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Federal Circuit Flash Digest: News in Brief

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

ITC’s ruling that uPI violated Consent Order affirmed

Court rules that VeriFone devices did not infringe on payment terminal software patents

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Flash Digest: News in Brief

By Marcela Martinez

Converse attempts to protect iconic Chuck Taylor All Star design

French Court rules that shoe design copyright was not infringed

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

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Silk Road Founder Loses Argument That the FBI Illegally Hacked Servers to Find Evidence against Him

By Travis West  — Edited by Mengyi Wang

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish he had any privacy interest in the server.

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Trademark Infringement or First Amendment Right of Freedom of Speech?

By Yunnan Jiang – Edited by Paulius Jurcys

On October 11, the Electronic Frontier Foundation (“EFF”) and the American Civil Liberties Union of Virginia, Inc. (“ACLU”) filed a joint brief in the U.S. Court Of Appeals, urging  that “trademark laws should not be used to impinge the First Amendment rights of critics and commentators”. The brief argues that the use of the names of organizations to comment, critique, and parody, is constitutionally protected by the speaker’s First Amendment right of freedom of expression.

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Twitter goes to court over government restrictions limiting reporting on surveillance requests

By Jens Frankenreiter – Edited by Michael Shammas

Twitter on Oct. 7 sued the government, asking a federal district court to rule that it was allowed to reveal the numbers of surveillance requests it receives in greater detail. Twitter opposes complying with the rules agreed upon by the government and other tech companies in a settlement earlier this year, and argues that the rules violated its rights under the First Amendment.

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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

Ibormeith IP, LLC v Mercedes-Benz USA, LLC
By Aditya Gupta – Edited by Kathleen McGuinness

Ibormeith IP, LLC v. Mercedes-Benz USA, LLC, No. 13- 1007 (Fed. Cir. October 22, 2013)
Slip opinion

Photo By: Craig DennisCC BY 2.0

The United States Court of Appeals for the Federal Circuit affirmed a decision of the United States District Court for the District of New Jersey, which had held on summary judgment that certain means-plus-function claims of Ibormeith IP, LLC’s (“Ibormeith”) US Patent No. 6,313,749 (“the ’749 Patent”) – “Sleepiness Detection for Vehicle Driver or Machine Operator” – were invalid for indefiniteness under 35 U.S.C. § 112. Ibormeith IP, slip op. at 2.

The Federal Circuit held that the claim element “computational means” expressed a means for performing a specified function and thus was subject to the requirements of 35 U.S.C. § 112(f), which governs such means-plus-function elements. Id. at 2-3. According to the court, the ‘749 Patent failed to comply with 35 U.S.C. § 112(f) because it failed to adequately define the structure for the “computational means” limitation in the specification. Id. at 7. In so holding, the court noted that Ibormeith’s arguments regarding the breadth of its disclosure, for the purpose of infringement, must also be held against it as “binding admissions” for the purposes of a 35 USC §112(f) inquiry into claim validity. Id. at 10-11.

PatentlyO summarizes the case’s facts and holding and comments on the ramifications of the decision with respect to litigation strategy. iPFrontline briefly explains the decision and the lessons it provides for practitioners. (more…)

Posted On Oct - 30 - 2013 Comments Off READ FULL POST
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Federal Circuit Flas

By Steven Wilfong Multimedia car system patents ruled as unenforceable based ...

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Flash Digest: News i

By Marcela Martinez Converse attempts to protect iconic Chuck Taylor All ...

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Silk Road Founder Lo

By Travis West — Edited by Mengyi Wang Order, United States ...

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Trademark Infringeme

By Yunnan Jiang – Edited by Paulius Jurcys Brief for the ...

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Twitter goes to cour

By Jens Frankenreiter – Edited by Michael Shammas Twitter, Inc. vs. ...