A student-run resource for reliable reports on the latest law and technology news
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Observing Mauna Kea’s Conflict

Written by: Aaron Frumkin

Edited by: Anton Ziajka

Believing the machinery desecrates their sacred summit and the scarce natural resources it shelters, native Hawaiians have opposed telescope development on Mauna Kea. While it seems that their beleaguered resistance to telescope development will fail yet again with the proposed Thirty Meter Telescope (TMT), this Note attempts to articulate their best arguments in hopes of properly framing the social costs associated with the great scientific and technological gains that TMT will surely provide.

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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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Supreme Court Expands Generic Drug Manufacturers’  Right to Challenge Scope of Patents
By Elettra Bietti – Edited by Lauren Henry

Caraco Pharmaceutical Laboratories, Ltd. v Novo Nordisk A/S, No. 10–844 (U.S. April 17, 2012)
Slip opinion

The Supreme Court reversed the Federal Circuit Court of Appeals’ ruling that denied a generic manufacturer the right to compel a brand manufacturer to correct misstatements regarding uses covered by a patent when those corrections would have allowed the generic manufacturer to market their generic drug.

The Court held that a generic manufacturer may rely on 21 U.S.C. § 355(j)(5)(C)(ii)(I), which grants a statutory counterclaim to generic manufacturers sued for patent infringement, to compel a brand manufacturer to modify a use code if it wrongly describes a patent as covering uses which it does not in fact cover. In so holding, the court slightly shifts balance of power in the pharmaceutical industry away from patentees and toward generic manufacturers.

Patently-O provides an overview and describes it as an example of a “nuanced” Supreme Court case. Alison Frankel, writing for Reuters, notes that the decision represents a slight victory for generic manufacturers over the brands. (more…)

Posted On Apr - 23 - 2012 Comments Off READ FULL POST

By Brittany Horth

Oracle v. Google Trial Begins

The Oracle v. Google trial began on Monday, April 16, 2012 in the Northern District Court of California in San Francisco by swearing in twelve jurors for what is expected to be eight weeks of testimony, reports Ars Technica. According to an overview by All Things D, Oracle alleges that Google’s Android mobile operating system violates both copyright and patents on Java, which Oracle acquired from SunMicrosystems in 2010. The New York Times reports that both Google CEO Larry Page and Oracle CEO Larry Ellison appeared as witnesses in the first week of trial, as Google argued that Java is free and Oracle argued that Google knew it needed to get a license to use Java. The case is likely to address the issue of whether application programming interfaces (APIs) can be copyrighted in general.

FCC Says Google’s Wi-Fi Sniffing Did Not Violate Wiretapping Laws

The Federal Communications Commission (FCC) stated that Google did not violate federal wiretapping law when its street view cars collected data such as e-mails, passwords, and text messages from unencrypted Wi-Fi networks, reports Wired.  The FCC’s conclusion is in direct contrast to the holding of the Northern District of California in 2011. In support of its decision not to take enforcement action, the FCC cited the fact that the unencrypted Wi-Fi networks are accessible to the public, which has broader implications for customers who use the free, unencrypted Wi-Fi networks provided by businesses such as coffee shops. But the FCC also explained that it was “impossible” to uncover whether Google had accessed the encrypted data that it collected from the unencrypted Wi-Fi networks because a Google engineer who developed the relevant program refused to share information with the FCC.

Teller of Penn & Teller Alleges Violation of His Copyrighted Magic Trick

Raymond Teller of Penn & Teller is suing Gerard Dogge for copyright infringement of his magic trick entitled Shadows after Dogge posted a YouTube video of a magic trick called The Rose & Her Shadow and offered to reveal the secret for $3,050, reports The Hollywood Reporter. Teller sent YouTube a Digital Millennium Copyright Act (DMCA) takedown notice and attempted to pay Dogge not to reveal the secret but initiated a lawsuit when negotiations failed. Teller registered the trick with the U.S. Copyright Office, which requires that magic tricks be “fixed in a tangible medium of expression,” back in 1983. The success of the claim will depend on whether Teller can demonstrate that Dogge’s trick is a “substantially similar expression” of Shadows.

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

Second Circuit Holds that Goldman Sachs’s Proprietary Source Code Is Intangible Property under the NSPA
By Laura Fishwick – Edited by Lauren Henry

United States v. Aleynikov, No. 11-1126, 2012 WL 1193611 (April 11, 2012).
Slip Opinion

The Second Circuit reversed the holding of the District Court of the Southern District of New York, and found that source code is not a good, ware, or merchandise under the National Stolen Property Act (“NSPA”), a criminal statute that applies to anyone who “transports, transmits, or transfers in interstate or foreign commerce any goods, ware, merchandise, securities or money … knowing the same to be stolen, converted or taken by fraud.” 18 U.S.C. § 2314. The district court had found that because the source code was related to Goldman Sachs’s high-frequency trading (“HFT”) system, and this system contained confidential trade secrets that would be highly valuable to other firms, the source code was a “good” that was “stolen” within the meaning of the NSPA and Aleynikov had violated the statute.

Wired provides an overview of the case. While agreeing with the Second Circuit’s holding, Techdirt admonished the court for incorrectly calling the charges against Aleynikov “theft,” when should be more accurately described as “infringement.” (more…)

Posted On Apr - 19 - 2012 Comments Off READ FULL POST

Ninth Circuit Creates Circuit Split by Narrowly Construing the Computer Fraud and Abuse Act
By Abby Lauer – Edited by Charlie Stiernberg

United States v. Nosal, No. 10-10038 (9th Cir. April 10, 2012)
Slip Opinion

The Ninth Circuit affirmed the Northern District of California in an en banc decision construing the scope of the Computer Fraud and Abuse Act (“CFAA”). The court held that a person who violates an employer’s computer use policy is not criminally liable for federal penalties under the Act.

The Ninth Circuit held that the provision of the CFAA that prohibits a person from “exceed[ing] authorized access” to information on the Internet does not extend to violations of use restrictions, such as an employer’s computer use policy or a website’s terms of service. In so holding, the court applied the rule of lenity to this provision of the CFAA. The court expressed concern that adopting a broader interpretation of “exceeds authorized access,” which appears five times in the first seven subsections of the statute, would inadvertently criminalize innocuous activity that was not intended to be captured. For example, the court noted that “lying on social media websites is common,” and concluded this is not the type of behavior that Congress intended to punish by passing the CFAA.

Ars Technica provides an overview of the case. The Volokh Conspiracy provides further commentary and excerpts from Chief Judge Kozinski’s majority opinion. (more…)

Posted On Apr - 18 - 2012 1 Comment READ FULL POST

Written by Kassity Liu
Edited by Andrew Segna
Editorial Policy

Social media has taken our society by storm. From Facebook to Twitter to LinkedIn, social media has provided individuals with newer and faster ways to communicate with one another. In 2011, eBizMBA estimated that 700 million unique users visited Facebook per month, 200 million users visited Twitter, and 100 million users visited LinkedIn. These statistics are staggering. The entire population of the United States, as reported by the U.S. Census Bureau, only totals 312 million.[i]

With the growing use of social media, many businesses in the U.S. have started to use social media as a method of advertising their products to consumers. Large conglomerates such as General Electric and Procter & Gamble have incorporated social media into their advertising and promotional efforts.[ii] Companies including AT&T and Dell have used Facebook, Twitter, and YouTube to communicate with consumers and market their products.[iii] In 2010, Facebook boasted that over 1.5 million local businesses had active Facebook pages.

However, unlike these companies, pharmaceutical companies have taken a cautious approach to social media. In 2008, the U.S. pharmaceutical industry only allocated a “tiny fraction” of “less than 4% of the more than $4 billion it spent on direct-to-consumer advertising” on social media advertising.[iv] Unlike advertising in other industries, prescription drug advertising is regulated by the U.S. Food and Drug Administration (FDA). This means that drug companies are only allowed to advertise their products under a regulatory scheme that is set up by the FDA. Although some venturous drug companies have chosen to invest their dollars in social media advertising before the FDA provides the industry with clear guidance, many have been waiting for the agency to publish a guidance document on social media advertising.

With respect to social media, the FDA has only published a draft guidance on “responding to unsolicited requests for off-label information about prescription drugs and medical devices.” The fifteen-page document addresses how companies should respond to online inquiries about off-label uses of their products, but does not provide clear instructions to the industry about how to advertise their products using social media. Despite not having clear guidelines on the use of social media, pharmaceutical companies need to start exploring this evolving area of technology. Working within the current regulatory scheme, the pharmaceutical industry can use social media not only for the industry’s own benefit but also for the benefit of drug users and the medical community. Moreover, even if pharmaceutical companies choose to avoid using social media, this would not stop physicians and patients from sharing information about the companies’ products online. Therefore, in order to effectively monitor and convey reliable information about their products to consumers, companies may have to learn how to use social media sooner or later.  (more…)

Posted On Apr - 17 - 2012 1 Comment READ FULL POST
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Photo By: Jeff Ruane - CC BY 2.0

Observing Mauna Kea'

Written by: Aaron Frumkin Edited by: Anton Ziajka I.     Introduction Perched quietly atop ...

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Federal Circuit Flas

By Cristina Carapezza Rosen Wins TV Headrest Patent Suit The Federal Circuit ...

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Government Agents In

By Sheri Pan - Edited by Jens Frankenreiter United States v. ...

Photo By: Robert Scoble - CC BY 2.0

Mississippi Attorney

[caption id="attachment_3907" align="alignleft" width="150"] Photo By: Robert Scoble - CC ...

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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...