By Eric Engle

Prosecutors Drop Controversial “Cyberbullying” Case: Possible Appeal?

On November 20, Wired reported that the federal prosecutors in the Lori Drew cyberbullying case did not plan to appeal Drew’s acquittal. The trial judge reversed Drew’s criminal conviction by a jury, holding that criminal penalties for violating a website’s terms of service would be unconstitutional. Although Drew won’t have to further defend against criminal charges for her alleged harassment of a teenage girl who later committed suicide, she might still be liable for civil penalties if the teenage girl’s family decides to sue.

UK Possibly Increasing Standards for Libel Jurisdiction

Britain has long had plaintiff-friendly libel laws relative to the United States and other common-law countries. As a result, plaintiffs will often seek to bring their libel cases in the UK, even if another country might be more closely connected to the facts of the case. However, the availability of Britain as a forum for libel claims may be narrowing – Citizen Media Law Blog reports that a recent High Court decision dismissed a libel claim concerning a posting on a South African magazine’s website, reasoning that the country’s ties to the case were insufficient when only “about [four] visits might have been made by one or more visitors based in the UK.” Although the holding is not permanent British law unless either Parliament or the British Supreme Court endorses it, the decision may signal tougher jurisdictional requirements for British libel claims.

Woman Fighting Insurer After Facebook Posting Leads to Denial of Benefits

CBC News reports that a Quebec woman has had insurance benefits for depression cancelled after publishing vacation photos. The insurance agent claimed that photos of her enjoying her vacation were evidence that she wasn’t depressed. The woman is planning to challenge the denial, and her lawyer has described the Facebook investigation as inappropriate. In response to criticisms about Facebook postings as evidence of mental condition, the insurer stated: “We would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

ACLU Launches dotRights.org

The Stanford Center for Internet and Society reports that the ACLU of Northern California has launched an online educational resource on privacy and free speech in the internet. The site includes a retro-style video, Facebook quiz, and the chance for developers and legal activists to get involved.

Federal Circuit Affirms Muscle Supplement Patent Invalid as Anticipated by Prior Art Advertisement
By Ian B. Brooks – Edited by Miriam Weiler

Iovate Health Sciences, Inc. v. Bio-Engineered Supplements & Nutrition, Inc., No. 2009-1018 (Fed. Cir. November 19, 2009).
Slip Opinion

The Federal Circuit affirmed the District Court for the Eastern District of Texas decision invalidating Iovate Health Sciences’ U.S. Patent 6,100,287 (“’287”) as anticipated under 35 U.S.C. § 102(b).

The Federal Circuit held that the advertisement for Iovate’s protein supplement published in Flex magazine rendered the patent obvious and invalid. The court found that the advertisement was an anticipatory printed publication that disclosed the ‘287 patent claim limitations.  With the knowledge provided in the ad, the court noted, one skilled in the art could practice an embodiment of the invention.

Patently-O provides an overview of the case. The National Law Journal provides brief comments from each party’s counsel. (more…)

By Michelle Berger

Chief Judge of Federal Circuit to Hang Up His Robes

As Patently-O reports, Chief Judge Paul Michel of the Federal Circuit Court of Appeals announced on November 20 that he will be retiring from the bench on May 31, 2010. Judge Randall Rader will replace him as chief judge at that time. Throughout his tenure, Michel has been outspoken on patent issue and the role of the court in shaping patent policy. Although he will no longer be able to influence patent law from the bench, some have suggested that Michel may still play an important policy role by attempting to influence patent legislation.

Bell Siblings Squabble Over 3G Ads

On November 18, a judge in the Northern District of Georgia denied AT&T’s request for a temporary restraining order to prevent Verizon from showing its 3G comparison ads, CNET News reports. AT&T sued Verizon earlier in November over the ads, claiming that, while the advertisements accurately depict AT&T’s relatively sparse 3G coverage, the ads mislead consumers by implying that AT&T doesn’t provide cellular or data coverage in those areas. Verizon has responded that its ads are clearly about 3G service and has modified the ads slightly to highlight the 3G comparison. Despite the unfavorable ruling, AT&T intends to continue the suit against Verizon. Meanwhile, the Wall Street Journal Law Blog ponders whether AT&T’s suit may be multiplying the damage done by the Verizon’s ad, as the lawsuit and the media coverage surrounding it have drawn increased attention to the difference in 3G coverage between AT&T and Verizon.

Lexis and Westlaw to Go the Way of Yahoo and AskJeeves?

Google announced new functionality for its Google Scholar project on November 17, adding support for users to search case law and legal journals. Despite the possibility of Google moving into their turf, Lexis and Westlaw appear unphased, explaining that the services are not really competing since Google doesn’t offer headnotes, summaries, cite checking, or the same level of search sophistication. The Wall Street Journal Law Blog acknowledges these shortcomings, but warns that “one underestimates the capabilities of Google at his or her own peril.”

Court extends application of Bilski and invalidates patents
By Kate Wevers – Edited by Amanda Rice

H&R Block Tax Servs., Inc. v. Jackson Hewitt Tax Service, Inc., No. 6:08-cv-37 (E.D. Tex. Nov. 10, 2009)
Slip Opinion (hosted by Patently O)

Magistrate Judge Love, sitting in the United States District Court for the Eastern District of Texas, found several of H&R Block’s financial instrument patents invalid, and recommended that Jackson Hewitt’s motion for summary judgment be granted-in-part.

The court applied the machine-or-transformation test from In re Bilski, 545 F.3d 943 (Fed. Cir. 2008), cert. granted 77 U.S.L.W. 3656 (U.S. Jun. 1, 2009) (No. 08-964), to H&R Block’s computerized systems patents as well as to its methods patents. In so doing, the court extended Bilski beyond process patents. Only one of the patents survived the machine-or-transformation test and the remaining patents were held invalid under 35 U.S.C. § 101.

The original complaint is available here. Patent Storm has a helpful explanation of one of the patents. Patently O and the 271 Patent Blog both provide brief summaries of the case. (more…)

Ninth Circuit Remands Cybersquatting Case
By Debbie Rosenbaum – Edited by Amanda Rice

Lahoti v. Vericheck Inc., No. 08-35001 (9th Cir., Nov. 16, 2009)
Opinion

On November 16th, the Ninth Circuit held that the district court’s finding that the mark “VeriCheck” was an inherently distinctive, legally protectable mark was based in part on erroneous legal reasoning and in part on valid reasoning. Accordingly, it vacated the lower court’s award of summary judgment in favor of the defendant and remanded. However, the Ninth Circuit affirmed the district court’s finding that the counterclaim defendant acted in bad faith. The court noted that it is proper for a court to consider the fact that the PTO has allowed others to register the mark at issue without requiring a showing of secondary meaning as weighing in favor of a finding of inherent distinctiveness.

The Ninth Circuit held that because the district court did not rely exclusively on the proper legal standard, its finding that Disputed Mark was distinctive must be vacated — even if there may have also existed proper legal grounds for finding the mark distinctive. The court also held that Lahoti acted at least “partially in bad faith” by gambling that the district court would agree with his interpretation of trademark law. He knew or should have known that he would risk cybersquatting liability if his gamble failed.

BNA and Michael Atkins, a Seattle trademark lawyer, provide relevant overviews of the case. (more…)