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Federal Circuit Flash Digest: News in Brief  

By Amanda Liverzani

PTO’s Statutory Interpretation on Patent Term Adjustment Upheld

Federal Circuit Affirms Garmin Fitness Watches Do Not Infringe on Pacing Patents

Online Shopping Cart Patents Deemed Invalid in Infringement Action Against Victoria’s Secret and Avon

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Alleged mastermind behind the undercover trading platform Silk Road convicted in Manhattan court

By Jens Frankenreiter – Edited by Katherine Kwong

On February 4, a federal jury in Manhattan rendered its verdict in the trial against Ross Ulbricht, the person allegedly in charge of the online black market platform Silk Road. The jury found Ulbricht guilty on all charges. The case is important as it represents an attempt by the government to regain control over an area of the internet where tools such as bitcoin and Tor are used to create an online space beyond the reach of the authorities.

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Whack-a-troll Legislation

Written by Asher Lowenstein     —   Edited by Yaping Zhang

Patent assertion entities’ extensive litigation activities in different states enables to assess the efficacy of the proposed bills against legal strategies these trolls, such as MPHJ Technology, have engaged in. The legal battles confirm some of the concerns about the usefulness of proposed regulatory measures.

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3D Systems and Formlabs Settled Two-Year Patent Dispute

By Yixuan Long – Edited by Yaping Zhang

On December 1, 3D Systems and Formlabs settled their two-year legal dispute over the 520 Patent infringement. Terms of the settlement are undisclosed. The patent covered different parts of the stereolithographic three-dimensional printing process, which uses a laser to cure liquid plastic. 3D Systems was granted the ‘520 Patent in 1997. Formlabs views the settlement as enabling it to continue its expansion and keep developing new products.

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Privacy Concerns in the Sharing Economy: The Case of Uber 

By Sabreena Khalid – Edited by Insue Kim

Recent revelations about Uber’s disconcerting use of personal user information have exposed the numerous weaknesses in Uber’s Privacy Policy. The lack of regulation in the area, coupled with the sensitive nature of personal information gathered by Uber, makes the issue one requiring immediate attention of policy makers.

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Mum’s the Word for Microsoft’s XML Functionality

By Jad Mills – Edited by Evelyn Breithaupt
i4i L.P. v. Microsoft Corp., No. 6:07CV113 (E.D. Texas Aug. 18, 2009).
Final Judgment and Injunction

On August 11, 2009, Judge Davis of the Eastern District of Texas entered final judgment awarding i4i L.P., a Canadian company, approximately $290 million in damages and interest for Microsoft’s willful infringement of i4i’s XML patent. The court also issued a permanent injunction ordering Microsoft to stop selling Word 2003 and 2007 within 60 days unless the infringing functionality has been removed.

Commentators have weighed in on the impact of the injunction and the award. Ars Technica summarizes the order and the background of the case, Patently-O summarizes the injunction, and Peter Zura summarizes Judge Davis’ opinion. ZDNet and ArnNet both argue that the injunction is ultimately unlikely to stop sales of Word.

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Posted On Aug - 19 - 2009 Comments Off READ FULL POST

By Sharona Hakimi

WTO Finds China’s Media Laws Violate International Trade Laws

On August 12, Ars Technica and the New York Times reported that the World Trade Organization ruled against China in a complaint by the United States regarding China’s limitation on imports of songs, movies, and books. The Chinese laws constituting trade violations require that many forms of imported media must be distributed by a single, state-owned company. The laws also limit foreign ownership of Chinese media companies and allow domestic companies to bypass trade censors. Ron Kirk, the US trade representative at the WTO conference in Geneva, said that the “decision promises to level the playing field for American companies working to distribute high-quality entertainment products in China so that legitimate American products can get to market and beat out the pirates.”

Hollywood Group Secures Preliminary Injunction against DVD Copying Software

On August 11, U.S. District Court Judge Marilyn Patel issued a preliminary injunction against RealNetworks, barring the company from selling its RealDVD copying software until a jury can decide the issue, CNET News reports. She stated that RealNetworks cannot use fair use as a defense under the Digital Millennium Copyright Act or the company’s license with the DVD Copy Control Association, but noted that “[i]t may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer.” While the decision is seen as a major victory for the Motion Picture Association of America, the Electronic Frontier Foundations views it as a setback for innovators and consumers.

David Kappos Sworn in as New Director of USPTO

Patently-O reports that on August 13, David Kappos was sworn as Director of the United States Patent and Trademark Office. Kappos addressed USPTO employees at the ceremony, pledging to work on “reducing the backlog of unexamined patent applications, cutting pendency dramatically, working off the mounting appeals backlog, [and] improving re-exam processing.” He also projected his goals to secure more stable financial backing or the USPTO, hoping there will be no need to utilize the Office’s new authority to use trademark funds to pay for patent operations. A video of Kappos’s swearing in ceremony is available on the blog Anticipate This!

Posted On Aug - 15 - 2009 Comments Off READ FULL POST

Bayer Schering Pharma v. Barr Labs

By Aaron Dulles – Edited by Evelyn Breithaupt
Bayer Schering Pharma AG and Bayer Healthcare Pharm., Inc. v. Barr Labs., Inc., No. 2008-1282 (Fed. Cir. Aug. 5, 2009)
Slip Opinion

On August 5, 2009, a Federal Circuit panel affirmed the decision of the District of New Jersey, which had found Bayer’s U.S. Patent No. 6,787,531 (“’531 Patent”) invalid because of obviousness. The ’531 Patent concerns a formulation of the well-known contraceptive drug drospirenone. The patent previously protected Bayer’s formulation of a daily oral contraceptive product, marketed as the drug Yasmin. When Barr Labs sought approval from the FDA to market a generic version of Yasmin, Bayer filed a patent infringement suit. The district court found that under KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), the formulation of drospirenone in the Yasmin product was obvious. The sole issue of appeal was obviousness, and by a 2-1 vote the Federal Circuit affirmed the district court’s decision.

Passino PLLC suggests that the majority’s application of the In re O’Farrell, 853 F.2d 894 (Fed. Cir. 1988) standards was too rigid, and thus appeared to go against warnings in KSR concerning rigid application of tests. Patent Docs agreed, asserting that the judges both at the trial and appellate levels disregarded important evidence and emphasizing that the “common sense” of obviousness is that of the practitioner, not the judge. AboutLawSuits.com noted the ruling, but focused on known potential negative side effects of the drospirenone-based contraceptives such as Yasmin. (more…)

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

By Stephanie Weiner – Edited by Evelyn Breithaupt

On July 31, a Boston federal jury ordered physics Ph.D student Joel Tenenbaum to pay $675,000 in damages to various recording companies for willfully infringing 30 songs by downloading them over KaZaA — an award of $22,500 per song. It was only the second file-sharing case to go to verdict in the Recording Industry Association of America’s (RIAA) anti-downloading litigation campaign, along with that of Jammie Thomas-Rasset, though thousands are settled or pending.

Each day of the trial was thoroughly covered by Ben Sheffner, guest reporting at Arstechnica. JoelFightsBack — Tenenbaum’s defense team’s blog — provides extensive information about the case, including firsthand accounts from Tenenbaum himself. Ray Beckerman argues that the most salient legal issues remain unresolved, and that the plaintiffs ought to have been held to higher evidentiary standards in order to establish infringement and entitlement to statutory damages higher than the minimum available.

Defending Tenenbaum was Harvard Law School professor Charles Nesson, whose unusual litigation tactics have been much blogged about since he took the case in September 2008.

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Posted On Aug - 12 - 2009 Comments Off READ FULL POST

By Andrew Jacobs

Marine Corps Bans Social Networking Sites

In a directive issued Monday, the U.S. Marine Corps banned the use of social networking sites on its Marine Corps Enterprise Network, Wired and InformationWeek report. Characterizing these sites — including Facebook, MySpace, and Twitter — as “a proven haven for malicious actors and content,” the Corps hopes the ban will protect the network from cyberattacks and keep adversaries from acquiring user-generated information leaks. The directive does not limit Marines’ access to social networking sites on non-military networks, and a follow-up press statement encouraged the use of social media by Marines on their own ISPs.

Senate Hears Debate on Radio Performance Rights

The Senate Judiciary Committee heard debate Tuesday on the proposed Performance Rights Act, which would compel terrestrial radio stations to pay royalties recording artists, Ars Technica reports. Under current copyright law, webcasters and satellite radio stations pay royalties to both a song’s writer and its performer, while terrestrial stations are only obliged to pay songwriters. The debate pits two powerful interest groups, among others, against each other: the National Association of Broadcasters (NAB) staunchly opposes the bill, while the Recording Industry Association of America (RIAA) has voiced its strong support.

FTC Takes New View of Online Privacy

The Wall Street Journal and The New York Times report new FTC consumer protection head David Vladeck plans to shift the agency’s approach to online privacy protection. In a New York Times interview, Vladeck states he hopes to address the “notice and consent” framework that he considers “no longer sufficient” online, as it has resulted in privacy disclosures that are rarely read or understood. He also plans to consider not only economic harm, but also the “dignity interest” that arises in online information collection. Though no new rulemaking is yet planned, updated FTC privacy guidelines are expected next summer.

Posted On Aug - 8 - 2009 1 Comment READ FULL POST
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