A student-run resource for reliable reports on the latest law and technology news
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European Court of Justice Invalidates Data Retention Directive
By Paul Klein – Edited by Alex Shank

In a preliminary ruling requested by courts in Ireland and Austria, the European Court of Justice found that Directive 2006/24/EC was invalid. The Grand Chamber recognized the legitimacy of retaining telecommunications data as a means to combat serious crime and terrorism, but it ultimately held that the far-reaching scope of the Directive disproportionately affected individual privacy under the Charter of Fundamental Rights of the European Union.

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Google to Supreme Court: Snagging Data from Unsecured Wi-Fi is Perfectly Legal
By Michael Shammas – Edited by Mary Schnoor

Google has filed a petition for a writ of certiorari asking the Supreme Court to label its Street View cars’ collection of unencrypted Wi-Fi traffic legal, appealing the Ninth Circuit’s decision that Google may have violated the federal Wiretap Act. Google believes unencrypted Wi-Fi traffic should be classed as “radio communications” accessible to the public.

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Mozilla Announces Resignation of Recently Appointed CEO Brendan Eich Following Controversy over Gay Marriage Opposition
By Sheri Pan – Edited by Corey Omer

On April 3, Mozilla Corporation (“Mozilla”), a subsidiary of the non-profit Mozilla Foundation most widely known for producing the Firefox browser, announced that its CEO of less than two weeks, Brendan Eich, has resigned, after pressure from Mozilla employees, bloggers, and developers who opposed his appointment in light of a $1000 donation that he made in 2008 in support of Proposition 8, a ballot measure that sought to ban gay marriage in California.

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Flash Digest: News In Brief
By Emma Winer

Third Circuit Vacates Hacker Conviction for Improper Venue

French Unions and Employers Agree to Curb After-Hours Work Email

Limited Sale of Google Glass Slated For April 15

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Supreme Court Weighs Patent Eligibility of Software
By Mary Schnoor — Edited by Elise Young

The Supreme Court recently heard oral arguments in Alice Corp. v. CLS Bank Int’l, a case with the potential to determine whether, or when, computer-implemented inventions (i.e., software) are patent-eligible subject matter. Many commentators hope the Court will use this case as an opportunity to clarify what makes an invention an “abstract idea” that is ineligible for patenting.

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By Dorothy Du

Federal Circuit Reconsiders Myriad’s Gene Patents on Remand

This past Friday, July 20, the Federal Circuit heard 45 minutes of oral arguments for Association for Molecular Pathology v. Myriad on remand on whether isolated breast cancer genes are unpatentable products of nature, reports Bloomberg Businessweek. A year ago, JOLT Digest reported on the Federal Circuit’s decision to uphold the patent eligibility of isolated DNA. However, following a Supreme Court decision to strike down a diagnostic patent as an unpatentable law of nature in Mayo Collaborative Services v. Prometheus Labs., a case JOLT Digest summarized, Myriad was remanded to the Federal Circuit. Reuters reports that at Friday’s oral arguments, Myriad attorney Greg Castanias compared isolating the patented genes to creating a baseball bat out of a tree, while opposing counsel for the USTPO compared the process to mining coal from the ground. According to Wall Street Journal Law Blog, the panel of judges hearing the arguments appeared to remain steadfast in their original positions on the patents. Judges Lourie and Moore made comments expressing their approval of Myriad’s patents, while Judge Bryson, who dissented in the original ruling, reiterated his belief that gene sequences are unpatentable products of nature. The oral arguments can be heard at the website of the Federal Circuit.

Europe to Approve Its First Gene Therapy

According to Wall Street Journal Health Blog, the European Union’s European Medicines Agency (“EMA”) has recommended the approval of a gene therapy to treat a rare genetic disorder. The European Commission ordinarily follows the EMA’s recommendations. An approval would be groundbreaking, according to the New York Times, because it would be the first approval of a gene therapy in the Western world; China approved a gene therapy for cancer back in 2003. Gene therapy theoretically works by supplying the body with normal copies of defective genes, thereby targeting diseases at their source. Followers of this exciting technology, however, have been disappointed by experimental results until now. Creating successful gene therapies has been a struggle because of challenges associated with inserting the genes safely and preventing immune reactions to the inserted genes, reports the AP. The New York Times explains that the gene therapy awaiting approval is called Glybera, is manufactured by uniQure, and treats lipoprotein lipase deficiency, a condition caused by a mutation that prevents patients from producing an enzyme that breaks down fat particles in the blood.

ITC Ban on Importing Motorola’s Android Products Takes Effect

An International Trade Commission (“ITC”) exclusion order banning the importation into the United States of Motorola Android devices took effect this past Wednesday, July 25, reports Ars Technica. The order issued two months ago, pursuant to the ITC’s ruling that 18 Motorola Mobility products infringed a Microsoft patent related to Microsoft’s Exchange Active Sync technology, which allows users to accept invitations and add events to their Google calendar. David Howard, Microsoft’s deputy general counsel, has stated that “Microsoft brought this case only after Motorola stopped licensing our intellectual property but continued to use our inventions in its products,” PC Magazine reports. CNET notes that Microsoft has been “proactive” in pursuing licensing deals, currently receiving royalties from 70 percent of Android vendors. Motorola has promised users that it will keep its Android products on the U.S. market without infringing Microsoft’s patent, but has not yet disclosed how. Ars Technica and CNET speculate that Motorola will either remove or tweak the infringing technology in order to render the Android products non-infringing. Motorola has also filed an appeal of the ITC ban, according to the Seattle Times.

Posted On Jul - 23 - 2012 Comments Off READ FULL POST

Judge Allows Aereo to Continue Providing Broadcast Television over the Internet
By Brittany Horth – Edited by Charlie Stiernberg

American Broadcasting Companies, Inc. v. Aereo, Inc., 12 Civ. 1540 (AJN) (S.D.N.Y. July 11, 2012)
Slip opinion

Judge Alison J. Nathan of the United States District Court for the Southern District of New York denied a request for a preliminary injunction made by a group of broadcast television companies against Barry Diller’s Aereo, a system exclusively available in New York City that allows subscribers to watch and record live broadcast television over the Internet.

Judge Nathan held that the plaintiffs did not show a likelihood of success on the merits in their claim that Aereo is liable for copyright infringement for publicly performing the plaintiffs’ copyrighted works but did show that they would suffer irreparable harm. Am. Broad. Co., slip op. at 36, 44. She explained that the plaintiffs likely would have been granted a preliminary injunction “but for” the Second Circuit’s reading of “the transmit clause” in 17 U.S.C. § 101 in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (“Cablevision”). Id. at 1. (JOLT Digest has previously reported on Cablevision and its continuing significance.) Instead, she rejected all of the plaintiffs’ attempts to distinguish Aereo from the service at issue in Cablevision and concluded that the Second Circuit’s analysis in Cablevision was equally applicable to the present case. Id. at 21, 52.

A brief summary of the continuing situation is available at the New York Times. The Los Angeles Times features an analysis of the denial as well as the relevant precedent, including Cablevision and Sony Corp. of Am.  v. Universal City Studios, Inc., 464 U.S. 417 (1984) (“Sony Betamax”). CNNMoney provides a more detailed overview of Judge Nathan’s reasoning. CNBC offers Aereo CEO Chet Kanojia’s thoughts on the future of Aereo now that they have received this favorable ruling.

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Posted On Jul - 23 - 2012 Comments Off READ FULL POST

Federal Circuit Revisits Patentable Subject Matter Following Prometheus
By Jeffery Habenicht – Edited by Dorothy Du

CLS Bank Int’l v. Alice Corp. Pty. Ltd, No. 2011-1301 (Fed. Cir. July 9, 2012)
Slip opinion

The Federal Circuit reversed the D.C. District Court’s decision to grant summary judgment against Alice Corporation (“Alice”). CLS Bank Int’l v. Alice Corp. Pty. Ltd, No. 2011-1301, slip op. at 2, 6–7 (Fed. Cir. July 9, 2012). The district court had held that Alice’s patents were invalid for failure to claim patentable subject matter. CLS Bank Int’l v. Alice Corp., 768 F. Supp. 2d 221 (D.D.C. 2011).

The Federal Circuit held that Alice’s patents were patentable under § 101 because they were directed to “practical applications of invention.” Slip op. at 2. The court found that the “abstractness of the ‘abstract ideas’ test” set forth in Bilski II rendered the test overly “elusive.” Id. at 13–15 (citing Bilski v. Kappos, 130 S. Ct. 3218 (2010)). The court grappled with the difficulty of ensuring that overly broad patents do not unduly foreclose subsequent innovation, while taking care not to improperly ignore “meaningful limit[s]” on patent scope. Id. at 18–20 (quoting SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319, 1333 (Fed. Cir. 2010)). In order to address this difficulty, the Federal Circuit set forth a new test—perhaps better described as a presumption—for patentability: So long as “it is not manifestly evident that a claim is directed to a patent ineligible abstract idea,” that claim should survive a § 101 inquiry. Id. at 20.

In so holding, the Federal Circuit introduced another jigsaw-piece to the puzzle that is patentable subject matter. Given the Supreme Court’s recent interest in the topic, this opinion could serve as a vehicle for further clarification regarding the theoretical limits of § 101.

Thompson Reuters provides an overview and analysis of the case. Patently-O explores the differences between the majority opinion and the dissent, and suggests that the dissent may hew closer to Supreme Court precedent.
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Posted On Jul - 22 - 2012 Comments Off READ FULL POST

Confrontation Clause: When Forensic Reports Are Testimonial Remains Unclear
By Heather Whitney – Edited by Charlie Stiernberg

Williams v. Illinois, No. 10-8505, 2012 WL 2202981 (U.S. June 18, 2012)
Slip opinion

In a fractured decision, the Supreme Court held that an expert witness could testify about a DNA test not entered into evidence and performed by a non-testifying analyst without violating the Confrontation Clause. However, with five Justices expressly rejecting the entirety of the plurality’s analysis, no majority agreed on the reasoning underlying the decision. Thus, lower courts continue to lack clear guidance as to when a forensic report is testimonal for Confrontation Clause purposes and, in cases where a forensic report is considered testimonial, which and how many analysts must testify. (more…)

Posted On Jul - 18 - 2012 Comments Off READ FULL POST

By Erin Pritchard

Facebook and Yahoo Settle & Share

Facebook and Yahoo announced last Friday, June 6, that they have settled all patent disputes between the two companies and are entering into an advertising partnership, according to CNN. The companies came to a no-cash exchange settlement agreement by entering into a cross-license deal which allows access to one another’s patent portfolios as well as a new advertising partnership. Yahoo filed a complaint against Facebook in March 2012 in the U.S. District Court in the San Jose Division of the Northern District of California, alleging that Facebook infringed ten of Yahoo’s patents in methods of advertising, privacy controls, and social networking. Just a few weeks later, Facebook then hit back at Yahoo with its own lawsuit the following month. Facebook denied Yahoo’s claims of patent infringement and said that Yahoo had infringed ten Facebook patents.

The Tech IPO Boom Isn’t Over

After the troublesome Facebook IPO last May, market analysts began questioning whether the tech IPO market would die out for at least the near future. But the success of the ServiceNow IPO from two weeks ago has encouraged analysts about the tech IPO market, according to CBSnews. ServiceNow, a provider of cloud-based information technology services, was one of the first technology IPOs since Facebook. ServiceNow’s IPO price was $18 per share and and it closed on the New York Stock Exchange up 37 percent at $24.60, giving the company a valuation of over $2 billion, reported Bloomberg.  After ServiceNow, tech companies may shake off the Facebook IPO scare and jump back into the IPO market.

Kim Dotcom’s Offer to Surrender

Last January, the United States Department of Justice indicted Megaupload for copyright infringement, and then seized and shut down the domain names and the sites associated with Megaupload, as JOLT Digest previously reported. After an arrest in New Zealand last January, there have been efforts to extradite Dotcom and other accused Megaupload employees.  Now, Kim Dotcom and his Megaupload associates are offering to turn themselves in and fly to the United States without an extradition hearing in New Zealand upon the condition that Dotcom receives a fair trial guarantee and return of money to support their families and to pay legal fees, reports Wired.  Last Wednesday, Dotcom tweeted “Hey DOJ, we will go to the US. No need for extradition.  We want bail, funds unfrozen for lawyers & living expenses.”  However, Dotcom claims that the FBI will never take his offer as it can’t win the case against him and Megaupload.

Erin Pritchard is a 3L at Harvard Law School.

 

Posted On Jul - 14 - 2012 Comments Off READ FULL POST
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European Court of Ju

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Google to Supreme Co

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Supreme Court Weighs

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