A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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By Mark Verstraete

Icon-newsMassachusetts District Court Denies Motion For Preliminary Injunction against Aereo

The United States District Court for the District of Massachusetts denied a motion for preliminary injunction against Aereo, Inc. (“Aereo”), a company that captures television broadcast signals with individualized antennas and streams the broadcasts to paying subscribers. Hearst Stations Inc. v. Aereo, Inc., No. 13-cv-11649, at 3 (D. Mass. October 8, 2013). Hearst Stations Inc. (“Hearst”) claimed that use of Aereo’s technology directly infringes on exclusive rights guaranteed to Hearst as copyright holder under 17 U.S.C §106. In denying the motion, the court assessed the likelihood of Hearst succeeding on the merits and the likelihood of Hearst suffering irreparable damage without injunctive relief (Hearst, No. 13-cv-11649 at 8). The analysis of Hearst’s success on the merits focused predominately on whether Aereo “perform[ed] the copyrighted [audiovisual] work publicly,” a right exclusively reserved for the copyright holder. Id. at 9. The court reasoned that Aereo’s activities did not constitute a “public performance” because Aereo’s manner of transmitting TV signals creates “copies unique to each user and only at the user’s request.” Id. at 11. The court conceded that it was possible that Hearst could experience irreparable harm but concluded that the harm, if it did occur, would most likely materialize after the litigation and that demonstrating the potential for harm does not outweigh Hearst’s failure to show likelihood of success on the merits. Id. at 18. JOLT Digest covered earlier disputes involving Aereo, including the United States Court of Appeals for the Second Circuit’s affirming the denial of a preliminary injunction against Aereo brought by several broadcast TV networks. ArsTechnica provides further coverage.

Airbnb Responds to Subpoena from New York Attorney General

Airbnb, Inc. (“Airbnb”), a company that provides an online platform for connecting “Hosts” that seek to rent their accommodations to “Guests” seeking accommodations, responded to a subpoena demanding information about 15,000 of its New York Hosts to determine if the Hosts’ practices violated New York laws regulating rental agreements and taxes. Airbnb, Inc. v. Schneiderman, Memorandum of Law in Support of the Verified Petition, at 1 (N.Y. Sup. Ct. October 9, 2013) (Hosted by ArsTechnica).  Airbnb contends that the subpoena implicates serious privacy concerns because it is overly broad. Id. at 4. That is, Hosts that are “not subject to the laws” or “are exempt from the tax scheme” may fall within the scope of the requested information. Id. at 2. Airbnb also pushed back on the New York housing laws themselves by claiming that they are inherently vague and thus fail to give fair notice. Id. at 6.

Delaware District Court Dismisses Class Action Suit Against Google Regarding Personally Identifiable Information

A federal judge dismissed a class action suit against Google because the plaintiffs had failed to show “an injury in fact” and thus lacked standing to bring the suit. In Re: Google Inc. Cookie Placement Consumer Privacy Litigation, No. 12-md-02358-SLR (D. Del. October 9, 2013) (Hosted by The Am Law Daily). The claim against Google arose from its practice of embedding advertisements with code that deceives Apple Safari and Internet Explorer into accepting third-party cookies. Id. at 1. The plaintiffs claim that the manipulation of an Internet browser into accepting cookies infringes on their economic interests – constituting an injury in fact – because it provides the defendants with the plaintiffs’ valuable information without paying for it. Id. at 4. The plaintiffs supported the idea that their personal information is economically valuable because it can be sold directly to advertisers. Id. at 5. The court reasoned that, although the plaintiffs demonstrated that personal data has value, they failed to show that their ability to monetize their data “has been diminished or lost by virtue of Google’s previous collection of it.” Id. at 6-7. Thus, the plaintiffs failed to allege an injury-in-fact and lacked Article III standing. TechCrunch contextualizes the decision within the larger Federal Trade Commission investigation.

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

By Travis West – Edited by Ashish Bakshi

Photo By: Robson#CC BY 2.0

The National Security Agency (“NSA”) has developed techniques to circumvent the anonymity offered by the Tor network. Tor is a service that anonymizes users’ Internet traffic by routing requests to websites and other services through multiple servers, making it extremely difficult to track. While the NSA can track some Tor users, the agency has been unable to crack the underlying technology and instead relies on tools like browser exploits and its direct access to the Internet backbone to intercept website requests.

The Guardian and The Washington Post published the original stories based on documents leaked by Edward Snowden. Bruce Schneier of The Guardian provided a technical analysis of the NSA’s techniques. Ars Technica and Time Techland provided additional coverage. (more…)

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

Société des Produits Nestlé S.A. v. Cadbury UK Ltd.
By Anton Ziajka – Edited by Abhilasha Nautiyal

Société des Produits Nestlé S.A. v. Cadbury UK Ltd., [2013] EWCA (Civ) 1174 (October 04, 2013)
Judgment hosted by BAILII

Britain’s Court of Appeal (Civil Division) reversed an order of the High Court of Justice (Chancery Division) that had approved for registration Cadbury UK Ltd.’s (“Cadbury”) Trade Mark application No. 2 376 879 (“the ‘879 application”) for a specific shade of purple to be used on the packaging of its chocolate products. The Court of Appeal held that Cadbury’s color mark did not qualify as a trade mark under the Trade Marks Directive 2008/95 (“the Directive”). 2008 O.J. (L 299) 25, 26 (EC). The Court held that “an application to register a trade mark must satisfy three conditions …: (i) there must be a sign; (ii) it must be capable of graphical representation; [and] (iii) it must be capable of distinguishing the goods or services of one undertaking from those of other undertakings.” Société des Produits Nestlé S.A. v. Cadbury UK Ltd., [2013] EWCA (Civ) 1174 at ¶15. The Court concluded that Cadbury’s impugned mark did not constitute “a sign” that is “graphically represented” and thus failed to satisfy conditions (i) and (ii) of Article 2 of the Directive. Id. at ¶51. To allow registration of a trademark with such vagueness, the Court noted, would offend both “the principle[s] of certainty…[and] of fairness,” in part because “competitors… would not be able to tell from inspecting the register the full scope and extent of the registration.” Id. at ¶52.

The Guardian and World Intellectual Property Review provide coverage of the decision. The Washington Post compares the decision with several prominent United States cases involving color trade marks. The IPKat provides further analysis and commentary on the case and related decisions. (more…)

Posted On Oct - 11 - 2013 Comments Off READ FULL POST

By Simon Heimowitz – Edited by Kathleen McGuinness

Photo By: Sean MacEnteeCC BY 2.0

On August 3, the Obama administration issued a veto on an International Trade Commission (“ITC”) exclusion order that had effectively banned the importation of some older models of the iPhone and iPad. Letter from Michael B. G. Froman, U.S. Trade Representative, to Irving A. Williamson, Chairman, ITC (Aug. 3, 2013). The ITC had ordered the ban on older Apple devices — the iPhone 3GS, iPhone 4, iPad 3G and iPad 2 3G distributed with cellular service by AT&T — after agreeing with Samsung that Apple had infringed one of Samsung’s standard-essential patents (“SEPs”). The ban would have gone into effect on August 5. Ambassador Froman expressed the administration’s decision to veto the exclusion order as the result of “extensive consultations with the agencies of the Trade Policy Staff Committee and the Trade Policy Review Group, as well as other interested agencies and persons,” after which he “decided to disapprove the USITC’s determination to issue an exclusion order and cease and desist order in this investigation.” Letter at 3. As reported by Forbes.com, Froman noted the administration’s decision was made after taking into account the “effect on competitive conditions in the U.S. economy and the effect on U.S. consumers.” Id.

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Posted On Sep - 14 - 2013 Comments Off READ FULL POST

By Elise Young

Flash DigestApple Prevails on Appeal, Re-Opening Door on Motorola Infringement Case

The United States Court of Appeals for the Federal Circuit held that Apple could proceed in its patent infringement case against Google-owned Motorola Mobility for two touch-screen patents.  Apple Inc. v. Int’l Trade Comm., No. 12-1338 at 2 (Fed. Cir. Aug. 7, 2013). The court reversed in part the International Trade Commission’s findings that the patents at issue were anticipated and obvious. Id. If Apple prevails in its case, some Motorola devices could be banned from sale in the U.S. CNET provides an overview of the case while FOSS Patents discusses the technology and patents in more detail.

Bitcoin Is a Currency that May Be Regulated Under U.S. Law

Magistrate Judge Mazzant recently ruled that Bitcoin is “currency or a form of money.” SEC v. Shavers, No. 13-00416 at 3 (E.D. Tex. Aug. 6, 2013). This determination was significant because it enabled the court to find that investments made by Bitcoin Savings and Trust were “investment contracts” and thus “securities” over which the court had subject matter jurisdiction. Id. at 4. Securities include investment contracts, and an investment contract “is any contract, transaction, or scheme involving (1) an investment of money, (2) in a common enterprise, (3) with the expectation that profits will be derived from the efforts of the promoter or a third party.” Id. at 3. For more general discussion of the case, see Ars Technica.

Federal Circuit’s Judge Plager Argues that Ambiguous Terms Should Be Construed Against the Drafter

The United States Court of Appeals for the Federal Circuit panel issued three separate opinions in reversing and remanding the United States District Court for the District of Minnesota’s claim construction in a case of patent infringement brought by 3M. 3M Innovative Props. Co. v. Tredegar Corp., No. 12-1241 (Fed. Cir. Aug. 6, 2013). In his concurring opinion, Judge Plager emphasized that the plaintiff’s “sloppy drafting” and frequently conflicting language put the court in the position of “crystal ball” reader, an arduous and nigh-impossible task. Id. at 2 (Plager, J., concurring). Judge Plager went on to advocate that the court adopt the “contract doctrine of contra proferentum” which resolves ambiguous terms against the drafter. Id. at 4.

Posted On Sep - 3 - 2013 Comments Off READ FULL POST
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Federal Circuit Flas

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