By Jacob L. Rogers

Intel Acquires 1,700 Patents From Interdigital for $375 Million.

Intel has publicly announced its purchase of Interdigital’s patent portfolio, which is primarily composed of wireless patents. In the wake of the deal, Reuters voiced some concerns about the relative value of the deal, noting that the patents in this case were acquired at $220,000 per patent, compared to the $750,000 per patent and $735,000 per patent in the Nortel and Motorola deals, respectively. The acquisition of wireless patents could indicate a desire from Intel to push its chip manufacturing more towards mobile devices, where equipment and software updates are increasingly being applied over a wireless connection. Interdigital stock rose over 25 percent following the news of the Intel acquisition.

Motorola Continues Lawsuits over FRAND Patents

According to a report from Ars Technica, Motorola is continuing to sue companies over patents that it has agreed to license under fair, reasonable and non-discriminatory (“FRAND”) terms. Although MPEG-LA (an organization that specializes in licensing standards patents) has said that the price of one of Motorola’s patents should be 10-20 cents per unit, Motorola’s standard terms are to ask companies for 2.25 percent of revenues from products that make use of the patented standards. Many companies have already accepted Motorola’s terms, although both Apple and Microsoft continue to fight Motorola’s prices. Last week, Richard Posner referred to the whole patent system as “chaos” and told Motorola that he did not believe they could obtain an injunction for a standards essential patent.

Judge Rules that Netflix May be Required to Provide Subtitles Under the American Disabilities Act

Judge Michael Ponsor ruled against dismissal of a case requiring Netflix to provide closed captioning for its programming pursuant to the American Disabilities Act (“ADA”). Netflix had attempted to claim that the ADA did not apply to services provided over the Internet. Boston.com reports that Judge Ponsor rejected the Netflix interpretation, holding that Congress intended the ADA to apply to evolving forms of technology and keep current with the times. Judge Ponsor extended this to web-based businesses, even though the act, passed in 1990, did not contemplate business conducted over the Internet at the time of its passage. Under Judge Ponsor’s reading, nearly all websites could be required to provide features for improved access by people with disabilities.

Google Reveals Censorship Request Information

Google has revealed that between July and December in 2011 it received more than 1,000 requests from governments around the world asking for the removal of content from its servers. The New York Times reports that some requests included an American police department asking for removal of a video showing police brutality, Canadian authorities asking for removal of a video showing a citizen urinating on his passport and flushing it down a toilet, and 14 requests asking for removal of videos that showed information about Spanish authorities such as mayors and public prosecutors. Google has refused to remove these videos, although it has complied with almost 50 percent of requests overall and 93 percent of requests coming from the U.S. government. These statistics do not include removal of Google content from Iran or China, both of which regularly censor Google content without informing the company.

Federal Circuit Sets Forth New Standard for Willful Infringement
By Jie Zhang – Edited by Jennifer Wong

Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., No. 2010-1050 (Fed. Cir. June 14, 2012)
Slip Opinion

The Court of Appeals for the Federal Circuit, in a 2-1 ruling following an en banc decision that sent the case back to panel for rehearing, partly reversed its earlier decision from February 10, 2012, which had affirmed the verdict of the District Court for the District of Arizona against W.L. Gore and had upheld the district court’s doubling of the jury’s damages award for willful patent infringement.

On panel rehearing, the Federal Circuit reaffirmed the validity of Bard’s patent but vacated its prior opinion on the issue of willful infringement. The Federal Circuit employed the two-prong test for willfulness. The court redefined the first prong of the test and held that the objective determination of the likelihood that a defendant’s conduct constituted infringement is a question of law for the court to decide. Only after the objective threshold is satisfied can the jury consider the subjective recklessness of the defendant’s actions. The court further stated that if the defendant has a reasonable defense or non-infringement theory, then the objective threshold is not overcome and there is no willful infringement. Thus, the court remanded the case to the district court to determine whether the objective prong of willful infringement is satisfied under this new standard and to reconsider whether the enhanced damages award is proper.

JOLT Digest previously reported on the Federal Circuit’s earlier decision in the battle between Bard and Gore. Thomson Reuters provides an overview of the case. Patently-O comments on the implications of the new standard. (more…)

Government Says Megaupload Users Must Pay to Retrieve Their Data
By Jacob L. Rogers – Edited by Heather Whitney

United States v. Kim Dotcom, No. 1:12CR3 (E.D. Va. June 8, 2012)
Kyle Goodwin’s motion for return of property (hosted by EFF)
Government reply brief (hosted by Wired)

In United States v. Kim Dotcom (“the Megaupload case”), the government has filed a reply brief regarding their responsibility (or lack thereof) to provide third parties their data in a situation where the government’s shutdown of a site has made it virtually impossible for that third party to otherwise retrieve their data. Here, in response to Mr. Kyle Goodwin’s motion for return of property pursuant to 18 U.S.C. § 1963 or Federal Rule of Criminal Procedure 41(g), the government claims that non-parties to the case have no recourse to the government in order to obtain the data stored on the previously seized Megaupload servers. (Government’s brief at 12).

JOLT Digest previously covered the Megaupload indictment. A thorough explanation of the issues can be found on CNET. Computerworld and WebProNews assert that the government’s proposal is unrealistic, and might be an effort to deter swarms of Megaupload users from demanding their data.

(more…)

Employee Alleging Employer Accessed Quasi-Public Facebook Posts States a Valid Claim for Invasion of Privacy
By Charlie Stiernberg – Edited by Heather Whitney

Ehling v. Monmouth-Ocean Hosp. Serv. Corp., No. 2:11-cv-03305 (WJM) (D.N.J. May 30, 2012)
Slip Opinion (hosted by Justia.com)

The United States District Court for the District of New Jersey granted defendant Monmouth-Ocean Hospital Service Corp.’s (“MONOC”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Deborah Ehling’s New Jersey Wiretapping and Electronic Surveillance Control Act (“NJ Wiretap Act”) claim, but denied MONOC’s motion to dismiss Ehling’s common law invasion of privacy claim.  Ehling, a MONOC employee, alleged that a supervisor inappropriately accessed restricted posts on her Facebook page without her consent.

The court held that Ehling failed to state a claim under the NJ Wiretap Act, because she did not allege that her Facebook posting was viewed by her employer “in the course of transmission.”  Ehling, No. 2:11-cv-03305 (WJM) at 4.  The court held that the NJ Wiretap Act does not apply to a received communication that is placed in “post-transmission storage” before it is “accessed by another without authorization.”  Id. at 4-5.  On the other hand, the court held that Ehling had stated a plausible claim for common law invasion of privacy, in part because she “may have had a reasonable expectation that her Facebook posting would remain private,” especially because she took steps to protect her Facebook page from public viewing.  Id. at 6.

The Delaware Employment Law Blog provides an overview of the case, and states that the key take-away for employers is “Don’t look for trouble or you just may find it.”  The Eric Goldman Technology & Marketing Law Blog notes that the number of Facebook friends with whom Ehling shared her post may end up determining whether the post should be accorded any privacy protection.

(more…)

USPTO Proposes New Rules for Micro Entity Status
By Jeffery Habenicht – Edited by Dorothy Du

Changes to Implement Micro Entity Status for Paying Patent Fees, 77 Fed. Reg. 31,806 (proposed May 30, 2012) (to be codified at 37 C.F.R. pt. 1).
Federal Register

On May 30, 2012, the PTO published a notice of proposed rulemaking in the Federal Register entitled Changes to Implement Micro Entity Status for Paying Patent Fees. The new rules, to be codified as 37 C.F.R. §1.29, set out the proposed requirements for attaining micro entity status. Although narrow in scope, micro entity status provides a significant reduction in patent fees for those who qualify.

The Leahy-Smith America Invents Act (“AIA”), enacted on September 16, 2011, created the micro entity status. America Invents Act, Pub. L. No. 112-29, §10 (2011) (codified at 35 U.S.C. § 123). Applicants qualifying as a micro entity would be entitled to a 75-percent reduction in fees. Id. §10(b). Although the AIA set forth a definition of what constituted a micro entity, id. §10(g), it left the specifics of implementation to the PTO. Accordingly, the PTO’s proposed rules attempt to clarify who qualifies as a micro entity and establish the procedures for claiming micro entity status, notifying the PTO of a loss of status, and correcting erroneous payments of fees.

On the whole, commentators have generally welcomed the PTO’s proposed rules. PatentDocs provides an overview and analysis of the changes. PharmaPatents explains that that proposed rules help clarify the AIA’s definition of micro entity status but raise questions about potential abuse of the higher education prong. Patently-O also mentions the clarifications provided by the proposed rules and notes that the PTO is seeking comments on whether “applicant” should be changed to “inventor” anywhere in the rules.

(more…)