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Insuring Patents

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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Flash Digest: News in Brief

By Gia Velasquez – Edited by Ken Winterbottom

Federal Court Grants Uber’s Class Action Certification Appeal

Independent Contractor Classification of Uber Drivers May Violate Antitrust Laws

Self-Driving Car Will Be Considered Autonomous Driver

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By Jesse Goodwin – Edited by Michael Shammas

Doe v. Harris, No. 13-15263, 2014 WL 6435507 (9th Cir. 2014).

Slip opinion.

computer-typing1The 9th Circuit Court of Appeals affirmed a district court ruling granting a preliminary injunction prohibiting enforcement of Proposition 35, the Californians Against Sexual Exploitation (“CASE”) Act. In a unanimous holding, a three-judge panel found that, although California “has long required registered sex offenders to report identifying information,” requiring that they provide written notice of “any and all Internet identifiers,” slip op. at 5–6, within 24 hours to the police likely imposed an unconstitutional burden on protected speech. In so holding, the court noted that the plaintiffs were not “prisoners, parolees, or probationers,” and enjoyed full First Amendment protections. Id. at 13–14.

The Los Angeles Times and American Civil Liberties Union provide an overview of the case and analysis of the law.

According to the Electronic Frontier Foundation (“EFF”), the CASE Act’s requirements provide that all sex offenders, irrespective of the level of their offense, must notify in writing law enforcement a list of all Internet user names and Internet service providers. Plaintiffs filed suit against the CASE Act the day of its passage, representing a class of registered sex offenders who used the Internet as a platform for anonymous advocacy for sex offender rights.  Slip op. at 7–8. After moving for a preliminary injunction, the official proponents of the CASE Act, Chris Kelly and Daphne Phung, intervened. Id. at 8. The district court, concluding that the Act was content neutral, applied intermediate scrutiny, and found that it was not “narrowly tailored [enough] to serve the government’s important interest in combating … human trafficking and sexual exploitation,” and produced a “chilling effect” on speech Id. at 9.  (more…)

Posted On Dec - 3 - 2014 Comments Off READ FULL POST

By Henry Thomas – Edited by Paulius Jurcys

USA FREEDOM Act (2013-2014)

U.S. Bill

On October 29th, 2013, the 113th Congress introduced the USA FREEDOM Act. On November 18th, 2014, a vote for cloture failed in the Senate and the bill was effectively dead.

The bill was designed to amend the Patriot Act, especially Section 215, which has been used to justify broad collection of phone “metadata.” The government’s collection of metadata (information about whom a call was placed to, but not the content of the call) came to the attention of the American public at large after the Snowden leaks revealed the practice. The Freedom Act would allow phone companies to keep control over their own metadata, and delete it at their discretion – typically after eighteen months. The federal government could still access and analyze certain metadata, but only after obtaining court approval. A somewhat watered-down version of the bill had already been approved by the House.

Introduced by Sen. Patrick Leahy (D-VT), the bill was met with broad support. President Obama, technology companies such as Google and Microsoft, and civil liberties groups like the ACLU were on board. Even the director of the NSA lent his support to the bill. However, this backing was not enough to overcome a Senate filibuster; a motion for cloture fell two votes short of the sixty needed.

The 58-42 vote mostly followed party lines. Only four Republicans voted for the bill, and only a single Democrat voted against. Sen. Marco Rubio (R-FL) explained his hesitation toward the bill by raising the specter of an ISIL cell inside America. With America’s current metadata collection policy, “[w]e can disrupt that cell, before they can carry out a horrifying attack,” argued Rubio. Senator Leahy labeled such rhetoric as “scare tactics.”

Interestingly, more libertarian elements of the Republican Party voted against cloture as well, though for a different reason. Sen. Rand Paul (R-KY) cast his no vote because he felt that the act didn’t go far enough. The Freedom Act would extend, albeit in modified form, the Patriot Act for another three years. Paul opposes the Patriot Act, which is set to expire in June of 2015.

The Verge suggested that this impending deadline will result in congressional action, boldly claiming that “Congress will need to act by next June.” However, the New York Times offered a more reserved view, noting the myriad viewpoints and difficulties in obtaining broader congressional support.

Lawfare, in a detailed analysis of the Patriot Act sunset provision, raised a different hypothesis. The sunset provision allows ongoing investigations-those started before the June 1st expiry date of the Patriot Act-to continue using the tools made available by Section 215 of that act. Since virtually the entirety of the metadata corpus can be collected during a given investigation, all it would take is a single open investigation to allow the government access to the metadata. If this analysis is correct, the June 1st deadline is barely a deadline at all and “the government’s negotiating hand seems a lot stronger because its timeframe is potentially a lot longer.”

Still, even the Lawfare article concedes that the government will likely need to pass a bill in the near future. While the exact nature of an extension to the Patriot Act cannot be determined, it is all but certain that the 114th congress will be in charge of determining it.

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

By Lan Du – Edited by Asher Lowenstein

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., et al, No. 13 Civ. 5784 (S.D.N.Y. Nov. 14, 2014) Slip Opinion hosted by plainsite.org.

The Southern District of New York ruled against Sirius XM Radio, Inc. (“Sirius”) in a lawsuit brought by Flo & Eddie, Inc. (“Flo and Eddie”), a company owned by founding members of the legendary 1960s rock band The Turtles. The court recognized the common law copyright under New York State law in the public performance rights of The Turtles’ pre-1972 sound recordings. Sirius has until December 5 to submit factual defenses, or else the court will enter summary judgment in favor of Flo and Eddie and proceed to determine damages.

Flo and Eddie currently own all ownership interests in the recordings of The Turtles, all of which are made before 1972. Sirius, a national broadcaster of radio programs and provider of digital audio content through satellite and internet, has been performing The Turtles’ pre-1972 compositions and also reproduced the sound recordings. Sirius did not pay any royalties for the sound recordings nor did it obtain any authorization. Flo and Eddie therefore filed a $100 million class action against Sirius for copyright infringement.

This is the second case Sirius XM has lost in companion suits filed in three states. In an earlier ruling, hosted by AmLawDaily, at the U. S. District Court for the Central District of California on September 22, 2014, Sirius was held liable under California law for copyright infringement. The suit in Florida is still pending. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Yunnan Jiang

Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014)

Applying the Supreme Court’s recent Alice Corp. v. CLS Bank decision that clarified the abstract idea exception to subject matter patent-eligibility, the Federal Circuit invalidated a patent for a method of accessing online content after viewing advertisements in Ultramercial, Inc. v. Hulu, LLC.

U.S. Patent 7,346,545, (“the ‘545 patent”), owned by advertising company Ultramerical, claimed “a method for distributing copyrighted media products over the Internet where the consumer receives a copyrighted media product as no cost in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content.” Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014), at 3. Ultramercial brought suit against WildTangent, Youtube, and Hulu in the United States District Court for the Central District of California alleging infringement of the ‘545 patent. Id. Youtube and Hulu were dismissed from the case and WildTangent filed a motion to dismiss for failure to state a claim on the grounds that the subject matter of the ‘545 patent was not patent-eligible. Id. at 5. Following the District Court’s grant of WildTangent’s motion, the Federal Circuit twice reversed. Id. at 5–6 . On both occasions the Supreme Court vacated the Federal Circuit’s decisions and remanded the case for further consideration, first in light of its decision in Mayo, and again following its decision in Alice. Id. at 6. On November 14, 2014 the Federal Circuit, applying the Supreme Court’s Alice test, changed its previous position and found the ‘545 patent invalid. Id. at 3.

Under the Patent Act, 35 U.S.C. §101, the scope of patent-eligible subject matter is limited to “processes, machines, manufacturers, and compositions of matter,” while “laws of nature, natural phenomena, and abstract ideas” are excepted from patentability. Id. at 7. In Alice, the Supreme Court outlined a two-step test to distinguish “patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Id. The first step requires courts to determine whether the patent is directed at a patent-ineligible concept. If it is, the court proceeds to step two, which asks “whether the claims contain an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. at 7–8 (internal quotations omitted). If the claim contains no such transformative or inventive element, it is not patent-eligible. Id. at 10. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST

By Katherine Kwong – Edited by Mengyi Wang

Plane_DirtboxAccording to a report in the Wall Street Journal, the U.S. Marshals Service has been using airborne “dirtboxes” to collect data on mobile phones. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on many Americans who are not suspected of any crime.

“Dirtboxes” – named after the acronym for their manufacturer, Digital Recovery Technology Inc.  (now owned by Boeing Co.) – induce cell phones to connect to them by imitating cell phone towers. A dirtbox sends cell phones signals that indicate that it is the strongest cell tower available, causing cell phones to connect automatically to it. Doing so allows the dirtbox to collect the International Mobile Subscriber Numbers (IMSI) of all devices in range. The data collected from the cell phones can be used to identify and locate individuals to a relatively small area. The U.S. Marshals Service has placed the devices on Cessna airplanes leaving from five different airports, allowing the program to cover a large proportion of the U.S. population. Each flight has the potential to collect data from “tens of thousands” of Americans, according to the Wall Street Journal article.

It is unclear how much the devices might disrupt the normal operations of cell phone networks. Dirtboxes can briefly interrupt phone calls, but authorities say they have sought to minimize harmful impacts by taking steps to ensure 911 calls are not interrupted. Verizon told the Wall Street Journal they were unaware of the program, while other major carriers declined to comment. In a follow-up article in the Wall Street Journal, the Federal Communications Commission (“FCC”), which is responsible for licensing and regulating cell phone services, said, “We were not aware of this activity.” Frederick Joyce, a communications law attorney, questioned whether the program constituted “harmful interference” with licensed cell phone transmissions.

(more…)

Posted On Nov - 25 - 2014 Comments Off READ FULL POST
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