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Whack-a-troll Legislation

Written by Asher Lowenstein     —   Edited by Yaping Zhang

Patent assertion entities’ extensive litigation activities in different states enables to assess the efficacy of the proposed bills against legal strategies these trolls, such as MPHJ Technology, have engaged in. The legal battles confirm some of the concerns about the usefulness of proposed regulatory measures.

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3D Systems and Formlabs Settled Two-Year Patent Dispute

By Yixuan Long – Edited by Yaping Zhang

On December 1, 3D Systems and Formlabs settled their two-year legal dispute over the 520 Patent infringement. Terms of the settlement are undisclosed. The patent covered different parts of the stereolithographic three-dimensional printing process, which uses a laser to cure liquid plastic. 3D Systems was granted the ‘520 Patent in 1997. Formlabs views the settlement as enabling it to continue its expansion and keep developing new products.

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Privacy Concerns in the Sharing Economy: The Case of Uber 

By Sabreena Khalid – Edited by Insue Kim

Recent revelations about Uber’s disconcerting use of personal user information have exposed the numerous weaknesses in Uber’s Privacy Policy. The lack of regulation in the area, coupled with the sensitive nature of personal information gathered by Uber, makes the issue one requiring immediate attention of policy makers.

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San Francisco Court Considers Google’s Search and Ad Services Free Speech

By Jens Frankenreiter – Edited by Henry Thomas

A San Francisco court dismissed a lawsuit against Google, treating Google’s search and advertisement services as constitutionally protected free speech. The lawsuit alleged an antitrust violation based on unfavorable treatment of a website in Google’s search results, and on the withdrawal of third-party advertisement from the website. In throwing out the lawsuit, the court applied California’s “anti-SLAPP” law, which allows quick dismissal of lawsuits against acts protected as free speech.

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EU Unitary Patent System Challenge Unsustainable: Advocate General

By Saukshmya Trichi – Edited by Ashish Bakshi

The Advocate General of the Court of Justice of the European Union has rendered an opinion on Spain’s challenges to regulations implementing the European Unitary Patent System. The Advocate General opines that the challenges must be dismissed as the system is intended to provide genuine benefit in terms of uniformity and integration, and safeguard the principle of legal certainty, while the choice of languages reduces translation costs considerably.

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By Katherine Walecka

First Amendment Protects Peer-Reviewed Publication Regarding Competitor’s Product

In ONY, Inc. v. Cornerstone Therapeutics, Inc., No. 12-2414-cv, (2d Cir. June 26, 2013), the Second Circuit affirmed the District Court for the Western District of New York’s ruling that publishing a scientific article was not tortious. ONY, Inc.  (“ONY”) produces Infasurf, a replacement surfactant or lung lining designed to aid breathing in some premature infants. ONY, slip op. at 4. Cornerstone produces a rival product, Curosurf. Id. Cornerstone and its partners paid for a study comparing Infasurf and Curosurf, and researchers found worse mortality outcomes for Infasurf users. Id. at 5. After the findings were published in a peer-reviewed pediatric journal, ONY brought suit alleging that the article was misleading and violated the Lanham Act, which prohibits fraud in advertising. Id. at 9. The Second Circuit ruled in favor of the defendants, finding that the article was not actionable because its conclusions were not misleading. Id. at 17–18. Furthermore, Cornerstone’s right to publish the article was protected by the First Amendment, since the article was academic research, pertained to ongoing scientific debate, and was closer to opinion than fact. Id. at 14. The Second Circuit noted that New York free speech law is particularly protective and added that if researchers had not disclosed their funding or their potential methodological flaws, a different outcome might have been reached. Reuters provides commentary on the case.

Second Circuit Affirms Finding of No Material Mistake in Wiretap Application Against Raj Rajaratnam

The Second Circuit’s recent disposition of the wiretapping issue in United States v. Rajaratnam, No. 11-4416-cr (2d Cir. June 24, 2013), represents a win for federal prosecutors. Wiretap applications submitted by government prosecutors to judges must show probable cause and necessity. Rajaratnam, slip op. at 6. At the district court level, defendant Raj Rajaratnam moved to suppress evidence from the wiretap of his cellular telephone, claiming that the wiretap application had factual mistakes and omissions. Id. at 7. To warrant suppression, a wiretap application must evince disregard for truth and must have material mistakes. Id. at 8. The district court agreed with Rajaratnam that the wiretap application might not adequately show necessity and held a Franks hearing to determine whether to suppress the wiretap evidence. Id. at 9–13. However, Rajaratnam’s suppression arguments ultimately failed. Although the district court found that the application evidenced reckless disregard for the truth by omitting the ongoing SEC investigation of the defendant, this omission and other mistakes were not found to be material. Id. at 14–15. The Second Circuit affirmed the district court’s conclusion but found that the government’s mistakes did not constitute reckless disregard for the truth. Id. at 23. Rajaratnam suggests that legal wiretap applications can contain omissions and that prosecutors can leave out softening phrases by defendants and conceal ongoing investigations without jeopardizing the instant case. The Wall Street Journal provides comments on the decision, and Bloomberg covers its television interview with the lead prosecutor. The SEC filed a press release regarding Rajaratnam’s charges in March 2013. In a July 2011 article, the New Yorker provided background information on the investigation and prosecution of the case.

High Damages in Peer-to-Peer Distribution Suit Affirmed as Statutory, Not Punitive

For some consumers, illegally downloading music carries a stiff price. In Sony BMG Music Entertainment v. Tenenbaum, No. 12-2146, (1st Cir. June 25, 2013), the First Circuit affirmed the trial court jury’s awarding Sony and other recording companies $675,000 for the unlawful downloading and peer-to-peer distribution of thirty songs. Sony, slip op. at 10. The court insisted that these were statutory damages under the Copyright Act rather than punitive damages, id. at 7, and rejected Tenenbaum’s due process claim that the damages’ severity was unconstitutional, id. at 2. Ars Technica comments on the decision. Boston University’s Daily Free Press covers its interview with Tenenbaum and his attorney, Harvard Law School Professor Charles Nesson. JOLT Digest previously commented on the district court case. The Recording Industry Association of America provides a factual background.

Posted On Jul - 15 - 2013 Comments Off READ FULL POST

Authors Guild, Inc., et al. v. Google Inc.
By Jonathan Sapp – Edited by Michelle Sohn

Photo By: Ian WilsonCC BY 2.0

Authors Guild, Inc., et al. v. Google Inc., 12-3200-cv, (2d Cir. July 1, 2013)
Slip Opinion

The United States Court of Appeals for the Second Circuit vacated and remanded the lower court’s certification of the plaintiff class. The Second Circuit held that class certification should not precede a determination of Google’s fair use defense. The determination of the defense will “necessarily inform and perhaps moot” the Second Circuit’s analysis of class certification issues. Author’s Guild, Inc. v. Google Inc., No. 12-3200-cv, slip op. at 4 (2d Cir. July 1, 2013). In so ruling, the court cited the Supreme Court’s decision in Dukes, which held that a “class cannot be certified on the premise that [a defendant] will not be entitled to litigate its statutory defenses to individual claims.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011).

NBC News and Reuters provide overviews of the case. Lathrop & Gage, LLP’s “Media, Privacy & Beyond” blog speculates that the court’s ruling may place fair use as “an insurmountable hurdle to copyright class plaintiffs.” Paid Content notes that the ruling may create tension in the Circuit since it vacated the decision of Judge Denny Chin, who now sits on the Second Circuit. (more…)

Posted On Jul - 12 - 2013 Comments Off READ FULL POST

Agency for International Development v. Alliance for Open Society International, Inc.
By Andrew Spore – Edited by Samantha Rothberg 

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Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10 (570 U. S. ___ June 20, 2013)
Slip Opinion

In a 6-2 opinion written by Chief Justice John Roberts, the Supreme Court ruled that requiring as a condition of funding that recipients of federal HIV/AIDS prevention funds have “a policy explicitly opposing prostitution” constituted an impermissible restriction on speech in violation of the First Amendment. Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., No. 12-10, slip op. at 15 (U. S. June 20, 2013). In doing so, the Court affirmed a 2011 decision by the U.S. Court of Appeals for the Second Circuit. Id.

SCOTUSblog and the New York Times provide overviews of the case. Reuters discusses the schismatic response in the legal and non-profit worlds. Harvard Law School Professor Noah Feldman, writing for Bloomberg, sees conservative political maneuvering behind the decision. In contrast, the Health Law Prof Blog speculates that the decision could lead to liberal outcomes in the battle over Planned Parenthood funding.

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Posted On Jul - 8 - 2013 Comments Off READ FULL POST

“Reclaim Your Name”
By Katherine Walecka – Edited by Natalie Kim

 

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Transcript of Keynote Address

On June 26, 2013 at her keynote address during the Computers Freedom & Privacy Conference, Federal Trade Commission (“FTC”) Commissioner Julie Brill announced a new “Reclaim Your Name” initiative. Under the proposed program, data brokers — businesses that collect consumer data for sale to other businesses — would be made accountable to consumers. Consumers would be able to access personally identifiable information that data brokers hold online through a single user-friendly online portal and regain control over their data. This would fulfill the FTC’s goals of establishing greater transparency and accountability. The consumer could choose to correct inaccurate information as well as request deletion of or cessation of certain uses of their data. Such data is increasingly important for “substantive decisions – like credit, insurance, employment, and other benefits,” according to Brill.

Brill describes “Reclaim Your Name” as a counterpart to the existing “Do Not Track” option for the Internet. Under the “Do Not Track” option, consumers can request on certain websites that their activities not be monitored for marketing purposes. “Reclaim Your Name” also mirrors the much-older Do Not Call Registry, an outgrowth of the Do-Not-Call-Implementation Act of 2003, which helped consumers avoid unsolicited telemarketing.

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Posted On Jul - 7 - 2013 Comments Off READ FULL POST

Wyeth v. Abbott Labs
By Kathleen McGuinness – Edited by Alex Shank

Wyeth v. Abbott Labs., Nos. 2012-1223, -1224, (Fed. Cir. June 26, 2013)
Opinion

On June 26, the U.S. Court of Appeals for the Federal Circuit upheld a lower court’s summary judgment of invalidity for nonenablement of certain patents relating to the use of rapamycin to treat restenosis, the renarrowing of an artery after the use of a balloon catheter. The court held that even “routine experimentation” to discover the working species of compounds within a claimed genus could constitute “undue experimentation,” given that chemical screening may require routine testing tens of thousands of compounds without any guidance from the patent.

Patently-O briefly explains the court’s decision. Patent Docs provides a detailed critique of the holding. Bloomberg summarizes the history of the litigation. (more…)

Posted On Jul - 5 - 2013 Comments Off READ FULL POST
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