A student-run resource for reliable reports on the latest law and technology news
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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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By Yunnan Jiang – Edited by Paulius Jurcys

Brief for the Fourth Circuit as Amicus Curiae Supporting Plaintiffs-Appellants, the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568 (4th Cir.)

Brief hosted by the Washington Post.

free-speechOn October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint amicus curiae brief in the U.S. Court Of Appeals For The Fourth Circuit for the Radiance Foundation, Inc. et al. v. National Association for the Advancement of Colored People, No. 14-1568. In its brief, the EFF and the ACLU urge 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. They further assert that such use of trademarks is “noncommercial”. By holding the use of a trademark in a blog post title liable for trademark infringe and dilution, the brief argues that the District Court allows trademarks to trump freedom of speech. (more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST

By Jens Frankenreiter – Edited by Michael Shammas

Twitter, Inc. vs. Eric Holder et al, No. 14-04480 (N.D. Cal. Oct. 07, 2014)

Complaint hosted by The Washington Post

Twitter.png?t=20130219104123Twitter on October 7 sued the U.S. Department of Justice and the Federal Bureau of Investigation, asking the federal district court for the Northern District of California to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail than currently approved by the government.

The complaint challenges the requirements for the publication of data on surveillance requests set out by the government as violating Twitter’s rights under the First Amendment. The lawsuit is part of the efforts of Twitter and other companies to obtain the government’s approval for the reporting of information on the numbers of surveillance requests received by these companies. These efforts were largely triggered by former intelligence contractor Edward Snowden’s revelations about the existence of large-scale data gathering programs by the government relying, among other things, on surveillance requests to Internet content providers. In its lawsuit, Twitter seeks approval to provide more fine-grained data than the government is willing to consent to. Particularly, it objects to an alleged refusal to allow the reporting that it did not receive any surveillance requests of a particular type.

A summary of the complaint and the preceding events is provided by Reuters, The Washington Post, and Wired. American Civil Liberties Union in a press statement welcomed Twitter’s move and expressed hope that “that other technology companies will now follow Twitter’s lead”. (more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST

By Asher Lowenstein – Edited by Saukshmya Trichi

The US International Trade Commission (“ITC”) has initiated an investigation into possible infringement of Nvidia’s graphics processing units (“GPU”) patents by Samsung and Qualcomm. Nvidia claims that Samsung infringes seven of its GPU patents that are purportedly embodied in Samsung products, including Galaxy Note Edge, Galaxy Note 4, Galaxy S4, and Galaxy S5. If ITC finds that the patents were infringed, it could enjoin importation of all such phones into the US. In September, Nvidia also filed an infringement lawsuit in the District of Delaware. Law360 reporting this development lists the patents in question.

Tech firms have been pursuing such claims with the ITC because it is a potentially lucrative alternative to seeking an injunction from courts against the alleged infringer. Since the Supreme Court’s 2006 eBay decision, there has been uncertainty on the firms’ ability to obtain injunctive relief. Such relief is greated in equity, and eBay requires courts to consider “the balance of hardships between the plaintiff and defendant.” See eBay Inc. v. MercExchange L.L.C., 547 U.S. 388, 391 (2006). This imposes a higher standard for a patent holder to establish a case for injunction, especially where the alleged infringing products are already in the market, because an injunction would result in a significant loss of revenue as well as exclude competition. However, the Federal Circuit has held that ITC is not necessarily bound by the eBay injunction test. It observed that the legislative intent appears to offer injunctions as a mandatory statutory remedy under Section 337, and thus that irreparable harm isn’t a relevant factor for determination. See Spansion, Inc. v. ITC, 629 F.3d 1331, 1359 (Fed. Cir. 2010).

The advantage of approaching the ITC in such cases is its faster procedural pace over the courts. This is of great relevance in the smartphone market, where a product might last only a couple of years before it is replaced with upgraded models. An injunction in a civil lawsuit granted after several years of litigation would not be strategically viable.

(more…)

Posted On Oct - 20 - 2014 Comments Off READ FULL POST

By Kathleen McGuinness

Two contested patent terms upheld as means-plus-function

The United States Court of Appeals for the Federal Circuit in Robert Bosch, LLC v. Snap-On Inc., 2014-1040 (Fed. Cir. Oct. 14, 2014) affirmed the decision of the United States District Court for the Eastern District of Michigan that two contested patent terms were means-plus-function terms under section 112, paragraph 6. However, the Federal Circuit held that the district court was wrong to apply the presumption of a means-plus-function claim based on the language. Although the contested claim included references to functions performed “by means of the program recognition device,” the court held that the presumption of a means-plus-function claim is limited to situations in which the claim uses the word “means…as a noun in the claim,” and that this presumption did not extend to the phrase “by means of.” However, because each disputed term lacked sufficiently definite structure, this error was harmless; both terms constituted means-plus-function limitations, and were invalid as indefinite.

Judgment of damages sufficient to render plaintiff a prevailing party for fee awards

The United States Court of Appeals for the Federal Circuit affirmed in SSL Services, LLC, v. Citrix Systems, Inc., 2013-1419 (Fed. Cir. Oct. 14, 2014) the United States District Court for the Eastern District of Texas’s denial of various findings of non-infringement. However, the court vacated the district court’s denial of prevailing party status, finding that SSL was the prevailing party. First, the court noted that the general verdict rule—the rule providing that “where one or more of multiple claims is found legally invalid, a reviewing court must reverse and order a new trial if they are unable to determine whether the invalid theory tainted the verdict”—applies “with the same force in patent cases as it does in all other cases.” However, prejudice will not be presumed from the fact that the verdict makes it impossible to determine the specific limitation that the jury found non-infringed; the burden of establishing a threat of a tainted or improper verdict rests on the party challenging the verdict. Second, because one patent was found non-infringed and the second was found willfully infringed, the district court held that neither party was the prevailing party for the purpose of eligibility for fee awards. The Federal Circuit reversed: even where a plaintiff does not prevail on all of its infringement claims, a judgment of damages is sufficient to make the plaintiff the “prevailing party” for the purpose of fee awards, although it does not automatically entitle it to fees.

Posted On Oct - 16 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Mengyi Wang

Demand Letter to Google, Inc.

Celebrities impacted by the theft and distribution of personal images stored on Apple’s iCloud service may soon head to court seeking damages from Google for continued copyright infringement and privacy violations.

On October 1st, Martin Singer of California entertainment litigation firm Lavely & Singer issued a demand letter to Google on behalf of “over a dozen female celebrities, actresses, models and athletes,” alleging that the internet giant dragged its feet halting the spread of the stolen images. Demand Letter at 1. In the letter addressed to Google founder Larry Page and other top executives, Google is accused of failing to remove the private pictures pursuant to the requirements of Digital Millennium Copyright Act (“DMCA”) and threatened with a lawsuit for compensatory and punitive damages that could reach over $100,000,000 unless the offending content is promptly taken down. Id

The images at issue are at the center of the 2014 celebrity photo hacking scandal. In late August, over one hundred stolen personal pictures of mostly female celebrities were posted to imageboard 4chan and later circulated through websites like Reddit. The pictures, which depict big name stars like Jennifer Lawrence and Kate Upton, were acquired illegally through suspected attacks on Apple’s iCloud service. 

Title II of the DMCA, also known as the Online Copyright Infringement Liability Limitation Act (“OCILLA”), provides “safe harbor” for internet service providers (“ISPs”) like Google against liability for copyright infringing materials shared over their systems or networks if, upon notice of the unlawful content, the ISP “acts expeditiously to remove, or disable access to, the material.” OCCIA, 17 U.S.C 101, § 512 (c)(1)(C) (1998). 

The demand letter alleges that since the private images were first released in late August, websites and ISPs including Google were issued notices demanding the removal of the images pursuant to the requirements of the DMCA. Demand Letter at 12. While the majority of the requests were fulfilled, some within hours, Google has purportedly continued to allow access to the images on Google owned sites like BlogSpot and YouTube, as well as through search results, for more than four weeks. Id. The letter also highlighted that Google’s YouTube counsel and compliance department have refused to remove the images at issue that are uploaded to YouTube through the expedited content verification process that would enable instant removal of such images. Id. at 2. 

The demand letter points to Google’s slogan “Don’t be evil” and its alleged commitment to “doing the right thing . . . following the law, acting honorably and treating each other with respect” as contradictory to the company’s inaction in the face of rampant copyright infringement and privacy violations. Id. Comparing Google’s conduct to another prominent headline from recent months, the letter asserts that “(l)ike the NFL, which turned a blind eye while its players assaulted and victimized women and children, Google has turned a blind eye while its sites repeatedly exploit and victimize these women.” Id. at 3. 

After outlining Google’s alleged misconduct, the letter concludes by demanding that Google remove the stolen images from all of its hosted sites and accounts; suspend or terminate any hosted sites or accounts that uploaded, displayed, linked to, or invited the submission of the stolen images; and remove all Google search results for the images. Id. at 3. If Google fails to comply, it may face a high-profile lawsuit on behalf of the female celebrities.

Additional commentary on the potential litigation against Google is available from Law 360, Ars Technica, and The Wall Street Journal.

Amanda Liverzani is a 2L at the Harvard Law School.

Posted On Oct - 16 - 2014 Comments Off READ FULL POST
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