By Michael Hoven

Supreme Court to Hear DNA Privacy Case

The Supreme Court granted certiorari in Maryland v. King,  a case involving the warrantless collection of DNA from an arrestee, the Washington Post reported.  In 2009, Maryland instituted routine DNA collection from people arrested for violent crimes; Alonzo King, Jr. was arrested for assault in 2009, and a cheek swab connected him to a 2003 rape, for which he was later convicted. The Maryland Supreme Court overturned the conviction on the grounds that the DNA collection violated King’s Fourth Amendment rights.

Canada Invalidates Viagra Patent

The Canadian Supreme Court invalidated Pfizer’s patent on Viagra for failing to meet the disclosure requirements of the Canadian Patent Act, reported Reuters. The court accused Pfizer of trying “to ‘game’ the system” with its patent. The ruling was a victory for Teva Pharmaceutical Industries, which had previously, and unsuccessfully, sued Pfizer in the United States, Spain, Norway, and New Zealand.

Sixth Circuit Affirms Ruling against Attorney Who Made Fake Child Pornography for Defense Case

An attorney in Ohio digitally altered two photos of minors to display them in sexually explicit acts, and used those images at two separate trials to argue that child pornography laws are overbroad because it is too difficult to detect whether or not a given image is of a minor. As Ars Technica reports, the attorney, Dean Boland—a former state prosecutor and frequent expert witness in child pornography cases—was held liable for $300,000 in a civil suit brought by the families of the two girls whose images were altered, and the Sixth Circuit has now affirmed the decision. The Sixth Circuit rejected Boland’s First Amendment argument, which emphasized that the images were created for courtroom use. The court stated that the creation of “morphed images” to make his point was “an option Congress explicitly forbade.”

Voter Verified, Inc. v. Premier Election Solutions, Inc.
By Craig Fratrik – Edited by Laura Fishwick

Voter Verified, Inc. v. Premier Election Solutions, Inc., Nos. 2011-1553, 2012-1017, 2012 WL 5382734 (Fed. Cir. Nov. 5, 2012)
Slip opinion

The Court of Appeals for the Federal Circuit affirmed the Middle District of Florida’s ruling that the defendants, Premier Software Solutions, Inc., Diebold, Inc., and Election Systems & Software, Inc., had not infringed U.S. Reissue Patent No. RE40,449 (the ’449 Patent) held by Voter Verified, Inc., and that one of its claims was invalid for obviousness. The district court had held that claim 49 was invalid for obviousness under 35 U.S.C. § 103 and claim 94 was invalid for indefiniteness under 35 U.S.C. §112. Voter Verified appealed both the rulings of non-infringement and invalidity as to claim 49.

Voter Verified’s patent was issued on August 5, 2008 and claims a system and method for verified voting in an election comprising both generating a temporary digital record of the vote and then a corresponding printed ballot. A computer scans the printed vote for accuracy against the digital vote, and only records accurate votes. Defendants produce and market verified voting systems that use the voter herself to check the printed ballot for accuracy. Critical for the disposition in this case, an online periodical concerned with computer safety and security called the Risks Digest originally published a similar idea in the Benson article in 1986 via a subscription mailing list and made it available online in 1995, well before the ’449 Patent’s priority date in 2000.

Patently-O provides an overview of the prior art and joint infringement holdings in the case, and notes that the opinion, issued the day before the presidential election (and on appeal from the Middle District of Florida), did not force the court to intervene in voting in Florida. Patents4Life discusses how the “sufficiently accessible” standard leads to tricky questions and potential implications for what sort of online resources will constitute prior art.

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Unites States v. Magana
By Casey Holzapfel – Edited by Geng Chen

United States v. Magana, No. 12-CR-154 (E.D. Wis. Oct. 29, 2012)
Order

United States v. Mendoza, No. 12-CR-154 (WCG/WEC) (E.D. Wis. Oct. 9, 2012)
Recommendation

The United States District Court for the Eastern District of Wisconsin ruled that Wisconsin law enforcement officers did not violate the Fourth Amendment when they installed hidden surveillance cameras on private property without a warrant. Judge William Griesbach accepted the recommendation of Magistrate Judge William Callahan to deny the defendants’ requests to suppress evidence obtained through the use of hidden cameras. Magana, slip op. at 1.

The court held that the installation of surveillance equipment did not violate the Fourth Amendment because it was placed outside the “curtilage”—the land surrounding the house where private activities are expected to take place. Mendoza, slip op. at 3–4.

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Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions
By Jessica Vosgerchian – Edited by Dorothy Du

Recommendation of the Register of Copyrights

On October 25, the Register of Copyrights and the Librarian of Congress announced new recommendations for exemptions to Section 1201(a)(1)(A) of the Digital Millennium Copyright Act (“DMCA”) effective October 28. Section 1201(a)(1)(A) of the DMCA makes it illegal to circumvent technological controls found in electronic devices that control access to copyrighted works. Section 1201(a)(1)(B), however, allows the Register to grant exemptions to be reviewed every three years. In this year’s review, the Register upheld the legality of jailbreaking smartphones and decrypting DVD and e-book controls for the visually- and hearing-impaired. The Register also broadened exemptions for fair use of video excerpts. However, the new rules prohibit “unlocking” smartphones purchased after January 2013, forbid jailbreaking tablets and game consoles, and prohibit “space shifting.”

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United States v. Kolon Indus., Inc.
By Suzanne Van Arsdale – Edited by Sounghun Lee

United States v. Kolon Indus., Inc., No. 3:12-Cr-137 (E.D. Va. Aug. 21, 2012)
Indictment hosted by legaltimes.typepad.com

The Department of Justice brought a criminal indictment against South Korea-based Kolon Industries Inc. (“Kolon”) and five of its executives in the Eastern District of Virginia on one count of conspiracy to convert trade secrets, four counts of theft of trade secrets, and one count of obstruction of justice.

According to the indictment, filed on August 21, 2012, Kolon and its executives engaged in years of corporate espionage. The government accused Kolon of paying former and current employees of E. I. du Pont de Nemours & Co. (“DuPont”) and Teijin Ltd. and its subsidiaries (“Teijin”) to reveal confidential and proprietary information related to the manufacture of synthetic fiber, in violation of the Economic Espionage Act of 1996 (the “Act”). Economic Espionage Act of 1996, Pub. L. No. 104–294, 110 Stat. 3488 (codified as amended at 18 U.S.C. §§ 1831–1839 (2006)).

The Wall Street Journal and Reuters provide an overview of the indictment. Bloomberg Businessweek noted that Kolon’s alleged theft of trade secrets has already resulted in a jury verdict awarding DuPont nearly $920 million and a prison sentence for a former DuPont employee who pled guilty to theft of trade secrets.

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