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Insuring Patents

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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Flash Digest: News in Brief

By Gia Velasquez – Edited by Ken Winterbottom

Federal Court Grants Uber’s Class Action Certification Appeal

Independent Contractor Classification of Uber Drivers May Violate Antitrust Laws

Self-Driving Car Will Be Considered Autonomous Driver

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Written by: Susanna Lichter
Edited by: Suzanne Van Arsdale

Security CameraHollie Toups, the first named plaintiff in Toups v. GoDaddy, was harassed for weeks after nude pictures of her appeared on the website Texxxan.com alongside her real name and a link to her Facebook profile. When Toups requested that Texxxan.com remove the pictures, she was told by the website that they could help in exchange for her credit card information.[i] Texxxan.com is a “revenge porn” or “involuntary porn” website.[ii] The website and others like it act as repositories for nude photos of individuals submitted by their former boyfriends, embittered friends, or malicious hackers. On January 18, 2013 Toups and 22 other female plaintiffs whose nude photographs appeared on the website filed a lawsuit in the District Court of Orange County, Texas against Texxxan.com, Texxxan.com’s uploaders and subscribers, and the web hosting and the Internet domain registrar giant GoDaddy.com for invasion of privacy and intentional infliction of emotional distress.[iii] They are seeking temporary and permanent injunctions shutting down Texxxan.com, damages,[iv] and class action certification.

Texxxan.com is one of a number of websites that have emerged in recent years seeking to capitalize on the proliferation of amateur porn facilitated by the digital age, and the humiliation it causes. Some, like Texxxan.com, insert pornographic photos into dating-site-style profiles that include screenshots of or links to the person’s social media pages and real name. Others, like IsAnybodyDown?, include more invasive details such as the person’s phone number, address, school, place of work, and children’s names. Some allow people who submit content to assign the person to categories based on their age, weight, or alleged STD status, such as Your Mom’s Nudes for older women. Underscoring the fact that the postings are malicious and intend to embarrass the victim, websites like You Got Posted feature nude photos in which the person’s face is cropped out or obscured—likely the person taking or sending the image was attempting to preserve some privacy—alongside their name and pictures of their face taken from Facebook, revealing their identity. Websites like MyEx include a space for visitors to anonymously post harassing comments. Because of the breadth of information aggregated on the profiles, revenge porn pages are commonly at the top of Google search results[v] of the person’s name. (more…)

Posted On May - 28 - 2013 2 Comments READ FULL POST

Written by: Evelyn Y. Chang
Edited by: Jessica Vosgerchian

Photo By: Horia VarlanCC BY 2.0

In March of 2012, British Petroleum sought court enforcement of a subpoena for “any conversation or discussion” made by researchers from the Woods Hole Oceanographic Institution (“WHOI”) regarding their studies on the Deepwater Horizon oil spill. WHOI and its researchers were neither parties nor witnesses in the ongoing lawsuits related to the Deepwater spill, but they had contributed data to a government report on the spill, and results of their studies had been cited in the lawsuits. WHOI argued that they had already provided all the information needed to test the study’s veracity, but BP asserted that additional materials, including records of internal deliberations made by the researchers before they published the studies, were necessary for them to challenge the studies’ results. The court applied a balancing test that weighed BP’s need for the requested information against the burden placed on WHOI, and required the WHOI researchers disclose internal pre-publication materials relating to the studies cited in the government report.[i]

Last fall, Science published an editorial by several WHOI researchers whose materials were among those requested by the subpoena. The WHOI researchers argued that BP’s subpoena request amounted to an attack on the independence of scientific inquiry, and advocated for federal legislation to protect researchers from legal harassment when their results contradict entrenched interests. While legislation is the most straightforward method by which the government can protect scientific independence, common law already provides some protection for researchers who may find themselves in a situation similar to that of WHOI.

Discovery of evidence from third parties is nothing new, and many courts hold that the right to obtain evidence from non-parties is sometimes necessary to ensure a fair trial. While the Supreme Court has not directly addressed scientific privilege, lower federal courts have applied a balancing test that weighs the requesting party’s need for the information against the burden that would be placed on the receiving party.[ii] When determining what information must be disclosed, courts have considered several factors, including the completeness of the information, confidentiality of sources, and chilling effects on research.[iii] (more…)

Posted On May - 19 - 2013 Comments Off READ FULL POST

Viacom Int’l Inc. v. YouTube, Inc.
By Pio Szamel – Edited by Laura Fishwick

Viacom Int’l Inc. v. YouTube, Inc., 07 Civ. 2103 (S.D.N.Y. April 18, 2013)
Slip opinion

Hacked By Over-XOn April 18, 2013 the U.S. District Court for the Southern District of New York once again granted summary judgment for YouTube in Viacom Int’l Inc. v. YouTube, Inc., on remand from the Second Circuit Court of Appeals. Judge Louis L. Stanton held that YouTube did not have any actual knowledge of any specific infringements of the Viacom content in suit, nor was it willfully blind to any such specific infringements. He also held that YouTube did not have the “right and ability to control” infringing activity for the purposes of 17 USC §512(c)(1)(B), and that YouTube’s transcoding of clips for viewing on mobile devices is protected by the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”), 17 USC §512(c).

Reuters has further coverage of the decision, which is hailed by the Electronic Frontier Foundation and Eric Goldman. JOLT Digest previously covered the District Court’s prior grant of summary judgment in favor of YouTube, and the Second Circuit’s decision to vacate part of that prior order and remand for further proceedings. (more…)

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

Bayer Healthcare Pharm., Inc. v. Watson Pharm., Inc.
By Erica Larson – Edited by Suzanne Van Arsdale

Bayer Healthcare Pharm., Inc. v. Watson Pharm., Inc., No. 12-1397 (Fed. Cir. Apr. 16, 2013)
Slip opinion

Photo By: Nate GriggCC BY 2.0

The Court of Appeals for the Federal Circuit reversed the judgment of the Nevada District Court, which ruled that claims 13 and 15 of Bayer Healthcare Pharmaceuticals, Inc. and Bayer Schering Pharma AG (“Bayer”) U.S. Patent RE37,564 were not invalid for obviousness. The patent claimed a combination of synthetic hormones and dosing regimens used by Bayer in the Yaz birth control pill. Three generic manufacturers—Watson Pharmaceuticals, Inc., Sandoz, Inc., and Lupin Ltd.—filed Abbreviated New Drug Applications (“ANDAs”) with the FDA, including Paragraph IV certifications, 21 U.S.C. 355(j)(2)(A)(vii)(IV), asserting that the patent was invalid.

The Federal Circuit held, first, that the patented combinations were obvious in view of prior art:  two foreign patent applications and four scholarly articles. Bayer Healthcare Pharm., Inc. at 11. A person of ordinary skill in the art would have been motivated by the knowledge disclosed in the prior art to craft Bayer’s combination and would have had a reasonable expectation of success. Id. at 11–12. Second, the court rejected Bayer’s arguments on secondary indicia of non-obviousness relating to unexpected results, expert skepticism, industry praise, and copying. Id. at 10, 15.

Reuters and Bloomberg put this ruling into context by describing Bayer’s continuing legal troubles with Yasmin, the precursor to Yaz; the company faces thousands of legal claims that Yasmin increases the risk of blood clots. (more…)

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

Ass’n for Molecular Pathology v. Myriad Genetics, Inc.
By Alex Shank – Edited by David LeRay

Ass’n for Molecular Pathology v. Myriad Genetics, Inc., No. 12-398 (U.S. Apr. 15, 2013)
Transcript of Oral Argument

Photo By: brett jordanCC BY 2.0

On Monday, April 15, the Supreme Court heard oral arguments to determine the validity of a patent encompassing the use of the BRCA1 and BRCA2 genes. Mutations in these genes correlate strongly with the development of breast and ovarian cancers. As the patent owner, Myriad Genetics, Inc. (“Myriad”) possesses and exercises the exclusive right to sell diagnostic testing kits based on these genes.

The ACLU first challenged the constitutionality of the Myriad patent in the District Court of the Southern District of New York (“SDNY”), claiming that the patent violated the First Amendment. The SDNY invalidated the patent on other grounds, holding that the genes were “products of nature” and thus not patentable subject matter. On appeal, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed that “comparing” gene sequences was unpatentable as an “abstract mental step” but reversed the SDNY by holding that Myriad’s “screening” claims were patentable. After deciding Mayo Collaborative Servs. v. Prometheus Labs., Inc., the Supreme Court vacated the CAFC’s earlier decision and remanded the case to be decided in light of Mayo. The CAFC reaffirmed that isolated genes were patentable as “markedly different” from genes in the human body and reaffirmed its earlier position on the various method patents. The ACLU appealed to the Supreme Court.

SCOTUSblog comments on the Supreme Court’s skepticism regarding the validity of the Myriad patents. The New York Times offers a summary of the oral argument and background on the case. Nature newsblog and Patently-O predict how the Supreme Court may narrow the scope of its holding to a particular class of genetic material. JOLT Digest previously commented on the implications of a ban on gene patents. (more…)

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