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Flash Digest: News in Brief

By Olga Slobodyanyuk

ICANN responds to terrorism victims by claiming domain names are not property

D.C. District Court rules that FOIA requests apply to officials’ personal email accounts

Class-action lawsuit brought against ExamSoft  in Illinois

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Federal Circuit Applies Alice to Deny Subject Matter Eligibility of Digital Imaging Patent

By Amanda Liverzani – Edited by Mengyi Wang

In Digitech Image Technologies, the Federal Circuit embraced the opportunity to apply the Supreme Court’s recent decision in Alice to resolve a question of subject matter eligibility under 35 U.S.C. §101. The Federal Circuit affirmed summary judgment on appeal, invalidating Digitech’s patent claims because they were directed to intangible information and abstract ideas.

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Unlocking Cell Phones Made Legal through Unlocking Consumer Choice and Wireless Competition Act

By Kellen Wittkop – Edited by Insue Kim

Unlocking Consumer Choice and Wireless Competition Act allows consumers to unlock their cell phones when changing service providers, but the underlying issue of “circumvention” may have broader implications for other consumer devices and industries that increasingly rely on software.

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SDNY Magistrate Grants Government Search Warrant for Full Access to Suspect’s Gmail Account in Criminal Investigation

By Kellen Wittkop – Edited by Travis West

In an opinion that conflicts with decisions from the DC District Court and the District of Kansas, a SDNY magistrate granted the government’s search warrant for full access to a criminal investigation suspect’s Gmail account.

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Creating full-text searchable database of copyrighted works is “fair use”
By Yixuan Long- Edited by Sarah O’Loughlin

In a unanimous opinion delivered by Judge Parker, the Second Circuit held that under the fair use doctrine universities and research libraries are allowed to create full‐text searchable databases of copyrighted works and provide such works in formats accessible to those with disabilities. The court also decided that the evidence was insufficient to decide whether the plaintiffs had standing to bring a claim regarding storage of digital copies for preservation purposes.

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Icon-newsBy Olga Slobodyanyuk

BP Fails to Trademark the Color Green in Australia

British Petroleum (“BP”) lost its 22-year-old legal battle in Australia to trademark the dark green shade that dominates its logo, reports The Guardian. The governmental agency that administers intellectual property rights, IP Australia, found that BP did not show “convincing evidence” that the fuel company was linked in consumers’ minds with the green shade known as Pantone 348C. According to Corporate Council, despite the failure in Australia, BP has trademarked the color in the UK and Europe, and has protected its use in marketing fuel and service stations in the U.S.

The FTC Sues Amazon over Children’s Purchases in Apps

The Federal Trade Commission (FTC) filed a lawsuit against Amazon.com, alleging that the online retailer allowed children to make purchases within apps and online games without their parents’ permission, reports Forbes. The FTC is seeking refunds for consumers for all such purchases, as well as changes to Amazon’s in-app commerce policies, according to The Washington Post. In a public letter to the FTC, Amazon responded that it has consistently improved it’s in-app buying services and has been promptly responding to customer concerns. Forbes reports that Amazon keeps 30% of in-app purchase revenue and keeps all sales final and non-refundable. FTC has investigated similar problems with Apple and had a multimillion dollar settlement with the company earlier this year.

Leaked Code Reveals that NSA is Targeting Users of Privacy Services

An analysis of leaked code used to conduct internet surveillance reveals that users who visit privacy and anonymity websites are targeted by the NSA, reports the Electronic Frontier Foundation (EFF). The code, a tool called Xkeyscore, “fingerprints,” or marks for further investigation, users who access privacy services such as Tor, Tails, HotSpotShield, FreeNet, Centurian, and Linux Journal, a monthly magazine about the open-source operating system (which the NSA labeled as an “extremist forum” for advocating for privacy services use), reports Wired. Privacy services are used by journals, human rights advocates, and political dissidents, among others. According to the general deputy council of the EFF, visiting privacy websites and reading Linux Journal are protected First Amendment activities, essential to freedom of expression, which cannot be targeted under the Foreign Intelligence Surveillance Act.

Posted On Jul - 15 - 2014 Add Comments READ FULL POST

The PCLOB’s Recommendations for a More Reasonable Surveillance Program
By Max Kwon – Edited by Sarah O’Loughlin

Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act

Report

Security CameraOn July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) issued a report analyzing the legal and policy implications of Section 702 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”). Section 702 was introduced by Congress through the FISA Amendments Act of 2008 and allows the Attorney General and the Director of National Intelligence to “jointly authorize surveillance targeting persons who are not U.S. persons, and who are reasonably believed to be located outside the United State, with the compelled assistance of electronic communication service providers, in order to acquire foreign intelligence information.”  Report at 6. The PCLOB concluded that “the core Section 702 program is clearly authorized by Congress, reasonable under the Fourth Amendment, and an extremely valuable and effective intelligence tool,” Id. at 15, but noted that “the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.” Id. at 11. In order to “ensure that the program remains tied to its constitutionally legitimate core,” the PCLOB outlined a set of ten policy proposals aimed at increasing accountability, transparency, and efficacy of the surveillance program. Id. at 9.

Pursuant to Section 702, the Attorney General and Director of National Intelligence can make annual certifications that identify categories of information to be collected without specifying the particular non-U.S. persons who will be targeted. Id. Although Section 702 requires the government to develop targeting and “minimization” procedures in order minimize “incidental” or “inadvertent” surveillance of U.S. persons, the PCLOB stated that “certain features of the [Section 702] program implicate privacy concerns” regarding the scope and usage of U.S. person communications that are collected. Id. at 6–10.

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Posted On Jul - 14 - 2014 Add Comments READ FULL POST

By Max Kwon – Edited by Sarah O’Loughlin
USPTO Memo on Alice Corporation Pty. Ltd. V. CLS Bank International, et al. (June 25, 2014).

Memorandum.

IdeaIn response to the Supreme Court’s recent decision to invalidate four software patents in Alice Corp. Pty. Ltd. v. CLS Bank Int’l et al., No. 13-298 (783 U.S. ____ June 19, 2014) (“Alice”), Andrew H. Hirshfeld, Deputy Commissioner for Patent Examination Policy for the U.S. Patent and Trademark Office (USPTO), issued a memorandum to the Patent Examining Corps “to provide preliminary instructions…relating to subject matter eligibility of claims involving abstract ideas, particularly computer-implemented abstract ideas, under 35 U.S.C. § 101.”

In the memorandum, Hirshfeld stated that in accordance with Alice, the USPTO will now require “all claims directed to laws of nature, natural phenomena, and abstract ideas for subject matter eligibility under 35 U.S.C. § 101” to be analyzed under the framework outlined in  Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. ____ (2012) (“Mayo”). Id. at 1.

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Posted On Jul - 7 - 2014 Add Comments READ FULL POST

Supreme Court: Police Officers Need a Warrant to Search an Arrestee’s Cell Phone
By Anton Ziajka – Edited by Sarah O’Loughlin
Riley v. California, 573 U.S. __ (2014)

Slip Opinion

On June 25, 2014, the Supreme Court decided that police officers “must generally secure a warrant before conducting . . . a search of the information on a cell phone” seized from an individual who has been arrested. Slip op., at 10. Writing for a unanimous Court, Chief Justice Roberts balanced, on the one hand, “the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 9.

The Court found only minimal governmental interest, noting that, unlike physical objects on an arrestee, “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Id. at 10. The Court acknowledged governmental concerns that digital evidence may be lost through remote wiping or data encryption, but found these concerns insufficiently compelling. See id. at 12–15.

On the other side of the equation, the Court found that the information contained on a cell phone is both quantitatively greater and qualitatively more sensitive than physical records likely to be present on an individual’s person at the time of his arrest. Id. at 17–21. A search of such digital information “would typically expose to the government far more than the most exhaustive search of a house,” the Court concluded. Id. at 20. See the Washington Post and New York Times for further reporting on the decision.

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Posted On Jul - 7 - 2014 Add Comments READ FULL POST

By Amanda Liverzani

Non-Infringement Decision on Hospital Bed Patents Reversed for Erroneous Claim Construction

The United States Court of Appeals for the Federal Circuit in Hill-Rom Services, Inc. v. Stryker Corp., 13-1450 (Fed. Cir. June 27, 2014) reversed the Southern District of Indiana’s decision that Stryker Corp. did not infringe on hospital bed patents held by Hill-Rom Services Inc., holding that the district court’s judgment was based on erroneous claim construction. The patents at issue (U.S. Patent #5,699,038, #6,147,592, and #7,538,659) are related to a system and method for remotely monitoring and controlling hospital beds. Hill-Rom Services, at 1. The Federal Circuit held that the district court’s construction of the term “datalink” as exclusively referring to a wired connection is inconsistent with the plain and ordinary meaning of the term, which may also include wireless connections. Id. at 4. Consequently, the Federal Circuit reversed and remanded the case for further proceedings. Id. at 24. An analysis of the decision is available at Law360.

Patents for Eyelash Growth Treatment Invalidated Based on Obviousness

The United States Court of Appeals for the Federal Circuit held that two patents relating to the eyelash growth treatment Latisse were invalid in Allergan, Inc. v. Apotex, Inc., 13-1245 (Fed. Cir. June 10, 2014). A group of pharmaceutical manufacturers appealed the Middle District of North Carolina’s decision that they had infringed upon patents held by Allergan and Duke University, covering the use of 0.03% bimatoprost ophthalmic solution to treat eyelash hypotrichosis (U.S. Patents #7,388,029 and #7,351,404), as well as an injunction issued by the district court prohibiting manufacturing of generic Latisse. Allergan, at 3. The Federal Circuit reversed the finding of infringement and vacated the injunction, holding that while the district court did not err on claim construction, id. at 8, it was incorrect in finding that the patents met the requirement of non-obviousness, id. at 24 and 32. Bloomberg, Law360, and Patently-O provide discussions of the decision.

Constitutionality of “First-Inventor-to-File” Regime Still Undecided

In MadStad Engineering, Inc. v. USPTO, No. 12-1511 (Fed. Cir. June 1, 2014), the United States Court of Appeals for the Federal Circuit declined to rule on the constitutionality of the “first-inventor-to-file” principle implemented by the Leahy-Smith America Invents Act of 2011, instead affirming a Florida district court’s decision that the plaintiff MadStad Engineering, Inc. (“MadStad”) lacked standing to bring suit. MadStad argued that the enacted rule, which provides for the issuance of patents to the first person to file a patent application rather than the first person to invent, is inconsistent with Article 1, Section 8, Clause 8. MadStad, at 3. The Federal Circuit held that MadStad lacked standing to bring suit because it failed to prove injury or a substantial risk of injury, avoiding taking a position on the constitutional question. Id. at 1227. For additional commentary on the decision see Patently-O and Law360.

Posted On Jul - 6 - 2014 Add Comments READ FULL POST
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Flash Digest: News i

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