A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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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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By Adam Lewin

Damages Reinstated by First Circuit in Tenenbaum / RIAA Suit

The United States Court of Appeals for the First Circuit reinstated a $675,000 jury verdict entered against Joel Tenenbaum for copyright infringement of 30 sound recordings accomplished using file-sharing software. At trial, the jury determined that Tenenbaum was guilty of willful infringement and awarded the plaintiff record companies statutory damages of $22,500 for each song as permitted under 17 U.S.C. § 104(c). Judge Nancy Gertner of the United States District Court for the District of Massachusetts reduced that amount by a factor of ten to $67,500, holding that anything more would be unconstitutionally excessive. The First Circuit reinstated the original jury verdict because Judge Gertner had failed to consider a motion for remittitur prior to reaching the constitutional issues. The case has been remanded to the District of Massachusetts for reconsideration of the motion for remittitur.

FCC Publishes New Net Neutrality Rules

When the FCC attempted to enforce its net neutrality rules, the United States Court of Appeals for the District of Columbia Circuit ruled that it had not adequately established its regulatory authority to promulgate them in the first place. Ars Technica reports that the FCC has finalized new net neutrality rules in response to this ruling and published them in the Federal Register. Verizon and MetroPCS are expected to renew their challenges to this set of regulations, with the support of some Congressional Republicans, who have vowed to overrule the new rules by legislation.

Senate Antitrust Panel Holds Hearings on Google with Chairman Eric Schmidt

As the New York Times reports, a Senate antitrust panel heard testimony last week from Google’s Chairman, Eric Schmidt. Because of its size and dominance in online search, Google has come under antitrust scrutiny. Perhaps motivated by complaints from Google’s competitors, the Senate panel focused on whether Google was leveraging its power in search to promote its newer or less popular products by artificially ranking them higher. Schmidt, for his part, emphasized that Google is faced with intense competition in many of its products, including search, and that it maintains its market position by offering superior products rather than through anticompetitive behavior. Google has outlined its positions in its “Guide to the Senate Judiciary Hearing.”

Righthaven May Face Bankruptcy

So-called copyright troll Righthaven’s model of buying rights to sue from copyright holders is under siege. Earlier in the summer, the United States District Court for the District of Nevada dismissed a Righthaven suit, holding that one cannot acquire “a bare right to sue” without any ownership rights in a copyright. Citizen Media Law Project reports that in separate litigation, Righthaven was defeated and ordered to pay attorneys fees of approximately $34,000. But it is now asking for a stay of judgment pending appeal, lest it fall into bankruptcy. Ars Technica speculates that the copyright troll business model may have been doomed from the beginning.

Posted On Sep - 29 - 2011 Comments Off READ FULL POST

Written by Raquel Acosta
Edited by Albert Wang and Vicki Blohm
Editorial Policy

I. Introduction

The current copyright framework is becoming obsolete as we try to make a digital world run on an analog legal system. The Copyright Act covers “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be visually perceived, either directly or with the aid of a machine or device.” 17 U.S.C. § 401. The ability of the digital medium to interact dynamically with a user or generate unique visualizations along predefined parameters has enabled many novel forms of art which could not have been foreseen by the drafters of the Copyright Act of 1976.[1] Terms of art such as “fixed” or “copy” have lost much of their meaning, and the law’s notion of a tangible medium is becoming less relevant.[2] The digital arts are a misfit medium within current copyright categories as the underlying software and possible Internet platform add dynamic and collaborative elements which were previously absent from intellectual property. This Comment will address the disconnect between traditional copyright law and the realities of the digital age, using emerging forms of digital art as archetypal examples.  (more…)

Posted On Sep - 22 - 2011 Comments Off READ FULL POST

Second Circuit Rules First Sale Doctrine Only Applies to Goods Manufactured Domestically
By Heather Whitney – Edited by Chinh Vo

John Wiley & Sons v. Kirtsaeng, No. 09-4896-cv (2d Cir. Aug. 15, 2011)
Slip Opinion

After the Supreme Court’s non-precedential decision in Costco v. Omega, 131 S.Ct. 565 (2010), it is no surprise that the nexus of the first sale doctrine and works manufactured outside of the United States remains in flux.  In Wiley, the Second Circuit affirmed the judgment of the District Court for the Southern District of New York, awarding statutory damages to book publisher John Wiley & Sons for copyright infringement after a jury trial. In a case of first impression, the Second Circuit held that defendant Kirtsaeng, a Thai student studying in the United States, was not entitled to a “first sale doctrine” defense under the Copyright Act when he resold  books imported from abroad, finding the doctrine inapplicable to copyrighted works produced outside of the United States.

The Library Journal provides an overview of the case and commentary on its significance to libraries. TechDirt criticizes the decision, arguing it makes reselling items lawfully purchased overly risky when the place of manufacture is uncertain because, under the opinion, the first sale doctrine would not apply to goods made overseas.  (more…)

Posted On Sep - 21 - 2011 Comments Off READ FULL POST

By Andrew Crocker

AT&T/T-Mobile Merger Blocked by Justice Department

The New York Times reports that the Justice Department is seeking to prevent the proposed merger between AT&T and T-Mobile, which are respectively the second and fourth largest mobile carriers in the United States.  In a suit filed in the U.S. District Court for the District of Columbia, the Justice Department stated that the merger would “substantially lessen competition” in the wireless marketplace and lead to price increases.  According to Bloomberg News, in the event the merger does not go through, Deutsche Telekom, which owns T-Mobile, is contractually entitled to $7 billion in “breakup fees” and other concessions, which would provide AT&T with a significant incentive to fight the government intervention in court.  The Washington Post points out that a court battle will also have high stakes for the Justice Department, which has been criticized for taking a weak approach to possible antitrust issues in recent high-profile mergers, including Comcast’s acquisition of NBC earlier this year.

EFF Challenges Dismissal of NSA Wiretapping Suits

Appearing before a panel of the Ninth Circuit, the Electronic Frontier Foundation (EFF) has challenged the dismissal of a number of lawsuits focusing on the National Security Agency’s alleged illegal mass wiretapping of Internet traffic through backdoor access to major telecommunications companies, Wired reports.  EFF brought suit against AT&T and other telecoms, but the suits were dismissed after the NSA invoked the state secrets doctrine and Congress passed a law that allowed the President to grant the companies retroactive immunity.  A parallel suit against the NSA itself was dismissed for lack of standing.  According to EFF, allowing the President to grant the telecoms immunity is a violation of the Constitution’s separation of powers, suggesting that the suits should be allowed to proceed on their merits.

Unredacted Wikileaks Files Available Online

A quarter-million U.S. State Department cables contained in an encrypted file belonging to the whistleblower organization Wikileaks are currently available on the web in unredacted form, according to Ars Technica.  The diplomatic cables contain the names of informants and confidential sources, whom the State Department argues may be put in danger by the publication.  Wired reports that Wikileaks, which has before removed potentially sensitive information from documents it leaks to the public, blames its contacts at the British newspaper the Guardian for publishing a book that contained the password to the unredacted file.  However, Der Spiegel reports that the Guardian responded by blaming Wikileaks founder Julian Assange for his own allegedly lax security procedures, a charge also made by Daniel Domscheit-Berg, an ex-spokesman for Wikileaks.

Posted On Sep - 6 - 2011 Comments Off READ FULL POST

Federal Circuit Invalidates Software Patent As Mere Mental Process
By Albert Wang – Edited by Chinh Vo

CyberSource Corporation v. Retail Decisions, Inc., No. 2009-1358 (Fed. Cir. August 16, 2011)
Slip Opinion

The Federal Circuit affirmed the United States District Court for the Northern District of California’s grant of summary judgment, agreeing that plaintiff CyberSource’s patents were invalid for ineligible subject matter under 35 U.S.C. § 101.

Writing for a unanimous panel, Judge Dyk held that CyberSource’s method of verifying credit card transactions by matching up Internet addresses represented an abstract process, doable entirely within the human mind and thus not amenable to patent. The court also invalidated CyberSource’s patent for the actual program in its computer readable medium, characterizing the patent claim as a mere enshrining of an unpatentable method in object code.

Patently-O provides an overview of the case. TechDirt characterizes the decision as part of a broader trend, derived from Bilski, against “bogus” software patents. Ars Technica also takes a favorable view of the result, but characterizes the Federal Circuit’s human-capability test as an artificial distinction. (more…)

Posted On Sep - 6 - 2011 Comments Off READ FULL POST
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Federal Circuit Flas

By Cristina Carapezza Rosen Wins TV Headrest Patent Suit The Federal Circuit ...

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Government Agents In

By Sheri Pan - Edited by Jens Frankenreiter United States v. ...

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Mississippi Attorney

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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

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