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 Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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By Max Kwon

Nonprofit advocacy group fails to show “injury in fact”

The United States Court of Appeals for the Federal Circuit dismissed an appeal by plaintiff-Consumer Watchdog for lack of standing in Consumer Watchdog v. Wisconsin Alumni Research Found., No. 13-1377 (Fed. Cir. June 4, 2014). Consumer Watchdog, a nonprofit advocacy group, appealed the Patent Trial and Appeal Board’s decision affirming the patentability of claims 1-4 of U.S. Patent No. 7,029,913 (“‘913 patent”). Id. at 2. Consumer Watchdog filed its reexamination request pursuant to 35 U.S.C. §§ 311(a), 314(b)(2) (2006) because it was concerned that the ‘913 patent would allow Wisconsin Alumni Research Foundation to “completely preempt all uses of human embryonic stem cells, particularly those for scientific and medical research.” Id. at 3. In dismissing the appeal, the court emphasized the limited jurisdiction of federal courts and held that Consumer Watchdog only had “a general grievance against the ‘913 patent” and failed to show an “injury in fact” necessary to confer Article III standing. Id. at 7. Susan Decker, writer for Bloomberg News, provides a general overview of the policy debates leading up to the decision in Bloomberg Businessweek.

Court upholds duty to disclose mediator’s personal relationship with defendant

On April 5, 2010, Ceats sued Continental Airlines and multiple airlines and ticket vendors in the Eastern District of Texas, claiming for alleged infringement of patents covering technology used for seating selection for online ticket sales. Ceats, Inc. v. Continental Airlines, Inc., No. 13-1529 at 3 (Fed. Cir. June 24, 2014). The district court ordered the parties to participate in mediation and appointed former Magistrate Judge Robert Faulker as the mediator; however, the parties were unable to reach a settlement and the case proceeded to trial, where a jury found that Ceats’s patents were infringed but invalid. Id. at 3­–4. In an unrelated lawsuit, it was discovered that Faulker had a personal relationship with a Fish & Richardson lawyer. Id. at 4–5. Because Fish & Richardson was representing one of the defendants in the Ceats case, Ceats sought relief under Rule 60(b), arguing that the district court’s judgment should be set aside because of Faulkner’s failure to disclose facts regarding the prior litigation. Id. at 6. The Federal Circuit affirmed the denial of Ceats’s Rule 60(b) motion but reversed the lower court’s holding that Faulker had no duty to disclose his relationship. Id. at 20.  Notably, the court stressed that the effectiveness of  mediation depends on the parties’ ability to completely trust the mediator and that “[b]ecause mediators have disclosure obligations which are similar to the recusal requirement imposed on judges,” their disclosure obligations should be evaluated under a similar analysis. Id. at 12–13. A summary of the case can be found at Patently-O.

Claim dismissed as indefinite for resting on patent lacking specific algorithm

The United States Court of Appeals for the Federal Circuit affirmed the district court’s decision and held that Triton’s claims were invalid for indefiniteness in Triton Tech of Texas, LLC v. Nintendo of America, Inc., No. 13-1476 (Fed. Cir. June 13, 2014). Triton sued Nintendo of America, Inc. claiming that the “Wii Remote™ used in combination with a related accessory” infringed Triton’s U.S. Patent No. 5,181,181 which covers a computer input device for three-dimensional movement. Id. at 2. In concluding that the claims were indefinite, the court noted that the patent refers to “integrator means” but “did not disclose any algorithm for performing the recited integrating function.” Id. at 4 (internal quotations omitted) (citing Triton Tech of Texas, LLC v. Nintendo of Am., Inc., C.A. No. 13-cv-0157 (W.D. Wash. June 4, 2014)). Michael Borella on PatentDocs suggests that Triton’s “outcome should not be surprising to anyone” in light of recent Federal Circuit and Supreme Court precedent.

Posted On Jul - 1 - 2014 Comments Off READ FULL POST

By Anton Ziajka – Edited by Insue Kim

Case C-131/12, Google Spain SL, et al. v. AEPD, et al. (E.C.J. May 13, 2014)

Slip Opinion

Photo By: archie4oz - CC BY 2.0

Photo By: archie4ozCC BY 2.0

The European Court of Justice (“ECJ”) recently interpreted the EU’s Data Protection Directive, 95/46/EC (“Directive”), to affirm an individual’s “right to be forgotten.” See Google Spain, slip op. ¶ 91. The ECJ held that an Internet search engine is obligated, upon an individual’s request, to erase from its search results links to webpages that contain “inadequate, irrelevant or no longer relevant, or excessive” information that relates personally to the individual. Id. ¶ 94. The search engine must remove such results even if the information contained on the linked webpages is lawful and accurate, id., and even if the inclusion of the linked search results does not cause prejudice to the individual, id. ¶ 96. This obligation is limited to results responsive to searches “made on the basis of” the individual’s name, id. ¶ 94, and does not apply when access to the information is justified by “the preponderant interest of the general public,” id. ¶ 97.

Reactions to the ECJ’s judgment have ranged from condemnation to cautious optimism. TechCrunch provides an interview with Wikipedia founder Jimmy Wales, who criticizes the ruling as censorship of knowledge. By contrast, writers for the Guardian and Wired suggest that the holding may be a step in the right direction toward greater respect for people’s privacy. The New York Times, Ars Technica, and BBC further analyze the holding and its implications.

(more…)

Posted On Jul - 1 - 2014 Comments Off READ FULL POST

By Ken Winterbottom

Aereo shut down by Supreme Court ruling

In Wednesday’s 6-3 decision in American Broadcasting Cos. v. Aereo, Inc., the U.S. Supreme Court ruled against Aereo, a startup company offering streams of TV shows over the internet shortly after the programs are originally broadcast, holding that the company’s business practices violate the Copyright Act of 1976. The majority opinion, written by Justice Breyer, ruled that Aereo’s services constituted a “public performance” within the meaning of the Act.

Justice Scalia, in an opinion joined by Justices Thomas and Alito, dissented, calling the majority’s “looks-like-cable-TV” rule ad hoc and confusing.

The defeat has been heralded as the end for Aereo, which did not have a “plan B” in the event of an unfavorable decision, according to CEO Chet Kanojia. Some commentators have also warned that it may prove to be a death knell for cloud storage services, though Justice Breyer made it clear that that was a question for another day, expressly limiting the decision’s applicability to broadcast television.

Obama administration promises privacy rights to the EU

In the wake of the 2013 Edward Snowden scandal, members of the European Union expressed widespread concern that their privacy rights were being violated.  On Wednesday, the Guardian reports, the Obama administration pledged to pass legislation granting EU citizens many of the same privacy rights enjoyed by U.S. citizens.

The pledge arguably goes a step further than previous attempts to smooth over damaged post-Snowden U.S.-EU relations, of which European governments were skeptical, calling for concrete action rather than vague promises. However, commentators have already expressed doubt about this most recent move, noting that it will be difficult for the Obama administration to push this “undoubtedly controversial” legislation through Congress.

Massachusetts Supreme Court upholds decryption order

On Wednesday, the Massachusetts Supreme Judicial Court ruled that a criminal suspect may constitutionally be forced to type in a decryption password, in spite of the Fifth Amendment’s right to protect against self-incrimination.

In a 5-2 decision, the court noted that the government already had knowledge of what was on the defendant’s computer, and even what his encryption key was, and limited its holding to that context, stating that the prosecution’s “motion to compel decryption does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows.”

Despite the fact-specific nature of the holding, some commentators, such as ACLU attorney Jessie Rossman, expressed disappointment with the decision, which has been called a step back for privacy.

Meanwhile, judicial consensus on the question is lacking, with the Eleventh Circuit having come out the other way in 2012. In 2013, federal judges in Wisconsin disagreed as to whether or not the Fifth Amendment applies in such cases. Wednesday’s Massachusetts decision is only the next case in a growing jurisdictional split, which may eventually be left for the U.S. Supreme Court to resolve.

Posted On Jun - 29 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Insue Kim

Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014)

Slip Opinion

Intellectual property practitioners and technology companies anxiously awaiting clarification on the patentability of software will find little guidance in the Supreme Court’s recent decision in Alice. In the highly anticipated decision, the Court declined to articulate a definitive test for when software may be patented, instead relying on the precedent established in Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) and Bilski v. Kappos, 561 U.S. 593 (2010) to invalidate the software patents at issue.

The dispute involved four patents held by Alice Corporation (“Alice”) related to a computer-implemented method for reducing “settlement risk” in financial transactions (U.S. Patent #5,970,479, #6,912,510, #7,149,720, and #7,725,375). Alice, slip op. at 1. CLS Bank, operator of a global currency transaction network, brought suit in the District Court for the District of Columbia, arguing that Alice’s patent claims were invalid and unenforceable. Id. at 3. Following Bilski, the District Court held that the claims were ineligible for patent protection because they were drawn to a patent-ineligible abstract idea. Id. at 34. On appeal, the Federal Circuit sitting en banc affirmed the District Court’s decision. Alice filed for certiorari. Id. at 45.

The question before the Supreme Court was whether Alice’s claims were patentable under §101 of the U.S. Patent Act, or whether they were directed to a patent-ineligible abstract idea. Id. at 1. The Court unanimously affirmed the Federal Circuit’s decision, holding that Alice’s claims were directed to an abstract idea and contained no inventive concept, thereby rendering them patent-ineligible. (more…)

Posted On Jun - 28 - 2014 Comments Off READ FULL POST

By Kyle Pietari – Edited by Suzanne Van Arsdale

Photo By: Marc SmithCC BY 2.0

Limelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 12-786 (U.S. June 2, 2014)

Slip Opinion

A unanimous Supreme Court reversed the en banc United States Court of Appeals for the Federal Circuit, which had found that Limelight Networks, Inc. (“Limelight”) could be liable for inducing infringement of a method patent licensed to Akamai Technologies, Inc. (“Akamai”) by performing several of the method’s claimed steps, and then encouraging its customers to complete a final step.

The Supreme Court held that there can be no liability for induced infringement of a method patent under 35 U.S.C. § 271(b) unless direct infringement has occurred under § 271(a) or another statutory provision. Akamai, slip op. at 1. Under Federal Circuit case law, direct infringement liability under § 271(a) requires that a single party perform all steps of the claimed method. Muniauction, Inc. v. Thomson Corp., 532 F. 3d 1318, 1329. In Muniauction, the Federal Circuit clarified that this requirement is satisfied even if multiple parties perform the steps, so long as one defendant  “exercises ‘control or direction’ over the entire process such that every step is attributable to the controlling party.” Id. Limelight argued and the Supreme Court agreed that, because Limelight did not control its customers’ performance of a step in the claimed method, but merely helped them independently perform that step, direct infringement never occurred under § 271(a). Akamai, slip op. at 2, 5–6. The Supreme Court further ruled that, absent direct infringement, there could be no inducement of infringement under § 271(b), and it rejected the Federal Circuit’s reasoning that induced infringement liability could be predicated on a direct infringement that occurred outside of any statutory provisions. Id. at 4–6.

Patent Docs provides a thorough summary of the case. IPcopy provides commentary about the case’s potential relevance for patent attorneys. PatentlyO analyzes the Federal Circuit’s motivations behind its decision, concluding that it has a “fundamental discomfort with strict liability.” (more…)

Posted On Jun - 24 - 2014 Comments Off READ FULL POST
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