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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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Fourth Circuit Holds Google’s Keyword Advertising May Infringe Trademark
By Michael Hoven – Edited by Abby Lauer

Rosetta Stone Ltd. v. Google, Inc., No. 10-2007 (4th Cir. Apr. 9, 2012)
Slip opinion

The Fourth Circuit affirmed in part, vacated in part, and remanded to the Eastern District of Virginia, which had granted Google summary judgment in holding that Google was not liable on all trademark infringement and trademark dilution claims brought by plaintiff Rosetta Stone in 2009.

The Fourth Circuit held that a reasonable trier of fact could find Google liable for direct infringement, contributory infringement, or dilution of trademark by allowing advertisers to bid on the trademarks of third parties. The court flatly rejected Google’s functionality defense, while affirming summary judgment for Google on vicarious infringement and affirming the dismissal of Rosetta Stone’s unjust enrichment claim. The court restored the direct infringement claim because there was a question of fact about consumer confusion. On the contributory infringement claim, the court concluded that there was a question of fact as to whether Google continued to sell keywords to advertisers it knew were engaging in trademark infringement. In so holding, the court stated that the district court had applied the wrong standard of review for summary judgment but said little about the lawfulness of keyword advertising.

MSNBC.com provides an overview of the case. On the Technology & Marketing Law Blog, Eric Goldman criticized the decision for ignoring the policy interests at stake and delaying an “inevitable” consensus that keyword advertising does not violate trademark law. (more…)

Posted On Apr - 16 - 2012 Comments Off READ FULL POST

Federal Circuit Declares Pharmaceutical Patents Unenforceable for Inequitable Conduct
By Laura Fishwick – Edited by Jennifer Wong

Aventis Pharma S.A. v. Hospira, Inc., No. 2011-1018, 2012 WL 1155716 (Fed. Cir. April 9, 2012).
Slip Opinion

The Court of Appeals for the Federal Circuit affirmed the U.S. District Court for the District of Delaware‘s holding that claim 5 of Aventis Pharma’s U.S. Patent No. 5,750,561 (filed August 4, 1993) (“the ‘561 patent”) and claim 7 of its U.S. Patent No. 5,714,512 (filed August 23, 1993) (“the ‘512 patent”) were invalid for obviousness under 35 U.S.C. § 103 and unenforceable on inequitable conduct grounds. Reviewing the district court’s factual findings for clear error and its ultimate finding of inequitable conduct for abuse of discretion, the Federal Circuit found that both patents were unenforceable for inequitable conduct, because the defendants had met their burden of showing that the withheld references were material to patentability and that the applicant intended to deceive the U.S. Patent and Trademark Office (“PTO”), primarily relying on testimony by the patents’ inventor.

PharmaPatents provides an overview of the case. Patents4Life suggests that the case may have come out differently had the inventor “professed to have no recollection” of the events which happened twenty years ago. Bloomberg Businessweek discussed the financial impact of generic drug manufacturers on Sanofi. (more…)

Posted On Apr - 14 - 2012 Comments Off READ FULL POST

Second Circuit Ruling Leaves Open Possibility That YouTube Is Not Protected By Safe Harbor
By Jacob Rogers – Edited by Julie Dorais

Viacom Int’l, Inc., Football Ass’n Premier League Ltd. v. YouTube, Inc., Docket No. 10-3270-cv (2nd Cir. April 5, 2012)
Slip Opinion

The Second Circuit partially affirmed and partially reversed a decision by the U.S. District Court for the Southern District of New York, granting summary judgment to YouTube on all claims of direct and secondary copyright infringement brought by Viacom. The district court held that YouTube qualified for safe harbor under the Digital Millennium Copyright Act, 17 U.S.C. §512(c), which protects service providers from liability for acts of infringement by users.

The Second Circuit affirmed the district court’s holding that §512(c)(1)(A)’s exception to the safe harbor provision “requires knowledge or awareness of specific facts or circumstances that indicate specific and identifiable instances of infringement,” but it vacated the district court’s summary judgment order because certain internal emails within YouTube raised a genuine issue of material fact as to whether it had such knowledge. The court also held that the “right and ability to control” an infringer under §512(c)(1)(B), which also creates an exception to the safe harbor provision, does not require knowledge of specific acts of infringement but requires more than vicarious liability at common law. It additionally held that willful blindness may be relevant to determinations under §512(c)(1)(A), although it is limited by the congressional mandate that safe harbor for service providers not be conditioned on monitoring. See §512(m). The court accordingly remanded the case for the district court to apply this “right and ability to control test” and address the issue of willful blindness in the first instance.

The Technology and Marketing Blog provides an overview of the case, noting that, regardless of the specific decision of the district court on remand, this decision is likely to raise litigation costs for all digital content providers seeking safe harbor under the DMCA. The New York Times Media Decoder Blog suggests that the suit has no winners, as both sides expressed lukewarm sentiments at the result and Viacom is currently pursuing a business partnership with YouTube simultaneously with this litigation. (more…)

Posted On Apr - 10 - 2012 Comments Off READ FULL POST

The Northern District of Illinois Denies Motion to Compel for Subpoenas Seeking Non-Party IP Address Information
By Dorothy Du – Edited by Julie Dorais

Pacific Century International, Ltd. v. John Does 1-37, No. 12 C 1057 (N.D. Ill. March 30, 2012)
Slip opinion

The U.S. District Court for the Northern District of Illinois granted in part and denied in part plaintiffs’ motion to compel ISPs’ compliance with subpoenas for identifying information associated with IP addresses in a copyright infringement action against BitTorrent users.

In an opinion by Chief Judge Holderman, the court granted plaintiffs’ motion to compel ISPs to comply with subpoenas for information about Doe defendants’ IP addresses, but denied the motion in cases in which the information sought related to non-party IP addresses. The court held that subpoenas for information pertaining to non-party IP addresses are not “reasonably calculated to lead to the discovery of admissible evidence” as required by Fed. R. Civ. P. 26(b)(1), and that as such, the subpoenas would impose an “undue burden” on ISPs under Fed. R. Civ. P. 45(c)(3)(A)(iv). Pacific Century International, Ltd. v. John Does 1-37, No. 12 C 1057, slip op. at 5, 8, 9 (N.D. Ill. March 30, 2012). Moreover, the court rejected plaintiffs’ attempt to justify the subpoenas on claims of conspiracy among the Doe defendants because the plaintiffs failed to plead the existence of an agreement among the defendants. According to the court, plaintiff copyright owners were not seeking information for the purpose of litigating the copyright action at hand but rather were attempting to use discovery improperly in order to identify BitTorrent users for future copyright infringement suits or threats of suits.

Techeye praises the decision for setting back copyright trolling campaigns by Big Content. ArsTechnica explains that the decision signals judicial resistance to copyright holders’ use of conspiracy theory to gather information about ISP subscribers in order to “extort settlements.” Last week, ArsTechnica reported on two other rulings in similar cases in Florida that suggest that plaintiffs in copyright actions are likely to lose whenever ISPs raise objections to subpoenas that are “fishing expeditions” against their customers. (more…)

Posted On Apr - 9 - 2012 Comments Off READ FULL POST

Supreme Court Rejects Diagnostic Process Claims as Unpatentable Laws of Nature
By Charlie Stiernberg – Edited by Dorothy Du

Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 10-1150 (U.S. Mar. 20, 2012)
Slip Opinion

In a unanimous opinion, the Supreme Court reversed a ruling by the Court of Appeals for the Federal Circuit that had held Prometheus’ claimed invention, a process that helps doctors determine whether a given dosage of thiopurine drugs is too high or low, was patentable subject matter under the “machine or transformation test.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 10-1150, slip op. at 4, 7 (U.S. Mar. 20, 2012) (citing Prometheus Labs., Inc. v. Mayo Collaborative Servs., 581 F.3d 1336, 1345–47 (Fed. Cir. 2009)).

In an opinion by Justice Breyer, the Court held Prometheus’ claimed invention was unpatentable under 35 U.S.C. § 101, because it was fundamentally a law of nature. Id. at 24. In so holding, the court reasoned “the steps in the claimed processes (aside from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field.” Id. at 4. The Court emphasized that just as a law of nature has long been held unpatentable, so too “is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself.” Id. at 8–9.

SCOTUSblog provides a history of the case, briefs, and other relevant court documents. Patently-O breaks down the opinion in a section-by-section analysis. IPWatchdog criticizes the decision, admonishing that it will kill the medical diagnostics industry. The AMA praises the decision for invalidating patents that inhibit medical treatments. PharmExecBlog argues the decision may be a “harbinger” for the Myriad case now pending before the Court. (more…)

Posted On Apr - 4 - 2012 1 Comment READ FULL POST
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Flash Digest: News i

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