Copyright Troll Righthaven Experiences Setback due to District Court’s Grant of Dismissal Motion to Defendant Claiming Fair Use
By Jonathan Allred – Edited by Cary Mayberger

Righthaven v. Realty One Group, 2:10-cv-1036-LRH-PAL (D. Nev. Oct. 18, 2010)
Opinion hosted by the Las Vegas Sun

In one of the first rulings to come down in plaintiff Righthaven’s many copyright suits, the District Court of Nevada granted defendant Michael Nelson’s motion to dismiss. Righthaven’s lawsuits are notable because they represent a new strategy in copyright enforcement. Righthaven acquires the rights to copyrighted works after discovering possible infringement; then, without the customary cease and desist letter or other warning, Righthaven brings a court action against the alleged infringers, usually obtaining a speedy settlement.

In a brief opinion granting the motion to dismiss in this case, the district court ruled that defendant’s use of a portion of the copyrighted article was permitted under the doctrine of fair use. The court reasoned that the copying was fair because the defendant only copied a small portion of the copyrighted article, the defendant copied only from the factual portion of the article and not from the author’s own commentary, and the copying was not likely to have an effect on the market for the article.

The Las Vegas Sun provides additional background information and commentary. Eric Goldman critiques both the ruling and Righthaven’s business model. The ABA Journal provides a summary. (more…)

The Supreme Court Asked to Rule on the Constitutionality of “Restored” Copyright Protection
By Andrew Goodwin – Edited by Cary Mayberger

Petition for Writ of Certiorari, Golan v. Holder (U.S. 2010)
Petition hosted by The Center for Internet and Society at Stanford Law School

In June 2010, the United States Circuit Court for the Tenth Circuit held that § 514 of the Uruguay Round Agreements Act (“URAA”), codified in 17 U.S.C. §§ 104(A) and 109(a), did not violate the First Amendment rights of Golan et al. (the “petitioners”). See Golan v. Holder, 609 F.3d 1076 (2010). On October 20, 2010, the petitioners, a group of “orchestra conductors, educators, performers, film archivists, and motion picture distributors,” filed a petition for writ of certiorari to the Supreme Court. The respondents in this writ are Eric Holder and Marybeth Peters, serving in their respective capacities as Attorney General and Register of Copyrights in the Copyright Office of the United States.

The origins of this case trace back to Golan v. Gonzalez, 2005 WL 2064402 (D. Colo. Aug. 24, 2005), a 2005 case in the U.S. District Court for the District of Colorado. In the original Golan case, the district court dismissed all of the plaintiffs’ claims, including the claim that § 514 of the URAA was unconstitutional because it violated the Copyright Clause and the First Amendment. The plaintiffs appealed to the Tenth Circuit, which in 2007 reversed the district court’s dismissal of the plaintiffs’ First Amendment claim while affirming the district court’s dismissal of the Copyright Clause claim. The case was then remanded for analysis of the First Amendment claim. Applying intermediate scrutiny, the district court granted the plaintiff’s motion for summary judgment in 2009. In 2010, a separate panel on the Tenth Circuit heard the government’s appeal, and reversed the district court’s judgment.

JOLT Digest reported on the Tenth Circuit’s original ruling in Golan, the district court’s subsequent decision, and the Tenth Circuit’s latest decision.  The 1709 Blog provides an overview of the writ. (more…)

Charitable Activities Do Not Create Commercial Interests in Untrademarked Names
By Harry Zhou – Edited by Ryan Ward

Stayart v. Yahoo! Inc., __ F.3d __, 2010 WL 3785147, No. 09-3379 (7th Cir. Sept. 30, 2010)
Slip Opinion hosted by Seattle Trademark Lawyer

On September 30, 2010, the Seventh Circuit affirmed the United States District Court for the Eastern District of Wisconsin, dismissing a complaint filed by Beverly Stayart alleging false endorsement under the Lanham Act and various state law claims against Yahoo! Inc. [hereinafter “Yahoo”] and other defendants.

Stayart’s complaint centered on the unfavorable search results generated by Yahoo’s search engine when she used her name as the search string. In finding that Stayart lacked standing under § 43(a) of the Lanham Act, the court held that Stayart’s charitable activities such as protests, publication, and boycotts did not imbue into her name a “commercial interest” necessary for a finding of Lanham Act violation. The court also affirmed the district court’s dismissal of Stayart’s state law claims under the abuse of discretion standard.

Lowering the Bar and Internet Cases offer brief summaries of the opinion. Eric Goldman voices support for the court’s ruling. A summary of the facts leading up to the filing of suit can be found at Seattle Trademark Lawyer. (more…)

By Dorothy Du

Facebook Plans to Fix Privacy Flaw that Allows “Apps” to Share User Information

The Wall Street Journal reports that Facebook applications (“apps”) have been transmitting user-IDs to dozens of third parties. These third parties include advertising and data-gathering companies, which use and sell the information. The Electronic Frontier Foundation reports that all of the top ten Facebook.com “apps,” including FarmVille and Mafia Wars, are guilty of such actions in violation of their web developer agreements with Facebook. User IDs give companies the ability to look up the user’s real name, friends’ names, and other data posted on the user’s public profile. The information leak was made possible by a browser standard that allows the apps to record the URL of the page from which the user came — information that includes the user ID — as the New York Times reports. Facebook has shut down some of the offending apps, but with 550,000 Facebook apps, the task of protecting users may prove difficult to achieve.

Wyeth Wins Latest In String of Suits Over Hormone Replacing Drug that Increases Cancer Risk

Wyeth, which was purchased by Pfizer Inc. in 2009, has won the latest in a string of suits over the health risks of Prempo, a hormone replacement drug for menopausal women, reports Bloomberg and ABC News. After deliberating for less than an hour, the jury found that Wyeth had properly disclosed the link between increased risk of cancer and Prempo and rejected the plaintiff’s claim of $3.5 million for pain, suffering, and emotional distress. Wyeth’s lawyers had argued that the drug’s label disclosed the link and that the studies did not conclusively show that the drug caused breast cancer. Wyeth has now won six of thirteen jury trials regarding the effects of Prempo since 2006, and has been granted motions to dismiss in more than 3,000 cases. Over 6 million women had already taken Prempo when a 2002 study by the Women’s Health Initiative showed that the drug increased the risk of cancer. The New York Times has cast Prempo into the spotlight once again with its report on a follow-up study of the 12,788 women who participated in the Women’s Health Initiative study, which revealed that cancers suffered after taking the drug also tend to be more advanced and deadly. Pfizer still faces over 8,000 lawsuits involving Prempo.

The NIH Licenses Its Patent on AIDS Drug to International Entity

The New York Times reports that the NIH has become the first patentee to license its patent on an AIDS drug to the Medicines Patent Pool, an international entity run by Unitaid, an independent agency founded at the United Nations in 2006. The drug, darunivir, is a potential third-line treatment for patients who have not experienced success with second-line AIDS medications, according to Doctors Without Borders. The “patent pool” has the potential to increase third world patients’ access to patented medicines by allowing drug companies to use pooled licenses to produce affordable, generic drugs. In return, the participating patent holders will receive royalties. However, this particular NIH patent will not enable drug companies to produce generic versions of darunivir because of additional patents on the drug held by Tibotec, a subsidiary of Johnson & Johnson.

Federal Circuit holds that Honeywell’s duplication of a previously-invented process does not qualify the company as “another inventor” under 35 U.S.C. § 102(g)(2)
By Abby Lauer – Edited by Janet Freilich

Solvay S.A. v. Honeywell Int’l, Inc., No. 2009-1161 (Fed. Cir. Oct. 13, 2010)
Slip Opinion

The Federal Circuit affirmed-in-part, reversed-in-part, and remanded the U.S. District Court for the District of Delaware, which had invalidated plaintiff Solvay’s patent on a process for making non-ozone-depleting refrigerant gas based on a finding that defendant Honeywell had previously invented the process addressed in five of the patent’s claims. The district court also found that Honeywell had not infringed the patent’s other claims.

In reversing, the Federal Circuit held that Honeywell did not qualify as an “inventor” of the patented process under 35 U.S.C. § 102(g)(2) because the company had merely copied the work of a Russian agency that it had hired to develop the process. The court agreed with Solvay’s argument that Honeywell could not be an “inventor” of the gas manufacturing process because it did not itself invent the subject matter of the process. Writing for the unanimous three-judge panel, Judge Schall emphasized that the originality provision of 35 U.S.C. § 102(f) requires that “the conception of an invention be an original idea of the inventor.” Because Honeywell did not itself conceive of the gas manufacturing process, Honeywell was not a prior inventor of the process and Solvay’s patent on the process is valid.

The Patent Prospector provides an overview of the case with excerpts from the Federal Circuit opinion. PatentlyO describes and analyzes the case. (more…)