A student-run resource for reliable reports on the latest law and technology news

Federal Circuit Flash Digest

By Kayla Haran – Edited by Ken Winterbottom

Court Finds Negative Claim Limitation Meets Written Description Requirements

International Trade Commission’s Expansion of its Jurisdiction to Include Electronic Transmissions of Digital Data Ruled Improper

Court Holds That Patent Trial and Appeal Board Did Not Deny Procedural Rights in Review



Federal Circuit Flash Digest

By Patrick Gallagher – Edited by Ken Winterbottom

TOR Project Head Alleges FBI Paid Carnegie Mellon for Hack in Connection with Silk Road 2.0 Investigation

DOJ Decides Not to Support FCC in Efforts to Preempt States Laws Limiting Municipal Broadband Projects

D.C. Court of Appeals Permits Continuation of Bulk Domestic Phone Data Collection



Senate passes Cybersecurity Information Sharing Act

By Frederick Ding — Edited by Yunnan Jiang

On October 27, 2015, the Senate passed the Cybersecurity Information Sharing Act (CISA), which enables companies to share cyber threat indicators with each other and the federal government, and immunizes them from liability for sharing under the act. Tech companies and journalists have vocally expressed opposition to the act, which may enable companies to share users’ personal information.



Senators push bill protecting interstate trade secrets amidst concerns over trolling

By Bhargav Srinivasan – Edited by Olga Slobodyanyuk

The Senate Judiciary Committee is deliberating a bill to provide US companies with extra legal protections for trade secrets for products or services used in interstate commerce. However, some legal scholars believe the bill creates strong potential for companies to engage in “trade secret trolling” by falsely accusing rivals of stealing trade secrets in order to stall their business. The ensuing debate now weighs the intent of the bill with the potential for legal bullying.



Federal Circuit Flash Digest

By Keke Wu – Edited by Yunnan Jiang

Federal Circuit Rejects-in-part the District Court’s Claim Construction

No Jurisdiction to Claim Reputational Harm after Settlement

Federal Circuit Affirms-in-part PTAB in Belden vs. Berk-Tek


By Jennifer Garnett – Edited by Abhilasha Nautiyal

Photo By: Robert ScobleCC BY 2.0

Earlier this month, Mike Hearn of Google’s Security Department posted online that Google has successfully encrypted the data traffic between its servers. This undoes the National Security Agency’s (“NSA”) work in creating the surveillance program “MUSCULAR,” which taps into the connections between Google and Yahoo’s private data centers.

On October 30, the Washington Post released another wave of information attributed to Edward Snowden that described how the NSA had “broken into” the communication links between Google and Yahoo’s private data centers under a program codenamed MUSCULAR. The NSA is reported to operate this program jointly with its British counterpart, the Government Communications Headquarters. The tapping of these communication fibers gives the NSA access to millions of users’ data, including both metadata and content, regardless of whether or not they were suspected terrorists or criminals.

RT quotes Google’s chief legal officer, David Drummond as being “outraged” over the program, explaining that they have “long been concerned” about this kind of activity, and have been slowly extending encryption across Google’s myriad of services in an attempt to protect its users. Drummond’s statement was made in response to the Washington Post report of October 30 and continues, “[w]e are outraged at the lengths to which the government seems to have gone to intercept data form our private fiber networks, and it underscores the need for urgent reform.”

According to Ars Technica, Google has had a full-encryption initiative for over a year, but accelerated the initiative in June after Snowden leaked the news of the NSA and FBI’s joint “PRISM” program. Under this program, the NSA could gain front-door access to users’ data by demanding data related to certain keywords or search terms. This program was previously covered by the Digest. (more…)

Posted On Nov - 18 - 2013 1 Comment READ FULL POST

J.W. Spear & Sons v. Zynga Inc.
By Michelle Goldring – Edited by Jennifer Wong

J.W. Spear & Sons v. Zynga Inc., [2013] EWHC 3348 (Ch)

Photo By: Brian BurgerCC BY 2.0

The England and Wales High Court of Justice, Chancery Division held that infringement of Scrabble’s trademarked name did not occur when Zynga titled its games “Scramble” and “Scramble with Friends.” J.W. Spear & Sons v. Zynga, Inc., [2013] EWHC 3348 (Ch) at 147. It also held that the word “Scramble” was used to refer to games of that type and therefore did not infringe on Mattel’s trademark of that word. Id. at 158–59. However, the court also expressed concern that the “Scramble” logo created a likelihood of confusion because of its design. Id. at 142.

The court relied largely on Mattel’s previous actions to prove that the company itself did not seem to acknowledge confusion or infringement in a timely fashion to defeat Mattel’s trademark infringement claims. Id. at 46. Beyond its official holding, the court also noted that Zynga’s “Scramble” logo could potentially be misleading to consumers. Id. at 145. In the “Scramble” logo, the “m” is placed on its side such that it resembles the Scrabble name,. Id. at 142.

BBC News and PC Mag provide brief descriptions of the case and the reactions of the parties.  World IP Review gives a fuller description of the judge’s reasoning. (more…)

Posted On Nov - 13 - 2013 Comments Off READ FULL POST

Written By: Charles Colman
Acting Assistant Professor at NYU School of Law

Edited By: Elise Young

“For this most inadequate proof [of consumer recognition], applicant asks us to give it the exclusive right to use red and blue bands on men’s white, ribbed socks — that we cannot do.”

In re Izod, Ltd., 296 F.2d 771, 778 (C.C.P.A. 1961)




On September 30, 2013, the Trademark Trial and Appeal Board[1] issued a troubling decision in In re Bottega Veneta Int’l S.a.r.l.[2] Viewed in a broader context, the decision reflects the Board’s growing reluctance to apply the doctrine of “aesthetic functionality”[3] in ex parte prosecution proceedings to bar the issuance of potentially anticompetitive trade-dress[4] registrations. The TTAB gives its imprimatur to the dubious “trade dress” at issue in Bottega Veneta through procedural moves whose novelty and import could easily go unacknowledged — specifically, (1) the Board’s declaration of its intention to resolve “doubts” as to aesthetic functionality in favor of applicants, and (2) the Board’s disposal of concerns about product-design monopolization through reliance on supposedly limiting conditions agreed to by the applicant, but which the federal courts will not observe or enforce. As such, In re Bottega Veneta — despite its technical status as a mere “non-precedential” decision by an agency whose determination can theoretically be revisited by the federal courts — will improperly hinder marketplace competition and restrict creative freedom among designers. (more…)

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

By James Grace

Hershey_Cross_SectionHershey’s Opposes Mars’ Attempt to Register a Snickers’ Cross-Section as a Design Mark

The Trademark Blog reported that Hershey’s has filed a Notice of Opposition with the U.S. Patent and Trademark Office concerning Mars’ application to register a design mark for “a cross-section of a candy bar showing layers within the candy, namely, a middle light brown layer containing several tan colored peanut shapes and a bottom tan layer, all surrounded by a brown layer.” U.S. Trademark Application Serial No. 85441471 (filed Oct. 6, 2011). As one of four grounds of opposition, Hershey’s alleges that the design mark is functional, since the configuration of ingredients is the result of a commonly used  “layering” process for manufacturing candy bars that is efficient and cost effective. Notice of Opposition, ¶¶ 13-17, 23-29.

Medtronic v. Boston Scientific – Oral Argument

On November 5, 2013, the Supreme Court of the United States heard oral argument in the case of Medtronic v. Boston Scientific, No. 12-1128 (U.S. Nov. 5, 2013). Medtronic, a medical device manufacturer, licensed patents from Boston Scientific and subsequently sought declaratory judgment that it did not infringe Boston Scientific’s patents and was therefore not obligated to pay royalties. In a typical patent infringement suit, the patent holder bears the burden of proving infringement, and this burden does not shift in a declaratory judgment action.  However, the United States Court of Appeals for the Federal Court recently held that where a licensee is seeking a declaration of non-infringement, the licensee should bear the burden of proving non-infringement because the patentee is not in a position to counterclaim for infringement. Medtronic v. Boston Scientific, 695 F.3d 1266 (Fed. Cir. 2012), slip op. at 12. Medtronic appealed to the Supreme Court. PatentlyO and SCOTUSblog provide a summary of the issues raised in oral argument before the Court.

Proposed Tweak to Law Would Pull Shield From Generic-Drug Makers

On November 8, 2013, the Food and Drug Administration (“FDA”) issued a press release outlining a proposed rule aimed at speeding up the dissemination of safety information concerning generic drugs. Under the current rules, generic drug manufactures must wait for approval by the FDA and the corresponding brand name manufacturer before updating product labeling to reflect new safety information.  The proposed rule would provide generic manufacturers with the same ability as brand name manufactures to update product labeling based on newly acquired safety information prior to review by the FDA. The Wall Street Journal discusses how the proposed rules relate to the recent of case of Mutual Pharmaceutical Co. , Inc. v. Bartlett , No. 12–142 (U.S. 2013), in which the Supreme Court overturned a $21 million judgment to a woman for injuries allegedly caused by a generic drug.

Posted On Nov - 10 - 2013 Comments Off READ FULL POST

By Sheri Pan – Edited by Elise Young

November 1, 2013 Notice from NIST

The National Institute of Standards and Technology (“NIST”) recently announced that it has begun formal review of its standards development process for approving cryptographic algorithms. The notice appears to be a reaction to recent reports in the New York Times regarding the National Security Agency’s (“NSA”) back door access to encrypted data through an NIST-approved cryptographic algorithm. The article suggests that the NSA inserted back door access into the algorithm, one that many companies use to encrypt data sent over the Web.

The New York Times, in an article and blog post, and the Guardian cover the alleged back door access. Ars Technica, Matthew Green, and Wired provide commentary. (more…)

Posted On Nov - 7 - 2013 1 Comment READ FULL POST
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