A student-run resource for reliable reports on the latest law and technology news
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U.S. Marshals Service Uses Airborne “Dirtboxes” to Collect Cell Phone Data

By Katherine Kwong – Edited by Mengyi Wang

The U.S. government has been using “dirtboxes” to collect cell phone data. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on numerous Americans not suspected of any crime. While many commentators express concern about the program’s legality, others argue that the program is an effective method of catching criminals.

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Federal Circuit Flash Digest: News In Brief

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

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Silk Road 2.0 Takedown Indicates Law Enforcement May Have Developed a Method to Trace Hidden Tor Websites

By Steven Wilfong — Edited by Travis West

The complaint filed against Blake Benthall, the alleged operator of Silk Road 2.0, indicates that the FBI identified a server that was used to host the popular drug market website, despite the fact that the website’s location was hidden by the Tor anonymity software.  Law enforcement may have developed a method of compromising Tor anonymity, a possibility that would prove useful in future operations, but that also raises concerns for legitimate users.

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Federal Circuit Flash Digest: News in Brief

By Ken Winterbottom

Motion to Dismiss in Hulu Patent Infringement Suit Affirmed

“Virtual Classroom” Patent Infringement Case Remanded for Further Determination

Attorney Publicly Reprimanded for Circulating Email from Judge

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Spain Passes a “Google Tax,” Analysts Predict it Will be Short-Lived

By Michael Shammas — Edited by Yixuan Long

Spain recently amended its Intellectual Property Law and Code of Civil Procedure to levy fees on aggregators that collect snippets of other webpages. It is at least the third example of a European government fining search aggregators to support traditional print publishing industries, a practice often labeled a “Google tax” because of the disproportionate impact such laws have on the search giant. Some analysts are already predicting that Spain’s new law will fail.

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By Olga Slobodyanyuk  Edited by Jesse Goodwin

The UN Report from the Special Rapporteur on Counter-Terrorism and Human Rights found that government Internet mass surveillance violates Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) by impinging on individuals’ privacy. The report found that mass surveillance programs such as NSA’s Prism and GCHQ’s Temporapose a direct and ongoing challenge to an established norm of international law.”

The entire report can be found here.

Article 17 of the ICCPR states that “no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home and correspondence, nor to unlawful attacks on his or her honour and reputation.”

The Special Rapporteur, Ben Emmerson, differentiated between targeted and mass surveillance. Targeted surveillance “depend[s] upon the existence of prior suspicion of the targeted individual or organization,” while mass surveillance allows the “communications of literally every Internet user [to be] potentially open for inspection by intelligence and law enforcement agencies in the States concerned.” The report concluded that mass surveillance “amounts to a systematic interference with the right to respect for the privacy of communications, and requires a correspondingly compelling justification.”

The report stated that the broad justification for mass surveillance—that it can aid counter terrorism violations—is neither reasonable nor lawful. According to Emmerson, “the very essence of the right to the privacy of communication is that infringements must be exceptional, and justified on a case-by-case basis.” (more…)

Posted On Oct - 27 - 2014 Add Comments READ FULL POST

By Asher Lowenstein – Edited by Mengyi Wang

Robert Bosch, LLC, v. Snap-On Inc., 2014-1040 (Fed. Cir. Oct. 14, 2014)

Slip Opinion

The Federal Circuit affirmed a district court decision that patent claims without reference to structure are indefinite under 35 U.S.C. § 112(f). The dispute involved Bosch’s patent—U.S. Patent No. 6,782,313 (“the ’313 patent”)—which claims “a diagnostic tester that determines whether the computerized control unit in a motor vehicle needs to be reprogrammed.” Slip op. at 2Bosch sued Snap-On for infringing the ’313 patent, and Snap-on countered by arguing that the two claim terms “program loading device” and “program recognition device” are means-plus-function terms that fall within the purview § 112 and are indefinite. Id. at 4. The U.S. District Court for the Eastern District of Michigan agreed with Snap-on. Id. On appeal,  while disagreeing with the district court that any use of the word “means” invokes § 112(f), id. at 7, the Federal Circuit affirmed that the patent claims were indefinite. Id. at 12.

In patent applications, it is often easiest to describe an invention as something to be used as a means for a particular function. After the Supreme Court in Halliburton Oil Well Cementing Co. v. Walker found such descriptions invalid, § 112(f) was specifically added to allow these formulations with some limitations. 329 U.S. 1, 9 (1946) hosted by Justia.com. “Congress decided to permit broad means-plus-function language, but provided a standard to make the broad claim language more definite.” Valmont Indus., Inc. v. Reinke Mfg. Co., Inc., 983 F.2d 1039, 1042 (Fed. Cir. 1993) hosted by scholar.google.com. The limitations are that “[t]he applicant must describe in the patent specification some structure which performs the specified function,” and the court must relate the language to the corresponding structure. Id. (more…)

Posted On Oct - 27 - 2014 Add Comments READ FULL POST

By Steven Wilfong

Multimedia car system patents ruled as unenforceable based on inequitable conduct

The United States Court of Appeals for the Federal Circuit in American Calcar, Inc. v. American Honda Motor Co., 13-1061 (Fed. Cir. September 26, 2014) affirmed the United States District Court for the Southern District of California’s finding that three multimedia car system patents (U.S. Patents #6,330,497, 6,438,465, and 6,542,795) were unenforceable because the defendant had proved inequitable conduct. Calcar at 12. The court applied the two-pronged standard it established in Theranese, which requires a defendant alleging inequitable conduct to demonstrate that a patent applicant “(1) misrepresented or omitted information material to patentability, and (2) did so with specific intent to mislead or deceive the PTO.” Id. at 5, citing Ohio Willow Wood Co. v. Alps S., LLC, 735 F.3d. 1333, 1344 (Fed. Cir. 2013).  The district court found that information withheld during the patent application process would have caused the PTO to reject the claims, id. at 8, and that one of the inventors “possessed undisclosed information, . . . knew it was material, and deliberately decided to withhold [it] from the PTO.”  Id. at 10.  The Federal Circuit held that neither conclusion was clearly in error, and that both the materiality and the intent prongs of the Theranese standard were  thereby satisfied.  Id. at 1112.  Law360 provides an in-depth discussion of the ruling.

ITC’s ruling that uPI violated Consent Order affirmed

The United States Court of Appeals for the Federal Circuit in uPI Semiconductor Corporation v. ITC, 13-1157 (Fed. Cir. September 25, 2014) affirmed the International Trade Commission’s ruling that uPI violated a Consent Order, uPI at 3, and reversed the Commission’s finding that the violation did not extend to “products allegedly developed and produced after entry of the Consent Order,” id. at 5. The Consent Order mandates that uPI will not “knowingly aid, abet or induce importation” of DC current converter products infringing three patents (U.S. Patents #7,315,190, 6,414,470, 7,132,717).  Id. at 4.  Appealing the Commission’s findings, uPI argued that the Consent Order cannot apply to third-party imports absent a general exclusion order, citing Kyocera Wireless Corp. v. International Trade Commission, 545 F.3d 1340 (Fed. Cir. 2008).  Id. at 10.  They also argued that the Commission did not prove that the imports in question did not derive from sales prior to the Consent Order being issued.  Id. at 10-11.  The Federal Circuit found that Kyocera did not necessitate an exclusion order, id. at 13, and that evidence related to upstream sales, downstream sales, and import lag times were sufficient to establish that sales of accused products occurred after the Consent Order issued.  Id.  The Federal Circuit also ruled that the uPI’s evidence of compliance for post-Consent Order products was “grossly inadequate,” and reversed the Commission’s finding that these products were independently developed.  Id. at 19.

Court rules that VeriFone devices did not infringe on payment terminal software patents

The United States Court of Appeals for the Federal Circuit in CardSoft, LLC v. VeriFone, Inc., 14-1135 (Fed. Cir. October 17, 2014), reversed the United States District Court for the Eastern District of Texas’s ruling that VeriFone devices infringed two patents describing payment terminal software (U.S. Patents #6,934,945 and 7,302,683).  CardSoft at 2-3.  The Federal Circuit found that the district court’s construction of the term “virtual machine” as “a computer programmed to emulate a hypothetical computer for applications relating to transport of data” was incomplete, id. at 6, citing Cardsoft, Inc. v. VeriFone Holdings, Inc.,  No. 2:08-cv-98, 2011 WL 4454940, at *8 (E.D. Tex. Sept. 29, 2011), because this definition omits reference to a virtual machine’s “ability to run applications that [do] not depend on any specific underlying operating system or hardware,” id. at 7.  The court described this ability as a virtual machine’s “defining feature.” Id.  The Federal Circuit reversed because of the district court’s construction of the term, id. at 5. Because CardSoft did not address Appellants’ argument of no infringement under an updated construction, the court granted judgment of no infringement as a matter of law.  Id. at 10.  Law360 provides a discussion of the ruling.

Posted On Oct - 21 - 2014 Add Comments READ FULL POST

By Viviana Ruiz

Converse attempts to protect iconic Chuck Taylor All Star design

The Chuck Taylor All Star sneakers are undoubtedly Converse’s most iconic shoes. However, many retailers and competitors have been employing similar looks for years. Converse has filed suits against 31 retailers on trademark infringement grounds, requesting damages and injunctions, which could prevent competitors from selling similar shoes. Since shoes are not subject to copyright protection in the US, Converse’s claims are limited to the trademark arena. This may be a difficult case for Converse, however, since it needs to show evidence that customers bought the defendant’s shoes thinking they were manufactured by Converse. Moreover, Converse could be jeopardizing his signature trademark if it is not able to demonstrate public opposition against the widespread existence of similar products.

French Court rules that shoe design copyright was not infringed

Can shoe designs be protected under copyright law? Not in the US, but certainly in France. While US shoe designers must protect their creations through “trademarks,” “trade dress” or “design patent,” French law establishes that shoes can be protected as copyrights, provided that they are “original.” The term “original” has not been clearly defined, but French courts have established that a work is considered “original” when it reflects the personality of the author. Recently, the Paris Court had to determine the originality of a shoe in a case of copyright infringement filed by Apple Shoes against Sonia Rykiel. Defendant argued that the Plaintiff had failed to produce evidence on the creative process leading up to the model of shoes. The Court ruled that the shoes were original, but that  the defendant’s shoes were not similar and hence did not infringe on the plaintiff’s copyright.

Oklahoma Court rules that Facebook notifications do not satisfy notice requirement

Oklahoma’s highest civil court ruled that a Facebook message alone does not satisfy the notice requirement, reversing the lower courts’ rulings. Justice Douglas Combs, writing from the majority, expressed that [Facebook] is an unreliable method of communication… This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.” In a dissenting opinion, Justice Winchester considered Facebook notifications as valid, pointing out that even letters or by faxes may not reach the recipient.

Posted On Oct - 21 - 2014 Add Comments READ FULL POST

By Travis West — Edited by Mengyi Wang

Order, United States v. Ulbricht, No. 14-cr-68 (S.D.N.Y. Oct. 10, 2014).

Slip opinion

The alleged Silk Road founder Ross Ulbricht was denied the motion to suppress evidence in his case. Ulbricht argued that the FBI illegally hacked the Silk Road servers to search for evidence to use in search warrants for the server. The judge denied the motion because Ulbricht failed to establish that he had any privacy interest in the server.

The Silk Road was a website accessed through The Onion Router (“Tor”) that was used for the sale of drugs and other illegal goods. Slip op. at 2–3. Ulbricht is alleged to have created the site, using the moniker “Dread Pirate Roberts.” Id. at 1. The US government investigated the site, eventually imaging the server in Iceland and using information found on that server, and received multiple warrants for pen-registers and searches of Ulbricht’s personal email accounts and social network accounts. Id. at 3–4. Ulbricht alleged that the government illegally hacked the Icelandic server, and that all of the evidence that came from that illegal hacking should be suppressed. Id. at 4–5. However, the judge found that since Ulbricht had not established a personal privacy interest in the server, which likely could only be established by admitting he owned or accessed the website, he could not contest the search of the Icelandic server. Id. at 6–7.

The case has attracted attention due to questions about how the government actually accessed the Icelandic server. The defense tried to have all of the evidence suppressed since it suspected that the government had illegally hacked the Icelandic server. In response, the government offered a declaration from one of the FBI agents who accessed the server. Memorandum of law in opposition to defendant’s motion to suppress evidence, obtain discovery anda bill of particulars, and strike surplusage at 12. The declaration claimed that Ulbricht had improperly configured the front page of the Silk Road, so that it leaked the IP address of the server. Id. Using this information, the agent was able to have the Icelandic police secretly image the server, whose information was then used by the FBI to obtain warrants for Ulbricht’s personal accounts. Id. at 13. However, multiple technical experts and Ulbricht’s attorneys disputed this series of events, arguing that it was technically implausible. The prosecution then responded in a motion by arguing that even if the FBI had hacked the Silk Road’s server, it would be legal since the site was facilitating blatantly illegal activities. Government response tothe declaration of Joshua Horowitz at 1.

Wired provides an overview of Ulbricht’s legal saga to date. Ars Technica explains how Ulbricht is in a legal quandary by being unable to admit that he owned the Silk Road website. Gizmodo summarizes the government’s argument that it could hack the Silk Road’s server without breaking any laws. Krebs on Security provides more information about the technical challenges with the FBI’s story of how it found the Silk Road’s server’s IP address.

(more…)

Posted On Oct - 21 - 2014 Add Comments READ FULL POST
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