A student-run resource for reliable reports on the latest law and technology news
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Aereo Struggles as Supreme Court Finds It Violated Copyright Law
By Jenny Choi – Edited by Sarah O’Loughlin

On June 25, 2014, in its 6-3 decision, the Supreme Court of the United States ruled against Aereo, Inc.  The U.S. Supreme Court held that Aereo violated the Copyright Act of 1976 for streaming TV shows shortly after they were broadcast without paying for the copyrighted works.  As a result, Aereo suspended its service and has struggled to find a way to re-operate its business. This decision has not come without criticism, however, as some warn this ad hoc decision could lead to uncertainty in the courts.

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DRIP Bill Expands UK’s Data Surveillance Power

By Yixuan Long – Edited by Insue Kim

House of Lords passed the Data Retention and Investigatory Powers Bill (“DRIP”) on July 17, 2014. DRIP empowers the UK government to require all companies providing internet-based services to UK customers to retain customer metadata for 12 months. It also expands the government’s ability to directly intercept phone calls and digital communications from any remote storage. Critics claim the bill goes far beyond what is necessary and its fast-track timeframe prevents meaningful discussion.

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Federal Circuit Grants Stay of Patent Infringement Litigation Until PTAB Can Complete a Post-Grant Review

By Kyle Pietari – Edited by Insue Kim

Reversing the district court’s decision, the Federal Circuit granted a stay of patent infringement litigation proceedings until the PTAB can complete a post-grant patent validity review. This was the court’s first ruling on a stay when the suit and review process were happening concurrently.

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Ninth Circuit Rejects Fox’s Request to Shut Down Dish Services, Despite Aereo Decision

By Sheri Pan – Edited by Insue Kim

United States Court of Appeals for the Ninth Circuit affirmed the district court’s denial of Fox’s motion for a preliminary injunction.  Fox argued that the technologies would irreparably harm Fox because they violate copyright laws, but the Ninth Circuit ruled that the district court did not err in finding that the harm alleged by Fox was speculative, noting that Fox had failed to present evidence documenting such harm.

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Flash Digest: News in Brief

By Patrick Gutierrez

Senate passes bill to make cell phone unlocking legal

ABA urges lawyers to stop pursuing file sharing lawsuits

FBI cautions that driverless cars may be used to assist criminal behavior

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By James Grace

Hershey_Cross_SectionHershey’s Opposes Mars’ Attempt to Register a Snickers’ Cross-Section as a Design Mark

The Trademark Blog reported that Hershey’s has filed a Notice of Opposition with the U.S. Patent and Trademark Office concerning Mars’ application to register a design mark for “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing several tan colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” U.S. Trademark Application Serial No. 85441471 (filed Oct. 6, 2011). As one of four grounds of opposition, Hershey’s alleges that the design mark is functional, since the configuration of ingredients is the result of a commonly used  “layering” process for manufacturing candy bars that is efficient and cost effective. Notice of Opposition, ¶¶ 13-17, 23-29.

Medtronic v. Boston Scientific – Oral Argument

On November 5, 2013, the Supreme Court of the United States heard oral argument in the case of Medtronic v. Boston Scientific, No. 12-1128 (U.S. Nov. 5, 2013). Medtronic, a medical device manufacturer, licensed patents from Boston Scientific and subsequently sought declaratory judgment that it did not infringe Boston Scientific’s patents and was therefore not obligated to pay royalties. In a typical patent infringement suit, the patent holder bears the burden of proving infringement, and this burden does not shift in a declaratory judgment action.  However, the United States Court of Appeals for the Federal Court recently held that where a licensee is seeking a declaration of non-infringement, the licensee should bear the burden of proving non-infringement because the patentee is not in a position to counterclaim for infringement. Medtronic v. Boston Scientific, 695 F.3d 1266 (Fed. Cir. 2012), slip op. at 12. Medtronic appealed to the Supreme Court. PatentlyO and SCOTUSblog provide a summary of the issues raised in oral argument before the Court.

Proposed Tweak to Law Would Pull Shield From Generic-Drug Makers

On November 8, 2013, the Food and Drug Administration (“FDA”) issued a press release outlining a proposed rule aimed at speeding up the dissemination of safety information concerning generic drugs. Under the current rules, generic drug manufactures must wait for approval by the FDA and the corresponding brand name manufacturer before updating product labeling to reflect new safety information.  The proposed rule would provide generic manufacturers with the same ability as brand name manufactures to update product labeling based on newly acquired safety information prior to review by the FDA. The Wall Street Journal discusses how the proposed rules relate to the recent of case of Mutual Pharmaceutical Co. , Inc. v. Bartlett , No. 12–142 (U.S. 2013), in which the Supreme Court overturned a $21 million judgment to a woman for injuries allegedly caused by a generic drug.

Posted On Nov - 10 - 2013 Comments Off READ FULL POST

By Sheri Pan – Edited by Elise Young

November 1, 2013 Notice from NIST

The National Institute of Standards and Technology (“NIST”) recently announced that it has begun formal review of its standards development process for approving cryptographic algorithms. The notice appears to be a reaction to recent reports in the New York Times regarding the National Security Agency’s (“NSA”) back door access to encrypted data through an NIST-approved cryptographic algorithm. The article suggests that the NSA inserted back door access into the algorithm, one that many companies use to encrypt data sent over the Web.

The New York Times, in an article and blog post, and the Guardian cover the alleged back door access. Ars Technica, Matthew Green, and Wired provide commentary. (more…)

Posted On Nov - 7 - 2013 1 Comment READ FULL POST

By Christopher A. Crawford

Icon-newsDOJ Notifies Defendant: Evidence Gained From Warrantless Wiretaps

The New York Times reported that for the first time, in a notice filed on Friday, October 26, federal prosecutors told a criminal defendant that evidence against him was gathered using warrantless wiretaps. U.S. v. Muhtorov, No 1:12-cr-00033-JLK-01 (D. Colo. Jan. 12, 2012) (hosted by the Lawfare Blog). The Feds’ move will likely prompt the defendant, Jamshid Muhtorov, to challenge the warantless wiretap as unconstitutional, possibly leading to review by the Supreme Court. In arguments before the Supreme Court last year, Solicitor General Donald B. Verrilli Jr. said that prosecutors would notify defendants if they were facing evidence gathered using such warrantless taps, only to discover later that defendants had not, in fact, been notified. An inter-departmental debate ensued, resulting in the decision to tee-up the Supreme Court’s review of the wiretapping process as delineated in Section 702 of the Foreign Intelligence Surveillance Act (FISA) of 1978. 50 U.S.C. § 1881(a) (2006).

New Smartphone Patent War Begins

A company named “Rockstar,” jointly owned by Apple, Microsoft, and other tech giants, filed eight patent infringement lawsuits against Google in the Eastern District of Texas on last Thursday. Rockstar Consortium v. Google Inc., No. 2:13-cv-00893-JRG-RSP (E.D. Tex Oct. 31, 2013).  Rockstar, a so-called “patent privateer,” is essentially a holding company for more than 6,000 patents that were purchased for $4.5 billion dollars by Google’s rivals in 2011 with the intent to sue the search giant. Google has called such privateers “patent trolls.” Ars Technica has characterized Rockstar’s lawsuits as the opening salvo in a “nuclear” patent war which will be fought over key 4G cellular patents—a thinly veiled attack on Google’s Android phones.

FTC Asks For Comments Regarding Regulation Of The “Internet of Things”

The Federal Trade Commission (“FTC”) has solicited comments regarding “the internet of things,” a catch-all term for the new wave of technologies, such as smart utility meters or GPS built into our cars, that promise to link every aspect of our lives to the Internet in the name of convenience, safety, and efficiency. Some industry groups have called for self-regulation, as was successful with the world wide web, but others, like the Electronic Privacy Information Center, note that this newer technology will allow people to be physically tracked in real time across many networks and thus that the security concerns are entirely different. For instance, the same smart meters used to manage more efficiently our homes’ heating and cooling might also tell someone that we are currently at home. In September, the FTC signaled its desire to acknowledge such concerns when it settled with TRENDnet, a surveillance camera maker, requiring it to substantially improve its system security. TRENDnet, Inc., F.T.C. No. 122 3090 (Sept. 4, 2013). The FTC staff will meet on November 19th to discuss the comments and how to move forward with new regulations. GigaOM covers this matter in greater detail.

Posted On Nov - 5 - 2013 Comments Off READ FULL POST

Battelle Energy Alliance LLC v. Southfork Sec. Inc.
By Corey Omer — Edited by Abhilasha Nautiyal

Battelle Energy Alliance LLC v. Southfork Sec. Inc., No. 4:13-cv-00442-BLW (D. Idaho Oct. 15, 2013).

Court Order, hosted by DocumentCloud

Last month, the U.S. District Court for the District of Idaho issued a rare ex parte temporary restraining order (“TRO”) against a software developer, Corey Thuen, his company and 10 Does, enjoining them from releasing software code as open source and ordering that Thuen’s computer be seized and its contents copied. Battelle Energy Alliance LLC v. Southfork Sec. Inc., No. 4:13-cv-00442-BLW (D. Idaho Oct. 15, 2013) (“Battelle Energy”).

What made this case one of the “very few circumstances justifying the issuance of an ex parte TRO”? Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th Cir. 2006). The determinative consideration for the court was that Thuen is a self-described “hacker”. His company, Southfork — which is in the business of testing system security for its clients by “hacking” their systems and exposing weaknesses — states on its website, “[w]e like hacking things and we don’t want to stop.” Battelle Energy at 4. Judge Lynn Winmill reasoned that because Thuen was a “hacker” — and therefore had “the necessary computer skills and intent to simultaneously release the code publicly and conceal [his] role in that act” — the ex parte seizure order was justified. Id. at 12.

The Complaint, Court Order, and Thuen’s Declaration provide an overview of the case. Tim Cushing of TechDirt criticizes the complaint, and the resulting decision, as submitting to two government propagated fallacies: first, that “open source is dangerous,” and, second, that all “hackers are bad”. ComputerWorld and TechNewsWorld also feature thorough analyses of the decision. (more…)

Posted On Nov - 4 - 2013 Comments Off READ FULL POST

By Mengyi Wang – Edited by Kathleen McGuinness

H.R. 3309 - Innovation Act

Photo By: Domas MituzasCC BY 2.0

The perceived “patent troll” problem has plagued the U.S. patent system for years. To curb abusive patent litigation, Representative Bob Goodlatte (R-VA), with a bipartisan coalition, introduced the “Innovation Act” in the House of Representatives on Oct 23, 2013. The patent reform bill contains a number of provisions that seek to change the landscape of patent procurement, ownership, and enforcement, Patently-O reports.

Patently-O, Info World, and the Electronic Frontier Foundation (“EFF”) provide an overview of the legislation and comment on its significance. The American Intellectual Property Law Association has summarized each section of the bill. Patent Docs and The Software Alliance voice concerns. (more…)

Posted On Nov - 3 - 2013 5 Comments READ FULL POST
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