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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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Federal Circuit Clarifies the Fame Standard for Trade Dilution
By Sonal Mittal – Edited by Laura Fishwick

Coach Servs., Inc., v. Triumph Learning L.L.C., No. 2011-1129 (Fed. Cir. Feb. 21, 2012)
Slip Opinion

The Court of Appeals for the Federal Circuit affirmed-in-part the decision of the Trademark Trial and Appeal Board (“Board”), which had dismissed the notice of  opposition filed by Coach Services, Inc. (“CSI”) opposing the registration of the COACH mark by Triumph Learning L.L.C. (“Triumph”). The Federal Circuit upheld the Board’s holding that CSI failed to prove that Triumph’s educational materials were likely to dilute CSI’s luxury travel brand. In so holding, the court provided an example of a level of fame that is insufficient to qualify for protection from brand dilution under the Lanham Act.

PatentlyO provides an overview of the case. TrademarkAttorneys praises the decision as a just response to major luxury label’s attempt to enforce a trademark without any legitimate economic need to do so. The TTABlog concurs that the case provides an interesting benchmark for the level of fame required to achieve trade dilution in the context of two disparate market sectors—luxury travel goods and educational services.  (more…)

Posted On Feb - 28 - 2012 Comments Off READ FULL POST

District court holds that an advertisement-like salute to Michael Jordan is constitutionally protected free speech
By Abby Lauer – Edited by Laura Fishwick

Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill., Feb. 15, 2012)
Slip Opinion (hosted by Justia.com)

The Northern District of Illinois has ruled that a national grocery store chain’s reference to basketball superstar Michael Jordan in a page published in a commemorative issue of Sports Illustrated is constitutionally protected free speech. The court has accordingly granted defendant Jewel Food Store’s motion for summary judgment as far as the First Amendment issue is concerned.

The district court held that Jewel’s page constituted noncommercial speech because it did not propose a commercial transaction. Instead, the page merely congratulated Jordan on his accomplishments, and Jewel’s logo and slogan were used “to ensure that the congratulatory message sounded like it was coming from Jewel and not from any other person or entity.” Jordan v. Jewel Food Stores, Inc., 2012 WL 512584, at *4. In addition to the general noncommercial speech inquiry, the Northern District of Illinois also applied the Supreme Court’s subsidiary three-factor test to determine whether speech is commercial, and the court found that the test favored finding Jewel’s page to be noncommercial speech.

ESPN Chicago provides an overview of the case. Rebecca Tushnet’s 43(B)log offers a detailed description of the district court’s holding and analysis.  (more…)

Posted On Feb - 26 - 2012 Comments Off READ FULL POST

Justice Department Approves Google/Motorola Merger and Other Patent Acquisitions
By Jacob Rogers – Edited by Jonathan Allred

Investigations of Google Inc.’s Acquisition of Motorola Mobility Holdings Inc. and the Acquisitions of Certain Patents by Apple Inc., Microsoft Corp. and Research in Motion Ltd. (Feb. 13 2012).
Decision

On Monday, February 13, 2012, the Antitrust Division of the U.S. Dept. of Justice approved the merger between Google Inc. and Motorola Mobility Holdings Inc. as well as the acquisition of additional patents by Apple Inc., Microsoft Corp., and Research in Motion Ltd.

The Dept. of Justice’s decision allows the acquisitions, which concentrates technology patents in fewer hands, to go forward. Google, once it completes its merger, will acquire approximately 17,000 patents from Motorola as well as an additional 6,800 pending patents. Microsoft, Apple, RIM and others organized as a group under the name Rockstar Bidco will be able to complete their acquisition of approximately 6,000 patents and patent applications that they purchased from the Nortel bankruptcy auction. In addition, Apple will be able to separately acquire an undisclosed number of patents from CPTN Holdings, LLC, which were formerly owned by Novell.

After the purchases, Microsoft and Apple committed to supporting the existing licensing commitments made by Nortel and Novell. However, Google has not made a similar firm commitment with regard to the Motorola patents.

Steven J. Vaughan-Nichols, blogging for ZDnet, suggests that the Motorola merger is a move by Google to constrain Apple’s ability to initiate future lawsuits without needing to enforce its patents. According to Vaughan-Nicols, by agreeing to license its patents on fair, reasonable and non-discriminatory (“FRAND”) terms, Google is making a gesture of peace that Apple will reciprocate, rather than risk injunctions against its next generation of iPhone and iPad releases. PC Magazine suggests that Google’s purchase of Motorola may have been motivated by its inability to acquire any of the Nortel patents. However, the Antitrust Division Report notes that Google’s commitment to the FRAND standard is less clear than the commitments made by Microsoft and Apple. (more…)

Posted On Feb - 22 - 2012 Comments Off READ FULL POST

Federal Circuit Affirms $371 Million Judgment Against W.L. Gore
By Michael Hoven – Edited by Matt Gelfand

Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., No. 2010-1050 (Fed. Cir. Feb. 10, 2012)
Slip opinion

The Court of Appeals for the Federal Circuit affirmed a decision from the District of Arizona, which upheld a jury verdict that W.L. Gore & Associates’s employee had not jointly invented a vascular graft patented by Bard Peripheral Vascular, and that Gore had willfully infringed Bard’s patent. In addition, the Federal Circuit affirmed the lower court’s award of enhanced damages of $371 million, plus attorneys’ fees, costs, and an ongoing royalty to Bard.

The Federal Circuit held that there was substantial evidence to support the jury’s finding of willful infringement and that the district court had not abused its authority in awarding enhanced damages, fees, costs, and a royalty to Bard. Although Gore’s employee had supplied tubes of the substance ePTFE to the inventor behind the Bard patent so that ePTFE could be tested for suitability in vascular grafts, the court reasoned that the inventor of the Bard patent had the key insight into exactly how to fabricate ePTFE into successful vascular grafts, which was not anticipated by the work of Gore or other researchers investigating the use of ePTFE in such grafts. Further, the court rejected Gore’s argument that its employee was a joint inventor, pointing to evidence that the inventor of graft reduced the invention to practice without assistance from Gore. In so holding, the court stated that a researcher, if provided with a material to investigate a possible application, can claim an invention in his or her insight into the precise characteristics that make the material suitable for the application.

Bloomberg provides an overview of the case. The Patent Prospector says the patent at issue and its decades-long legal battle demonstrate that the patent system is broken. IP Biz noted the sharp exchange of words between the majority and the dissent. (more…)

Posted On Feb - 20 - 2012 1 Comment READ FULL POST

By Marsha Sukach

EU Court Says Social Networks Cannot Be Forced to Monitor Users

The European Court of Justice ruled that social networks cannot be required to monitor users solely for the purpose of stopping piracy, reports CNET. The court said that such a requirement created a complicated and costly burden on the sites, and that it might endanger the privacy of user data by forcing sites to identify and analyze information connected to user profiles. According to the Wall Street Journal, the ruling came after a Belgian copyright manager, SABAM, filed a lawsuit against social network Netlog NV for allowing users to access SABAM’s portfolio of music and video.  This ruling is notable because it comes just after two anti-piracy bills—the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA)—became controversial issues in the United States. Critics of these acts argued that enabling law enforcement to erase sites containing allegedly pirated material would also put legitimate sites in danger.

Minnesota Court Denies Restraining Order for Harassing Photos

Olson v. LaBrie, 2012 WL 426585 (Minn. App. February 13, 2012)
Appellant sought a harassment restraining order against his uncle, claiming that his uncle posted embarrassing family photos of appellant on Facebook, with mean commentary. According to the Technology and Marketing Law Blog, the Court of Appeals of Minnesota affirmed the trial court’s denial of the restraining order, saying that photos and comments were mean and disrespectful, but cannot form the basis for liability. According to Internet Cases, the court derived the definition of harassment from the statute, which provides that a restraining order is appropriate to guard against “substantial adverse effects” on the privacy of another. The court refused to consider common law invasion of privacy violations to determine whether the statute called for a restraining order.

Associated Press Sues News Aggregator Over ‘Parasitic Business Model’

The Associated Press is suing Meltwater Group, a paid news subscription company, saying that Meltwater’s subscription service charges a fee for “content created at the expense and through the labor of others.” Ars Technica reports that Meltwater has about 18,000 customers, who pay at least $5,000 annually for searchable content that the company gathers from 162,000 online news sources. According to the International Business Times, the AP is asking a federal judge to block the service from continuation and seeks damages up to $150,000 per infringement. Meltwater has responded that it respects copyright, and merely performs the services of a search engine, customized for paying customers who use it to track stories via keywords. Flash Digest covered a similar suit in 2009, in which the AP defeated All Headline News, a company that repurposed AP content for its subscribers.

Posted On Feb - 20 - 2012 Comments Off READ FULL POST
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