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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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Federal Circuit Reaffirms Patent Eligibility of Isolated Human Genes
By Jie Zhang – Edited by Jeffery Habenicht

Ass’n for Molecular Pathology v. USPTO, No. 2010-1406 (Fed. Cir. Aug. 16, 2012)
Slip opinion

The Federal Circuit, on remand from the Supreme Court in light of the Court’s decision in Mayo Collaborative Servs. v. Prometheus Labs., affirmed in part and reversed in part a decision by the Southern District of New York, which had held that isolated breast cancer genes and a screening method based on such genes were non-patentable.

The Federal Circuit affirmed the district court’s ruling that it had jurisdiction to hear the declaratory judgment case, finding that at least one plaintiff had standing to challenge Myriad’s patents. On the merits, the Federal Circuit reversed the district court and reiterated its prior holding that isolated genes were patent eligible because they were compositions of matter sufficiently different from the naturally occurring genes. The court also found that the method to screen therapeutics based on the growth rate of cells containing mutated genes was patentable as it included transformative steps and was more than a restatement of the law of nature. However, the court affirmed the district court’s holding that the method to compare gene sequences was non-patentable because it involved only abstract mental steps.

JOLT Digest previously covered both this case and Prometheus. Reuters provides an overview of the case and reports on reactions of the scientific community and the biotech industry. Patently-O criticizes the court’s analysis for ignoring the impact of Prometheus and predicts an en banc rehearing or a grant of certiorari by the Supreme Court. (more…)

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

By Michael Hoven

Facebook’s “Sponsored Stories” Settlement Rejected by Court

District Judge Richard Seeborg of the Northern District of California rejected a $20 million settlement of a class-action suit against Facebook over its “Sponsored Stories” feature, reports Wired. In his order, Judge Seeborg questioned the fairness of the proposed settlement, under which Facebook would pay $10 million in attorney’s fees and $10 million to charity, to class members, especially given the size of the award to plaintiffs’ attorneys and the uncertain process by which the parties arrived at the $20 million figure.

Google Adds Prior Art Finder to Its Patent Search

Google improved its patent search feature by adding European patents and a tool to search for prior art, reports GigaOM. According to Google’s Research Blog, “[t]he Prior Art Finder identifies key phrases from the text of the patent, combines them into a search query, and displays relevant results from Google Patents, Google Scholar, Google Books, and the rest of the web.” GigaOM questioned the propriety of having a private company play a pivotal role in patent disputes, while Forbes called the Prior Art Finder “an extremely useful tool.”

Linking Helps Gizmodo Defeat Defamation Lawsuit

California appellate court affirmed a trial court’s decision to strike, on anti-SLAPP grounds, a defamation complaint against Gawker Media, reports the Atlantic. Scott Redmond, the CEO of Peep Telephony, sued Gawker because of a Gizmodo post critical of Peep Telephony. The Gizmodo post was protected in part because its use of outbound links made the article transparent and showed that it consisted of protected opinion rather than assertions of fact.

Privacy Suit against Hulu Allowed to Continue

In a decision that could have implications for all online streaming-video services, the Northern District of California (order hosted by Scribd) denied Hulu’s motion to dismiss a lawsuit brought against it under the 1988 Video Privacy Protection Act (“VPPA”), reports the New York Times. Plaintiffs allege that Hulu allowed third-party companies to place cookies on viewers computers and track their actions across the Internet. Hulu argued, unsuccessfully, that the VPPA did not apply because Hulu was not a video rental company.

 

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

Sixth Circuit Approves Warrantless Tracking of Cell Phone Location
By Michael Hoven – Edited by Andrew Crocker

United States v. Skinner, No. 09-6497 (6th Cir. Aug. 14, 2012)

Slip opinion
The Court of Appeals for the Sixth Circuit upheld a jury’s conviction of Melvin Skinner on two counts related to drug trafficking and one count of conspiracy to commit money laundering, rejecting Skinner’s argument on appeal that the district court had wrongly denied his motion to suppress evidence on the grounds that it was obtained through an unlawful search.

The Sixth Circuit held that law enforcement did not need a warrant to track Skinner through cell-site information, GPS location, and “ping” data. Because Skinner had “no reasonable expectation of privacy in the data given off” by his phone, the police were free to collect and use that data, and there was no violation of the Fourth Amendment. Skinner, No. 09-6497, slip op. at 6. In so holding, the court distinguished its case from United States v. Jones, 132 S. Ct. 945 (2012) (previously covered by the Digest), in which the Supreme Court held that placing a GPS tracking device on a car violated the Fourth Amendment. Unlike Jones, in which police trespassed onto private property, Skinner purchased the phone himself and the phone freely emitted signals that revealed his location, which eliminated any reasonable expectation of privacy on Skinner’s part.

Bloomberg Businessweek provides an overview of the case. Several commentators, including Orin Kerr at the Volokh Conspiracy, Jennifer Granick at the Center for Internet and Society, and Julian Sanchez at Cato @ Liberty, criticize the court’s discussion of cell phone technology, noting that pinging a cell phone is a request for the cell phone to return a signal, and therefore ping data is not “given off” in the way the court appears to conceive.
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Posted On Aug - 17 - 2012 1 Comment READ FULL POST

JOLT Digest would like to thank our summer contributors, editors, and comment authors, whose names can be found on our Summer 2012 staff page, for their hard work over the past two months.

 

Posted On Aug - 15 - 2012 Comments Off READ FULL POST

Written By: Yana Welinder
Edited By: Molly Jennings
Editorial Policy

When Judge Robert Bork was nominated for the U.S. Supreme Court in 1987, a reporter politely asked his local video store assistant for a Xerox copy of handwritten entries of Judge Bork’s 146 prior rentals. Having convinced the editor of the Washington City Paper that this was perfectly legal, the reporter then published these records under the heading “The BORK Tapes.” The issue featured a suggestive cartoon of Judge Bork on the cover—beer in hand, slouching in an armchair in front of the television. You can imagine people flocked to buy copies of the paper hoping for juicy tidbits about the Supreme Court nominee’s secret watching habits. But to their disappointment, Judge Bork’s rental records listed only garden-variety films. This incident nevertheless spurred a privacy outrage. Within months, the Video and Library Privacy Protection Act was debated in Congress and California Congressman McCandless spoke in favor of the bill:

There’s a gut feeling that people ought to be able to read books and watch films without the whole world knowing. Books and films are the intellectual vitamins that fuel the growth of individual thought. The whole process of intellectual growth is one of privacy—of quiet, and reflection. This intimate process should be protected from the disruptive intrusion of a roving public eye. What we’re trying to protect with this legislation are usage records of content-based materials—books, records, videos, and the like.  . . . [T]here is an element of common decency in this legislation. It is really nobody else’s business what people read, watch, or listen to.

But books, records, and other materials were subsequently removed from the scope of this bill.{{1}}  The final version was adopted to regulate only the “rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials” (emphasis added). Given its history, the legislation was dubbed the “Bork Bill.”

This comment argues that recent technological developments warrant an extension of the Bork Bill to protect records of online content consumption. The early view of the Internet as a space where “nobody knows you’re a dog” enabled people to freely browse online content, resulting in more “creativity and innovation.” Professor Eben Moglen has likened this anonymous space to cities as the historic destination for individuals who wanted to “escape the surveillance of the village” and “experiment autonomously in ways of living.” But as online exploration of content is increasingly being logged and those logs are being exposed, the Internet as a source of intellectual vitamins is under threat. More than ever, we now need to prevent the logging of media consumption that is not necessary for making the media available. This applies not only to media that existed in 1988 when the Bork Bill was adopted, such as books and music records, but to any material used for intellectual pursuit of knowledge, including blogs, tweets, podcasts, and other new sources of information. It is further critical that records of our intellectual curiosity not be shared with others without our permission to disclose that particular material.

(more…)

Posted On Aug - 14 - 2012 Comments Off READ FULL POST
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