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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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Federal Circuit, in a 2-1 Decision, Affirms Nonobviousness Determination in Medical Supply Case; Split Highlights Difficulty of Claim Construction
By Chris Kulawik –- Edited by Stephanie Weiner

Kinetic Concepts, Inc. v. Blue Sky Medical Group, Inc.
Federal Circuit, February 2, 2009, Nos. 07-1340, 07-1341, & 07-1342
Slip Opinion

In a 2-1 split, the Federal Circuit affirmed a nonobviousness determination in a contentious dispute between medical technology companies. The case turned on the construction of the claim term “treating a wound” – specifically, the meaning and scope of “wound.”  The majority adopted the Plaintiff-Cross Appellants’ definition of “wound” as meaning only surface tissue damage, rejecting the Defendant-Appellants’ argument that the “plain and ordinary meaning” of the term would include some kinds of internal damage.  Judge Dyk dissented because he would have interpreted the term more broadly.

PatentlyO provides a brief recap, noting that this case highlights how unpredictable claim construction, which is required in nearly every patent case, can be.

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Posted On Feb - 8 - 2009 Comments Off READ FULL POST

Ninth Circuit Denies Rehearing En Banc in Quon v. Arch Wireless Text Message Privacy Case
By Debbie Rosenbaum — Edited by Christina Hayes

Quon v. Arch Wireless Operating Co.
Ninth Circuit, No. 07-55282
Order denying rehearing en banc
Opinion concurring in denial of rehearing en banc
Opinion dissenting from denial of rehearing en banc

On January 27, 2009, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, a case decided by a Ninth Circuit panel in June of 2008.  The Ninth Circuit panel held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials audited text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

Shaun Martin of the California Appellate Report investigates the politics of the concurring and dissenting opinions.  Martin points out that despite the similarities between Judges Wardlaw and Ikuta (both judges are UCLA Law School graduates, well-recognized women in Southern California, and both practiced for the firm of O’Melveny & Myers), the conflict evident in their opinions amounts to a series of “dueling bench slaps extraordinarie.”

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Posted On Jan - 31 - 2009 Comments Off READ FULL POST

Kentucky Appeals Court Overturns Domain Name Seizure 
By Anthony Kammer – Edited by Stephanie Weiner

Vicsbingo.com v. Commonwealth of Kentucky, No 08-CI-01409
Court of Appeals Ruling (Hosted by EFF)
Commonwealth of Kentucky v. 141 Internet Domain Names (original ruling) 

On January 20, 2009, the Kentucky Court of Appeals overturned a lower court’s order to seize 141 Internet domain names that could potentially be used as illegal “gambling devices” within the state. The appeals court granted a stay back in November, but Tuesday’s decision makes it look increasingly unlikely that the state can seize domains in this fashion. According to John Pappas of the Poker Players Alliance, this decision is “a tremendous victory for Internet freedom.” 

On January 21, 2009, a day after this decision was entered, the Commonwealth of Kentucky filed a notice of appeal to the Kentucky Supreme Court.

The three judge panel of the Court of Appeals did not provide a majority opinion, but in a 2-1 decision, Judges Keller and Taylor granted a Writ of Prohibition against the Franklin Circuit Court and successfully blocked the domain name seizure. In his opinion, Judge Keller concluded that domain names did not fall within the statutory definition of “gambling devices” and consequently that the lower court lacked jurisdiction over them. 

The appeals court focused its decision on the language of Kentucky’s gambling statutes, declining to address many of the jurisdictional and constitutional issues posed by the state’s attempt to seize out-of-state interests. Judge Taylor agreed, but in a concurring opinion said that even if the domain names had qualified as “gambling devices,” the statute still did not authorize civil in rem forfeitures and that absent criminal charges, the domain names could not be seized.

Jeremiah Johnston of the Internet Commerce Association told the Associated Press that he approved of the Court of Appeals decision to return the 141 websites but noted that the court had not resolved the important question of whether or not Kentucky has the authority to seize the domain names of overseas companies.

The Court of Appeals emphasized that the Kentucky legislature could redraft the gambling law and provide courts with the authority to seize Internet domain names. However, the Electronic Frontier Foundation points out that even if the Kentucky legislature amended its gambling laws in accordance with the court’s decision, several constitutional problems would still be likely render any attempt at seizure unenforceable. The Amicus Curiae brief filed by the EFF, the Center for Democracy and Technology, and the ACLU of Kentucky, addresses many of these problems.

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Posted On Jan - 25 - 2009 Comments Off READ FULL POST

Amazon’s Constitutional Challenge to NY Tax Law Dismissed
By Andrew Ungberg – Edited by Sarah Sorscher
Amazon.com LLC v. New York Dept. of Tax and Finance, No. 601247/08
New York State Supreme Court, First Judicial District, January 12th 2008
Order

On January 12th, 2008, Judge Bransten dismissed Amazon’s lawsuit challenging a recently enacted New York State tax law.  The law requires certain sellers, who have no physical presence within the state, to collect sales tax if the seller has commissions-based independent contractors in-state that generate more than $10,000 worth of business in a given year.  Among other things, Amazon alleged the law violated the Commerce Clause because it imposes tax obligations on out-of-state sellers who lack a “substantial nexus” with New York. Judge Bransten rejected all of Amazon’s claims, noting that the statute was “carefully crafted to ensure that there is a sufficient basis for requiring collection of New York taxes . . . .” 

Law.com and Ars Technica provide an overview of the order and litigation thus far.

Erick Schonfeld of Tech Crunch comments, agreeing with New York’s motive but objecting to the means state legislators used to achieve them.  He writes that the law creates “bad precedent” insofar as it overstates the connection between Amazon and its “affiliates.”

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

District Court Finds FISA Preempts State Secrets Doctrine; Government Wiretap Litigation To Continue
By Anna Lamut – Edited by Andrew Ungberg
Al-Haramain v. Bush, No 06-1791 VRW,
District Court for the Northern District of California, January 5, 2009
Order

On Monday, January 5, 2009, Chief Judge Vaughn* Walker of the United States District Court for the Northern District of California denied the U.S. government’s third motion to dismiss the Al-Haramain v. Bush litigation, in which the Al-Haramain Islamic Foundation sued the Bush administration for illegal surveillance of the organization.  The original suit was based on an inadvertently revealed, top-secret government call log which indicated Al-Haramain had been the subject of wiretapping.  However, the case was nearly dismissed after the court found the log to be a state secret, and thus would not be admissible due to national security concerns.  Al-Haramain claimed the document showed the organization was subject to surveillance outside of the scope of the Foreign Intelligence Surveillance Act (FISA).

Ed Brayton of Scienceblogs states that this case may finally end use of the secrets privilege as a means of avoiding all judicial scrutiny of the NSA’s wiretapping program.

Julian Sanchez of Ars Technica points out that the suit is unique in that the Electronic Frontier Foundation, whose attorneys represent the Foundation’s directors, does not normally represent clients who they know were targeted by the NSA for warrantless surveillance. Sanchez also notes that in the opinion, Chief Judge Walker pointed out that in writing the FISA, Congress would not have provided for in camera review of classified documents if it meant to allow the government to use the state secrets provision in each case.
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Posted On Jan - 10 - 2009 Comments Off READ FULL POST
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Federal Circuit Flas

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