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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Judge Posner Dismisses Apple v. Motorola Patent Suit in its Entirety
By Charlie Stiernberg – Edited by Jeff Habenicht

Apple, Inc. v. Motorola, Inc., No. 1:11-cv-08540, 2012 WL 2376664 (N.D. Ill. June 22, 2012).
Slip Opinion
(Hosted by Electronic Frontier Foundation)

The United States District Court for the Northern District of Illinois dismissed with prejudice the suit between Apple, Inc. and Motorola, Inc. in its entirety.  The court had previously excluded testimony from the parties’ damages experts and cancelled the jury trials on liability.  Before deciding whether to dismiss the case, however, the court requested briefs and heard oral arguments from the parties regarding each other’s damages claims, declaratory relief, injunctive relief, and reasonable royalties.

Following the hearing, Circuit Judge Posner, sitting by designation, held that: (1) neither party had presented sufficient evidence to withstand summary judgment on damages, (2) neither party was entitled to injunctive relief, (3) neither party could establish a reasonable royalty rate for a compulsory license, and (4) declaratory judgment in favor of either party would confer no tangible benefit on the victor.  Judge Posner concluded by dismissing the case with prejudice, reasoning that, “It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that he could have a second chance to prove damages.”  Apple v. Motorola, No. 1:11-cv-08540, slip op. at 38.

Forbes provides a high-level overview of the outcome.  Ars Technica places the case in the context of related litigation between Apple and Motorola.   FOSS Patents provides an in-depth analysis of Judge Posner’s reasoning and its potential precedential effect.

(more…)

Posted On Jul - 6 - 2012 Comments Off READ FULL POST

Supreme Court Rules Against the FCC, but Avoids First Amendment Issues
By Sarah Jeong – Edited by Jennifer Wong

Federal Communications Commission v. Fox Television Stations, Inc., No. 10-1293 (U.S. June 21, 2012)
Slip Opinion

The Supreme Court ruled last week that the Federal Communication Commission’s (“FCC”) rules on “fleeting expletives” did not give fair notice to networks like Fox and ABC, and were therefore unconstitutionally vague. While all eight justices (Justice Sotomayor recused herself) were unanimous in a judgment against the FCC, Justice Ginsburg split away from the majority opinion, arguing in a separate concurrence that the Supreme Court should overturn its 1978 decision in FCC v. Pacifica Foundation.

The Los Angeles Times reports on the ruling. Forbes and Ars Technica chided the Supreme Court for avoiding the pivotal First Amendment question.

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Posted On Jul - 2 - 2012 1 Comment READ FULL POST

By Susanna Lichter

Fair Use Defense Bolstered by 7th Circuit Decision in South Park Viral Video Lawsuit

In a victory for fair use proponents, the Seventh Circuit Court of Appeals upheld a District Court’s grant of a motion to dismiss based on fair use before any discovery took place in a lawsuit between the makers of the South Park television show and plaintiff Brownmark Films, LLC. Judge Cudahy found South Park’s substantial recreation of Brownmark Films’ viral video “What What (In the Butt)” to be clearly fair use based solely on the two videos, allowing the defendants to avoid costly discovery and trial expenses, Ars Technica reports. South Park’s near shot-for-shot rendition substituted the flamboyant star of the original with a young boy and was considered by the court to be an “obvious” example of parody. The court further commented that Brownmark Films’ broad discovery request gave the plaintiffs the appearance of a “copyright troll.”

24 Arrested by FBI in Global Cyber Crime Sting Operation

“Operation Card Shop,” a two-year FBI investigation into the buying and selling of credit card data, identity theft, and counterfeit documents culminated earlier this week in the arrest of twenty-four people around the globe. The sting was announced in a statement by the U.S. Attorney’s office for the Southern District of New York and involved the apprehension of eleven suspects located in the United States, thirteen located abroad, and the execution of more than thirty search warrants. According to a report by Wired, the FBI facilitated the bust by setting up a phony web forum to monitor hackers’ online exchange of stolen financial data. Among the suspects arrested was Mir Islam, aka “JoshTheGod,” a self proclaimed founder of the online carding forum Carders.org and member of the hacking group UGNazi.

NZ Court Rules Search of Megaupload Founder’s Mansion Illegal

The High Court of New Zealand found the search and seizure of the infamous Megaupload founder Kim Dotcom’s electronic data, automobiles, and bank accounts performed by New Zealand police to be invalid and illegal. New Zealand police issued warrants and stormed Dotcom’s mansion earlier this year pursuant to an official request for legal assistance by the United States as part of an extradition treaty between the two countries. The High Court’s 56-page decision may prove to be crucial to Dotcom’s effort to avoid extradition to the United States on charges of copyright infringement and money laundering. In their coverage of the ruling, Ars Technica expressed uncertainty that Dotcom will be able to retrieve his unlawfully retained data since the FBI has already returned to the United States with copies of the data.

Posted On Jul - 2 - 2012 Comments Off READ FULL POST

By Jacob L. Rogers

Intel Acquires 1,700 Patents From Interdigital for $375 Million.

Intel has publicly announced its purchase of Interdigital’s patent portfolio, which is primarily composed of wireless patents. In the wake of the deal, Reuters voiced some concerns about the relative value of the deal, noting that the patents in this case were acquired at $220,000 per patent, compared to the $750,000 per patent and $735,000 per patent in the Nortel and Motorola deals, respectively. The acquisition of wireless patents could indicate a desire from Intel to push its chip manufacturing more towards mobile devices, where equipment and software updates are increasingly being applied over a wireless connection. Interdigital stock rose over 25 percent following the news of the Intel acquisition.

Motorola Continues Lawsuits over FRAND Patents

According to a report from Ars Technica, Motorola is continuing to sue companies over patents that it has agreed to license under fair, reasonable and non-discriminatory (“FRAND”) terms. Although MPEG-LA (an organization that specializes in licensing standards patents) has said that the price of one of Motorola’s patents should be 10-20 cents per unit, Motorola’s standard terms are to ask companies for 2.25 percent of revenues from products that make use of the patented standards. Many companies have already accepted Motorola’s terms, although both Apple and Microsoft continue to fight Motorola’s prices. Last week, Richard Posner referred to the whole patent system as “chaos” and told Motorola that he did not believe they could obtain an injunction for a standards essential patent.

Judge Rules that Netflix May be Required to Provide Subtitles Under the American Disabilities Act

Judge Michael Ponsor ruled against dismissal of a case requiring Netflix to provide closed captioning for its programming pursuant to the American Disabilities Act (“ADA”). Netflix had attempted to claim that the ADA did not apply to services provided over the Internet. Boston.com reports that Judge Ponsor rejected the Netflix interpretation, holding that Congress intended the ADA to apply to evolving forms of technology and keep current with the times. Judge Ponsor extended this to web-based businesses, even though the act, passed in 1990, did not contemplate business conducted over the Internet at the time of its passage. Under Judge Ponsor’s reading, nearly all websites could be required to provide features for improved access by people with disabilities.

Google Reveals Censorship Request Information

Google has revealed that between July and December in 2011 it received more than 1,000 requests from governments around the world asking for the removal of content from its servers. The New York Times reports that some requests included an American police department asking for removal of a video showing police brutality, Canadian authorities asking for removal of a video showing a citizen urinating on his passport and flushing it down a toilet, and 14 requests asking for removal of videos that showed information about Spanish authorities such as mayors and public prosecutors. Google has refused to remove these videos, although it has complied with almost 50 percent of requests overall and 93 percent of requests coming from the U.S. government. These statistics do not include removal of Google content from Iran or China, both of which regularly censor Google content without informing the company.

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

Federal Circuit Sets Forth New Standard for Willful Infringement
By Jie Zhang – Edited by Jennifer Wong

Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., No. 2010-1050 (Fed. Cir. June 14, 2012)
Slip Opinion

The Court of Appeals for the Federal Circuit, in a 2-1 ruling following an en banc decision that sent the case back to panel for rehearing, partly reversed its earlier decision from February 10, 2012, which had affirmed the verdict of the District Court for the District of Arizona against W.L. Gore and had upheld the district court’s doubling of the jury’s damages award for willful patent infringement.

On panel rehearing, the Federal Circuit reaffirmed the validity of Bard’s patent but vacated its prior opinion on the issue of willful infringement. The Federal Circuit employed the two-prong test for willfulness. The court redefined the first prong of the test and held that the objective determination of the likelihood that a defendant’s conduct constituted infringement is a question of law for the court to decide. Only after the objective threshold is satisfied can the jury consider the subjective recklessness of the defendant’s actions. The court further stated that if the defendant has a reasonable defense or non-infringement theory, then the objective threshold is not overcome and there is no willful infringement. Thus, the court remanded the case to the district court to determine whether the objective prong of willful infringement is satisfied under this new standard and to reconsider whether the enhanced damages award is proper.

JOLT Digest previously reported on the Federal Circuit’s earlier decision in the battle between Bard and Gore. Thomson Reuters provides an overview of the case. Patently-O comments on the implications of the new standard. (more…)

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