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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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Federal Circuit Holds Yellow Bean Patent Obvious and Invalid

By Dmitriy Tishyevich – Edited by Jad Mills
In re POD-NERS, L.L.C., July 10, 2009, No. 2008-1492 (nonprecedential)
Slip Opinion

On July 10, 2009 in a per curium decision, the Court of Appeals for the Federal Circuit affirmed the United States Patent and Trademark Office’s Board of Patent Appeals and Interferences (“Board”) decision invalidating the patent claims for a yellow bean of Mexican origin. The court held that the applicant failed to rebut the examiner’s prima facie determination that all of the claims were obvious.

Patent law blogs PatentlyO and The Patent Prospector summarize the opinion. The ETC Group and the Central Advisory Service on Intellectual Property provide background information about the history of the patent and some reactions to the decision.

(more…)

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

By Andrew Jacobs

Cyberattack on U.S. and South Korean Governments Stymies Investigators

Law enforcement officials are still investigating the cyberattacks that hobbled some U.S. and South Korean government websites for five days beginning July 4, the New York Times reports. The distributed denial of service attack caused 50,000 to 65,000 infected computers to jam websites of government agencies such as the Federal Trade Commission and the Secret Service with an extraordinary amount of traffic. Although independent and government investigations have led to computers in Miami, Florida, and the U.K., some experts think finding the ultimate source of the “amateurish” attack may prove to be impossible.

Microsoft Convinces Court IP Addresses Are Not Personally Identifiable Information

MediaPost News reports that in a recent class action case against Microsoft, a federal district court in Seattle held that IP addresses do not count as “personally identifiable information” (PII), a term regularly used in user agreements and online privacy policies. The June 23 opinion granted Microsoft’s motion for summary judgment on charges that it had violated its user agreement by collecting IP addresses during automatic software updates. Judge Richard Jones held that in order to be PII, a piece of data must directly identify “a person,” rather than “a computer,” as an IP address does. The decision is in tension with recent E.U. regulatory findings and a 2008 opinion from the New Jersey Supreme Court, according to MediaPost.

New Zealand Takes Second Swing at “Three Strikes”

On July 14, New Zealand’s Ministry of Economic Development introduced a revised version of its “three strikes” copyright provision aimed at curbing online infringement, Ars Technica and Billboard report. The original bill, which provided for the termination of internet service provider subscribers’ accounts as a penalty for repeat copyright infringement, was scrapped in March after public outcry and industry disagreement. The new version addresses due process concerns by allowing alleged infringers to respond to notices of infringement and to have their cases mediated before trial. Termination of infringers’ internet accounts remains a possible penalty under the revised law.

Posted On Jul - 18 - 2009 Comments Off READ FULL POST

Blogger Status Fails to Provide Journalistic Protection under N.J. Shield Law

By Ian B. Brooks – Edited by Amanda Rice
Too Much Media, LLC v. Hale, Case No. MON-L-2736-08, (N.J. Super. Ct. Law Div. June 30, 2009) Slip Opinion

The Monmouth County Superior Court of New Jersey held that the Defendant, blogger Shellee Hale, was not entitled to the protections of a newsperson under New Jersey’s Shield Law. Although Hale claimed that her posts on an Internet message board were intended to inform the public and spur debate on Too Much Media’s alleged activities, Judge Locascio focused on Hale’s credibility and whether her posting resembled traditional news media. The court noted that although the Shield Law in New Jersey was “one of the nation’s broadest,” Hale “presented no credible evidence . . . that she ever worked for any ‘newspapers, magazines, press associations, news agencies or wire services, radio or television.’” In reaching this conclusion, Judge Locascio gave no weight to Hale’s being a blogger or her claims of having published articles in a newspaper and trade journal because she failed to name the publications and lied in her certification to the court, which Judge Locasio labeled a “sham affidavit.”

The Citizen Media Law Project provides an overview of the case. The New Jersey Law Journal also summarizes the case and includes comments from Too Much Media attorney, Joel Kreizman. (more…)

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

Social Networks Shielded from Liability for Sexual Assaults

By Debbie Rosenbaum – Edited By Amanda Rice
Julie Doe II et al. v. MySpace Inc., Case No. B205643, (Cal. Ct. App. June 30, 2009)
Opinion

On June 30, the Second District Court of Appeals in Los Angeles affirmed the judgment of the lower court and held that online social networks and other websites cannot be held liable for a sexual assault on a minor that stems from an online meeting. The court rejected claims made by the parents of four girls who were between thirteen and fifteen years old when they created MySpace profiles. The court followed Fifth Circuit precedent, Doe I v. Myspace, which JOLT Digest’s Anna Volftsun previously summarized in May 2008.

The Court of Appeals held that girls who are sexually assaulted by men they first contact on MySpace cannot seek damages from the social-networking website, which is protected from liability by Section 230 of the Communications Decency Act. “[T]hey want MySpace to ensure that sexual predators do not gain access to (i.e., communicate with) minors on its Web site. That type of activity-to restrict or make available certain material-is expressly covered by section 230,” wrote the court.

Ars Technica provides an overview of the case. CNET and Reuters also summarize the main points of the case. Eric Goldman offers a nice in-depth analysis of the case and emphasizes the defense’s use of Roomates.com precedent. (more…)

Posted On Jul - 10 - 2009 Comments Off READ FULL POST

By Tyler Lacey

Law Enforcement Using Cell Phone Data During Investigations, Privacy Laws Yet to Catch Up

On July 5, The New York Times posted an analysis of the use of cell phone forensics by law enforcement. According to the article, major cell phone service providers receive hundreds of requests each month from law enforcement agencies for data that can be used to track a user’s cell phone. Many of these requests are not backed by search warrants that require a showing of probable cause that a crime has been committed. The article reported that since September 12, 2001, federal prosecutors in New Jersey alone have used cell phone data without search warrants in 98 investigations, resulting in 83 prosecutions. The article also reports that civil liberties groups such as the ACLU are concerned about the loss of privacy caused by modern cell phone technology in combination with the failure of federal privacy law to properly catch up and regulate cell phone tracking.

RIAA Seeks Order Requiring Harvard Professor to Remove “Unauthorized and Illegal” Recordings From Website

On July 6, Wired.com reported that the Recording Industry Association of America (RIAA) is seeking a court order requiring Harvard Law School Professor Charles Nesson to remove recordings of depositions and telephone conversations regarding an ongoing music piracy lawsuit from his blog. The RIAA argues that the recordings are “unauthorized and illegal,” but Professor Nesson insists that the privacy laws that allegedly prevent him from posting the recordings are “outrageously unconstitutional.” Professor Nesson had previously failed to obtain permission to broadcast a live webcast of the trial.

Network Management Company Tells Canadian Agency Net Neutrality Doesn’t Exist; Regulations Inevitable

On July 6, the CBC reported that the Canadian Radio-television and Telecommunications Commission held hearings during which representatives from industry and consumer advocacy groups offered their views on the proper way to regulate how internet service providers (ISPs) can manage network traffic. Sandvine, a company that sells traffic management technology to ISPs, said that network congestion disproportionately affects certain types of internet services, and that traffic management could potentially alleviate the inequality. Sandvine argued that net neutrality does not exist because of these inequalities in network traffic, and that network traffic should be managed by ISPs to prioritize certain types of packets. The Public Interest Advocacy Centre stated that packet inspection of the type made possible by Sandvine raises privacy concerns because it allows ISPs to identify the type of applications used by their customers in addition to other personal information. The group warned “there will be abuse” if such prioritization is allowed.

Posted On Jul - 10 - 2009 Comments Off READ FULL POST
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