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 Amanda Liverzani

PTO’s Statutory Interpretation on Patent Term Adjustment Upheld

Federal Circuit Affirms Garmin Fitness Watches Do Not Infringe on Pacing Patents

Online Shopping Cart Patents Deemed Invalid in Infringement Action Against Victoria’s Secret and Avon

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Alleged mastermind behind the undercover trading platform Silk Road convicted in Manhattan court

By Jens Frankenreiter – Edited by Katherine Kwong

On February 4, a federal jury in Manhattan rendered its verdict in the trial against Ross Ulbricht, the person allegedly in charge of the online black market platform Silk Road. The jury found Ulbricht guilty on all charges. The case is important as it represents an attempt by the government to regain control over an area of the internet where tools such as bitcoin and Tor are used to create an online space beyond the reach of the authorities.

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Whack-a-troll Legislation

Written by Asher Lowenstein     —   Edited by Yaping Zhang

Patent assertion entities’ extensive litigation activities in different states enables to assess the efficacy of the proposed bills against legal strategies these trolls, such as MPHJ Technology, have engaged in. The legal battles confirm some of the concerns about the usefulness of proposed regulatory measures.

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3D Systems and Formlabs Settled Two-Year Patent Dispute

By Yixuan Long – Edited by Yaping Zhang

On December 1, 3D Systems and Formlabs settled their two-year legal dispute over the 520 Patent infringement. Terms of the settlement are undisclosed. The patent covered different parts of the stereolithographic three-dimensional printing process, which uses a laser to cure liquid plastic. 3D Systems was granted the ‘520 Patent in 1997. Formlabs views the settlement as enabling it to continue its expansion and keep developing new products.

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Privacy Concerns in the Sharing Economy: The Case of Uber 

By Sabreena Khalid – Edited by Insue Kim

Recent revelations about Uber’s disconcerting use of personal user information have exposed the numerous weaknesses in Uber’s Privacy Policy. The lack of regulation in the area, coupled with the sensitive nature of personal information gathered by Uber, makes the issue one requiring immediate attention of policy makers.

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An End to Business Methods Patents?
By Anthony Kammer – Edited by Anna Lamut

In re Bilski
CAFC, October 30, 2008, No. 08/833,892
En Banc In re Bilski opinion
Amicus Brief, En Banc Order, BPAI opinion  (hosted by Electronic Frontier Foundation)

On October 30, 2008, an en banc panel of the Federal Circuit upheld a ruling by the Board of Patent Appeals and Interferences that a business method developed by Bernard Bilski and Rand Warsaw for hedging risks in commodities trading is not patentable under the U.S. Patent Act, 35 U.S.C. § 101.

The decision comes only a decade after the Federal Circuit first allowed business method patents in State Street Bank v. Signature Financial Group, by granting patent protection to a system for managing mutual fund accounts.

In the majority opinion, Chief Judge Michel explicitly rejects the “useful, concrete and tangible result” test the Federal Circuit had set forth in State Street in 1998.  Relying on the Supreme Court opinions in Gottschalk v. Benson and Diamond v. Diehr, the court in Bilski states that in order to be eligible for a patent, a process must fulfill the “machine-or-transformation” test.   According to this test, a process is patentable under 35 U.S.C. § 101 if “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.”

Patently-O explores the case with detailed commentary, including potential applications to biotechnology and life sciences, software claims, and tax strategies.
Daniel Crowe, a patent litigator at Bryan Cave, states that it remains uncertain what will happen to the business-method patents that have been approved since 1998 that might not hold up under the Bilski test.
Randy Lipsitz, a patent specialist at Kramer Levin in New York predicts that the number of patent applications from the financial and software industries will decrease as a result of the decision.
Steve Seidenberg of InsideCounsel believes that State Street’s many critics, who see business patents as opening the doors to patent trolls, low-quality patents, and excessive litigation costs will be pleased with the Bilski decision.

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Posted On Nov - 5 - 2008 3 Comments READ FULL POST

Google Library Project Lawsuit Settles
By Tyler Lacey — Edited By Anna Lamut

Authors Guild, Inc. v. Google Inc.
S.D.N.Y., No. 05 CV 8136
Settlement Agreement

On October 28, 2008, the Authors Guild, Association of American Publishers, and Google reached a settlement that, pending approval by the court, will end a lawsuit that began three years ago when the Authors Guild filed a class action against Google on behalf of more than eight thousand authors in the U.S. District Court for the Southern District of New York. The Authors Guild alleged that Google infringed many authors’ copyrights by scanning and indexing their works as part of Google’s Library Project in order to display parts of these works in search results on Google’s Book Search product.

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Posted On Oct - 30 - 2008 Comments Off READ FULL POST

Appeals Court Rules Against Import Ban on Patent-Infringing Chips 
Slip Opinion

This Tuesday the Federal Circuit ruled against an International Trade Commission (“ITC”) ban on imports of cell phone chips that allegedly infringed on a rival’s patent. The chips, made by Qualcomm Inc., contained technology that the ITC had previously held infringed on a patent owned by Broadcom Corp. In its ruling the court stated that the ITC lacked authority to ban such imports.

Report by the Associated Press available here. Coverage by Reuters is available here.

From Across the Pond…

UK Considers Communications Data Bill
Speech

On Thursday, United Kingdom Home Secretary suggested legislation that would create a massive government database containing information on mobile phones and e-mail in order to combat terrorism.  Information collected would include the location and identity of the parties communicating, but not the content of the communications themselves.

BBC offers more coverage of the controversy surrounding the proposal, which critiques have called “Orwellian.”

UK Court Rejects Self-Incrimination Defense for Encryption Key
Slip Opinion

A UK court required defendants to offer the encryption key protecting a data disk that had been seized by police in a criminal investigation. Suspects were arrested for breaching an order under the Prevention of Terrorism Act of 2005. The court rejected their argument that disclosure would violate the privilege against self-incrimination, stating in its holding that an encryption key is no different than a physical key.

LinuxWorld offers more coverage here.

Posted On Oct - 17 - 2008 1 Comment READ FULL POST

Oregon State Appeals Court Finds Frozen Embryos ”Personal Property” in Divorce Proceeding 
By Anna Lamut – Edited by Stephanie Weiner 

Dahl v. Angle
Or. Ct. App., October 8, 2008, A133697
Slip Opinion

The Court of Appeals of the State of Oregon upheld the decision of the trial court to enforce a contract made between a now-divorced husband and wife regarding six frozen embryos resulting from the couple’s attempt to conceive in vitro. The contract provided that, in the event of a disagreement, the wife would have the right to decide what would happen to the embryos. Necessary to the Court of Appeals’ decision was a finding that the contractual right to determine the fate of frozen embryos is personal property.

While married, the parties had unsuccessfully tried to conceive a child via in vitro fertilization, a process that left six frozen embryos at the Oregon Health and Science University (“OHSU”). The parties executed an “Embryology Laboratory Specimen Storage Agreement” at the time that they underwent the procedure, which gave the wife, Dr. Laura Dahl, the “sole and exclusive right” to instruct OHSU to transfer or dispose of the embryos in the event that the parties were not able to agree. Dr. Dahl chose to have the embryos destroyed, while her ex-husband, Dr. Darrell Angle, denied having initialed or read the agreement. He claimed that “embryos are life” and did not want the embryos destroyed because “there’s no pain greater than having participated in the demise of your own child.”

The Associated Press and CBS provide overviews of the case. 

Andy Dworkin of the Oregonian provides commentary

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Posted On Oct - 16 - 2008 Comments Off READ FULL POST

President Bush Signs PRO-IP Act
S. 3325

On Monday, October 14, President Bush signed into law the Prioritizing Resources and Organization for Intellectual Property Act, also known as the PRO-IP Act, S. 3325. The PRO-IP Act steepens penalties for IP infringement and increases resources to the DOJ to coordinate state and federal efforts against counterfeiting and piracy.

Although opposed by the DOJ, the Act also provides for a “U.S. Intellectual Property Enforcement Coordinator” position within the Executive Office of the President, which commentators are referring to as a “Copyright Czar.” However, another controversial provision, which would have authorized the Attorney General to seek civil copyright infringement remedies for private copyright owners, was removed from the final bill.

5th Circuit Ruling May Endanger Patent Rocket Docketin the Eastern District of Texas
In Re: Volkswagen of America Inc.
5th Circuit, October 10, 2008, No. 07-40058
Slip opinion

In a 10-7 en banc decision, the Fifth Circuit issued a writ of mandamus ordering the transfer of a product liability case from the U.S. District Court for the Eastern District of Texas to the U.S. District Court for the Northern District of Texas.  The court held that the district court judge John Ward had abused his discretion when he denied a motion to transfer from the Eastern District, which had no connection to the parties, witnesses, or facts of the case, to the Northern District, which had extensive connections to the parties, witnesses, and facts of the case.  The dissent argued that the majority was misusing mandamus in violation of Supreme Court precedent, characterizing the district court judge’s order as nonappealable.

Commentators note the ramification of the court’s order on the common practice of filing patent suits in the notoriously plaintiff-friendly “rocket docket” Eastern District.  Under the majority’s reasoning, it may become easier for defendants to seek changes of venue.

German Courts Rule That Google Image Thumbnails Infringe on Copyright

Google has recently lost two copyright suits in Germany, where the courts have ruled that Google’s use of thumbnails of copyrighted images in its image search engine constitutes infringement.  Google plans to appeal.

These rulings stand in contrast to U.S. precedent, such as the Ninth Circuit’s holding, in Perfect 10 v. Amazon, that Google’s use of image thumbnails was a fair use.  Similarly, eBay has seen divergent international outcomes with respect to trademark infringement claims. The S.D.N.Y. ruling in Tiffany v. eBay held that eBay did not have to increase its efforts to police trademark infringers, while courts in Germany and France instead ruled in favor of luxury brands Rolex and Louis Vuitton.

Posted On Oct - 14 - 2008 Comments Off READ FULL POST
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