District Court Limits the Use of State Secrets Privilege in Warrantless Wiretapping
By Kathryn Freund – Edited by Davis Doherty

Al-Haramain Islamic Found., Inc. v. Obama, No. 07-0109 (N.D. Cal., Mar. 31, 2010)
Memorandum of Decision and Order (hosted by Electronic Frontier Foundation)

The District Court for the Northern District of California granted summary judgment for the plaintiffs, the defunct Al-Haramain Islamic Foundation and the charity’s two attorneys, finding that they presented sufficient non-classified evidence to hold the government liable for electronic surveillance without a warrant in violation of the Foreign Intelligence Surveillance Act (“FISA”).  50 U.S.C. §§ 1801–71.

Chief Judge Walker rejected the government’s argument that the Executive can invoke the State Secrets Privilege (“SSP”) to conceal the existence of a FISA warrant, and thus preclude a case the Executive believes would compromise national security. Instead, the government bore the burden of proving the existence of a FISA warrant once the plaintiffs established sufficient evidence of electronic surveillance. The court argued that Congress enacted FISA to impose judicial review of surveillance that the Executive cannot avoid by invoking the SSP.  In addition, Congress established a procedure under section 1806(f) allowing the government to show the legality of particular instances of surveillance — a procedure the government did not use in this case.

The San Francisco Examiner and Electronic Frontier Foundation provide an overview of the case and the Terrorist Surveillance Program under which the National Security Agency wiretapped Plaintiffs. The New York Times Editorial page views the court’s holding that FISA preempts the SSP as a step in the right direction in the fight against warrantless wiretapping. Wired questions whether the decision will be upheld if appealed. (more…)

By Chinh Vo

Moviemakers Sue Tens of Thousands of BitTorrent Users

A coalition of independent filmmakers has sued more than 20,000 individual movie torrent downloaders for copyright infringement in federal court in Washington D.C., the Hollywood Reporter, Esq. blog reports. The series of lawsuits marks the first major move in the U.S. by the movie industry to target individual torrent downloaders, rather than the torrent sites themselves, and is preceded by similar actions in Germany and the U.K. According to the Hollywood Reporter blog, these suits may signal the beginning of a wave of “massive litigation” against movie torrent downloaders, as 30,000 new lawsuits are allegedly forthcoming.

UK Journalist Wins Libel Appeal

The Guardian and Ars Technica report that on April 1, UK science journalist Simon Singh won an important appeal in a libel suit brought against him by the British Chiropractic Association (“BCA”). Singh is accused of libel based on an article he wrote, which described some of the BCA’s treatment practices as “bogus.” In reversing an earlier decision that had required Singh to meet the difficult standard of showing that the BCA was knowingly engaged in false claims, the court accepted Singh’s statements to be a matter of opinion, noting that it was not in the position to settle scientific claims. Singh no longer has to show that his comments were factual and can instead use a “fair comment” defense.

Major Online Service Providers Push Privacy Law Reforms

Wired reports major online service providers, including Google and Microsoft, have combined forces with internet rights organizations such as the Electronic Frontier Foundation to form Digital Due Process, a coalition pushing for modernization of U.S. privacy laws. The group says that current electronic privacy legislation, particularly the 1986 Electronic Communications Protection Act, needs to be updated to reflect changing technology. Specifically, Digital Due Process advocates the adoption of several principles, such as requiring judicial approval for government access to information about email and phone usage. None of the internet companies that are part of the coalition, however, have announced changes to their own practices.

Court Invalidates Gene Patent
By Elizabeth Akerman – Edited By Davis Doherty

Assn. for Molecular Pathology, et al. v. USPTO, et al. Case no. 09-CV-4514 (S.D.N.Y. Mar. 29, 2010)
Slip Opinion (hosted by PatentlyO)

The United States District Court for the Southern District of New York held the patents issued to Myriad Genetics for isolated versions of two human genes to be “directed to a law of nature,” and therefore invalid pursuant to 35 U.S.C. § 101.

Judge Sweet granted the Plaintiffs’ motion for summary judgment to invalidate 15 claims in 7 patents relating to the BRCA1 and BRCA2 genes.  The court reasoned that isolated DNA containing naturally occurring sequences is not markedly different from the native DNA, and thus falls within the “product of nature” exception to patentable subject matter under § 101. Additionally, Judge Sweet held that the claims regarding comparisons of BRCA sequences to determine whether a mutation is present are invalid under § 101, as they only refer to “abstract mental process.”  The court further notes that even if the claims-in-suit included the physical transformations associated with isolating DNA, this would merely constitute a data-gathering step and would not satisfy § 101.

A brief review of the decision is available at Patent Docs Biotech & Pharma Patent Law & News Blog. PatentlyO suggests that this decision is likely to be reversed by the Federal Circuit. (more…)

Federal Circuit Says Patent Preamble Not Limiting
By Debbie Rosenbaum – Edited by Jad Mills

Marrin v. Griffin, Appeal 2009-1031 (Fed. Cir., Mar. 22, 2010)
Slip Opinion

On March 22, 2010, the Federal Circuit affirmed the district court’s summary judgment that U.S. Patent No. 5,154,448, which related to a beverage cup scratch-off label, was invalid because it was anticipated under 35 U.S.C. § 102(b).

Judge Dyk, writing for the majority held that the use recited in the preamble, namely that the scratch-off label was “for permitting a user to write thereon without the use of a marking implement.” was not to be treated as a claim limitation. In finding that this use statement in the preamble was not limiting, the court noted that “use descriptions such as this are rarely treated as claim limitations.” The court held that “the mere fact that a structural term in the preamble is part of the claim does not mean that the preamble’s statement of purpose or other description is also part of the claim.”  Because the preamble was not limiting, the patent owner could not use it to distinguish the patent from the prior art, thus allowing the court to invalidate the patent under section 102(b).

Inventive Step and Patent Hawk both offer good overviews of the case. Patent Case Review provides a summary of the legal issues.  Gary Odom of Patent Hawk argues that “Judge Newman got it right, which is to say that this nicely self-contained issue is ripe for en banc review. The inconsistent treatment of preambles begs for clarity.” (more…)

By Davis Doherty

GoDaddy Follows Google out of China

On March 25, the Washington Post reported that GoDaddy.com would cease registering Chinese domain names in response to intrusive new regulations. The leading Internet registrar’s decision was spurred by concerns that the rules, requiring registrants to provide extensive personal information and photos, would strengthen China’s ability to censor its citizens. CNET reports that GoDaddy has also been the subject of an increasing number of cyber attacks based in China. Reuters provides analysis connecting GoDaddy’s move to Google’s decision to relocate its search services to Hong Kong.

The “Hot News” Doctrine — Not Dead Yet

The Citizen Media Law Project (“CMLP”) blog reports that a recent decision in the District Court for the Southern District of New York, Barclays Capital Inc. v. TheFlyOnTheWall.com, 06 Civ. 4908 (S.D.N.Y. Mar. 18, 2010), may revive the flagging “hot news” doctrine. That doctrine, based on unfair competition laws, provides some protection against copying of time-sensitive facts that are uncopyrightable. TheFlyOnTheWall.com fell afoul of the rule by including the plaintiffs’ stock recommendations in real time on its financial newsfeed, and under the court’s ruling must now delay publication of that information by several hours. CMLP discusses the possibility that the court’s reasoning may apply to news aggregators, but ultimately argues that the ruling will not apply to such websites.

Not-So-Trusted Authorities?

On March 24, computer security specialists released a research paper suggesting that Certificate Authorities (“CAs”) may be assisting government efforts to spy on encrypted communications. The Electronic Frontier Foundation analyzes the report and extensively discusses CAs — a collection of over 100 companies and governments who provide electronic certificates for secure websites such as Gmail and Bank of America. These certificates verify that no third party is impersonating either end of the communication in a “man-in-the-middle” attack, an approach that would bypass the encryption normally protecting the user’s data against interception. Since web browsers only check whether a certificate issuer is on the trusted list, one CA could provide false certificates that would enable attacks at any secure site.

Wired’s Threat Level reports that Arizona company Packet Forensics manufactures hardware to automate this sort of attack, suggesting that false certificates may indeed be available. Commentators are also concerned that some CAs may be particularly vulnerable to governmental pressure to issue forged certificates, which could then be used to spy on dissidents or steal intellectual property.