir., Aug. 31, 2009).
Opinion

On August 31, the Court of Appeals for the Federal Circuit (“CAFC”) reversed and remanded the Trademark Trial and Appeal Board (“TTAB”) decision, which ruled that fraud is committed when a registrant or applicant makes material misrepresentations it knows or should have known to be false or misleading.  The CAFC held the TTAB applied the should-have-known standard too broadly and thus ruled a registrant or applicant must have specific intent to deceive the U.S. Patent and Trademark Office in order to fraudulently acquire a trademark.  The evidence supporting the registrant’s or applicant’s intent to deceive must be clear and convincing.  The CAFC ruling significantly limits, if not overturns, Medinol v. Neuro Vasx, Inc., 67 U.S.P.Q.2d 1205 (T.T.A.B. 2003), in which the TTAB adopted the should-have-known standard.

The TTABlog provides an overview of the case.  Allen’s Trademark Digest, in addition to providing a detailed history of trademark fraud, criticizes the decision and asserts that the Bose holding implies that registrants and applicants have no duty of candor.  Furthermore, the article asserts the CAFC ruling is contrary to the Lanham Act and the Trademark Law Revision Act (“TLRA”) statutory definitions of “use.” (more…)

Posted On Sep - 14 - 2009 Comments Off READ FULL POST

By Andrew Jacobs

ISPs Found Liable for Websites’ Trademark and Copyright Infringement

Computerworld and Ars Technica report that on August 28, a federal jury handed down a $32.4 million judgment against two ISPs that hosted websites selling counterfeit Louis Vuitton products. Louis Vuitton successfully argued on a theory of contributory infringement, overcoming the ISPs’ claims of immunity under the Digital Millennium Copyright Act’s “safe harbor” provisions. Evidence that the ISPs had received and failed to respond to notices of the illegal activity from Louis Vuitton was key to the case.

EU to Investigate Oracle/Sun Deal

On September 3, the European Union’s antitrust regulators announced plans for a formal investigation of Oracle’s planned buyout of Sun Microsystems, The Washington Post reports. The investigation will center on the competitive consequences of “the world’s biggest proprietary database company . . . tak[ing] over the world’s leading open-source database company.” The European Commission will come to a ruling on the deal by January 19; the U.S. Department of Justice has already approved it.

Authors Voice Privacy Concerns in Objection to Google Settlement

A group of authors and publishers filed an objection to the proposed settlement between The Authors’ Guild and Google Book Search (GBS), the Electronic Frontier Foundation (EFF) reported on September 8. A fairness hearing regarding the settlement is set for next month. In the objection, prepared by EFF, the ACLU, and the Samuelson Clinic at UC Berkeley School of Law, the authors assert that GBS’s collection of personally identifiable information regarding users’ habits will having a chilling effect on readership. Limited information retention and strict disclosure standards are among the authors’ specific demands.

Posted On Sep - 13 - 2009 Comments Off READ FULL POST
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