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 Mengyi Wang

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SEC Charges Texas Man with Running a Bitcoin Ponzi Scheme

Last Tuesday, the Securities and Exchange Commission (“SEC”) announced charges against Trendon Shavers and his company, Bitcoin Savings and Trust (“BTCST”), for operating a Bitcoin-denominated Ponzi scheme. The SEC alleges that, from 2011 to September 2012, Shavers raised more than 700,000 BTC (then worth more than $4.5 million) in principal investments from BTCST investors, falsely promised them a seven percent weekly interest, and misappropriated investor funds. On the same day, the SEC also issued an investor alert warning investors of Ponzi schemes in general and those involving virtual currencies in particular. CNN and the Guardian provide commentary on the case.

Rep. Amash’s Amendment to End NSA’s Blanket Collection of Americans’ Telephone Records Fails in the House

Last Wednesday, the House of Representatives narrowly defeated the Amash amendment by a 205-217 vote, Techcrunch reports. According to Congressman Amash’s Fact Sheet, The amendment aimed to “limit[] the government’s collection of records under Section 215 of the Patriot Act to those records that pertain to a person who is subject to an investigation under that provision.” Recent revelations showing the extent of the NSA’s collection of personal electronic information (previously covered by the Digest) motivated in part Congressman Amash’s proposal. The New American and The Week discuss the political implications of the vote, and the Guardian provides legal background and analysis.

Federal Circuit Affirms Insufficiency of Written Description in Novozymes’ Patent

In Novozymes A/S v. DuPont Nutrition Biosciences APS, No. 12-1433 (Fed. Cir. July 22, 2013), the Federal Circuit affirmed the trial court’s entry of judgment as a matter of law, holding that Novozymes’ U.S. Patent No. 7,713,723 (“the ‘723 patent”) claiming a genetically-modified amlyase enzyme did not meet the written description requirement of 35 U.S.C. § 112. The majority concluded that no reasonable jury could find that Novozymes’ patent application provided adequate written description to support the later-filed claims of the ‘723 patent because the disclosure did not demonstrate possession of the claimed thermostable enzymes. Id. at 26–28. Chief Judge Rader dissented, arguing that the written description inquiry was a factual question and that the jury verdict was supported by substantial evidence. Id. at 30–32. PharmaPatents and Patent Docs provide commentary on the case.

Posted On Jul - 31 - 2013 Comments Off READ FULL POST

State v. Earls
By Casey Clausen – Edited by Mary Grinman

State v. Earls, A-53-11 (N.J. July 18th 2013)
Slip Opinion

Photo By: LinuxbearCC BY 2.0

On July 18, the New Jersey Supreme Court reversed an Appellate Division judgment, which had held that there was no reasonable expectation of privacy in the location information transmitted by a cell phone, which can be used by police as a tracking device.

In a  unanimous opinion, the Supreme Court held that the New Jersey Constitution protects an individual’s privacy interest in the location of his or her cell phone, and that police must accordingly obtain a search warrant before accessing that information. The Supreme Court remanded the case to the Appellate Division to determine whether an exception to the warrant requirement might apply on the facts of the case.

The New York Times and Mashable describe the holding and provide context on the state of the law concerning police use of cell phone location data for surveillance purposes. Talking Points Memo discusses the practical impact of the holding, noting that the decision will only affect the present case and future cases. (more…)

Posted On Jul - 30 - 2013 3 Comments READ FULL POST

1-800 Contacts, Inc. v. Lens.com, Inc.
By Casey Holzapfel – Edited by Michelle Sohn

1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013)
Slip opinion

The United States Court of Appeals for the Tenth Circuit held that the use of a competitor’s trademark as a keyword that activates sponsored links in Google’s search engine is not trademark infringement. 1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013). The court affirmed the lower court’s summary judgment to defendant Lens.com with respect to 1-800 Contacts’ claim that Lens.com was directly liable for misdirecting customers to click on links to Lens.com after searching for the phrase “1-800 Contacts.” Id. at 4.

JDSupra provides an overview of the opinion. Techdirt critiques in detail the Tenth Circuit’s reasoning. JOLT notes that U.S. trademark law does not accurately reflect the actual risk of customer confusion in keyword advertising. (more…)

Posted On Jul - 30 - 2013 Comments Off READ FULL POST

United States Marine, Inc. v. United States
By Jonathan Sapp – Edited by Elise Young

United States Marine Inc. v. United States, No. 12-1678 (Fed. Cir. July 15, 2013)
Slip opinion hosted at bloomberglaw.com

Photo By: Blatant WorldCC BY 2.0

The U.S. Court of Appeals for the Federal Circuit affirmed the Fifth Circuit’s ruling, thus transferring the defense contractor’s trade secrets claim to the Court of Federal Claims. In affirming the Fifth Circuit ruling, the court determined that the plaintiff’s case was predicated on a breach of contract — not torts — claim and thus relied on the Tucker Act, which provides the Court of Federal Claims with “exclusive jurisdiction over a claim ‘founded . . . upon any express or implied contract with the United States . . . .’” United States Marine Inc. v. United States (hereinafter “USM”), No. 12-1678 at 11 (Fed. Cir. July 15, 2013) (quoting 28 U.S.C. § 1491(a)(1)).

The Trade Secrets Vault provides an overview of the case. Bloomberg BNA provides a thorough analysis of the Federal Circuit’s rationale. PubKLaw criticized the Fifth Circuit decision and expressed concern over whether it would be affirmed, stating that it “runs counter to a long-standing body of law that allows even parties to a government contract to assert tort claims for misconduct that goes beyond their contractual relationship.” (more…)

Posted On Jul - 29 - 2013 Comments Off READ FULL POST

By Simon Heimowitz

Icon-newsSeventh Circuit Affirms Dismissal of Copyright Infringement Suit Against Elton John

In Hobbs v. John, No. 12-3652  (7th Cir. July 17, 2013), the Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Northern District of Illinois’ dismissal of a lawsuit brought against Sir Elton John, alleging that his hit song “Nikita” illegally borrowed numerous themes from “Natasha”, a song copyrighted by Guy Hobbs. Hobbs, slip op. at 15. Both songs describe a relationship between a westerner and a woman in Communist Russia. Id. at 2. In determining that there was no copyright infringement by Elton John, the court looked to “two well-established principles of copyright law.” Id. at 11. First, U.S. copyright law “does not protect general ideas, but only the particular expression of an idea.” Id. The court concluded that the expression of the themes in the two songs were not substantially similar. While both dealt with a romantic relationship during the Cold War, the court parsed the lyrics to determine that each song presented “different stories about impossible romances during the Cold War.” Id. at 12.  Secondly, “even at the level of particular expression, the Copyright Act does not protect ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’” Id. at 11 (citations omitted). A number of other similarities between the two songs, including the names of the songs, both being Russian and beginning with the letter “N” and ending with the letter “A,” were not enough to establish infringement. Id. at 14. “[T]he United States Copyright Office’s Registered Works Database reveals that numerous works share the titles ‘Natasha’ and ‘Nikita’” Id. (citation omitted). As such, the court considered the songs’ similarities “commonplace in love songs” and not “substantially similar” enough to warrant a finding of infringement. Id. at 15. Hollywood Reporter and Radio.com provide commentary on the case.

Marvel Exempt from Paying Royalties for Spiderman Web Blaster after Patent Expiration

The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Arizona’s summary judgment that Marvel was no longer required to pay royalties to Stephen Kimble for his patented Spiderman web (foam)-shooting toy, a design that Kimble claimed he had created and pitched to Marvel in 1990. Kimble v. Marvel Enterprises, Inc., No. 11-15605 at 23 (9th Cir. July 16, 2013). In 2001, after a district court had found that Marvel had not infringed Kimble’s patent but had breached their contract, the parties had agreed to a settlement. Id. at 5–6.  Disagreement between the two parties concerning royalties instigated the current suit, with Marvel claiming that since the patent had expired, the settlement agreement was no longer enforceable. Id. at 8. The circuit court determined that, based on Brulotte v. Thys Co., 379 U.S. 29 (1964), “a license for inseparable patent and non-patent rights involving royalty payments that extends beyond a patent term is unenforceable for the post-expiration period unless the agreement provides a discount for the non-patent rights from the patent-protected rate.” Id. at 16. In this case, the court found that no discount was provided, and thus Marvel was no longer required to pay royalty fees to Kimble for its Spiderman Web Blaster. Id. at 17. Patently-O describes the holding of the case and its implications, and azstarnet.com provides commentary.

Senator Leahy Suggests that the NIH “March-In” on Myriad’s Patent Rights

As reported by JDSupra, Senator Patrick Leahy wrote a letter earlier this month to the NIH, requesting that the agency exercise its right to “march-in” and demand that Myriad license its patented diagnostic testing kits. Letter from Patrick Leahy, Senator (D-VT), to Francis Collins, Director, NIH (July 12, 2013) (“Letter”). The Supreme Court recently ruled unpatentable Myriad’s claims to isolated DNA encoding the BRCA genes, mutations of which correlate strongly with the development of breast and ovarian cancer. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 at 1 (569 U.S. ___ June 13, 2013). However, the court found patentable Myriad’s claims to complementary DNA (“cDNA”) encoding the same genes. Id. Under the Bayh-Dole Act, 35 U.S.C. § 203(a)(2) (2006), a federal agency may require a “small business firm or nonprofit organization” that received funding from the agency to license its patent rights if “action is necessary to alleviate health or safety needs which are not reasonably satisfied by the [patent] contractor, assignee, or their licensees . . . .” Myriad received federal funding in developing its diagnostic tests, which it now markets for between $3,000 and $4,000. In his letter, Senator Leahy expressed concern “that the health needs of the public are not reasonably satisfied by the patentee in this situation because . . . many women are not able to afford the testing,” Letter at 2, which would justify the NIH’s use of march-in rights to force Myriad to license the patents.

Posted On Jul - 24 - 2013 Comments Off READ FULL POST
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