A student-run resource for reliable reports on the latest law and technology news
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On August 14, 2014, the U.S. Food and Drug Administration (FDA) issued Draft Guidelines on the direct de novo classification process, a means of accelerating the approval of new types of medical devices posing only low to moderate health risks.[1]  The FDA created de novo classification in 1997, but after the process failed to achieve its purpose of expediting approval, the FDA introduced an alternative de novo process called “direct” de novo.

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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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CybersecuritySenate passes Cybersecurity Information Sharing Act

By Frederick Ding — Edited by Yunnan Jiang

S. 754 — Cybersecurity Information Sharing Act of 2015

The text of the bill is available here, and has been summarized by GovTrack.us.

On October 27, 2015, the Senate passed the Cybersecurity Information Sharing Act (CISA) of 2015. CISA enables companies to share cyber threat indicators with each other and the federal government, and immunizes companies from liability for sharing under the act. The bill was originally introduced by Senator Richard Burr (R-NC), Chairman of the Senate Select Committee on Intelligence, on March 17, 2015, and was also sponsored by Senator Dianne Feinstein (D-CA). The Intelligence Committee voted 14 to 1 to report the bill favorably, S. Rep. 114-32 (2015). Prior to its passage, the Senate rejected a number of proposed amendments that would have limited its scope. The act now heads to conference to be reconciled with the Protecting Cyber Networks Act, H.R. 1560, which the House passed on April 22, 2015.

According to the Intelligence Committee report, the purpose of the legislation is to protect private companies, critical infrastructure, and government systems from hostile cyberattacks by facilitating a “voluntary cybersecurity information sharing process that will encourage public and private sector entities to share cyber threat information, removing legal barriers and the threat of unnecessary litigation.” S. Rep. 114-32 at 2.

This legislation directs the Department of Homeland Security (DHS) to operate as an entry point for entities to share “cyber threat indicators” with the federal government and to disseminate shared indicators with other agencies through an automated, real-time process. It also enables companies to share information with each other, and establishes reporting requirements for agencies that are involved in the information sharing. Controversially, CISA also provides liability protection, immunizing entities that share cybersecurity information with each other or the government.

A summary of the history surrounding the Senate bill is available at Congress.gov, including several failed amendments. CNN calls CISA a “historic” bill, quoting a former NSA employee who said that CISA “doesn’t do anything except help . . . defend our companies better,” but notes that “tech companies were suspicious of the bill.” The Guardian and Wired provide further commentary.

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Posted On Nov - 18 - 2015 Comments Off READ FULL POST

Senate Judiciary CommitteeBy Bhargav Srinivasan – Edited by Olga Slobodyanyuk

In October, Senators Orrin Hatch (R-UT) and Christopher Coons (D-DE) introduced pending legislation S. 1890 – “Defend Trade Secrets Act of 2015” (the Bill) to the Senate Judiciary Committee. If passed, the Bill would provide a federal civil cause of action for the misappropriation of trade secrets related to a products and services used in interstate commerce.

The Bill serves two primary purposes: (1) to provide pathways to injunctive and monetary relief that would prevent loss of evidence and economic harm to victims; and (2) to create a uniform standard for misappropriation of trade secrets.

In a recent article, The Hill notes that the Senators had in mind cyber theft from Chinese competitors when drafting the Bill. In September 2015, the Obama administration reached an agreement with China President Xi Jinping that neither country would support economic espionage on private firms. However, beliefs that the agreement is toothless have led proponents of the Bill to argue for its importance in fighting cyber theft.

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Posted On Nov - 18 - 2015 Comments Off READ FULL POST

3293465641_b6c5081e87_qBy Keke Wu – Edited by Yunnan Jiang

Federal Circuit Rejects-in-part the District Court’s Claim Construction

On October 29, 2015, the U.S. Court of Appeals for the Federal Circuit ruled in two separate cases related to an Atlas patent on a protocol for controlling wireless network communications between a hub and multiple remotes, in which Atlas sued Medtronic and St. Jude Medical for patent infringement. In Atlas IP, LLC v. Medtronic, Inc., 2015-1071, 2015-1105 (Fed. Cir. Oct. 29, 2015), the Federal Circuit affirmed-in-part, reversed-in-part, and remanded the district court’s summary judgments. The Court first affirmed the district court’s non-infringement finding, where the dispute lies in how to construe the term “establish”. Rejecting Atlas’s argument that “establish” should be construed according to its “plain meaning,” the Court noted that, in the context of the particular patent, a more proper definition is “set up (an organization, system, or set of rules) on a firm or permanent basis.” The Court then reversed the district court’s finding of no anticipation and no obviousness on the ground of the incorrect claim construction. In Atlas IP, LLC v. St. Jude Med., Inc., 2015-1190 (Fed. Cir. Oct. 29, 2015), the Federal Circuit vacated and remanded the district court’s decision, which stated that the term “in advance” required a communication be sent before the communication cycle began. The Federal Circuit instead concluded that nothing in the claim language required the communication to be sent before the start of the communication cycle, and that other claims and the specification suggested information may be sent during the communication cycle.

No Jurisdiction to Claim Reputational Harm after Settlement

In Tesco Corp. v. National Oilwell Varco, L.P., 2015-1041 (Fed. Cir. Oct. 30, 2015), the United States Court of Appeals for the Federal Circuit held that it possessed no jurisdiction over attorneys’ claim of reputational harm from the district court judge’s critical remarks after the parties reached a settlement. Tesco Corporation and its attorneys filed the appeal from a decision of the United States District Court for the Southern District of Texas dismissing Tesco’s patent infringement suit with prejudice pursuant to the court’s inherent authority to sanction. At trial, Tesco’s attorneys made a representation to the court that later discovered to be false. The district court found that the representation justified a finding of bad faith and sanctioned Tesco by dismissing its case with prejudice. In the order, it called Tesco’s attorneys’ conduct “troubling.” During the pendency of the appeal, Tesco and defendant-appellees entered into a settlement resolving all outstanding issues. Tesco’s attorneys, however, continued to appeal the district court judge’s order alleging reputational harm. Because the settlement makes it unnecessary to decide whether the sanctions order can be considered a formal reprimand, the Federal Circuit held that Tesco no long had standing and dismissed the appeal. The Court explained that the settlement agreement ended the dispute and none of the parties had any interest in the underlying order, except for Tesco’s attorneys for reputational reasons.

Federal Circuit Affirms-in-part PTAB in Belden vs. Berk-Tek

In Belden Inc. v. Berk-Tek LLC, 2014-1575, -1576 (Fed. Cir. Nov. 5, 2015), the United States Court of Appeals for the Federal Circuit affirmed-in-part and reversed-in-part a inter partes review decision made by the Patent and Trademark Office’s Patent Trial and Appeal Board. The decision concerns U.S. Patent No. 6,074,503 owned by Belden Inc., which claims a method for making a communications cable. The Federal Circuit affirmed the Board’s decision to reject claims 1–4 of the ’503 patent. The Court stated that the Board was entitled to rely on its own reading of Japanese Patent No. 19910 to find that a skilled artisan would have understood the importance of aligning the core and conductors and the connection between achieving such alignment and preventing the core from twisting at the aligning die. The Federal Circuit, however, reversed the Board’s upholding of claims 5 and 6. In reaching its conclusion, the Federal Circuit reasoned the Board’s disregard of the insulation-independent alignment teaching of Japanese Patent No. 19910 violated the principle that “[a] reference must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect.” The Board erred in determining that Berk-Tek had not proven the obviousness of the methods of claims 5 and 6 of the ’503 patent by a preponderance of the evidence.

Posted On Nov - 18 - 2015 Comments Off READ FULL POST

NLRBBy Bhargav Srinivasan – Edited by Henry Thomas

On October 21, 2015, in Triple Play v. National Labor Relations Board, the Second Circuit affirmed a 2014 National Labor Relations Board ruling that Triple Play Sports Bar violated the National Labor Relations Act when it discharged two employees for liking and commenting on a critical Facebook status.

The case involved two employees of the Triple Play Sports bar, Vincent Spinella and Jillian Sanzone who had been fired for their online conduct. A third employee had published a post on Facebook stating: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” Spinella acted first when he “liked” that post. Next, Sanzone commented “I owe too. Such an asshole.” These actions were among the later responses in a chain of comments involving the former employee, other current employees, and Facebook friends – at least one of whom was a customer of the sports bar.

Section 7 of the National Labor Relations Act guarantees employees the right “to engage in other concerted activity for the purpose of… mutual aid or protection.” An administrative law judge with the NLRB determined that liking and commenting on the original employee’s Facebook post met the definition of concerted activity.  That protection, however, is lost if the activity is sufficiently disloyal.  The Supreme Court, in Labor Board v. Electrical Workers (Jefferson Standard), held that activity was sufficiently disloyal when it was disconnected from any ongoing labor dispute.  That test was used by the NLRB to conclude that Spinalla and Sanzone’s activity was protected.

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Posted On Nov - 17 - 2015 Comments Off READ FULL POST

UnknownBy Suyoung Jang – Edited by Ken Winterbottom

SEC approves crowdfunding of startups

On October 30, in a 3-1 decision, the Securities and Exchange Commission approved rules allowing the crowdfunding of start-up companies over the internet. Prior to the new rules, companies could only seek funds from accredited investors with a net worth of at least $1 million, excluding the value of their homes, or annual income of more than $200,000. The approved rules allow investors with annual income or net worth of less than $100,000 to contribute $2,000 or five percent of their net worth, whichever is greater. Those with higher incomes can invest up to ten percent of their net worth, but they are limited to $100,000 in all crowdfunding offerings during a 12-month period. While the new rules were implemented to spur job growth, some critics warn investors of unsound investments and fraud.

Bill introduced to criminalize warrantless use of “stingrays”

On November 2, Representative Jason Chaffetz, R-Utah introduced the Cell-Site Simulator Act seeking to limit the warrantless use of stingrays. Stingrays are cellular phone surveillance devices that mimic wireless carrier cell towers to connect to all nearby phones and capture location data and in some cases calls and text messages. The controversial device came into spotlight after the IRS Commissioner John Koskinen admitted last week that his agency uses stingrays in some investigations. The bill requires agents to acquire warrants before using stingrays, and provides for fines and up to ten years in prison for violations of its prescriptions. Exceptions exist for emergencies that involve “immediate danger of death,” national security, and those that fall under the Foreign Intelligence Surveillance Act. The full text of the bill is available here.

Newly introduced bill forces UK ISPs to keep a record of Web browsing history for a year

On November 4, the Home Secretary of the United Kingdom, Theresa May, introduced a draft piece of legislation known as the Investigatory Powers Bill. The proposed bill, which is the successor to a statute that the British High Court struck down last year, requires Internet Service Providers (ISPs) to hold a record of Web browsing history for a year. However, it will only record the Internet services a device has connected to, not the details of the individual webpages visited. To balance the heightened surveillance power it grants, the bill implements a “double lock” warrant authorization process whereby a request for emergency authorization by the Home Secretary is subject to judicial review. In addition to its browsing history provisions, the bill creates a new criminal offense with a two-year prison sentence for abuse of communications data by public authorities.

Posted On Nov - 17 - 2015 Comments Off READ FULL POST
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Draft Guideline for

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Insuring Patents

By Yaping Zhang Edited by Jennifer Chung and Ariel Simms Despite its ...

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