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In Response to Ruling by European Court of Justice, Netherlands Bans Unauthorized Downloading of Copyrighted Material
By Andrew Spore – Edited by Travis West

ACI Adam BV v. Stichting de Thuiskopie

In response to an order issued by the European Court of Justice (“ECJ”), the Netherlands has banned the unauthorized downloading of copyrighted material. The Dutch government previously had allowed such downloading for personal use. The ECJ held that, because the law “makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources,” it could not be tolerated.

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Flash Digest: News In Brief
By Olga Slobodyanyuk

Amici urge the Ninth Circuit to reconsider its ruling in the “Innocence of Muslims” case

Record companies sue Pandora for royalties on songs made before 1972

Alleged Heartbleed hacker arrested

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Specific Facts Supporting Indirect Infringement Required for Software Supplier to Obtain Declaratory Judgment Against Patentee Suing End Users
By Geng Chen – Edited by Ashish Bakshi

Microsoft Corp. v. DataTern, Inc., No. 13-1184 (Fed. Cir. Apr. 4, 2014)

The Federal Circuit held that Microsoft and SAP had standing to bring invalidity and noninfringement declaratory judgment actions against DataTern, based on DataTern’s previous lawsuits against those companies’ software customers for direct patent infringement, but only to the extent that those direct infringement claims also established a controversy on issues of contributory and induced infringement.

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DOJ Indicts Nine for Zeus Malware Theft From Online Bank Accounts
By Emma Winer – Edited by Sheri Pan

United States v. Penchukov

Last week, the Department of Justice released a previously sealed indictment against alleged conspirators in an international scheme that stole millions of dollars from online bank accounts. The conspirators allegedly infected thousands of computers with “Zeus” malware, which captured passwords, bank account numbers, and other online banking information. Two of the defendants were arraigned in Nebraska after being extradited from the United Kingdom.

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European Court of Justice Invalidates Data Retention Directive
By Paul Klein – Edited by Alex Shank

In a preliminary ruling requested by courts in Ireland and Austria, the European Court of Justice found that Directive 2006/24/EC was invalid. The Grand Chamber recognized the legitimacy of retaining telecommunications data as a means to combat serious crime and terrorism, but it ultimately held that the far-reaching scope of the Directive disproportionately affected individual privacy under the Charter of Fundamental Rights of the European Union.

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Written By: Hyeongsu Park

Edited By: Kendra Albert

The recent boom in antibody products in the pharmaceutical and biotechnology industries created the needs for a clear standard for antibody patents. The market for therapeutic antibodies is projected to reach hundreds of billion dollars within the next several years, and, as such, a huge amount of money will be at stake in future patent infringement cases regarding therapeutic antibodies. However, currently there is an apparent tension between the USPTO guideline with which antibody patents are granted and the case law with which the validity of existing antibody patents is determined. The antibody “exception” of the USPTO written description guideline says that a claim for an isolated antibody binding to an antigen satisfies the written description requirement even when the specification only describes the antigen and does not have working or detailed prophetic examples of antibodies that bind to the antigen. United States Patent and Trademark Office, Revised Interim Written Description Guidelines Training Materials (1999) at 59–60 [hereinafter Training Materials]; United States Patent and Trademark Office, Written Description Training Materials, Revision 1 (March 25, 2008) at 45–46 [hereinafter Revised Training Materials]. In Centocor v. Abbott, the Court of Appeals for the Federal Circuit (“Federal Circuit”) held that a patentee cannot claim an antibody unless the specification describes it, even if he/she fully characterizes the antigen, and the court vacated a $1.67 billion jury verdict, the largest patent infringement award in U.S. history. (more…)

Posted On Mar - 13 - 2014 Add Comments READ FULL POST

By Mark Verstraete – Edited by Andrew Spore

Garcia v. Google, Inc.,  No. 12-57302 (9th Cir. Feb. 26, 2014)
Slip opinion

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On February 26, 2014, the Ninth Circuit reversed a district court decision denying Cindy Lee Garcia’s request for a preliminary injunction forcing YouTube to remove the anti-Islamic film “Innocence of Muslims.” Garcia, slip op. at 19. Writing for the majority, Chief Judge Alex Kozinski found that Garcia was entitled to a preliminary injunction because she had shown a likelihood of success on her copyright claim and that irreparable harm would likely result absent injunctive relief.

Techdirt offers a lengthy criticism of the ruling. Electronic Frontier Foundation worries that the opinion’s specious reasoning could set unfavorable copyright precedent. UCLA School of Law Professor Eugene Volokh, writing for the Washington Post, notes that the injunction applies only versions of the film containing Garcia’s performance. (more…)

Posted On Mar - 12 - 2014 Add Comments READ FULL POST

By Insue Kim – Edited by Elise Young

Elcommerce.com, Inc. v. SAP AG, No. 2011-1369 (Fed. Cir. Feb. 24, 2014)
Slip opinion

In re Barnes & Noble, Inc., No. 13-162 (Fed. Cir. Feb. 27, 2014)
Slip opinion

In re Apple Inc., No. 13-156 (Fed. Cir. Feb. 27, 2014)
Slip opinion

Federal CircuitThe United States Court of Appeals for the Federal Circuit upheld the transfer of venue of Elcommerce, Inc. v. SAP AG, from the Eastern District of Texas to the Eastern District of Pennsylvania. In response to Elcommerce’s claim that the declaratory counterclaims could not be transferred to the Pennsylvania court without voluntary or personal jurisdiction, the court emphasized that there is “‘no requirement under § 1404(a) that a transferee court have jurisdiction over the plaintiff . . . [as long as] the transferee court ha[s] jurisdiction over the defendants in the transferred complaint.’” Elcommerce.com, slip op. at 10 (quoting In re Genentech, 566 F.3d 1338, 1346 (Fed. Cir. 2009)). As plaintiff, Elcommerce was subject to the declaratory counterclaims filed by SAP in Texas, and “jurisdiction was preserved when the entire action was transferred to Pennsylvania . . . .” Id. at 9.

The case was one of many “patent troll” cases regularly filed in the District Court of the Eastern District of Texas. Because of the treatment plaintiffs receive in the Eastern District of Texas, many defendants attempt to transfer their cases to another district. This has made procedural decisions from the Federal Circuit increasingly significant. ArsTechnica discusses why the Eastern District of Texas is such a popular venue for patent trolls. (more…)

Posted On Mar - 11 - 2014 Add Comments READ FULL POST

By Gizem Orbey – Edited by David Curtis

DSC_4000“Internet access feels like clean water and energy, but it is treated like a luxury, and the whole country is forced towards a giant buffet,” explained Susan Crawford, the John A. Reilly Visiting Professor in Intellectual Property at Harvard Law School, at a JOLT talk on March 4, 2014.

Professor Crawford, who is also a Co-Director of the Berkman Center and a former White House Special Assistant, spoke about the significance of Comcast’s recent bid to buy Time Warner Cable (“Time Warner”) for $45 billion. The proposed merger would consolidate a third of the nation’s cable marketplace into Comcast’s hands. Lawmakers, consumer advocates, and academics worry that the merger would create monopoly conditions, giving Comcast enormous bargaining power with edge providers and electronic, mobile and broadcast device companies. Comcast and Time Warner currently do not complete directly. Through the proposed merger, Comcast seeks access to New York City, Texas, and other markets currently dominated by Time Warner. (more…)

Posted On Mar - 11 - 2014 1 Comment READ FULL POST

By Zoe Bedell – Edited by Corey Omer

Commonwealth v. Shabazz Augustine, SJC-11482 (Sup. Jud. Ct. Suffolk Feb. 18, 2014).
Slip opinion hosted by Universal Hub

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On February 18, 2014, the Massachusetts Supreme Judicial Court (“SJC”) agreed with a Superior Court ruling that the Commonwealth must seek a warrant in most cases before obtaining cell phone records that track an individual’s location. The SJC nevertheless vacated the lower court’s order granting the defendant’s motion to suppress the records and remanded the case for a hearing on whether the Commonwealth had met the higher ‘probable cause’ standard required for the issuance of a warrant. Slip op. at 1–2, 13.

In a 5-2 decision, the SJC held that the Commonwealth obtaining this tracking information — called historical cell site location information (“CSLI”) — from a cellular service provider constitutes a search within the meaning of art. 14 of the Massachusetts Declaration of Rights and therefore requires a search warrant supported by probable cause. The Commonwealth had previously obtained such information by applying for an order under 18 U.S.C. § 2703(d) of the Stored Communications Act (“SCA”), which requires only proof of reasonable suspicion. So, this case joins an earlier SJC decision, Commonwealth v. Rousseau, 465 Mass. 372 (2013), opinion hosted by Justia.com, in increasing privacy protections under the Massachusetts Constitution. Jacob Gershman of the Wall Street Journal summarizes the opinion. (more…)

Posted On Mar - 10 - 2014 Add Comments READ FULL POST
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In Response to Rulin

By Andrew Spore – Edited by Travis West [caption id="attachment_4410" align="alignleft" ...

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Flash Digest: News I

By Olga Slobodyanyuk Amici urge the Ninth Circuit to reconsider its ...

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Specific Facts Suppo

By Geng Chen – Edited by Ashish Bakshi [caption id="attachment_4393" align="alignleft" ...

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DOJ Indicts Nine for

By Emma Winer – Edited by Sheri Pan [caption id="attachment_4373" align="alignleft" ...

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European Court of Ju

By Paul Klein – Edited by Alex Shank [caption id="attachment_4363" align="alignleft" ...