A student-run resource for reliable reports on the latest law and technology news
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On August 14, 2014, the U.S. Food and Drug Administration (FDA) issued Draft Guidelines on the direct de novo classification process, a means of accelerating the approval of new types of medical devices posing only low to moderate health risks.[1]  The FDA created de novo classification in 1997, but after the process failed to achieve its purpose of expediting approval, the FDA introduced an alternative de novo process called “direct” de novo.

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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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The PCLOB’s Recommendations for a More Reasonable Surveillance Program
By Max Kwon – Edited by Sarah O’Loughlin

Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act

Report

Security CameraOn July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued a report analyzing the legal and policy implications of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Section 702 was introduced by Congress through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to “jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United State, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information.”  Report at 6. The PCLOB concluded that “the core Section 702 program is clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” Id. at 15, but noted that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.” Id. at 11. In order to “ensure that the program remains tied to its constitutionally legitimate core,” the PCLOB outlined a set of ten policy proposals aimed at increasing accountability, transparency, and efficacy of the surveillance program. Id. at 9.

Pursuant to Section 702, the Attorney General and Director of National Intelligence can make annual certifications that identify categories of information to be collected without specifying the particular non-U.S. persons who will be targeted. Id. Although Section 702 requires the government to develop targeting and “minimization” procedures in order minimize “incidental” or “inadvertent” surveillance of U.S. persons, the PCLOB stated that “certain features of the [Section 702] program implicate privacy concerns” regarding the scope and usage of U.S. person communications that are collected. Id. at 6–10.

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Posted On Jul - 14 - 2014 Comments Off READ FULL POST

By Max Kwon – Edited by Sarah O’Loughlin
USPTO Memo on Alice Corporation Pty. Ltd. V. CLS Bank International, et al. (June 25, 2014).

Memorandum.

IdeaIn response to the Supreme Court’s recent decision to invalidate four software patents in Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014) (“Alice”), Andrew H. Hirshfeld, Deputy Commissioner for Patent Examination Policy for the U.S. Patent and Trademark Office (USPTO), issued a memorandum to the Patent Examining Corps “to provide preliminary instructions…relating to subject matter eligibility of claims involving abstract ideas, particularly computer-implemented abstract ideas, under 35 U.S.C. § 101.”

In the memorandum, Hirshfeld stated that in accordance with Alice, the USPTO will now require “all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101” to be analyzed under the framework outlined in  Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) (“Mayo”). Id. at 1.

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Posted On Jul - 7 - 2014 2 Comments READ FULL POST

Supreme Court: Police Officers Need a Warrant to Search an Arrestee’s Cell Phone
By Anton Ziajka – Edited by Sarah O’Loughlin
Riley v. California, 573 U.S. __ (2014)

Slip Opinion

On June 25, 2014, the Supreme Court decided that police officers “must generally secure a warrant before conducting . . . a search of the information on a cell phone” seized from an individual who has been arrested. Slip op., at 10. Writing for a unanimous Court, Chief Justice Roberts balanced, on the one hand, “the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 9.

The Court found only minimal governmental interest, noting that, unlike physical objects on an arrestee, “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Id. at 10. The Court acknowledged governmental concerns that digital evidence may be lost through remote wiping or data encryption, but found these concerns insufficiently compelling. See id. at 12–15.

On the other side of the equation, the Court found that the information contained on a cell phone is both quantitatively greater and qualitatively more sensitive than physical records likely to be present on an individual’s person at the time of his arrest. Id. at 17–21. A search of such digital information “would typically expose to the government far more than the most exhaustive search of a house,” the Court concluded. Id. at 20. See the Washington Post and New York Times for further reporting on the decision.

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Posted On Jul - 7 - 2014 Comments Off READ FULL POST

By Amanda Liverzani

Non-Infringement Decision on Hospital Bed Patents Reversed for Erroneous Claim Construction

The United States Court of Appeals for the Federal Circuit in Hill-Rom Services, Inc. v. Stryker Corp., 13-1450 (Fed. Cir. June 27, 2014) reversed the Southern District of Indiana’s decision that Stryker Corp. did not infringe on hospital bed patents held by Hill-Rom Services Inc., holding that the district court’s judgment was based on erroneous claim construction. The patents at issue (U.S. Patent #5,699,038, #6,147,592, and #7,538,659) are related to a system and method for remotely monitoring and controlling hospital beds. Hill-Rom Services, at 1. The Federal Circuit held that the district court’s construction of the term “datalink” as exclusively referring to a wired connection is inconsistent with the plain and ordinary meaning of the term, which may also include wireless connections. Id. at 4. Consequently, the Federal Circuit reversed and remanded the case for further proceedings. Id. at 24. An analysis of the decision is available at Law360.

Patents for Eyelash Growth Treatment Invalidated Based on Obviousness

The United States Court of Appeals for the Federal Circuit held that two patents relating to the eyelash growth treatment Latisse were invalid in Allergan, Inc. v. Apotex, Inc., 13-1245 (Fed. Cir. June 10, 2014). A group of pharmaceutical manufacturers appealed the Middle District of North Carolina’s decision that they had infringed upon patents held by Allergan and Duke University, covering the use of 0.03% bimatoprost ophthalmic solution to treat eyelash hypotrichosis (U.S. Patents #7,388,029 and #7,351,404), as well as an injunction issued by the district court prohibiting manufacturing of generic Latisse. Allergan, at 3. The Federal Circuit reversed the finding of infringement and vacated the injunction, holding that while the district court did not err on claim construction, id. at 8, it was incorrect in finding that the patents met the requirement of non-obviousness, id. at 24 and 32. Bloomberg, Law360, and Patently-O provide discussions of the decision.

Constitutionality of “First-Inventor-to-File” Regime Still Undecided

In MadStad Engineering, Inc. v. USPTO, No. 12-1511 (Fed. Cir. June 1, 2014), the United States Court of Appeals for the Federal Circuit declined to rule on the constitutionality of the “first-inventor-to-file” principle implemented by the Leahy-Smith America Invents Act of 2011, instead affirming a Florida district court’s decision that the plaintiff MadStad Engineering, Inc. (“MadStad”) lacked standing to bring suit. MadStad argued that the enacted rule, which provides for the issuance of patents to the first person to file a patent application rather than the first person to invent, is inconsistent with Article 1, Section 8, Clause 8. MadStad, at 3. The Federal Circuit held that MadStad lacked standing to bring suit because it failed to prove injury or a substantial risk of injury, avoiding taking a position on the constitutional question. Id. at 1227. For additional commentary on the decision see Patently-O and Law360.

Posted On Jul - 6 - 2014 Comments Off READ FULL POST

By Anne Woodworth

Federal Circuit finds No Standing in Case Challenging First-to-File Patent Regime

The Federal Circuit held on July 1 that MadStad Engineering lacked standing in a declaratory judgment lawsuit against the USPTO claiming that the new “first-to-file” system is unconstitutional. “First-to-file” came into effect as part of the America Invents Act of 2011 (AIA) on March 16, 2013, replacing the previous “first-to-invent” system. Madstad argued that the new rule violates Article 1, Section 8 of the U.S. Constitution, which gives inventors exclusive rights, because it awards the patent to the first person to file regardless of who the actual inventor is. The court chose not to rule on the issue, holding that Madstad’s stated injurieshigher computer security costs in avoiding stolen ideas and greater time and effort from rushing to file patentswere not sufficient to provide standing.

Argentina becomes the First Latin American Country to Block The Pirate Bay

On June 30, the Argentine National Communications Commission (NCC) ordered Internet Service Providers to block access to 12 domains of The Pirate Bay on copyright grounds. The order came after an injunction by a district court in the case brought by the Argentina Chamber of Phonographic Producers, an industry group representing major and independent labels. Argentina is the first in Latin America, but one of many countries to have blocked the site.

Supreme Court Declines to Hear Google Appeal in Street View Case

On June 30, the Supreme Court declined to hear an appeal by Google in a class action suit alleging violation of the federal Wiretap act. Their denial follows a 9th Circuit Court of Appeals decision rejecting a motion to dismiss. The suit claimed that Google ran afoul of wiretap law when its Street View cars collected information from unsecured WiFi networks including passwords, usernames, and emails. Google compared the data transmitted over WiFi to radio signals and argued that because the information gathered from unencrypted WiFi was “readily available to the public,” it is not covered by the law. The Supreme Court did not comment, while leaving in place the lower court decision rejecting Google’s arguments and holding that data from unencrypted WiFi is private and not exempt under the law.

Posted On Jul - 6 - 2014 Comments Off READ FULL POST
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