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 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 Marcela Martinez

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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First Circuit Lifts Trademark Injunction to Make Way for Super Duck
By Miriam Weiler — Edited by Evie Breithaupt

Boston Duck Tours v. Super Duck Tours
First Circuit, June 18th, 2008, Nos. 07-2078, 07-2246
Slip Opinion

On June 18, the First Circuit lifted a preliminary injunction granted by the District Court of Massachusetts, which had enjoined Super Duck Tours, LLC (“Super Duck”) from using the phrase “duck tours” in its trade name and the cartoon of a duck in its logo. On July 2, 2007, Boston Duck Tours, LP (“Boston Duck”) filed a complaint in the district court alleging federal trademark infringement and unfair competition and seeking a preliminary injunction against Super Duck. The district court granted the injunction and Super Duck appealed.

The First Circuit held that the lower court clearly erred in concluding that Boston Duck was likely to succeed on the merits of its trademark infringement, by over-estimating the likelihood that use of the phrase and image would cause consumer confusion.

The court of appeals did not address the district court’s ruling regarding Super Duck’s purchase of the key word phrase “Boston duck tours” on Google. “Sponsored linking” or “keyword advertising” allows the purchaser of a keyword to link his or her website to the search engine’s results page with a highlighted link at the top of the page.

The district court found that Super Duck’s sponsored linking did not violate the injunction. It found that sponsored linking, however, does constitute “use” under the Lanham Act, which states that “a mark shall be deemed to be in use in commerce. . . (2) on services when it is used or displayed in the sale or advertising of services.” 15 U. S. C. §1127. The district court reasoned that the plain language of the statute and the majority of courts have considered sponsored linking “use.” (more…)

Posted On Jun - 30 - 2008 1 Comment READ FULL POST

Ninth Circuit Applies Fourth Amendment to Text Messages at Work
By Anna Volftsun — Edited by Evie Breithaupt

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed 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.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

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Posted On Jun - 28 - 2008 2 Comments READ FULL POST

Federal Circuit Affirms Award of Attorney Fees for Inequitable Conduct and Litigation Misconduct
By Christina Hayes — Edited by Stephanie Weiner

Nilssen v. Osram Sylvania, Inc.
Federal Circuit, June 17, 2008, No. 2007-1198
Slip Opinion

The Federal Circuit affirmed the judgment of the U.S. District Court for the Northern District of Illinois granting a motion for attorney fees to Osram Sylvania, Inc. and Osram Sylvania Products, Inc. (collectively, “Osram”) due to the inequitable conduct and litigation misconduct of the appellants pursuant to 35 U.S.C. § 285. Section 285 of the Patent Act authorizes the award of attorney fees to the prevailing party in “exceptional cases.”

The Federal Circuit held that the district court did not clearly err in finding that the case was “exceptional” and that it was within its discretion to award attorney fees to Osram. Appellants argued that Nilssen’s inequitable conduct was “benign” and their litigation misconduct amounted to instances of “harmless oversight” and “permissibly rough litigation tactics.” The Federal Circuit refused to distinguish the inherent contradictory notion of benign inequitable conduct and further noted that the argument ultimately “amount[ed] to little more than an impermissible attempt to reargue the merits of [the district court's] holding.” With respect to the litigation misconduct, the court noted that “it ill behooves an appellate court to overrule a trial judge concerning litigation misconduct when the litigation occurred in front of the trial judge, not the appellate court,” concluding that the district court had sufficient evidence to have concluded that trial misconduct occurred.

Appellants further argued that a finding of inequitable conduct was insufficient to constitute an exceptional case. The court agreed that while there was no per se rule of exceptionality in cases involving inequitable conduct, its precedent provided wide discretion to district courts to award fees in inequitable conduct cases.

Dennis Crouch of Patently-O points out that there was no “individual smoking gun” here and agrees with the appellants’ argument that their actions were reasonable given that Osram was represented by Kirkland & Ellis, “well known for its relentless bull dog litigation style.”
The Patent Hawk also provides an overview of the case.
Filewrapper features an overview as well, complete with a timeline of the case.

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Posted On Jun - 21 - 2008 Comments Off READ FULL POST

Ninth Circuit Assesses Copyright Damage Awards
By Debbie Rosenbaum — Edited by Stephanie Weiner 

Derek Andrew, Inc. v. Poof Apparel Corp.
9th Circuit, June 11, 2007
Slip Opinion 

The Ninth Circuit reversed and remanded in part the decision of the District Court for the Western District of Washington, which had awarded statutory damages under the Copyright Act for a copyright infringement, as well as attorney’s fees. 

Under § 504(a) and (c) of the Copyright Act, a copyright owner can elect to recover statutory damages for an infringement instead of actual damages and any additional profits.  This is limited, however, by § 412(2), which bars recovery of statutory damages for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.”  17 U.S.C. § 412(2).  The Ninth Circuit held here that § 412 precludes recovery of statutory damages for post-registration infringements where the first infringement in a series occurred before registration.  This was the first time the Ninth Circuit had addressed the provision in the context of post-registration infringement.  In so holding, the court joined several other circuits in rejecting a reading of the Copyright Act that would allow an end run around § 412.

An overview of the case is available at The Patry Copyright Blog and by Michael Atkins of the Seattle Trademark Lawyer Blog
Filewrapper features commentary, including pictures of the trademark in question  

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Posted On Jun - 19 - 2008 Comments Off READ FULL POST

Supreme Court Reinvigorates Patent Exhaustion
By Andrew Ungberg — Edited by Joshua Gruenspecht

Quanta Computers, Inc. v. LG Electronics, Inc.
Supreme Court of the United States, June 9, 2008, No. 2006-937
Slip Opinion

The Supreme Court reversed the Federal Circuit, which had held that patent holders could seek infringement damages from subsequent purchasers further “downstream” provided that the initial transfer had imposed some type of restriction on the initial purchaser. The Federal Circuit’s ruling, had it been upheld, would have effectively extinguished the doctrine of patent exhaustion and allowed patent holders the ability to control the use of their patents far beyond traditional limits.

Justice Thomas delivered the unanimous decision, holding that the 155-year-old doctrine of patent exhaustion limits the patentee’s power to dictate the terms of use through the first level of sales only. In an opinion steeped in tradition, the Court held that the reasoning of United States v. Univis Lens Co. 316 U.S. 241 (1942) controlled the case. The Univis Court held that a patentee’s rights were extinguished because the finished product (cut eyeglass lenses) embodied essential features of the patented product (unfinished eyeglass lens blanks). While this has long been the standard for process patents, the Court for the first time here extended that same logic to method patents. The Court also stated that a use “substantially embodying” the patent, rather than fully practicing it, was sufficient to exhaust the patent-holder’s rights.

Overviews of the case are available at Patently-O, the SCOTUS Blog and Law.com.

The full transcript of the oral argument is available here.

Professor Mark R. Patterson of Fordham University authored an article last November advocating a broad overruling of the Federal Circuit decision on Patently-O, which outlined the negative implications of allowing the lower court’s decision to stand.

(more…)

Posted On Jun - 13 - 2008 Comments Off READ FULL POST
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