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Nintendo Wins Summary Judgment Based on Doctrine of Prosecution History Estoppel

By Yaping Zhang – Edited by Stacy Ruegilin

On July 17, 2015, the Northern District Court of California granted a summary judgment motion in Nintendo’s favor in a patent suit, construing disputed term in accordance with Nintendo’s interpretation and finding that the patent had not been infringed. The court based its decision on prosecution history estoppel, highlighting differences between the processes of obtaining and enforcing a patent.

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District Court Holds that Internet-Based Television Provider, FilmOn X is Entitled to a Compulsory License

By Anne Woodworth – Edited by Henry Thomas

The U.S. District court for the Central District of California ruled that an online streaming service that rebroadcasted network television fit the definition of a cable company, and was entitled to compulsory licensing under § 111 of the Copyright Act.  The order relied on the Supreme Court’s Aereo decision, which held that internet streaming was fundamentally the same as cable. The ruling conflicts with a Second Circuit case decided on similar facts, and is immediately appealable.

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Data Breach Victims, Rejoice: Seventh Circuit Finds that Threat of Injury is Sufficient for Article III Standing in Data Breach Class Actions

By Brittany Doyle – Edited by Ariane Moss

Last Monday, the Seventh Circuit Courto of Appeals ruled that victims of a data breach had standing to pursue a class action even when they had not suffered direct financial harm as a result of the breach or when they had already been compensated for financial harm resulting from the breach. The opinion reversed a contrary district court decision, which the Seventh Circuit said had incorrectly read the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA.

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How Far Can Law Enforcement Go When Gathering Email Evidence? Former Gov. Scott Walker Employee Files Petition for Writ of Certiorari

By Kasey Wang – Edited by Ariane Moss

Kelly Rindfleisch is serving a six-month sentence for misconduct in public office while working for then-County Executive Scott Walker. Rindfleisch appeals to the U.S. Supreme Court, claiming that the government violated her Fourth Amendment rights while searching her emails for evidence for a different case.

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Russia’s “Right To Be Forgotten” and China’s Right To Be Protected: New Privacy and Security Legislation

By Brittany Doyle – Edited by Ken Winterbottom

The legislatures in Russia and China took steps this month to tighten regulations over Internet companies with access to user data. In Russia, President Vladmir Putin signed a law ensuring a “right to be forgotten” reminiscent of the European Court of Justice’s right to be forgotten ruling of May 2014. And in China, the National People’s Congress released a draft cybersecurity bill that would formalize and strengthen the State’s long-standing regulation of websites and network operators.

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By Paulius Jurcys – Yaping Zhang

Order: Halo Electronics, Inc. v. Pulse Electronics, Inc. (Fed. Cir. 2015) (denial of rehearing en banc)

Concurring opinion (October 22, 2014)

On March 23, 2015, Federal Circuit issued an order concerning the interpretation of willful patent infringement in Halo Electronics, Inc. v. Pulse Electronics, Inc. Halo initiated the patent infringement proceedings and invoked section 35 U.S.C. § 284 which allows the court to increase the damages up to three times the amount found or assessed if the infringement is found willful or in bad faith.

The defendant, Pulse, argued that the patent was obvious and that they did not infringe the Halo’s patent.  However, the jury found for the plaintiff and also that “it was highly probable that Pulse’s infringement was willful.” Halo Elecs., Inc. v. Pulse Electronics., Inc., No. 2:07-cv-00331-PMP-PAL, 2013 BL 219401  (D. Nev. August 6, 2013). The Federal Circuit affirmed the district court judgment and left a $1.5 million jury award for infringement to patent holder Halo Electronics Inc. intact. It also affirmed the decision not to enhance the award for willfulness under 35 U.S.C. § 284.

Halo v Pulse is a stepping stone in recent trends in patent law to reduce situations in which the alleged patent infringer must face treble damages. In one of the recent cases In re Seagate Tech., the Federal Circuit introduced a two-prong test: (1) the patentee has to show, by clear and convincing evidence, “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” If this objective requirement is met, (2) the patentee must then prove alleged infringer’s “subjective recklessness”, i.e., that the objectively defined risk was either known or should have been known to the alleged infringer. In re Seagate Tech., LLC, 497 F.3d 1360 (Fed. Cir. 2007).

(more…)

Posted On Mar - 31 - 2015 Comments Off READ FULL POST

By Shuli Wang – Edited by Yaping Zhang
600px-NetNeutrality_logo.svg_THE FCC 15-24 REPORT AND ORDER ON REMAND, DECLARATORY RULING, AND ORDER

Two weeks after voting on regulating broadband Internet service as a public utility, on March 12, the Federal Communications Commission (”FCC”) released a document (the FCC Order and Rules) on net neutrality, which reclassifies high-speed Internet as a telecommunications service rather than an information service, thus subjecting Internet service providers (ISPs) as common carrier to regulations under Title II of the Communications Act of 1934. This allows the FCC to oversee potential discriminatory practices with regard to internet traffic. The purpose of the new rules is to ensure the free flow of bits through the web without paid-for priority lanes and blocking or throttling of any web content.

In addition to prohibiting blocking, throttling and paid prioritization of Internet traffic, the 313-page document details regulations and exceptions of protecting and promoting open internet. The FCC also reserves the power to decide many critical questions on a case-by-case basis. The release of the rules is appreciated by advocates for listening to Internet users and acting to protect the Internet from unfair discrimination by mobile and wireline ISPs. Moreover, according to a publication by Electronic Frontier Foundation, the FCC is credited for having adopted a positive approach with proper legal authority, bright-line protection, and forborn from the provisions that not necessarily protect net neutrality. Three Democratic commissioners who voted for the order expressed that: “today, broadband Internet access service is fundamentally understood by customers as a transmission platform through which consumers can access third-party content, applications, and services of their choosing”. Tom Wheeler, the chairman of the FCC, said: “We have created a playing field where there are known rules, and the FCC will sit there as a referee and will throw the flag.”

(more…)

Posted On Mar - 23 - 2015 Comments Off READ FULL POST

By Lan Du – Edited by Katherine Kwong

13399-surveillance_newsAdministration Discussion Draft: Consumer Privacy Bill of Rights Act of 2015

On February 27, 2015, President Obama released an administration draft of a proposed Consumer Privacy Bill of Rights Act. The proposed bill’s stated purpose is to “establish baseline protections for individual privacy in the commercial arena and to foster timely, flexible implementations of these protections through enforceable codes of conduct developed by diverse stakeholders.”

The draft bill is intended to act as a baseline privacy law to control all kinds of personal information and address critical privacy issues presented by the ever-increasing collection and use of private information. The proposed new framework is meant to fill in the gaps between existing privacy legislation, such as the Fair Credit Reporting Act and the Video Privacy Protection Act, which is scattered over different sectors and has inconsistent standards. President Obama previously introduced a framework of consumer privacy law in 2012.

At its core, the draft bill requires industries to develop their own “codes of conduct” on the handling of consumer information and charges the Federal Trade Commission (“FTC”) and state attorneys general with enforcement The draft bill adopts a wide definition of covered entities, including any entity that “collects, creates, processes, retains, uses, or discloses personal data in or affecting interstate commerce.” Its definition of “personal data” is similarly broad, and includes most non-public data that can be linked to a specific individual or device. However, critics such as the New York Times editorial board express concerns about the broad range of exceptions not covered by the draft bill. These exceptions include de-identified data, deleted data, employee business information, and information used or disclosed to respond to cybersecurity threats. Several entities are also exempt as well, including businesses that have fewer than 5 employees or that process Personal Data from fewer than 10,000 individuals or devices each year. Businesses would also not be liable for violations in the first 18 months they create or process personal data.  (more…)

Posted On Mar - 23 - 2015 Comments Off READ FULL POST

UnknownBy Patrick Gallagher

Federal Circuit Affirms Denial of AT&T Motion to Extend or Re-open Filing Period for Appeal in Patent Infringement Suit

 

The United States Court of Appeals for the Federal Circuit in Two-Way Media LLC v. AT&T, Inc., AT&T Corp., affirmed a lower court denial of AT&T’s motion for an extension or reopening of the appeal period.  Two-Way Media LLC v. AT&T, Inc., AT&T Corp., 2014-1302 (Fed. Cir. Mar. 19, 2015).  After an adverse final judgment in a patent infringement suit filed against the company by Two-Way Media, AT&T failed to file a timely notice of appeal, and the period to do so subsequently expired.  Two-Way Media at 2.  AT&T claimed that, due to labeling errors on the part of the district court, it only first discovered that its post-trial motions had been denied after the appeal period had expired.  Id. at 3.  AT&T the next day filed a motion under Federal Rules of Appellate Procedure 4(a)(5) and (6) to extend or reopen the appeal period on the grounds of “excusable neglect or good cause” or a failure on the part of the court to provide adequate notice.  Id. at 3-4.  The Federal Circuit concluded that the district court did not abuse its discretion in refusing to extend or reopen the appeal period because it was the responsibility of AT&T to read the entirety of the original court order, accessible by hyperlinks included in the notices of electronic filings received by both parties, which would have clearly indicated the status of their motions.  Id. at 7-8.  Moreover, the Circuit held that 4(a)(6) only applies “when a party receives no notice of that order.” Id. at 12.  Read more here.

http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1302.Opinion.3-17-2015.1.PDF

 

In Patent Suit Against Apple, Federal Circuit Affirms in Part, Reverses in Part

The Federal Circuit affirmed in part, and reversed in part, vacated, and remanded a patent infringement case involving four patents owned by plaintiff MobileMedia Ideas LLC.  MobileMedia Ideas LLC v. Apple Inc., 2014-1060, 2014- 1091 (Fed. Cir. Mar. 17, 2015).  The United States Disctrict Court for the District of Delaware found plaintiff’s claim 73 of U.S. Patent No. 6,427,078 (“the ‘078 patent”) and claim 23 of U.S. Patent No. 6,070,068 (“the ‘068 patent) to be infringed and not invalid to which Apple appealed.  MobileMedia at 2.  The district court also found MobileMedia’s claims 5,6, and 10 of U.S. Patent No. 6,253,075 (“the ‘075 patent”) and claims 2-4 and 12 of U.S. Patent No. RE 39,231 (“the ‘231 patent”) not to be infringed and claims 5, 6, and 10 of the ‘075 patent to be additionally invalid. MobileMedia cross-appealed these holdings. Id.

With respect to Apple’s appeal, the Federal Circuit affirmed the lower court judgment that claim 73 of the ‘078 patent is not invalid, but reversed the judgment that it was infringed and further reversed the judgment that claim 23 of the ‘068 patent is not invalid.  Id. at 37.  The court’s determination regarding the validity of the ‘068 and ‘078 patent claims centered on whether they were invalid as obvious under 35 U.S.C. § 103 and the Global System for Mobile Communications standard, respectively.  Id.  With respect to MobileMedia’s cross-appeal, the Federal Circuit affirmed the lower court’s holding that claims 5,6, and 10 of the ‘075 patent are invalid, vacated on the grounds of erroneous claim construction the judgment that that claims 2-4 and 12 of the ‘231 patent were not infringed, and remanded the case.  Id.

http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1060.Opinion.3-12-2015.1.PDF

 

Federal Circuit Reverses DNA Sequencing Technology Patent Construction

The Federal Circuit reversed a district court construction of a patent claim by Enzo Life Sciences, Inc. and Yale University against Applera, vacated the lower court’s finding of infringement, and remanded the case.  Enzo Biochem Inc. v. Applera Corp., 2014-1321 (Fed. Cir. Mar. 16, 2015).  The suit involved the use of nucleotide probes to detect, monitor, localize, or isolate nucleic acids for the purpose of DNA sequencing.  Enzo at 3.  The ruling against Applera was based on a construction that construed the patent in question to include both direct and indirect detection of moiety.  Id. at 2.  The Circuit, following precedent from Phillips v. AWH Corp., utilized a textualist approach that looked to the “ordinary and customary meaning of a claim term” as an ordinary member of the related industry would interpret it.  415 F.3d 1303, 1312-13 (Fed. Cir. 2005).  In so doing, the Federal Circuit found that the district court had erred in broadening a key term in the patent to include direct detection in addition to indirect detection. Enzo at 14.

http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1321.Opinion.3-12-2015.1.PDF

Posted On Mar - 23 - 2015 Comments Off READ FULL POST

By Paulius Jurcys – Edited by Sarah O’Loughlin

Logo_colors_wikimediaOn March 10, 2015, Wikimedia Foundation filed a lawsuit against the National Security Agency (NSA) and Department of Justice (DOJ) for its upstream surveillance program, which is said to violate constitutional freedoms of speech and protections against unreasonable search and seizure.

The existence of upstream surveillance programs first came to light in June 2013 via whistleblowing information disclosed by Snowden. This leak alarmed the Wikimedia community and startled the debates about the possibility to take legal action.

Wikipedia’s founder Jimmy Wales in his public statement emphasised that “surveillance erodes the original promise of the internet: an open space for collaboration and experimentation, and a place free from fear.” (more…)

Posted On Mar - 23 - 2015 Comments Off READ FULL POST
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