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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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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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Stephen Hawking™: Famed Physicist Seeks Trademark Protection For His Name

By Amanda Liverzani – Edited by Saukshmya Trichi

Stephen Hawking is posed to leverage his physics fame as a brand name. The renowned theoretical physicist has filed an application to register his name as a trademark with the U.K. Intellectual Property Office. The trademark, if approved, will give Hawking greater control over how his name is used in connection with certain goods and services including charitable endeavors, scientific research, and medical devices.

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Flash Digest: News in Brief

By Jeanne Jeong

European Regulators and Watchdogs Increase Investigation of “Technology Giants”

Snapchat Published Transparency Report Revealing Government Data Sharing

New Senate Cyberbill Measure to Protect Americans from Cybercrime

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Australian Parliament Passes Data Retention Law Requiring Storage of User Metadata

By Jenny Choi – Edited by Katherine Kwong

On March 26, 2015, the Australian Senate passed the Telecommunications Amendment Bill 2015. The bill requires the Internet Service Providers (“ISPs”) and telecommunication providers to encrypt and retain user metadata for two years, and prohibits a person from disclosing or using information about the existence or non-existence of a warrant. The purpose of the Bill is to ensure national security and provide law enforcement agencies adequate access to the information they need.

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By Lan Du – Edited by Asher Lowenstein

Flo & Eddie, Inc. v. Sirius XM Radio, Inc., et al, No. 13 Civ. 5784 (S.D.N.Y. Nov. 14, 2014) Slip Opinion hosted by plainsite.org.

The Southern District of New York ruled against Sirius XM Radio, Inc. (“Sirius”) in a lawsuit brought by Flo & Eddie, Inc. (“Flo and Eddie”), a company owned by founding members of the legendary 1960s rock band The Turtles. The court recognized the common law copyright under New York State law in the public performance rights of The Turtles’ pre-1972 sound recordings. Sirius has until December 5 to submit factual defenses, or else the court will enter summary judgment in favor of Flo and Eddie and proceed to determine damages.

Flo and Eddie currently own all ownership interests in the recordings of The Turtles, all of which are made before 1972. Sirius, a national broadcaster of radio programs and provider of digital audio content through satellite and internet, has been performing The Turtles’ pre-1972 compositions and also reproduced the sound recordings. Sirius did not pay any royalties for the sound recordings nor did it obtain any authorization. Flo and Eddie therefore filed a $100 million class action against Sirius for copyright infringement.

This is the second case Sirius XM has lost in companion suits filed in three states. In an earlier ruling, hosted by AmLawDaily, at the U. S. District Court for the Central District of California on September 22, 2014, Sirius was held liable under California law for copyright infringement. The suit in Florida is still pending. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST

By Amanda Liverzani – Edited by Yunnan Jiang

Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014)

Applying the Supreme Court’s recent Alice Corp. v. CLS Bank decision that clarified the abstract idea exception to subject matter patent-eligibility, the Federal Circuit invalidated a patent for a method of accessing online content after viewing advertisements in Ultramercial, Inc. v. Hulu, LLC.

U.S. Patent 7,346,545, (“the ‘545 patent”), owned by advertising company Ultramerical, claimed “a method for distributing copyrighted media products over the Internet where the consumer receives a copyrighted media product as no cost in exchange for viewing an advertisement, and the advertiser pays for the copyrighted content.” Ultramercial, Inc. v. Hulu, LLC, No. 09-CV-6918, slip op. (Fed. Cir. Nov. 14, 2014), at 3. Ultramercial brought suit against WildTangent, Youtube, and Hulu in the United States District Court for the Central District of California alleging infringement of the ‘545 patent. Id. Youtube and Hulu were dismissed from the case and WildTangent filed a motion to dismiss for failure to state a claim on the grounds that the subject matter of the ‘545 patent was not patent-eligible. Id. at 5. Following the District Court’s grant of WildTangent’s motion, the Federal Circuit twice reversed. Id. at 5–6 . On both occasions the Supreme Court vacated the Federal Circuit’s decisions and remanded the case for further consideration, first in light of its decision in Mayo, and again following its decision in Alice. Id. at 6. On November 14, 2014 the Federal Circuit, applying the Supreme Court’s Alice test, changed its previous position and found the ‘545 patent invalid. Id. at 3.

Under the Patent Act, 35 U.S.C. §101, the scope of patent-eligible subject matter is limited to “processes, machines, manufacturers, and compositions of matter,” while “laws of nature, natural phenomena, and abstract ideas” are excepted from patentability. Id. at 7. In Alice, the Supreme Court outlined a two-step test to distinguish “patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Id. The first step requires courts to determine whether the patent is directed at a patent-ineligible concept. If it is, the court proceeds to step two, which asks “whether the claims contain an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id. at 7–8 (internal quotations omitted). If the claim contains no such transformative or inventive element, it is not patent-eligible. Id. at 10. (more…)

Posted On Nov - 30 - 2014 Comments Off READ FULL POST

By Katherine Kwong – Edited by Mengyi Wang

Plane_DirtboxAccording to a report in the Wall Street Journal, the U.S. Marshals Service has been using airborne “dirtboxes” to collect data on mobile phones. The program, designed for criminal suspect surveillance, is accused of also collecting cell phone data on many Americans who are not suspected of any crime.

“Dirtboxes” – named after the acronym for their manufacturer, Digital Recovery Technology Inc.  (now owned by Boeing Co.) – induce cell phones to connect to them by imitating cell phone towers. A dirtbox sends cell phones signals that indicate that it is the strongest cell tower available, causing cell phones to connect automatically to it. Doing so allows the dirtbox to collect the International Mobile Subscriber Numbers (IMSI) of all devices in range. The data collected from the cell phones can be used to identify and locate individuals to a relatively small area. The U.S. Marshals Service has placed the devices on Cessna airplanes leaving from five different airports, allowing the program to cover a large proportion of the U.S. population. Each flight has the potential to collect data from “tens of thousands” of Americans, according to the Wall Street Journal article.

It is unclear how much the devices might disrupt the normal operations of cell phone networks. Dirtboxes can briefly interrupt phone calls, but authorities say they have sought to minimize harmful impacts by taking steps to ensure 911 calls are not interrupted. Verizon told the Wall Street Journal they were unaware of the program, while other major carriers declined to comment. In a follow-up article in the Wall Street Journal, the Federal Communications Commission (“FCC”), which is responsible for licensing and regulating cell phone services, said, “We were not aware of this activity.” Frederick Joyce, a communications law attorney, questioned whether the program constituted “harmful interference” with licensed cell phone transmissions.

(more…)

Posted On Nov - 25 - 2014 Comments Off READ FULL POST

By Henry Thomas

Ads For Content Scheme Held To Be Abstract Idea, Not Patentable Process

In 2001, Ultramercial filed a patent for a method whereby consumers could receive copyrighted products for free after viewing an advertisement and later targeted several technology companies – including Hulu, YouTube, and WildTangent – with infringement claims. Ultramercial v. Hulu has taken a looping route through the justice system, with the infringement claim being dismissed by the district court, reversed by the circuit court, and vacated and remanded by the Supreme Court twice. The third time around, the district court again found the patent to be invalid, and this time the circuit court agreed, citing the Supreme Court decision in Alice v. CLS Bank and using the two-step test outlined in it. Following the first step in Alice, the court held that the patent covered a patent-ineligible concept; even though Ultramercial described an “ordered combination of steps,” they amounted to nothing more than an abstract idea. In addressing the second Alice prong, the court held that the claims do not “do significantly more than simply describe an abstract method” and that, while no longer dispositive, the machine-or-transformation test could still give guidance to the second Alice prong. Applying that test, the court claimed that the Internet and a general-purpose computer were not novel machines, and transferring money, content, or other intangibles was not a transformation.

Opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1544.Opinion.11-12-2014.1.PDF

Federal Circuit Limits Application of Collateral Estoppel in Patent Litigation

E.Digital held patents (‘774 and ‘108) for an audio recording device that used flash memory to store the recording, and sued Futurwei over alleged infringement. In a different case, decided by the District of Colorado, the ‘774 patent was constructed narrowly to include only devices that exclusively used flash memory and not RAM. In e.Digital v. Futurwei (Huawei), the district court held that e.Digital could not re-litigate the construction of either patent, because the doctrine of collateral estoppel forced the court to rely on the earlier construction. While the Fed. Cir. Agreed that e.Digital was estopped from arguing the construction of the ‘774 patent (and glossed over an argument that the inclusion of a RAM-based microprocessor fundamentally altered the construction) the court held that the ‘108 patent could be argued because, though it incorporated the ‘774 patent, it was fundamentally unrelated. Further limiting the doctrine of collateral estoppel, dicta from the decision indicated that the relatedness (or not) of the two patents was not dispositive, and “[e]ach case requires a determination that . . . the issue previously decided is identical.”

Opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/14-1019.Opinion.11-17-2014.1.PDF

Electronics Company Avoids Patent Enforcement By Directing Sales Outside U.S.

Halo Electronics, a maker of electronic components, sued Pulse Electronics over alleged infringement. Though it was found that Halo’s patent was non-obvious and valid, the Federal Circuit affirmed in Halo Electronics, Inc. v. Pulse Electronics, Inc. that no direct infringement had occurred. Although Pulse made business negotiations in America, contracted with American companies like Cisco, and incorporated their circuit components into products destined for sale in the states, all sales took place in foreign countries, outside the reach of U.S. patent law. The court held that under 35 U.S.C. § 271(a), “offers to sell . . . within the United States” were limited to offers made anywhere in the world for a sale in the U.S., and not for offers made in the U.S. for sale elsewhere.

Opinion: http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1472.Opinion.10-20-2014.1.PDF

Posted On Nov - 25 - 2014 Comments Off READ FULL POST

 

Photo By: archie4ozCC BY 2.0

By Steven Wilfong — Edited by Travis West

Benthall Complaint, U.S. v. Benthal (S.D.N.Y. October 29, 2014).  Complaint hosted by the Department of Justice.

Blake Benthall, the alleged operator of the popular drug market website Silk Road 2.0, was arrested last week as part of a law enforcement operation that successfully shut down Silk Road 2.0, as well as several other online dark markets. The complaint filed in the case alleged that Benthall ran the site under the alias “Defcon,” and charges him with narcotics trafficking, conspiracy to aid and abet computer hacking, conspiracy to transfer fraudulent identification documents, and money laundering. Benthall Compl. 1–4.

Benthall’s arrest and the seizure of Silk Road 2.0 were part of “Operation Onymous,” a coordinated action involving multiple agencies, including Europol, the FBI, and US Immigration and Customs Enforcement.  Over 27 websites were shut down as part of the operation.

The complaint describes several methods used to gain information about Silk Road 2.0 and ascertain the identity of “Defcon.” Law enforcement officials used the site to buy illegal drugs anonymously, Benthall Compl. at 12, and an undercover Homeland Security Investigations agent successfully infiltrated the website’s support staff, id. at 6. However, the most surprising aspect of the investigation is that the FBI was able to identify a foreign server hosting the Silk Road 2.0 website. Id. at 21. Because the site was hidden with Tor anonymity software, identifying the website’s location should have been very difficult. Officials involved in the investigation have been reluctant to reveal how the server was located, leading to speculation about how Tor was compromised.

Although law enforcement agencies are optimistic about the ability to shut down other black market websites in the future, the possibility that Tor users’ anonymity may be compromised has also led to concerns about the potential impact on legitimate users. Wired and Ars Technica provide further discussion of the issue.

While law enforcement agencies are reluctant to divulge the method that was used to locate Silk Road 2.0, the Tor blog advances several possible explanations, including the use of SQL injections (a common web bug), Bitcoin deanonymization, or Denial of Service attacks against the Tor network itself. Regardless of how law enforcement agencies identified the server hosting Silk Road 2.0, the Benthall Complaint indicates that identification was a critical step in the investigation, as it allowed officials to access the server, at which point it was determined to be controlled and maintained by a person using the email address “blake@benthall.net.” Benthall Compl. at 23. Subsequent surveillance activities confirmed that Benthall used this address. Id. at 28.

The possibility that government agencies may be able to identify Tor users has significant implications for online privacy and anonymity. The Tor software is widely used as a method of protecting anonymity, and prior to Operation Onymous, was considered to be very secure. While Tor software is used to conduct illegal activities, it also has a number of legitimate uses. “[W]histle-blowers, political activists and dissidents, [and] journalists” use anonymized sites to communicate securely and in private. The Tor Blog raises concerns that governments could use weaknesses in the Tor software to identify and silence political dissidents.

Posted On Nov - 19 - 2014 Comments Off READ FULL POST
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Federal Circuit Flas

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

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Pass the Patented Pe

  [caption id="attachment_3359" align="alignleft" width="150"] Photo By: darkuncle - CC BY ...

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Stephen Hawking™:

By Amanda Liverzani – Edited by Saukshmya Trichi Application Stephen Hawking is ...

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Flash Digest: News i

By Jeanne Jeong European Regulators and Watchdogs Increase Investigation of “Technology ...

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Australian Parliamen

By Jenny Choi – Edited by Katherine Kwong Telecommunications (Interception and ...