A student-run resource for reliable reports on the latest law and technology news
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Flash Digest: News in Brief

By Daniel Etcovitch – Edited by Emily Chan

Florida Judge Rules Bitcoin Is Not Equivalent to Money

Illinois Governor Signs Bill Restricting Use of Stingrays

DMCA DRM Circumvention Provision’s Constitutionality Being Challenged

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Federal Circuit Flash Digest

By Yuan Cao – Edited by Frederick Ding

Mere Commercial Benefit Not Enough to Trigger The On-Sale Bar

Technology-Based Software Solution Can Be Patentable 

Patent Disputes about Siri, iTunes, Notification Push, and Location

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Sixth Circuit Finds Privacy Interest in Mugshots under FOIA

By Filippo Raso – Edited by Ariane Moss

A split en banc Sixth Circuit reversed the lower courts’ ruling, holding individuals have a privacy interest in their booking photos for the purposes of Exemption 7(C) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In so doing, the Court overruled Circuit precedent established two decades ago. The case was remanded with instructions to balance the public interests against the individual’s privacy interest.

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The EFF Challenges the DMCA Anti-Circumvention Provision: A First Amendment Fight

By Priyanka Nawathe – Edited by Kayla Haran

On July 21, 2016, the Electronic Frontier Foundation sued the United States government to overturn DMCA Section 1201, commonly referred to as the anti-circumvention provision. The EFF argues that this provision, designed to prevent circumvention of “technological protection measures,” actually chills research and free speech, and thus is a violation of the First Amendment.

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By Jaehwan Park – Edited by Kayla Haran

Bipartisan Lawmakers Introduce Bill Encouraging U.S. Government Agencies to Use the Cloud as a Secure Alternative to Legacy Systems

Snapchat Accused of Violating Illinois Biometric Information Privacy Act

The Office of the U.S. Trade Representative Announces New Policy Group to Promote Global Digital Trade

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1-800 Contacts, Inc. v. Lens.com, Inc.
By Casey Holzapfel – Edited by Michelle Sohn

1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013)
Slip opinion

The United States Court of Appeals for the Tenth Circuit held that the use of a competitor’s trademark as a keyword that activates sponsored links in Google’s search engine is not trademark infringement. 1-800 Contacts, Inc. v. Lens.com, Inc., No. 11-4114, -4204, -4022 (10th Cir. July 16, 2013). The court affirmed the lower court’s summary judgment to defendant Lens.com with respect to 1-800 Contacts’ claim that Lens.com was directly liable for misdirecting customers to click on links to Lens.com after searching for the phrase “1-800 Contacts.” Id. at 4.

JDSupra provides an overview of the opinion. Techdirt critiques in detail the Tenth Circuit’s reasoning. JOLT notes that U.S. trademark law does not accurately reflect the actual risk of customer confusion in keyword advertising. (more…)

Posted On Jul - 30 - 2013 Comments Off READ FULL POST

United States Marine, Inc. v. United States
By Jonathan Sapp – Edited by Elise Young

United States Marine Inc. v. United States, No. 12-1678 (Fed. Cir. July 15, 2013)
Slip opinion hosted at bloomberglaw.com

Photo By: Blatant WorldCC BY 2.0

The U.S. Court of Appeals for the Federal Circuit affirmed the Fifth Circuit’s ruling, thus transferring the defense contractor’s trade secrets claim to the Court of Federal Claims. In affirming the Fifth Circuit ruling, the court determined that the plaintiff’s case was predicated on a breach of contract — not torts — claim and thus relied on the Tucker Act, which provides the Court of Federal Claims with “exclusive jurisdiction over a claim ‘founded . . . upon any express or implied contract with the United States . . . .’” United States Marine Inc. v. United States (hereinafter “USM”), No. 12-1678 at 11 (Fed. Cir. July 15, 2013) (quoting 28 U.S.C. § 1491(a)(1)).

The Trade Secrets Vault provides an overview of the case. Bloomberg BNA provides a thorough analysis of the Federal Circuit’s rationale. PubKLaw criticized the Fifth Circuit decision and expressed concern over whether it would be affirmed, stating that it “runs counter to a long-standing body of law that allows even parties to a government contract to assert tort claims for misconduct that goes beyond their contractual relationship.” (more…)

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

By Simon Heimowitz

Icon-newsSeventh Circuit Affirms Dismissal of Copyright Infringement Suit Against Elton John

In Hobbs v. John, No. 12-3652  (7th Cir. July 17, 2013), the Court of Appeals for the Seventh Circuit affirmed the U.S. District Court for the Northern District of Illinois’ dismissal of a lawsuit brought against Sir Elton John, alleging that his hit song “Nikita” illegally borrowed numerous themes from “Natasha”, a song copyrighted by Guy Hobbs. Hobbs, slip op. at 15. Both songs describe a relationship between a westerner and a woman in Communist Russia. Id. at 2. In determining that there was no copyright infringement by Elton John, the court looked to “two well-established principles of copyright law.” Id. at 11. First, U.S. copyright law “does not protect general ideas, but only the particular expression of an idea.” Id. The court concluded that the expression of the themes in the two songs were not substantially similar. While both dealt with a romantic relationship during the Cold War, the court parsed the lyrics to determine that each song presented “different stories about impossible romances during the Cold War.” Id. at 12.  Secondly, “even at the level of particular expression, the Copyright Act does not protect ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’” Id. at 11 (citations omitted). A number of other similarities between the two songs, including the names of the songs, both being Russian and beginning with the letter “N” and ending with the letter “A,” were not enough to establish infringement. Id. at 14. “[T]he United States Copyright Office’s Registered Works Database reveals that numerous works share the titles ‘Natasha’ and ‘Nikita’” Id. (citation omitted). As such, the court considered the songs’ similarities “commonplace in love songs” and not “substantially similar” enough to warrant a finding of infringement. Id. at 15. Hollywood Reporter and Radio.com provide commentary on the case.

Marvel Exempt from Paying Royalties for Spiderman Web Blaster after Patent Expiration

The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the District of Arizona’s summary judgment that Marvel was no longer required to pay royalties to Stephen Kimble for his patented Spiderman web (foam)-shooting toy, a design that Kimble claimed he had created and pitched to Marvel in 1990. Kimble v. Marvel Enterprises, Inc., No. 11-15605 at 23 (9th Cir. July 16, 2013). In 2001, after a district court had found that Marvel had not infringed Kimble’s patent but had breached their contract, the parties had agreed to a settlement. Id. at 5–6.  Disagreement between the two parties concerning royalties instigated the current suit, with Marvel claiming that since the patent had expired, the settlement agreement was no longer enforceable. Id. at 8. The circuit court determined that, based on Brulotte v. Thys Co., 379 U.S. 29 (1964), “a license for inseparable patent and non-patent rights involving royalty payments that extends beyond a patent term is unenforceable for the post-expiration period unless the agreement provides a discount for the non-patent rights from the patent-protected rate.” Id. at 16. In this case, the court found that no discount was provided, and thus Marvel was no longer required to pay royalty fees to Kimble for its Spiderman Web Blaster. Id. at 17. Patently-O describes the holding of the case and its implications, and azstarnet.com provides commentary.

Senator Leahy Suggests that the NIH “March-In” on Myriad’s Patent Rights

As reported by JDSupra, Senator Patrick Leahy wrote a letter earlier this month to the NIH, requesting that the agency exercise its right to “march-in” and demand that Myriad license its patented diagnostic testing kits. Letter from Patrick Leahy, Senator (D-VT), to Francis Collins, Director, NIH (July 12, 2013) (“Letter”). The Supreme Court recently ruled unpatentable Myriad’s claims to isolated DNA encoding the BRCA genes, mutations of which correlate strongly with the development of breast and ovarian cancer. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 at 1 (569 U.S. ___ June 13, 2013). However, the court found patentable Myriad’s claims to complementary DNA (“cDNA”) encoding the same genes. Id. Under the Bayh-Dole Act, 35 U.S.C. § 203(a)(2) (2006), a federal agency may require a “small business firm or nonprofit organization” that received funding from the agency to license its patent rights if “action is necessary to alleviate health or safety needs which are not reasonably satisfied by the [patent] contractor, assignee, or their licensees . . . .” Myriad received federal funding in developing its diagnostic tests, which it now markets for between $3,000 and $4,000. In his letter, Senator Leahy expressed concern “that the health needs of the public are not reasonably satisfied by the patentee in this situation because . . . many women are not able to afford the testing,” Letter at 2, which would justify the NIH’s use of march-in rights to force Myriad to license the patents.

Posted On Jul - 24 - 2013 Comments Off READ FULL POST

Microsoft Corp. v. Dep’t of Homeland Sec.
By Katherine Walecka – Edited by Kathleen McGuinness

Complaint, Microsoft Corp. v. Dep’t of Homeland Sec., No. 1:13-cv-01063-RWR (D.D.C. July 12, 2013)
Complaint hosted by PriorSmart.com

Microsoft filed a complaint against Customs and Border Protection (“CBP”) and the Department of Homeland Security (“DHS”), among others, alleging that CBP failed to implement a May 2012 International Trade Commission (“ITC”) exclusion order blocking the importation of Motorola cell phones and other mobile devices that were found to infringe Microsoft’s patent rights. Complaint, Microsoft Corp. v. Dep’t of Homeland Sec., No. 1:13-cv-01063-RWR at 2–3 (D.D.C. July 12, 2013).

Reuters provides a summary of the case. Bloomberg discusses the DHS’s possible motivations in the case. Wall St. Cheat Sheet has information about the business implications of the CBP’s policies. (more…)

Posted On Jul - 22 - 2013 Comments Off READ FULL POST

By Michelle Sohn – Edited by Katie Mullen

Photo By: mkhmarketingCC BY 2.0

Last week, Twitter, traditionally a stalwart opponent of government surveillance requests, released to French prosecutors the identities of users who had tweeted anti-Semitic comments in violation of France’s hate speech laws. The social media giant’s capitulation follows a series of legal battles over the issue, including a $50 million lawsuit for failing to provide the information.

Boing Boing provides a brief overview of the controversy. The New York Times offers a more thorough analysis, noting that Twitter’s legal battles and its final acquiescence to the French government reveal the balancing act Silicon Valley companies must often perform in championing free speech while complying with various countries’ laws. Ars Technica summarizes the hate speech incident and legal arguments both sides made. (more…)

Posted On Jul - 21 - 2013 1 Comment READ FULL POST
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