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

By Daniel Etcovitch – Edited by Emily Chan

Florida Judge Rules Bitcoin Is Not Equivalent to Money

Illinois Governor Signs Bill Restricting Use of Stingrays

DMCA DRM Circumvention Provision’s Constitutionality Being Challenged

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Federal Circuit Flash Digest

By Yuan Cao – Edited by Frederick Ding

Mere Commercial Benefit Not Enough to Trigger The On-Sale Bar

Technology-Based Software Solution Can Be Patentable 

Patent Disputes about Siri, iTunes, Notification Push, and Location

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Sixth Circuit Finds Privacy Interest in Mugshots under FOIA

By Filippo Raso – Edited by Ariane Moss

A split en banc Sixth Circuit reversed the lower courts’ ruling, holding individuals have a privacy interest in their booking photos for the purposes of Exemption 7(C) of the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. In so doing, the Court overruled Circuit precedent established two decades ago. The case was remanded with instructions to balance the public interests against the individual’s privacy interest.

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The EFF Challenges the DMCA Anti-Circumvention Provision: A First Amendment Fight

By Priyanka Nawathe – Edited by Kayla Haran

On July 21, 2016, the Electronic Frontier Foundation sued the United States government to overturn DMCA Section 1201, commonly referred to as the anti-circumvention provision. The EFF argues that this provision, designed to prevent circumvention of “technological protection measures,” actually chills research and free speech, and thus is a violation of the First Amendment.

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By Jaehwan Park – Edited by Kayla Haran

Bipartisan Lawmakers Introduce Bill Encouraging U.S. Government Agencies to Use the Cloud as a Secure Alternative to Legacy Systems

Snapchat Accused of Violating Illinois Biometric Information Privacy Act

The Office of the U.S. Trade Representative Announces New Policy Group to Promote Global Digital Trade

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1271084_10152203108461729_809245696_oBy Mila Owen – Edited by Kayla Haran

Belgian Privacy Commission v. Facebook Belgium, Court of First Instance (Belgium), November 9th 2015. Judgment available here.

The Belgian Court of First Instance, acting in summary proceedings, ruled that Facebook’s practice of storing and processing personal data of Belgian internet users without a Facebook account violates the Belgian Privacy Act, and ordered Facebook to suspend the practice (effective November 11, 2015) pending a final judgment on the merits. The National Law Review provides an overview of the case, and the Wall Street Journal offers some context on the Belgian court’s ruling and Facebook’s European legal disputes.

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Posted On Dec - 10 - 2015 Comments Off READ FULL POST

Sikhs for Justice LogoBy Ann Kristin Glenster – Edited by Yaping Zhang

Sikhs for Justice Inc.(SFJ) v. Facebook, Inc. (N.D. Cal. Nov 13, 2015, Case No. 15-CV-02442-LHK), opinion available here.

On November 13, the United States District Court of the Northern District of California dismissed the New York-based organization Sikhs for Justice’s (SFJ) case against Facebook for allegedly blocking the group’s page from users in India. The case raised issues concerning the reach of federal anti-discrimination laws, and the role of global online providers as the social internet space increasingly hosts platforms for political speech. Yet, the Court maintained that the federal Communications Decency Act (CDA), 47 U.S.C. § 230, immunized interactive online providers from liability arising from Title II of the Civil Rights Act (CRA) of 1964, and in so doing, refused to dwell on the wider principles at stake.

As social media companies operate global sites, questions remain as to the potential extraterritorial reach of U.S. laws. SFJ argued that Facebook’s incorporation in Delaware and its California offices justified bringing a case regarding Indian users to federal court. Facebook asserted that not only did federal law not reach that far, but furthermore that the company did not provide public accommodation under Title II of the CRA.

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Posted On Dec - 3 - 2015 Comments Off READ FULL POST

Fed. Cir. Flash DigestBy Colette Ghazarian – Edited by Yunnan Jiang

Evidence of Prior Art Cannot be Excluded for Untimeliness

In Ariosa Diagnostics v. Verinata Health, Inc., 2015-1215, 2015-1226 (Fed. Cir. Nov. 16, 2015), the U.S. Court of Appeals for the Federal Circuit held that evidence of prior art must still be considered by the Patent Trial and Appeal Board in its determination of the validity of the patent even if it is identified after the initial petition stage of an inter partes review. Ariosa Diagnostics filed a petition for inter partes review against patents held by Verinata Health related to prenatal testing products. Ariosa claimed that the patents were obvious in light of three prior-art references, which were not included in its initial petition. The references in question were contained in a brochure that was attached as an exhibit to an expert declaration. Ariosa claimed that the brochure showed the background knowledge a skilled artisan would have possessed about this particular topic. The Board declined to consider this document because, based on the language in its decision, it was not presented along with the initial petition and was only introduced at Ariosa’s expert’s deposition. The Court held that the Board’s decision not to consider the brochure was in error. It held that evidence of prior art can be considered by the Board even though it was not included in the initial petition for review. Since the Court could not determine whether the error was prejudicial or not, the decision was vacated and remanded to the Board.

Consent Decree Still Enforceable Even if Patent Later Found Invalid

In Delorme Publishing Company, Inc. v. International Trade Commission, 2014-1572 (Fed. Cir. Nov. 12, 2015), the Federal Circuit held that the invalidity of a patent could not retroactively eliminate the liability and penalty of an infringer of that patent under a consent decree. DeLorne Publishing Company sued the International Trade Commission (ITC) over its decision to enforce a consent decree prohibiting DeLorne from importing “certain two-way global satellite communication devices, system and components thereof” that infringed on certain patent claims, or gave instructions for users to infringe on the claims. The Court first held that by selling infringing devices containing infringing components with instructions to infringe still violated the consent decree. Next, and more importantly, the Court held that the fact that the patent claims referenced in the consent decree were later found to be invalid did not eliminate DeLorne’s liability and the $6,242,500 civil penalty for its actions while the patent was still valid. In reaching its conclusion, the Court referred to Part 4 of the consent decree, which states “The Consent Order shall not apply to any claim…that has expired or been found or adjudicated invalid or unenforceable.” The Court argued that based on the language in the decree, if the invalidity of a patent were to apply to past infringement, then the inevitable expiration of the patent would as well. This would be an absurd interpretation of the consent decree. The Court affirmed the ITC’s enforcement of the consent decree and the civil penalty against DeLorne.

Description of Pros and Cons of Patent Features Not Required for Negative Claims Limitation

Federal Circuit precedent holds that negative claim limitations in a patent claim (describing a patent by stating what it is not) satisfy the written description requirements for patents when the specification describes a reason to exclude the relevant limitation. Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012). In Inphi Corporation v. Netlist, Inc., 2015-1179 (Fed. Cir. Nov. 13, 2015), the Court extended this precedent by holding that “properly describing alternative features – without articulating advantages or disadvantages of each feature” – would constitute a reason to exclude the relevant limitation. In this case, Netlist, a manufacturer of computer system memory modules, amended one of its patents to include a negative claim limitation that excluded three types of signals from the description of its patent. Inphi argued that simply stating “DDR chip selects that are not CAS, RAS, or bank address signals” was not adequate under Santarus. Inphi argued that the phrase “reason to exclude” requires more than properly describing alternative features of the patented invention, while Netlist disagreed. The Court sided with Netlist, holding that Santarus did not create a heightened written description standard for negative claim limitations, beyond what is required by statute (35 U.S.C. § 112). All that is required to satisfy the written description standard of § 112 for negative claim limitations according to the Court are “properly described alternative features.”

Posted On Dec - 3 - 2015 Comments Off READ FULL POST

Italian FlagBy Shailin Thomas – Edited by Travis West

In October, Italy dropped its opposition to the European Union’s Unitary Patent legislation and joined the 25 other countries that have agreed to the regulations set forth in EU Regulations 1257/2012 and 1260/2012, bringing the Unitary Patent system one step closer to realization.

The Unitary Patent system seeks to streamline and simplify the current patent system in Europe.  Currently, each state issues and enforces its own patents within its jurisdiction, which means that patents must be obtained through each national patent office for Europe-wide protection.  It is possible to obtain a “European Patent” from the European Patent Office (EPO), but this is simply a bundle of national patents, which must be approved by their respective national patent offices — and those nations’ courts are the only available forums for enforcement.  This process is both lengthy and expensive, often costing around €36,000 to secure patent validation in all the EU member states, according to IP Watchdog. The Unitary Patent system would be a comprehensive and alternative process by which the EPO could issue patents that would be enforceable in all of the participating states. A specialized Unified Patent Court would handle litigation arising out of patent disputes.  By creating this single system for the issuance and enforcement of patents, the Unitary Patent legislation hopes to increase efficiency and consistency in intellectual property rights across Europe.

Until recently, Italy had been one of the strongest opponents of the Unitary Patent. Along with Spain, it challenged the legislation in 2013 before the European Court of Justice, claiming that the new regulations would prove detrimental to the social and economic cohesion of the European Union. The challenge, however, proved unsuccessful, and Italy did not join Spain in its subsequent unsuccessful challenge that claimed that the Unitary Patent’s translation policies are discriminatory against those who do not speak one of the system’s three official languages (French, English, and German), into which all patents must be translated.

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Posted On Dec - 3 - 2015 Comments Off READ FULL POST

Hacked By Over-X

By Mila Owen – Edited by Henry Thomas

In the wake of the release of the sixth round of section 1201 exemptions, both the DMCA and the rulemaking process of Library of Congress continue to draw criticisms and concern about practicality, overreaching, and abuse.

On October 27, 2015, the Library of Congress released its sixth round of official exemptions to the Digital Millennium Copyright Act’s (DMCA) Section 1201, which prohibits circumvention of technological protection measures (TPMs). The DMCA, enacted in 1998, criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (TPMs). Section 1201 makes it a copyright infringement to bypass a TPM, even if this entails no actual infringement of the copyright itself. The Library of Congress grants exemptions to §1201 every three years in a process known as the triennial review, where proponents of exemptions may seek renewal or expansion of exemptions or the granting of new exemptions in order to circumvent TPMs for non-infringing uses.

The IT Law Wiki provides a useful summary of the §1201 exception process.  Notably, in order for an exemption to be granted, the party advocating for the exemption has the burden to prove that the section otherwise interferes with noninfringing use.

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Posted On Dec - 3 - 2015 Comments Off READ FULL POST
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