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Following an unfavorable verdict from a second jury and the Court’s denial of the first motion for judgment as a matter of law (“JMOL”), Oracle America, Inc. (“Oracle”) filed a renewed motion for JMOL pursuant to FRCP Rule 50(b). Oracle’s second motion, filed July 6, 2016, claimed that “no reasonable jury” could find that Google’s “verbatim [and] entirely commercial” copying of Oracle’s code, in order to compete with Oracle, was fair use.[1] The motion will be heard on August 18, 2016.

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By Kayla Haran – Edited by Jaehwan Park

Pokémon Go Captures Full Google Account Permissions on iOS

Senate Committee Holds Hearing on FCC’s Proposed Broadband Privacy Rules

Federal Judge Suppresses Evidence Obtained Using Stingray in First Such Decision

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The Federal Circuit, in the closely divided en banc decision of SCA v. First Quality, held that Congress had authorized laches as a defense against legal remedy for patent infringement. This contradicts the Supreme Court’s recent holding that for copyright law, laches only applies to legal remedy when Congress hasn’t established a statute of limitations. The Supreme Court has granted cert to review the Federal Circuit’s holding.

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U.S. and E.U. officials formally approved the “Privacy Shield” this week, a new agreement governing the transfer of data between Europe and the United States. The final adoption of the transatlantic agreement comes after several years of negotiations, which were accelerated last October when the Court of Justice of the European Union (“CJEU”) invalidated a key part of the U.S.-E.U. “Safe Harbor,” an agreement that had previously enabled American companies to transfer data from the European Union without running afoul of its stricter privacy laws.

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Federal Circuit Flash Digest

 

By Frederick Ding — Edited by Jaehwan Park

 

Patent Assertion Entity Not a “Patentee” By Itself

 

Induced Infringement Verdict Not Defeated by Defendant’s Unreasonable Belief in Noninfringement

 

Continuations Can Be Filed on Same Day as Earlier Application’s Issuance

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Senate Judiciary CommitteeBy Bhargav Srinivasan – Edited by Olga Slobodyanyuk

In October, Senators Orrin Hatch (R-UT) and Christopher Coons (D-DE) introduced pending legislation S. 1890 – “Defend Trade Secrets Act of 2015” (the Bill) to the Senate Judiciary Committee. If passed, the Bill would provide a federal civil cause of action for the misappropriation of trade secrets related to a products and services used in interstate commerce.

The Bill serves two primary purposes: (1) to provide pathways to injunctive and monetary relief that would prevent loss of evidence and economic harm to victims; and (2) to create a uniform standard for misappropriation of trade secrets.

In a recent article, The Hill notes that the Senators had in mind cyber theft from Chinese competitors when drafting the Bill. In September 2015, the Obama administration reached an agreement with China President Xi Jinping that neither country would support economic espionage on private firms. However, beliefs that the agreement is toothless have led proponents of the Bill to argue for its importance in fighting cyber theft.

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Posted On Nov - 18 - 2015 Comments Off READ FULL POST

3293465641_b6c5081e87_qBy Keke Wu – Edited by Yunnan Jiang

Federal Circuit Rejects-in-part the District Court’s Claim Construction

On October 29, 2015, the U.S. Court of Appeals for the Federal Circuit ruled in two separate cases related to an Atlas patent on a protocol for controlling wireless network communications between a hub and multiple remotes, in which Atlas sued Medtronic and St. Jude Medical for patent infringement. In Atlas IP, LLC v. Medtronic, Inc., 2015-1071, 2015-1105 (Fed. Cir. Oct. 29, 2015), the Federal Circuit affirmed-in-part, reversed-in-part, and remanded the district court’s summary judgments. The Court first affirmed the district court’s non-infringement finding, where the dispute lies in how to construe the term “establish”. Rejecting Atlas’s argument that “establish” should be construed according to its “plain meaning,” the Court noted that, in the context of the particular patent, a more proper definition is “set up (an organization, system, or set of rules) on a firm or permanent basis.” The Court then reversed the district court’s finding of no anticipation and no obviousness on the ground of the incorrect claim construction. In Atlas IP, LLC v. St. Jude Med., Inc., 2015-1190 (Fed. Cir. Oct. 29, 2015), the Federal Circuit vacated and remanded the district court’s decision, which stated that the term “in advance” required a communication be sent before the communication cycle began. The Federal Circuit instead concluded that nothing in the claim language required the communication to be sent before the start of the communication cycle, and that other claims and the specification suggested information may be sent during the communication cycle.

No Jurisdiction to Claim Reputational Harm after Settlement

In Tesco Corp. v. National Oilwell Varco, L.P., 2015-1041 (Fed. Cir. Oct. 30, 2015), the United States Court of Appeals for the Federal Circuit held that it possessed no jurisdiction over attorneys’ claim of reputational harm from the district court judge’s critical remarks after the parties reached a settlement. Tesco Corporation and its attorneys filed the appeal from a decision of the United States District Court for the Southern District of Texas dismissing Tesco’s patent infringement suit with prejudice pursuant to the court’s inherent authority to sanction. At trial, Tesco’s attorneys made a representation to the court that later discovered to be false. The district court found that the representation justified a finding of bad faith and sanctioned Tesco by dismissing its case with prejudice. In the order, it called Tesco’s attorneys’ conduct “troubling.” During the pendency of the appeal, Tesco and defendant-appellees entered into a settlement resolving all outstanding issues. Tesco’s attorneys, however, continued to appeal the district court judge’s order alleging reputational harm. Because the settlement makes it unnecessary to decide whether the sanctions order can be considered a formal reprimand, the Federal Circuit held that Tesco no long had standing and dismissed the appeal. The Court explained that the settlement agreement ended the dispute and none of the parties had any interest in the underlying order, except for Tesco’s attorneys for reputational reasons.

Federal Circuit Affirms-in-part PTAB in Belden vs. Berk-Tek

In Belden Inc. v. Berk-Tek LLC, 2014-1575, -1576 (Fed. Cir. Nov. 5, 2015), the United States Court of Appeals for the Federal Circuit affirmed-in-part and reversed-in-part a inter partes review decision made by the Patent and Trademark Office’s Patent Trial and Appeal Board. The decision concerns U.S. Patent No. 6,074,503 owned by Belden Inc., which claims a method for making a communications cable. The Federal Circuit affirmed the Board’s decision to reject claims 1–4 of the ’503 patent. The Court stated that the Board was entitled to rely on its own reading of Japanese Patent No. 19910 to find that a skilled artisan would have understood the importance of aligning the core and conductors and the connection between achieving such alignment and preventing the core from twisting at the aligning die. The Federal Circuit, however, reversed the Board’s upholding of claims 5 and 6. In reaching its conclusion, the Federal Circuit reasoned the Board’s disregard of the insulation-independent alignment teaching of Japanese Patent No. 19910 violated the principle that “[a] reference must be considered for everything it teaches by way of technology and is not limited to the particular invention it is describing and attempting to protect.” The Board erred in determining that Berk-Tek had not proven the obviousness of the methods of claims 5 and 6 of the ’503 patent by a preponderance of the evidence.

Posted On Nov - 18 - 2015 Comments Off READ FULL POST

NLRBBy Bhargav Srinivasan – Edited by Henry Thomas

On October 21, 2015, in Triple Play v. National Labor Relations Board, the Second Circuit affirmed a 2014 National Labor Relations Board ruling that Triple Play Sports Bar violated the National Labor Relations Act when it discharged two employees for liking and commenting on a critical Facebook status.

The case involved two employees of the Triple Play Sports bar, Vincent Spinella and Jillian Sanzone who had been fired for their online conduct. A third employee had published a post on Facebook stating: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!” Spinella acted first when he “liked” that post. Next, Sanzone commented “I owe too. Such an asshole.” These actions were among the later responses in a chain of comments involving the former employee, other current employees, and Facebook friends – at least one of whom was a customer of the sports bar.

Section 7 of the National Labor Relations Act guarantees employees the right “to engage in other concerted activity for the purpose of… mutual aid or protection.” An administrative law judge with the NLRB determined that liking and commenting on the original employee’s Facebook post met the definition of concerted activity.  That protection, however, is lost if the activity is sufficiently disloyal.  The Supreme Court, in Labor Board v. Electrical Workers (Jefferson Standard), held that activity was sufficiently disloyal when it was disconnected from any ongoing labor dispute.  That test was used by the NLRB to conclude that Spinalla and Sanzone’s activity was protected.

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Posted On Nov - 17 - 2015 Comments Off READ FULL POST

UnknownBy Suyoung Jang – Edited by Ken Winterbottom

SEC approves crowdfunding of startups

On October 30, in a 3-1 decision, the Securities and Exchange Commission approved rules allowing the crowdfunding of start-up companies over the internet. Prior to the new rules, companies could only seek funds from accredited investors with a net worth of at least $1 million, excluding the value of their homes, or annual income of more than $200,000. The approved rules allow investors with annual income or net worth of less than $100,000 to contribute $2,000 or five percent of their net worth, whichever is greater. Those with higher incomes can invest up to ten percent of their net worth, but they are limited to $100,000 in all crowdfunding offerings during a 12-month period. While the new rules were implemented to spur job growth, some critics warn investors of unsound investments and fraud.

Bill introduced to criminalize warrantless use of “stingrays”

On November 2, Representative Jason Chaffetz, R-Utah introduced the Cell-Site Simulator Act seeking to limit the warrantless use of stingrays. Stingrays are cellular phone surveillance devices that mimic wireless carrier cell towers to connect to all nearby phones and capture location data and in some cases calls and text messages. The controversial device came into spotlight after the IRS Commissioner John Koskinen admitted last week that his agency uses stingrays in some investigations. The bill requires agents to acquire warrants before using stingrays, and provides for fines and up to ten years in prison for violations of its prescriptions. Exceptions exist for emergencies that involve “immediate danger of death,” national security, and those that fall under the Foreign Intelligence Surveillance Act. The full text of the bill is available here.

Newly introduced bill forces UK ISPs to keep a record of Web browsing history for a year

On November 4, the Home Secretary of the United Kingdom, Theresa May, introduced a draft piece of legislation known as the Investigatory Powers Bill. The proposed bill, which is the successor to a statute that the British High Court struck down last year, requires Internet Service Providers (ISPs) to hold a record of Web browsing history for a year. However, it will only record the Internet services a device has connected to, not the details of the individual webpages visited. To balance the heightened surveillance power it grants, the bill implements a “double lock” warrant authorization process whereby a request for emergency authorization by the Home Secretary is subject to judicial review. In addition to its browsing history provisions, the bill creates a new criminal offense with a two-year prison sentence for abuse of communications data by public authorities.

Posted On Nov - 17 - 2015 Comments Off READ FULL POST

SenateBy Sheri Pan – Edited by Cristina Carapezza

S. 2044 – The Consumer Review Freedom Act

The text of the bill is available here.

S.2044 on Govtrack.us.

On September 16, 2015, the Senate introduced the Consumer Review Freedom Act (CRFA) of 2015. The bill was originally introduced by Senator John Thune (R-SD).  On Wednesday, November 4, 2015, the Senate Committee on Commerce, Science, and Transportation held a hearing to discuss the bill.

CRFA voids any form contract provision that prohibits or penalizes individuals for creating reviews, or transfers the intellectual property rights of reviews to the vendor.  It covers written, verbal, or pictorial reviews, performance assessments, and analyses of products, services, or conduct.  The bill protects against only standardized contracts that the individual did not have a meaningful opportunity to negotiate.  The Federal Trade Commission and state attorney generals can bring civil actions to enforce the bill.  CRFA does not provide for private individuals to bring causes of action.

The bill provides several exceptions.  It allows terms that restrict disclosure of trade secrets, privileged information, confidential information, or personnel, medical, and law enforcement records that implicate personal privacy.  It also does not affect duties of confidentiality or defamation, libel, or slander lawsuits. (more…)

Posted On Nov - 17 - 2015 Comments Off READ FULL POST
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