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Newegg Wins Patent Troll Case After Court Delays

By Kasey Wang – Edited by Yunnan Jiang and Travis West

The District Court for the Eastern District of Texas recently issued a final judgement for online retailer Newegg, twenty months after trial, vacating a $2.3 million jury award for TQP. TQP, a patent assertion entity commonly known as a “patent troll,” collected $45 million in settlements for the patent in question before Newegg’s trial.

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The Evolution of Internet Service Providers from Partners to Adversaries: Tracking Shifts in Interconnection Goals and Strategies in the Internet’s Fifth Generation

By Robert Frieden – Edited by Marcela Viviana Ruiz Martinez, Olga Slobodyanyuk and Yaping Zhang

In respone to increasing attempts by Internet Service Providers to target customers who trigger higher costs for rate increases, the FCC and other regulatory agencies worldwide have stepped in to prevent market failure and anticompetitive practices. This paper will examine new models for the carriage of Internet traffic that have arisen in the wake of these changes.

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The Global Corporate Citizen:  Responding to International Law Enforcement Requests for Online User Data 

By Kate Westmoreland – Edited by Yunnan Jiang

This paper analyses the law controlling when U.S.-based providers can provide online user data to foreign governments. The focus is on U.S. law because U.S. dominance of internet providers means that U.S. laws affect a large number of global users. The first half of this paper outlines the legal framework governing these requests. The second half highlights the gaps in the law and how individual companies’ policies fill these gaps.

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3D Printing, Net Neutrality, and the Internet: Symposium Introduction

By Deborah Beth Medows – Edited by Yaping Zhang

Jurists must widely examine the pervasive challenges among the advents in Internet and computer technology in order to ensure that legal systems protect individuals while  encouraging innovation.  It is precisely due to the legal and societal quagmires that 3D printing and net neutrality pose that ideally position them as springboards from which to delve into broader discussions on technology law.

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A Victory for Compatibility: the Ninth Circuit Gives Teeth to RAND Terms

By Stacy Ruegilin – Edited by Ken Winterbottom

Microsoft won a victory in the Ninth Circuit last Thursday after the court found that Motorola, a former Google subsidiary, had breached its obligation to offer licenses for standards-essential technologies at reasonable and non-discriminatory rates. The court affirmed a $14.52 million jury verdict against Motorola for the breach.

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FTC v. Actavis, Inc.
By Suzanne Van Arsdale – Edited by Jennifer Wong

FTC v. Actavis, Inc., No. 12-416 (U.S. Mar. 25, 2013)
Transcript of Oral Argument

Photo By: e-Magine ArtCC BY 2.0

On Monday, March 25, the Supreme Court heard oral arguments in FTC v. Actavis, Inc., to determine the legality, under antitrust laws, of patent litigation settlements made by the maker of a brand-name drug to the maker of a generic competitor to keep the generic off the market temporarily, known as a “reverse payment agreement” or “pay for delay.”

The FTC has been opposed to this type of deal for years, but the Eleventh Circuit and other circuits have held such settlements per se lawful unless the underlying litigation was a sham or obtained by fraud. In 2012 the Third Circuit held reverse payments presumptively anticompetitive and unlawful in the K-Dur opinion (previously covered by the Digest). In Re K-Dur Antitrust Litigation, 686 F.3d 197 (3d Cir. 2012).

SCOTUSblog, Patently-O, the New York Times, and the Washington Post have further coverage. SCOTUSblog also has information about the case’s background. (more…)

Posted On Apr - 3 - 2013 Comments Off READ FULL POST

By Kathleen McGuinness

Flash DigestSupreme Court of Canada Rules That Text Message Monitoring Requires Warrant

On Saturday, the Supreme Court of Canada ruled 5-2 that the real-time police monitoring of text messages was an interception of private communications and required a hard-to-obtain wiretap authorization. R. v. TELUS Communications Co., 2013 SCC 16 (Can.). As the Globe and Mail describes, these authorizations are limited to certain serious crimes and to situations where other investigative techniques have been ineffective. Ars Technica contrasts this privacy-protective holding with the law in the United States, where courts have split over the legal protections afforded to text messaging.

Google Announces Open Patent Non-Assertion Pledge

To encourage the development of open source software, Google recently announced its new Open Patent Non-Assertion Pledge (OPN). Under this framework, Google has promised not to assert ten of its patents against open source software, subject to “defensive termination” if another entity sues them. The EFF describes the importance of these patents, one of which had already raised worries among open source developers, and discusses Google’s future proposals for similar licensing agreements designed to promote innovation. Google expects the OPN to have several benefits, including transparency, broad protection, and durability; Forbes describes these benefits in detail.

Legal Challenges to “Stingray” Surveillance Devices Continue to Grow

According to emails published on Wednesday, federal investigators have used “stingray” devices, a form of electronic surveillance, without explaining the method clearly to the judges issuing warrants. Ars Technica reports the story. As the EFF reports, “stingrays” can locate a cell phone by mimicking a phone tower, but gather large amounts of information from non-targeted users in the process. Because of this indiscriminant data gathering and the lack of effective judicial oversight, privacy organizations are concerned about the use of the devices. One case, United States v. Rigmaiden, No 08-814, 2012 WL 1038817 (D. Ariz. Mar. 28, 2012), has become the center of this legal controversy, with involvement from privacy organizations including the ACLU and EPIC. The Wall Street Journal describes the case’s history.

Posted On Apr - 2 - 2013 Comments Off READ FULL POST

UMG v. Veoh
by Pio Szamel ­– Edited by Jacob Rogers

UMG Recordings, Inc. v Veoh Networks, Inc., Nos. 09–55902, 09–56777, 10–55732 (9th Cir. Mar. 14, 2013)
Slip opinion

The Ninth Circuit affirmed the Federal District Court for the Central District of California, which had granted summary judgment finding that the streaming-video host Veoh was protected by the safe harbor provisions of the Digital Millenium Copyright Act (“DMCA”) and dismissed additional infringement claims against Veoh’s investors.

On March 14, the Ninth Circuit handed down a much-delayed opinion in UMG v Veoh, rejecting Universal Music Group’s contentions that the streaming-video host Veoh was not protected by the DMCA’s safe harbor provision for online hosting providers, 17 U.S.C. §512(c). While UMG had argued that Veoh was outside the scope of the DMCA because it went beyond simple “storage at the direction of a user” by transcoding videos into common streaming formats and facilitating access to them, the court found that enabling access in this way is an essential part of web-hosting. UMG at 24-25. It also affirmed that the safe-harbor exception for actual or red-flag knowledge of infringement, 17 U.S.C. § 512(c)(1)(A), requires knowledge of specific infringing or likely infringing content, not just suspicious categories of content. Id. at 31-34.  Finally it found that Veoh did not have the “right and ability to control” infringing activity, as required by another exception to the safe harbor provisions, 17 U.S.C. § 512(c)(1)(B), rejecting Viacom’s contention that this exception should be interpreted in line with the common law definition of vicarious liability. Id. at 40, 42.

The Electronic Frontier Foundation, which had filed an amicus brief in support of Veoh, hails the decision as a victory for hosts of user-generated content, while TechCrunch provides a primer on the state of DMCA safe-harbor law in its wake. The Copyright Alliance, a content industry trade group, argues that the 9th Circuit opinion still leaves open a few possible lines of attack against hosting providers. (more…)

Posted On Apr - 1 - 2013 Comments Off READ FULL POST

Kirtsaeng v. John Wiley & Sons, Inc.
By Sarah Jeong – Edited by Alex Shank

Kirtsaeng v. John Wiley & Sons, Inc., No. 11-697 (U.S. Mar. 19, 2013)
Slip opinion

 

The Supreme Court held in a 6-3 decision that the “first sale” doctrine applies to copies of copyrighted work lawfully made abroad, reversing the judgment of the Court of Appeals for the Second Circuit. The case involved the resale in the United States of approximately 600 copies of textbooks that originally had been bought in Thailand at relatively inexpensive prices. On remand, the Supreme Court ordered that the Second Circuit conduct further proceedings consistent with the Court’s opinion.

The unauthorized importation of copyrighted material is barred by § 602 of the Copyright Act of 1976 (17 U.S.C. § 602), and John Wiley & Sons’ (“Wiley”) right to distribute is protected by § 106(3). However, the first sale doctrine of § 109(a) extinguishes the copyright owner’s interest in a particular copy after the first sale to a consumer. At issue in Kirtsaeng was whether § 109(a) applies to goods of “foreign manufacture”—more specifically, whether the phrase “lawfully made under this title” applied to goods like the Asian editions of the Wiley textbooks. In holding that the first sale doctrine also extends to these goods, the Supreme Court removed the geographical limitations to the first sale doctrine placed by the Ninth Circuit in Omega S. A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). Furthermore, the holding undercuts distributors’ attempts to divide regional markets and practice economically efficient price discrimination.

The Los Angeles Times provides an overview of the case. Professor James Grimmelmann of New York Law School discusses the case in Publishers Weekly, calling the issues in the case “significant.” Ars Technica also comments on the decision, celebrating it as a “vindication” of the first sale doctrine. JOLT Digest previously reported on the Second Circuit’s holding in favor of Wiley, affirming the decision of the District Court for the Southern District of New York. JOLT Digest also previously commented on the future of the first sale doctrine after Quality King, a case heavily relied on by the Supreme Court in Kirtsaeng. (more…)

Posted On Mar - 30 - 2013 1 Comment READ FULL POST

BASF v. Makhteshim Agan
By David LeRay – Edited by Ashish Bakshi

BASF Agro B.V., Arnhem (NL), Wadenswil Branch v. Makhteshim Agan of North America, Inc., No. 2012-1206 (Fed. Cir. Mar. 20, 2013)
Slip opinion

BASF Agro B.V. (“BASF”), the world’s largest chemical manufacturer, suffered a setback in its patent litigation against Makhteshim Agan of North America (“Makhteshim”), the world’s largest generic agrochemical maker.The Court of Appeals for the Federal Circuit affirmed the Middle District of North Carolina’s grant of summary judgment of non-infringement for the defendants. The suit focuses on patents covering BASF’s termite-killing pesticide, Termidor, which is the United States’ top-selling pesticide. BASF commenced litigation in 2010 after Makhteshim began selling a competing product, Taurus SC.

The Federal Circuit affirmed the lower court’s claim construction, which was largely based on the doctrine of prosecution disclaimer, as applied to BASF’s actions during patent prosecution. Under that claim construction, the issue of non-infringement was easily decided as a matter of law; thus, summary judgment of non-infringement for the defendants was appropriate. Specifically, the court found that BASF had disclaimed so-called “barrier” techniques of pesticide application—which aim to surround buildings with a complete polygon of pesticide—in favor of deploying pesticide at discrete locations around the building boundary. Since Makhteshim’s products use the polygonal barrier method, they did not infringe BASF’s patents.

Bloomberg gives a brief overview of the case and discusses the relevant pesticides. Croplife provides commentary from business leaders on both sides of the case. (more…)

Posted On Mar - 29 - 2013 Comments Off READ FULL POST
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