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The Court of Justice of the European Union Finds the Harbor No Longer Safe

Written by: Ann Kristin Glenster - Edited by: David Nathaniel Tan

This fall, the Court of Justice of the European Union delivered a landmark ruling,  holding that the Safe Harbor Agreement on the handling of personal data by U.S. companies in Europe was invalid. This article will give a brief overview of the case, and explore the salient issues to which the European Court took umbrage. Finally, it will attempt to sketch out some possible consequences of the ruling, and the options that now face E.U. and U.S. legislators.

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Flash Digest: News in Brief

By Yiran Zhang – Edited by Olga Slobodyanyuk

Senators Introduce a Bill which Requires Social Media Companies to Report Terrorist Activity

New EU Copyright Rules Left Possibility for Google Tax

COP21 Reached an “Ambitious and Balanced” Deal on Climate Change

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Flash Digest: News in Brief

By David Nathaniel Tan – Edited by Adi Kamdar

Software Pirate Settles Suit Via YouTube

After Paris Attacks, FCC Chairman Calls for Expanded Wiretap Laws

Hoverboards Declared Illegal in New York City

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Belgian Court Demands that Facebook Stop Tracking Non-Members

By Mila Owen – Edited by Kayla Haran

The Belgian Privacy Commission requested a cessation order against Facebook regarding their practice of placing “datr” cookies on devices of non-Facebook users to track activity on other Facebook pages or on pages containing the “like” or “share” button. The court ruled that this tracking violates the Belgian Privacy Act because it amounts to the collection and “processing of personal data.”

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Facebook not liable for discrimination against Sikhs in India

By Ann Kristin Glenster – Edited by Yaping Zhang

By dismissing Sikhs for Justice Inc.’s case against Facebook for discrimination by blocking the group’s page in India, the United District Court of Northern California maintains the neutrality of interactive online providers and exempts them from liability under Title II of the Civil Rights Act.

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By Kathleen McGuinness – Edited by Sabreena Khalid

Azure Networks, LLC v. CSR PLC, 2013-1459 (Fed. Cir. Nov. 6, 2014).

Slip Opinion.

radio-wireless-tower-clip-art_resizedOn November 6th, the Federal Circuit issued its decision in Azure Networks, LLC v. CSR PLC. Plaintiffs Azure Networks, LLC (Azure) and Tri-County Excelsior Foundation (Tri-County) sued CSR PLC and its co-defendants for alleged infringement of Tri-County’s patent – U.S. Patent No. 7,756,129 (“the ’129 patent”) – describing a network for wireless communications between a central “hub” and several devices in close proximity. Slip op. at 3. The appeal involved two major issues.

The first issue was with regard to standing to sue; the defendants had successfully moved to dismiss Tri-County for lack of standing in the district court, arguing that Tri-County had effectively assigned Azure the patent in suit. The Federal Circuit decided the issue de novo, and upheld the dismissal.

The issue of standing turned on the assignment and licensing of the patent: The ’129 patent was acquired by Azure, a Texas limited liability company. Azure partnered with Tri-County, a Texas non-profit organization, to join in patent enforcement activities. Azure donated the ’129 patent to Tri-County in 2010; a few weeks later, Tri-County and Azure entered into a licensing agreement which granted Azure the exclusive, worldwide, transferrable right to practice the ’129 patent, as well as the “full right to enforce or and/or sublicense” the ’129 patent” and various other rights. Id. At 6. Azure’s enforcement rights included the right to reach settlements without Tri-County’s consent. Id. At 7. (more…)

Posted On Nov - 18 - 2014 Comments Off READ FULL POST

By Viviana Ruiz

Russia’s Intellectual Property Court affirms denial of Ford’s trademark application

Ford Motor Company’s (“FMC”) application to protect its company name and blue oval logo was rejected by Russia’s IP Office and affirmed by Russia’s Intellectual Property Court. Even though “FORD” was ranked as the 44th most valuable global brand last year by Forbes Magazine, the company failed to comply with Russia’s procedural requirements to obtain the requested protection. FMC failed to provide evidence of the company’s extensive use of the logo in Russia. FMC tried to prove extensive use through documentation of its joint venture with Russia’s car maker Sollers; however, since the documentation was provided by Ford Sollers Limited, it could not serve as evidence for FMC’s extensive use of its marks in Russia. The IP Office also held that the evidence provided did not show “consistent” use of the mark to qualify for well-known trademark protection. While this rejection may seem like a political move by Russia to challenge the enforcement of American company’s intellectual property rights, it may very well be true that FMC simply failed to comply with the requirements established by Russia’s IP Office. Nonetheless, FMC can reapply to obtain the well-known status of its marks.

Contrary to its advertising efforts, Red Bull does not give you wings

Red Bull GmbH (“Red Bull”) agreed to pay $13 million dollars to settle two class action law suits  Benjamin Careathers v. Red Bull North America Inc., Case No. 1:13-cv-00369, and David Wolf et al. v. Red Bull GmbH, Case No. 1:13-cv-08008, both in the U.S. District Court for the Southern District of New York. Benjamin Careathers, the plaintiff in one of the suits, argued that he did not grow wings and that his mental and physical development was not enhanced even after ten years of drinking Red Bull. $6.5 million dollars from the settlement will go into a fund that will be paid out to consumers who have been drinking Red Bull since 2002. Consumers do not need to prove purchase in order to get a $10 cash refund or get, in the alternative, $15 worth of Red Bull products. But since over 2 million people have requested for a refund, it is likely that consumers will receive much less than $10. A hearing has been schedule for May 1, 2015 to decide whether the settlement will be approved by Court. Consumers will receive their refund or products within 150 days of the settlement’s approval. Red Bull authorities have expressed that they reached a settlement in order to avoid further litigation, denying claims of liability.

Federal Court rules that food flavors are not trademarkable

In New York Pizzeria, Inc. v. Syal, 3:13-CV-335 (S.D. Tex. Oct. 20, 2014), Federal Court ruled that “food flavors” are not trademarkable given their functional purpose. Russo’s New York Pizzeria sued Gina’s Italian Kitchen for taste infringement, claiming trademark rights in the taste of their food. The court ruled that it is not possible to grant trademark protection to food flavors due to the “functionality” of flavors.

Posted On Nov - 17 - 2014 Comments Off READ FULL POST

By Ken Winterbottom – Edited by Yixuan Long

Virginia v. Baust, No. CR14-1439 (Va. Cir. Oct. 28, 2014) Slip Opinion hosted by Scribd.

smartphone-fingerprintA Virginia state trial court held that a suspect “cannot be compelled [by the police] to produce his passcode to access his smartphone but he can be compelled to produce his fingerprint to do the same.” Id. at 4. The analysis turned on whether a passcode or a fingerprint is “testimonial communication.” Id. at 2.

Judge Frucci ruled that phone passwords were entitled to protection under the Fifth Amendment’s promise that no person “shall be compelled in any criminal case to be a witness against himself.” Id. He stressed that the password existed only in the defendant’s mind, and thus compelling the defendant to provide a passcode constituted a testimonial communication. The Fifth Amendment protects against such compulsion.

On the other hand, Judge Frucci concluded that smartphone fingerprint protection did not qualify for the Fifth Amendment privilege. He noted that producing a fingerprint did not require the communication of knowledge, but was rather analogous to being ordered to produce a DNA sample or a key, which is constitutionally permissible. Judge Frucci also cited a 1967 Supreme Court case, United States v. Wade, 388 U.S. 218 (1967), for the proposition that the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting.” Baust, No. CR14-1439, at 3 (Va. Cir. Oct. 28, 2014).

Although some commentators were unsurprised by the decision, others worried about its privacy implications. The Virginian-Pilot and The Hill provide further commentary. (more…)

Posted On Nov - 12 - 2014 Comments Off READ FULL POST

By: Yunnan Jiang

Federal Circuit denies appeal in Baraclude patent case

On October 20, the Federal Circuit declined to hear an appeal by Bristol-Myers Squibb Co.’s (“BMS”). The denial follows a United States District Court for the District of Delaware decision that held the composition of matter patent covering entecavir, US patent 5,206,244 invalid as obvious, which would allow Israel-based Generics giant Teva Pharmaceutical Industries to launch generic production upon the FDA’s final approval. Entecavir is the active ingredient of Baraclude, which is an antiviral medicine developed by scientists at BMS. Baraclude is approved in the United States for the treatment of hepatitis B in adults who have active virus and liver damage and is the global market leader in oral treatments for hepatitis B, with global sales of over $1 billion in 2013.  The district court decided that the invention of entecavir was obvious at the time of its effective filing date and rejected evidence postdating the invention to establish unexpected results.

Federal Circuit denies fee-shifting sanction in patent infringement action over Pfizer

In AntiCancer, Inc. v. Pfizer, Inc, No. 13-1056 (Fed. Cir. October 20, 2014), the United States Court of Appeals for the Federal Circuit remanded the United States District Court for the Southern District of California’s decision to grant summary judgment for Pfizer and impose a fee-shifting sanction on AntiCancer as a condition of supplementing their infringement contentions. AntiCancer field a lawsuit against Pfizer in the United States District Court for the Southern District of California for breach of a license agreement, which the district court found “woefully insufficient”, “vague”. However, on appeal, the Federal Circuit rejected such evidence as basis for bad faith and held that the district court exceeded their discretionary authority in imposing such fee-shifting sanction.

Federal Circuit rejects patent infringement for products sold oversees

In Halo Electronics, Inc., v. Pulse Electronics Inc., No. 13-1472 (Fed. Cir. October 22, 2014), the United States Court of Appeals for the Federal Circuit affirmed the United States District Court for the District of Nevada’s decision finding no direct infringement of the Halo patents for products Pulse manufactured, shipped, and delivered outside the U.S. The Federal Circuit further affirmed district court’s decision finding direct infringement of the Halo patents for pulse products delivered in the United States and inducement for products Pulse delivered outside the United States but were imported into the United States by others. In this decision, the Federal Circuit court rejected Halo’s argument that domestic sale reduction resulted from Halo’s oversee sale and sales negotiations conducted within the United States for sales oversees constituted evidence for patent infringement.

 Yunnan Jiang is a 1L at Harvard Law School.

Posted On Nov - 12 - 2014 Comments Off READ FULL POST

By Cristina Carapezza

Federal Appeals Court Weighs NSA’s Surveillance Program

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit on Tuesday heard arguments over whether the National Security Agency’s surveillance of millions of Americans’ phone records violates the Constitution’s protection against unreasonable searches and seizures. The panel questioned whether the program, which is conducted under the Patriot Act, is an invasion of privacy if the NSA merely collects the data without using it. Arguing against the NSA program, attorney Larry Klayman argued that the program represents “possibly the biggest violation of freedom in constitutional history.”  Klayman won the first ruling last December when U.S. District Judge Richard Leon, ruled that the NSA’s surveillance program “almost certainly” violates the Constitution.

Argentine Supreme Court Rules on Liability of Internet Intermediaries

The Argentine Supreme Court in R.M.B. c/Google y ot. s/ Ds y Ps (Fallo R.522.XLIX) issued a ruling largely favorable to search engines on whether internet intermediaries, in this case Google and Yahoo, are liable for linking in search results to third-party content that violates fundamental rights or infringes on copyright. At the end of October, the Court established that intermediaries would only be liable for not removing third-party infringing content after being notified by a court of its illegality and the affected party. In this case, the plaintiff did not notify Google and Yahoo prior to the lawsuit. The Court also ruled that search engines are not required to proactively monitor search engines to permanently block links to infringing content.

3D Printed Plastic Guns Withstand New Ammunition Design

Michael Crumling, a 25-year old amateur gunsmith from Pennsylvania, developed a new type of ammunition designed specifically for a 3D printed plastic gun. Typically, the plastic cannot hold up after multiple shots of an exploding metal bullet. However, Crumling constructed a thicker steel shell to house the lead bullet inside. The shell acts as a buffer between the exploding round’s gunpowder and the plastic of the gun by absorbing much of the impact. The U.S. Bureau of Alcohol Tobacco and Firearms has stressed the unreliability and danger of 3-D printed weapons. Selling your own manufactured ammunition in the United States requires a Federal Firearms License. Crumling has no plans to sell the ammunition but is sharing his ammunition designs online.

Posted On Nov - 11 - 2014 Comments Off READ FULL POST
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