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

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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Flash Digest: News in Brief

By Gia Velasquez – Edited by Ken Winterbottom

Federal Court Grants Uber’s Class Action Certification Appeal

Independent Contractor Classification of Uber Drivers May Violate Antitrust Laws

Self-Driving Car Will Be Considered Autonomous Driver

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Fed. Cir. Flash DigestBy Yiran Zhang – Edited by Olga Slobodyanyuk

Senators Introduce a Bill which Requires Social Media Companies to Report Terrorist Activity

Democratic Sen. Dianne Feinstein and Republican Sen. Richard Burr have introduced legislation that would require social media and other technology companies to report online terrorist activity they become aware of to law enforcement. The proposed legislature does not require companies to take additional actions other than to report the information such as attack planning, recruitment, or distribution of terrorist material if companies become aware of terrorist activity. Democratic Sen. Ron Wyden opposed the bill, reasoning that the it “would create a perverse incentive for companies to avoid looking for terrorist content on their own networks”.

New EU Copyright Rules Left Possibility for Google Tax

The European Commission’s new “modern, more European” copyright framework left the possibility for the introduction of a new ancillary copyright that would require people to pay a licensing fee for the use of short snippets online, also known as the “Google tax”. The  document describing the Commission’s plans  raises concerns about the fragmentation in EU digital market, referring to individual EU Member States such as Germany and Spain’s attempts to require search engines—particularly Google—to pay publishers for using snippets from their publications in search results.  The framework, however, ruled out a tax on hyperlinks. The framework wants to bring in cross-border portability, instead of its earlier, more expansive promise to stop unjustified geo-blocking. The regulation on cross-border portability is expended to come into force in 2017, without needing any further legislation. As part of the new copyright framework, the Commission also wants to ratify the Marrakesh Treaty, figure out the freedom of panorama issue, and disrupt commercial scale copyright infringement activities. It has launched a public consultation of this legal framework, open for comments until April 1, 2016.

COP21 Reached an “Ambitious and Balanced” Deal on Climate Change

On December 12, the 21st Conference of Parties, or COP21, issued a final draft of the climate change agreement, which the French foreign minister Laurent Fabius described as “fair and legally binding.” If adopted, the agreement would set an ambitious goal of halting average warming at no more than 2 degrees Celsius (3.6 degrees Fahrenheit) above pre-industrial temperatures—and of striving for a limit of 1.5 degrees Celsius if possible. It sets up a bottom-up system in which each country sets its own goal of greenhouse gas emission reduction, or “nationally determined contribution” as called in the agreement. Bill McKibben, the co-founder of 350.org, said that the agreement “may have saved the chance of saving the planet”, with a cautious optimism typical among environmental activists.

Posted On Dec - 16 - 2015 Comments Off READ FULL POST

Icon-newsBy David Nathaniel Tan – Edited by Adi Kamdar

Software Pirate Settles Suit Via YouTube

A Czech software pirate known as Jakub F made an unusual deal with the Business Software Alliance (BSA) in order to settle a lawsuit: instead of paying damages, he simply needed to create an anti-piracy video that achieved 200,000 views. The BSA, which represents large media firms such as Microsoft, HBO and Fox, acknowledged that Jakub F could not afford the $200,000 fine and decided that awareness campaign would be a better “punishment” for the 30-year-old. At over a million views and growing, the video, starring Jakub F himself, has since gone viral. YouTube comments on the video ranged from solidarity to apathy to condemnation, with one user predicting that the “video will encourage people to start pirating as revenge.” News site TorrentFreak has provided a translation of the video.

After Paris Attacks, FCC Chairman Calls for Expanded Wiretap Laws

Federal Communications Commission chairman Tom Wheeler leads an agency with a growing interest in cybersecurity. Last year, Wheeler told James Barnett, founder of the FCC’s Cybersecurity Division that he [Wheeler] does “not intend to be sitting in the chairman’s seat when a major cyber attack occurs, having done nothing.” Now, presumably in response to the recent Paris attacks, Wheeler has called for an expansion of the 1994 Communications Assistance for Law Enforcement Act (CALEA) to include more modern communications channels such as video game consoles. Whether or not Congress responds to Wheeler’s suggestions remains to be seen.

Hoverboards Declared Illegal in New York City

Back to the Future got it right (kind of): hoverboards exist in 2015. But before ordering one online, note that they don’t really hover and, perhaps more importantly, were just deemed illegal in New York City. The word hoverboard is a misnomer: these devices still have wheels, and as motorized vehicles that cannot be registered, are illegal under New York law. Hoverboards are popular, hands-free, rechargeable—and now come with a $200 fine.

Posted On Dec - 10 - 2015 1 Comment READ FULL POST

1271084_10152203108461729_809245696_oBy Mila Owen – Edited by Kayla Haran

Belgian Privacy Commission v. Facebook Belgium, Court of First Instance (Belgium), November 9th 2015. Judgment available here.

The Belgian Court of First Instance, acting in summary proceedings, ruled that Facebook’s practice of storing and processing personal data of Belgian internet users without a Facebook account violates the Belgian Privacy Act, and ordered Facebook to suspend the practice (effective November 11, 2015) pending a final judgment on the merits. The National Law Review provides an overview of the case, and the Wall Street Journal offers some context on the Belgian court’s ruling and Facebook’s European legal disputes.

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Posted On Dec - 10 - 2015 Comments Off READ FULL POST

Sikhs for Justice LogoBy Ann Kristin Glenster – Edited by Yaping Zhang

Sikhs for Justice Inc.(SFJ) v. Facebook, Inc. (N.D. Cal. Nov 13, 2015, Case No. 15-CV-02442-LHK), opinion available here.

On November 13, the United States District Court of the Northern District of California dismissed the New York-based organization Sikhs for Justice’s (SFJ) case against Facebook for allegedly blocking the group’s page from users in India. The case raised issues concerning the reach of federal anti-discrimination laws, and the role of global online providers as the social internet space increasingly hosts platforms for political speech. Yet, the Court maintained that the federal Communications Decency Act (CDA), 47 U.S.C. § 230, immunized interactive online providers from liability arising from Title II of the Civil Rights Act (CRA) of 1964, and in so doing, refused to dwell on the wider principles at stake.

As social media companies operate global sites, questions remain as to the potential extraterritorial reach of U.S. laws. SFJ argued that Facebook’s incorporation in Delaware and its California offices justified bringing a case regarding Indian users to federal court. Facebook asserted that not only did federal law not reach that far, but furthermore that the company did not provide public accommodation under Title II of the CRA.

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Posted On Dec - 3 - 2015 Comments Off READ FULL POST

Fed. Cir. Flash DigestBy Colette Ghazarian – Edited by Yunnan Jiang

Evidence of Prior Art Cannot be Excluded for Untimeliness

In Ariosa Diagnostics v. Verinata Health, Inc., 2015-1215, 2015-1226 (Fed. Cir. Nov. 16, 2015), the U.S. Court of Appeals for the Federal Circuit held that evidence of prior art must still be considered by the Patent Trial and Appeal Board in its determination of the validity of the patent even if it is identified after the initial petition stage of an inter partes review. Ariosa Diagnostics filed a petition for inter partes review against patents held by Verinata Health related to prenatal testing products. Ariosa claimed that the patents were obvious in light of three prior-art references, which were not included in its initial petition. The references in question were contained in a brochure that was attached as an exhibit to an expert declaration. Ariosa claimed that the brochure showed the background knowledge a skilled artisan would have possessed about this particular topic. The Board declined to consider this document because, based on the language in its decision, it was not presented along with the initial petition and was only introduced at Ariosa’s expert’s deposition. The Court held that the Board’s decision not to consider the brochure was in error. It held that evidence of prior art can be considered by the Board even though it was not included in the initial petition for review. Since the Court could not determine whether the error was prejudicial or not, the decision was vacated and remanded to the Board.

Consent Decree Still Enforceable Even if Patent Later Found Invalid

In Delorme Publishing Company, Inc. v. International Trade Commission, 2014-1572 (Fed. Cir. Nov. 12, 2015), the Federal Circuit held that the invalidity of a patent could not retroactively eliminate the liability and penalty of an infringer of that patent under a consent decree. DeLorne Publishing Company sued the International Trade Commission (ITC) over its decision to enforce a consent decree prohibiting DeLorne from importing “certain two-way global satellite communication devices, system and components thereof” that infringed on certain patent claims, or gave instructions for users to infringe on the claims. The Court first held that by selling infringing devices containing infringing components with instructions to infringe still violated the consent decree. Next, and more importantly, the Court held that the fact that the patent claims referenced in the consent decree were later found to be invalid did not eliminate DeLorne’s liability and the $6,242,500 civil penalty for its actions while the patent was still valid. In reaching its conclusion, the Court referred to Part 4 of the consent decree, which states “The Consent Order shall not apply to any claim…that has expired or been found or adjudicated invalid or unenforceable.” The Court argued that based on the language in the decree, if the invalidity of a patent were to apply to past infringement, then the inevitable expiration of the patent would as well. This would be an absurd interpretation of the consent decree. The Court affirmed the ITC’s enforcement of the consent decree and the civil penalty against DeLorne.

Description of Pros and Cons of Patent Features Not Required for Negative Claims Limitation

Federal Circuit precedent holds that negative claim limitations in a patent claim (describing a patent by stating what it is not) satisfy the written description requirements for patents when the specification describes a reason to exclude the relevant limitation. Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012). In Inphi Corporation v. Netlist, Inc., 2015-1179 (Fed. Cir. Nov. 13, 2015), the Court extended this precedent by holding that “properly describing alternative features – without articulating advantages or disadvantages of each feature” – would constitute a reason to exclude the relevant limitation. In this case, Netlist, a manufacturer of computer system memory modules, amended one of its patents to include a negative claim limitation that excluded three types of signals from the description of its patent. Inphi argued that simply stating “DDR chip selects that are not CAS, RAS, or bank address signals” was not adequate under Santarus. Inphi argued that the phrase “reason to exclude” requires more than properly describing alternative features of the patented invention, while Netlist disagreed. The Court sided with Netlist, holding that Santarus did not create a heightened written description standard for negative claim limitations, beyond what is required by statute (35 U.S.C. § 112). All that is required to satisfy the written description standard of § 112 for negative claim limitations according to the Court are “properly described alternative features.”

Posted On Dec - 3 - 2015 Comments Off READ FULL POST
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Insuring Patents

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Senate Judiciary Committee

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Flash Digest

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