A student-run resource for reliable reports on the latest law and technology news
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By Jaehwan Park – Edited by Kayla Haran

Bipartisan Lawmakers Introduce Bill Encouraging U.S. Government Agencies to Use the Cloud as a Secure Alternative to Legacy Systems

Snapchat Accused of Violating Illinois Biometric Information Privacy Act

The Office of the U.S. Trade Representative Announces New Policy Group to Promote Global Digital Trade

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Second Circuit Prohibits Extraterritorial Application of Stored Communication Act’s Warrant Provision

The Second Circuit reversed a U.S. Magistrate Judge’s warrant ordering Microsoft to produce customer content stored in Ireland. The Second Circuit held that the warrant provisions in § 2703 of the Stored Communications Act, 18 USC §§2701-2712 (1986) (“SCA”), cannot be used to compel a service provider to disclose user e-mail content stored exclusively on a foreign server.

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U.S. District Court Denied TC Heartland’s Writ of Mandamus to Transfer Patent Infringement Suit

 

In April 2016, the Federal Circuit denied TC Heartland LLC’s writ of mandamus. Hartland requested the court order the U.S. District Court for the District of Delaware to dismiss or transfer the patent infringement suit initiated by Kraft Foods Group Brands LLC. In rejecting Hartland’s request, the court explained that a writ of mandamus is an “extraordinary remedy appropriate only in exceptional circumstances” and Hartland did not meet this bar.

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Congresswoman Speier’s Revenge Pornography Bill: Crossing the First Amendment Line?

On July 14, 2016, Congresswoman Speier proposed the Intimate Privacy Protection Act, a bill designed to make revenge pornography a federal crime punishable with up to five years in prison. Although the current version is narrower in scope than previous iterations, there are still some concerns that this bill violates the First Amendment’s right to free speech.

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Following an unfavorable verdict from a second jury and the Court’s denial of the first motion for judgment as a matter of law (“JMOL”), Oracle America, Inc. (“Oracle”) filed a renewed motion for JMOL pursuant to FRCP Rule 50(b). Oracle’s second motion, filed July 6, 2016, claimed that “no reasonable jury” could find that Google’s “verbatim [and] entirely commercial” copying of Oracle’s code, in order to compete with Oracle, was fair use.[1] The motion will be heard on August 18, 2016.

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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

By Max Kwon

Nonprofit advocacy group fails to show “injury in fact”

The United States Court of Appeals for the Federal Circuit dismissed an appeal by plaintiff-Consumer Watchdog for lack of standing in Consumer Watchdog v. Wisconsin Alumni Research Found., No. 13-1377 (Fed. Cir. June 4, 2014). Consumer Watchdog, a nonprofit advocacy group, appealed the Patent Trial and Appeal Board’s decision affirming the patentability of claims 1-4 of U.S. Patent No. 7,029,913 (“‘913 patent”). Id. at 2. Consumer Watchdog filed its reexamination request pursuant to 35 U.S.C. §§ 311(a), 314(b)(2) (2006) because it was concerned that the ‘913 patent would allow Wisconsin Alumni Research Foundation to “completely preempt all uses of human embryonic stem cells, particularly those for scientific and medical research.” Id. at 3. In dismissing the appeal, the court emphasized the limited jurisdiction of federal courts and held that Consumer Watchdog only had “a general grievance against the ‘913 patent” and failed to show an “injury in fact” necessary to confer Article III standing. Id. at 7. Susan Decker, writer for Bloomberg News, provides a general overview of the policy debates leading up to the decision in Bloomberg Businessweek.

Court upholds duty to disclose mediator’s personal relationship with defendant

On April 5, 2010, Ceats sued Continental Airlines and multiple airlines and ticket vendors in the Eastern District of Texas, claiming for alleged infringement of patents covering technology used for seating selection for online ticket sales. Ceats, Inc. v. Continental Airlines, Inc., No. 13-1529 at 3 (Fed. Cir. June 24, 2014). The district court ordered the parties to participate in mediation and appointed former Magistrate Judge Robert Faulker as the mediator; however, the parties were unable to reach a settlement and the case proceeded to trial, where a jury found that Ceats’s patents were infringed but invalid. Id. at 3­–4. In an unrelated lawsuit, it was discovered that Faulker had a personal relationship with a Fish & Richardson lawyer. Id. at 4–5. Because Fish & Richardson was representing one of the defendants in the Ceats case, Ceats sought relief under Rule 60(b), arguing that the district court’s judgment should be set aside because of Faulkner’s failure to disclose facts regarding the prior litigation. Id. at 6. The Federal Circuit affirmed the denial of Ceats’s Rule 60(b) motion but reversed the lower court’s holding that Faulker had no duty to disclose his relationship. Id. at 20.  Notably, the court stressed that the effectiveness of  mediation depends on the parties’ ability to completely trust the mediator and that “[b]ecause mediators have disclosure obligations which are similar to the recusal requirement imposed on judges,” their disclosure obligations should be evaluated under a similar analysis. Id. at 12–13. A summary of the case can be found at Patently-O.

Claim dismissed as indefinite for resting on patent lacking specific algorithm

The United States Court of Appeals for the Federal Circuit affirmed the district court’s decision and held that Triton’s claims were invalid for indefiniteness in Triton Tech of Texas, LLC v. Nintendo of America, Inc., No. 13-1476 (Fed. Cir. June 13, 2014). Triton sued Nintendo of America, Inc. claiming that the “Wii Remote™ used in combination with a related accessory” infringed Triton’s U.S. Patent No. 5,181,181 which covers a computer input device for three-dimensional movement. Id. at 2. In concluding that the claims were indefinite, the court noted that the patent refers to “integrator means” but “did not disclose any algorithm for performing the recited integrating function.” Id. at 4 (internal quotations omitted) (citing Triton Tech of Texas, LLC v. Nintendo of Am., Inc., C.A. No. 13-cv-0157 (W.D. Wash. June 4, 2014)). Michael Borella on PatentDocs suggests that Triton’s “outcome should not be surprising to anyone” in light of recent Federal Circuit and Supreme Court precedent.

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

By Anton Ziajka – Edited by Insue Kim

Case C-131/12, Google Spain SL, et al. v. AEPD, et al. (E.C.J. May 13, 2014)

Slip Opinion

Photo By: archie4oz - CC BY 2.0

Photo By: archie4ozCC BY 2.0

The European Court of Justice (“ECJ”) recently interpreted the EU’s Data Protection Directive, 95/46/EC (“Directive”), to affirm an individual’s “right to be forgotten.” See Google Spain, slip op. ¶ 91. The ECJ held that an Internet search engine is obligated, upon an individual’s request, to erase from its search results links to webpages that contain “inadequate, irrelevant or no longer relevant, or excessive” information that relates personally to the individual. Id. ¶ 94. The search engine must remove such results even if the information contained on the linked webpages is lawful and accurate, id., and even if the inclusion of the linked search results does not cause prejudice to the individual, id. ¶ 96. This obligation is limited to results responsive to searches “made on the basis of” the individual’s name, id. ¶ 94, and does not apply when access to the information is justified by “the preponderant interest of the general public,” id. ¶ 97.

Reactions to the ECJ’s judgment have ranged from condemnation to cautious optimism. TechCrunch provides an interview with Wikipedia founder Jimmy Wales, who criticizes the ruling as censorship of knowledge. By contrast, writers for the Guardian and Wired suggest that the holding may be a step in the right direction toward greater respect for people’s privacy. The New York Times, Ars Technica, and BBC further analyze the holding and its implications.

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