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Newegg Wins Patent Troll Case After Court Delays

By Kasey Wang – Edited by Yunnan Jiang and Travis West

The District Court for the Eastern District of Texas recently issued a final judgement for online retailer Newegg, twenty months after trial, vacating a $2.3 million jury award for TQP. TQP, a patent assertion entity commonly known as a “patent troll,” collected $45 million in settlements for the patent in question before Newegg’s trial.

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The Evolution of Internet Service Providers from Partners to Adversaries: Tracking Shifts in Interconnection Goals and Strategies in the Internet’s Fifth Generation

By Robert Frieden – Edited by Marcela Viviana Ruiz Martinez, Olga Slobodyanyuk and Yaping Zhang

In respone to increasing attempts by Internet Service Providers to target customers who trigger higher costs for rate increases, the FCC and other regulatory agencies worldwide have stepped in to prevent market failure and anticompetitive practices. This paper will examine new models for the carriage of Internet traffic that have arisen in the wake of these changes.

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The Global Corporate Citizen:  Responding to International Law Enforcement Requests for Online User Data 

By Kate Westmoreland – Edited by Yunnan Jiang

This paper analyses the law controlling when U.S.-based providers can provide online user data to foreign governments. The focus is on U.S. law because U.S. dominance of internet providers means that U.S. laws affect a large number of global users. The first half of this paper outlines the legal framework governing these requests. The second half highlights the gaps in the law and how individual companies’ policies fill these gaps.

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3D Printing, Net Neutrality, and the Internet: Symposium Introduction

By Deborah Beth Medows – Edited by Yaping Zhang

Jurists must widely examine the pervasive challenges among the advents in Internet and computer technology in order to ensure that legal systems protect individuals while  encouraging innovation.  It is precisely due to the legal and societal quagmires that 3D printing and net neutrality pose that ideally position them as springboards from which to delve into broader discussions on technology law.

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A Victory for Compatibility: the Ninth Circuit Gives Teeth to RAND Terms

By Stacy Ruegilin – Edited by Ken Winterbottom

Microsoft won a victory in the Ninth Circuit last Thursday after the court found that Motorola, a former Google subsidiary, had breached its obligation to offer licenses for standards-essential technologies at reasonable and non-discriminatory rates. The court affirmed a $14.52 million jury verdict against Motorola for the breach.

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Kentucky District Court Latest to Grapple with Warrantless GPS Tracking after Jones
By Sarah Jeong – Edited by Michael Hoven

United States v. Lee, Criminal No. 11-65-ART (E.D. Ky., May 22, 2012)
Slip opinion (hosted by TalkLeft)

The U.S. District Court of Eastern Kentucky suppressed the discovery of 150 pounds of marijuana in the defendant’s possession, due to the placement of a warrantless GPS tracking device on his car. The search and arrest took place prior to United States v. Jones, No. 10-1259, 2012 WL 171117 (U.S. Jan. 23, 2012), the Supreme Court case that ruled that GPS tracking constitutes a search and therefore requires a warrant. The United States argued in Lee that the agents’ actions fell under the good faith exception to the warrant requirement, but Judge Amul Thapar found that only reliance on binding appellate precedent could create a good faith exception for the police. In this particular case, in contrast, the agents had relied on a national Drug Enforcement Agency (“DEA”) policy supported by non-binding appellate precedent from other jurisdictions. The Lee ruling attempts to articulate a clear and administrable principle for applying (or withholding) the good faith exception to pre-Jones instances of warrantless GPS tracking.

The Associated Press reports on the underlying facts of the case. Wired analyzed the conflicting case law on the good faith exception. (more…)

Posted On Jun - 3 - 2012 Comments Off READ FULL POST

Jury Decides Google Did Not Infringe Oracle Patents but Question of Whether APIs Can Be Copyrighted Remains
By Brittany Horth – Edited by Michael Hoven

Oracle America, Inc. v. Google Inc., No. 10-03561 (N.D. Cal. 2012)
Special verdict on copyright claims from May 7, 2012 (hosted by Scribd)
Special verdict on patent claims from May 23, 2012 (hosted by Scribd)

A jury in the U.S. District Court of Northern California in San Francisco unanimously decided that Google’s Android mobile operating system does not infringe Oracle’s U.S. Patent No. RE38,104 and U.S. Patent No. 6,061,520. The special verdict came approximately two weeks after the jury unanimously decided that Google infringed Oracle’s copyright on Java application programming interfaces (APIs) but failed to reach any agreement on whether Google had a valid fair use defense.

U.S. District Judge William Alsup canceled the third phase of the trial, which would have addressed damages, and dismissed the jury after the second special verdict. However, the proceedings will continue since Judge Alsup has yet to answer the crucial legal question of whether APIs can be copyrighted in the first place, which will determine the fate of the partial verdict from the copyright infringement segment of the trial.

Bloomberg provides a brief overview of the case and the recent special verdicts. Ars Technica provides a more detailed explanation of the partial verdict from the copyright infringement segment of the trial and its potential ramifications for programmers. CNET provides a more detailed explanation of the verdict from the patent infringement segment of the trial.

(more…)

Posted On May - 30 - 2012 Comments Off READ FULL POST

By Erin Pritchard

New York Legislation Would Ban Anonymous Online Speech

Proposed legislation in New York would require New York-based websites, such as blogs and newspapers, to “remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post” says a report from Wired. The legislation is proposed in both the state Senate and Assembly, but no votes on the measures have been taken. Critics contend that this legislation poses First Amendment problems, and would degrade the Internet experience. Supporters contend that it would improve accountability online and stop “cyberbullies.”

Facebook IPO: Excitement and Disaster

On May 21, 2012, Facebook had their initial public offering, which Vanity Fair called the tech world’s most highly anticipated initial public offering since Google. However, Facebook was overvalued and Facebook’s share price fell below the offering price of $38, and has remained below since, reports Reuters. Now, Bloomberg notes that Facebook and the IPO underwriters face numerous lawsuits legal and serves as an embarrassing example of how not to run an IPO. As a result, there are billions of dollars in losses, investigations by two congressional committees, and the Securities and Exchange Commission.

White House Addressing the Reality of a Networked Nation

On Wednesday, May 23rd, the White House launched the new Digital Government Strategy. In the first Digital Government directive, “Building a 21st Century Platform to Better Serve the American People,” President Obama is pushing all federal agencies to develop mobile applications and thereby make government services more accessible to the public. Steven VanRoekel, the Federal Chief Information Officer, lauds the mandate for government agencies to open up their vaults of valuable data to the public, encouraging enterprising and external development. This release comes on the heels of President Obama’s Consumer Data Privacy Framework in February. The collection, security, and ownership of Americans’ personal online activity data is a lucrative, controversial and ever-growing market that has largely run unchecked since its inception. Adherence to the Consumer Bill of Rights is voluntary, but it is encouraging that the reality of America’s technological shift is beginning to be addressed by the White House.

Oracle v. Google, Patent Wars: Judge Learns to Code

In a move heralded by the technology community, Judge William Alsup of the intellectual property trial between Oracle and Google recently revealed he had learned to code in Java specifically for the case, Wired reports. Oracle is seeking damages from Google for infringing copyrights specifically related to Java APIs. Oracle’s lead counsel, David Boies, is still seeking infringer’s profits, but Judge Alsup is unconvinced that this is not just a “fishing expedition” as even he could write some of the infringing code in five minutes.

This case typifies the problems the tech industry is having with the patent system in the U.S. Visual.ly published a flowchart illustrating the convoluted nature of the patent wars being waged between large technology companies. Timothy Lee of Ars Technica criticizes solutions proposed by former Federal Circuit judges in an article specifically about software patent issues. Although the debate continues, the need for patent reform is recognized by both the innovators and the courts.

Posted On May - 27 - 2012 Comments Off READ FULL POST

Federal Circuit Holds that Apple May Have the Right to a Preliminary Injunction Against Samsung’s Tablet Computers
By Jacob L. Rogers – Edited by Charlie Stiernberg

Apple, Inc. v. Samsung Elecs. Co., No. 2012-1105 (Fed. Cir. May 14, 2012)
Slip opinion

The Federal Circuit affirmed in part, reversed in part, and remanded a decision by the Northern District of California, which had denied Apple a preliminary injunction against Samsung’s smartphones and tablet computers.

The Federal Circuit held that the district court did not abuse its discretion in denying a preliminary injunction on three of the four patents in suit—two design patents related to the iPhone and one utility patent related to the “bounce back” feature when scrolling through documents on both iPhone and iPad. However, with respect to the fourth patent (the “D’889 patent”) related to the design of the iPad, the court held that the district court erred by using a 1994 prototype design as a primary reference to find that Apple was unlikely to succeed on the merits. The district court had already found that there would be irreparable harm to Apple without an injunction, so the court remanded for a determination on the balance of the equities and the public interest in order to make a final determination as to whether a preliminary injunction should issue against Samsung’s tablet computers.

Rebecca Tushnet’s 43(B)log provides an overview of the case. Sarah Burstein expressed surprise at the decision in a guest post on Patently-O. Burstein expressed concern at the court’s unqualified acceptance of Apple’s theory of brand dilution from design patent infringement, which is normally reserved for Trademark. Ars Technica provides an overview of the stakes for each company, including graphs depicting worldwide share in the mobile and smartphone markets. Ars Technica also reports that following this decision Apple and Samsung attempted to return to the negotiation table per the judge’s orders, but were again unable to reach an agreement. (more…)

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

Written By: Sally Wang
Edited By: Charlie Stiernberg
Editorial Policy

Introduction:

Drug marketing faces the problem of an arms race — competitors attempt to out-compete each other by boosting their marketing efforts, at great expense, only to find that the baseline level of marketing needed to maintain the status quo has increased accordingly. These inefficiencies are costly and often harmful to the stakeholders — drug companies, patients, payors (e.g., Medicare/Medicaid or health insurance companies) and physicians. The Food and Drug Administration (“FDA”) is in the most strategic position to correct these inefficiencies, not only because it is currently tasked to monitor drug marketing, but more importantly because it oversees drug approval and labeling that creates the right to market in the first place. The FDA is also intimately familiar with the workings of the industry, allowing it to tailor its regulatory measures to achieve the most optimum results both for the public and the industry.  However, several First Amendment cases on drug marketing have severely curtailed the FDA’s ability to regulate in this area. Using the First Amendment to limit the FDA’s regulation of drug marketing creates a legal paradox: if a pharmaceutical company were able to sell a drug the same way as a consumer electronics company sells a TV, then the entire approval process would be undermined.  Selling a TV does not require complex regulatory pre-approval that then limits the advertising to the contents of a governmentally or scientifically-proscribed label. Therefore, drug marketing is a very unique space that requires a unique solution to its arms race problem.  Because intellectual property (“IP”) law provides the basis upon which drugs may be approved and marketed, as in the market exclusivity that is granted upon approval and the close tethering of patents to regulatory scheme, it serves as a better framework for determining the appropriate level of regulation for drug marketing as the resulting legal landscape provides for more flexibility that can address the current inefficiencies. This IP “carve-out” to the standard First Amendment rule of commercial speech is comparable to existing exceptions, such as spectrum regulation by Federal Trade Commission (“FTC”) and censorship by the National Endowment of the Arts (“NEA”), where there is a government conferred benefit and a strong public interest for such regulation. This comment argues that the FDA approval process has essentially carved out a similar exception to the standard First Amendment commercial speech doctrine, whereby the ability to market drugs stems from the IP rights generated through the regulatory process (e.g., market exclusivity and regulatory patent extensions) and that is inherent in the products (e.g., original patents issued by US Patent and Trademark Office).  Therefore, pharmaceutical marketing regulation should be considered in a legal framework that respects that IP origin. (more…)

Posted On May - 25 - 2012 Comments Off READ FULL POST
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