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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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BASF v. Makhteshim Agan
By David LeRay – Edited by Ashish Bakshi

BASF Agro B.V., Arnhem (NL), Wadenswil Branch v. Makhteshim Agan of North America, Inc., No. 2012-1206 (Fed. Cir. Mar. 20, 2013)
Slip opinion

BASF Agro B.V. (“BASF”), the world’s largest chemical manufacturer, suffered a setback in its patent litigation against Makhteshim Agan of North America (“Makhteshim”), the world’s largest generic agrochemical maker.The Court of Appeals for the Federal Circuit affirmed the Middle District of North Carolina’s grant of summary judgment of non-infringement for the defendants. The suit focuses on patents covering BASF’s termite-killing pesticide, Termidor, which is the United States’ top-selling pesticide. BASF commenced litigation in 2010 after Makhteshim began selling a competing product, Taurus SC.

The Federal Circuit affirmed the lower court’s claim construction, which was largely based on the doctrine of prosecution disclaimer, as applied to BASF’s actions during patent prosecution. Under that claim construction, the issue of non-infringement was easily decided as a matter of law; thus, summary judgment of non-infringement for the defendants was appropriate. Specifically, the court found that BASF had disclaimed so-called “barrier” techniques of pesticide application—which aim to surround buildings with a complete polygon of pesticide—in favor of deploying pesticide at discrete locations around the building boundary. Since Makhteshim’s products use the polygonal barrier method, they did not infringe BASF’s patents.

Bloomberg gives a brief overview of the case and discusses the relevant pesticides. Croplife provides commentary from business leaders on both sides of the case. (more…)

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

By Alex Shank – Edited by Michael Hoven
Editorial Policy

The Leahy-Smith America Invents Act (“AIA”) introduced substantial changes to the U.S. patent system, among them the transition to the first-inventor-to-file priority system. Parties whose patent applications have been rejected by a PTO examiner and the newly formed Patent Trial and Appeals Board (“PTAB”) also have a new venue in which to appeal their rejections—the District Court of the Eastern District of Virginia (“EDVA”). Patent litigators, enticed by the “Rocket Docket” EDVA and its recently relaxed evidentiary standards, may spur a spike in granted patents, compounding the defects of already over-patented system. However, other AIA reforms, including expanded post-grant review and the opening of PTO satellite offices, as well as PTO appeals of EDVA decisions, will likely temper the spike. Ultimately, opening the EDVA may figure most prominently in heightening the scrutiny of potentially cursory PTO examiner decisions.

As described by Damon W. D. Wright and Matthew R. Farley at IPFrontline, the availability of the EDVA may inspire prospective patentees to refrain from bringing appeals directly to the Court of Appeals for the Federal Circuit (“CAFC”) and instead to seek review in the EDVA. Prior to the enactment of the AIA, parties seeking review of patents rejected by the PTO could bring a civil suit to obtain a patent—commonly called a “Section 145 action”—but only in the District Court of the District of Columbia. Most applicants avoided the relatively sluggish DC District Court and appealed directly to the CAFC. The “Rocket Docket” EDVA’s reputation for efficiently processing suits may reverse this practice. As Wright and Farley note, the Supreme Court’s 2012 ruling in Kappos v. Hyatt, 132 S.Ct. 1690 (2012), further enhances the appeal of a Section 145 action. In Kappos, the Supreme Court held that district courts hearing patent appeals can admit new evidence, bound only by the standards published in the Federal Rules of Evidence and Civil Procedure, and, if new evidence is admitted, the court must apply a de novo standard of review to both new and previously admitted evidence. In contrast, the CAFC examines only the evidence contained in the PTO record and does so with a deferential standard of review. (more…)

Posted On Mar - 25 - 2013 Comments Off READ FULL POST

By Michelle Sohn

Flash DigestNorthern District of California Court Strikes Down National Security Letter Statute

On Friday, the District Court for the Northern District of California struck down 18 U.S.C. § 2709 due to its failure to meet First Amendment standards, reports the Electronic Frontier Foundation (“EFF”). The statute is known as one of the “National Security Letter” (“NSL”) statutes, which allows the FBI to issue requests for subscriber information from Internet service providers, telephone companies, and others. The ruling was a response to the EFF’s 2011 petition challenging the constitutionality of the 2709(c) “gag” provision, which prohibits companies from disclosing that they have received an NSL as well as the judicial review provisions of 18 U.S.C. § 3511 (b). District Court Judge Susan Illston’s decision to bar NSLs differs from a prior ruling on the issue from the Second Circuit. The Second Circuit, in Doe v. Mukasey, approved NSLs as long as the FBI took voluntary measures to protect against abuse. Unlike the Second Circuit, Judge Illston’s decision held that since the gag provision was meant to work in concert with the rest of the statute, the power granted to the FBI to compel subscriber information from providers also be struck down. The District Court’s decision is likely to be appealed to the Ninth Circuit Court of Appeals.

Social Media Added Fuel to the Fire in Stuebenville Rape Case

Two Ohio high school football players accused of raping a 16-year old girl were convicted Sunday, reports USA Today. The case was largely driven by and followed in social media. Throughout the trial, texts and videos from Twitter, Instagram, and Facebook were used to incriminate the accused. The episode even got the attention of hacktivist group, Anonymous, which made public a private video of students joking about the incident. On Monday, two Ohio girls were arrested after making threats against the victim on Facebook and Twitter.

Presidential Commission Concludes Anthrax Vaccine Testing on Children Unethical without Further Research

The Presidential Commission for the Study of Bioethical Issues released a report Tuesday warning against a government proposal to test anthrax vaccines on children without conducting more preliminary research, NPR reports.  The proposal for testing is rooted in two major concerns: first, the likelihood that anthrax would be the weapon of choice in a bioterrorist attack, and second, the uncertainty that the vaccine would work effectively in children. To date, the anthrax vaccine has been given to more than one million adults in the military, but the vaccine’s effects on children are not known. The Commission’s report concluded that more research would have to show that testing would pose no more than a minimal risk to children. The report also suggests testing on animals and young adults first. The Department of Health and Human Services, the agency that charged the Commission with evaluating the proposal, will have the final say in whether to go ahead with the experiment.

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

Radio Systems Corp. v. Lalor
By Craig Fratrik – Edited by Kathleen McGuinness

Radio Systems Corp. v. Lalor, No. 2012-1233, 2013 WL 811757 (Fed. Cir. Mar. 6, 2013)
Slip opinion

The Court of Appeals for the Federal Circuit affirmed in part, reversed in part, and remanded the decision of the Western District of Washington, which had ruled that Tom Lalor and Bumper Boy (“Bumper Boy”) were barred under equitable estoppel from bringing certain patent infringement claims and that none of Radio Systems’ other designs were infringing.

Agreeing with the lower court, the Federal Circuit held that Bumper Boy’s four years of silence after sending a letter claiming infringement prevented them from bringing claims based on the patent referred to in the letter. However, in a divided opinion, the court reversed the lower courts and held that equitable estoppel would not apply to a continuation-in-part patent that Bumper Boy received after it sent its initial letter.

Writing for the Law Technology & Arts Blog, Aaron Orheim provides a good overview of the case. At Patently-O, Dennis Crouch considers how the decision might have changed with different facts and how patentees might change their behavior. (more…)

Posted On Mar - 23 - 2013 Comments Off READ FULL POST

SOFA Entm’t, Inc. v. Dodger Prods., Inc.
By Erica Larson – Edited by Alex Shank

SOFA Entm’t, Inc. v. Dodger Prods., Inc. No. 2:08-cv-02616 (9th Cir. Mar. 11, 2013)
Slip Opinion

Photo By: bagaballCC BY 2.0

The Ninth Circuit affirmed the decision of the District Court for the Central District of California to grant summary judgment and award attorneys’ fees to Dodger Productions, Inc. (“Dodger”) in its suit against SOFA Entertainment, Inc. (“SOFA”).

In an opinion by Judge Trott, the court concluded that Dodger’s unlicensed use of a clip from the Ed Sullivan Show fell squarely within the fair use exception. In so holding, the court stated that the use was transformative and the clip used was not at the core of the copyrighted work. In addition, the court awarded attorneys’ fees to Dodger, on the grounds that SOFA should have known that it had little chance of success.

Dan Levine, writing for Thomson Reuters, offers a concise overview of the case. All Media Law provides a more detailed discussion. In her blog, Rebecca Tushnet focuses on the court’s use of fees to send a message about the purposes of copyright. (more…)

Posted On Mar - 19 - 2013 Comments Off READ FULL POST
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By Olga Slobodyanyuk ICANN responds to terrorism victims by claiming domain ...

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Federal Circuit Appl

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Unlocking Cell Phone

By Kellen Wittkop – Edited by Insue Kim On July 25, ...

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