A student-run resource for reliable reports on the latest law and technology news
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On August 14, 2014, the U.S. Food and Drug Administration (FDA) issued Draft Guidelines on the direct de novo classification process, a means of accelerating the approval of new types of medical devices posing only low to moderate health risks.[1]  The FDA created de novo classification in 1997, but after the process failed to achieve its purpose of expediting approval, the FDA introduced an alternative de novo process called “direct” de novo.

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Insuring Patents

By Yaping Zhang – Edited by Jennifer Chung and Ariel Simms

Despite its increasing availability, patent insurance—providing defensive protection against claims of patent infringement and funding offensive actions against patent infringers—continues to be uncommon. This Note aims to provide an overview of the patent insurance landscape.

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Defend Trade Secrets Act of 2016 Seeks to Establish Federal Cause of Action for Trade Secrets Misappropriation

By Suyoung Jang – Edited by Mila Owen

Following the Senate Judiciary Committee’s approval in January of the Defend Trade Secrets Act of 2016, the Committee has released Senate Report 114-220 supporting the bill. The bill seeks to protect trade secret owners by creating a federal cause of action for trade secret misappropriation.

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Federal Circuit Flash Digest

By Evan Tallmadge – Edited by Olga Slobodyanyuk

The Linked Inheritability Between Two Regions of DNA is an Unpatentable Law of Nature

HP Setback in Challenging the Validity of MPHJ’s Distributed Virtual Copying Patent

CardPool Fails to Escape an Invalidity Judgment But Can Still Pursue Amended Claims

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Amicus Brief by EFF and ACLU Urging Illinois State Sex Offender Laws Declared Unconstitutional under First Amendment

By Yaping Zhang – Edited by Mila Owen

With the Illinois Supreme Court gearing up to determine the constitutionality of the state’s sex offender registration statute, two advocacy non-profits have filed amicus briefs in support of striking the law down.

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New Information about Carrier IQ Software Sparks Concerns that Wireless Carriers Have Violated Federal Anti-Wiretapping Laws

By Abby Lauer – Edited by Michael Hoven

Last month, a security researcher from Connecticut published information about a software program installed on some mobile smartphones that may be surreptitiously collecting data about how the phones are used. The software, called Carrier IQ and manufactured by a company of the same name, has been described as hard to detect, hard to remove, and programmed to run by default without the user’s knowledge. The scandal escalated last week when Senator Al Franken sent a letter to Carrier IQ asking for details about the software and the company’s business practices. Privacy analysts are concerned that the software violates the Federal Wiretap Act, as amended by the Electronic Communications Privacy Act, which forbids the intercepting of “wire, oral or electronic communication” and authorizes penalties of $100 per day for each violation. 18 U.S.C. §§ 2511, 2520. Other commentators have suggested that Carrier IQ may also violate the Computer Fraud and Abuse Act. 18 U.S.C. § 1030. So far, at least eight class action lawsuits have been filed against Carrier IQ and various device makers and wireless carriers.

Computerworld provides a general overview of the Carrier IQ software and the recent scandal. For a more detailed analysis of the legal issues, see Forbes, paidContent.org, and Talking Points Memo. (more…)

Posted On Dec - 14 - 2011 Comments Off READ FULL POST

Supreme Court Hears Arguments on Patent-Eligibility of Medical Protocol Based on Correlations Between Blood Tests and Patient Health
By Laura Fishwick – Edited by Michael Hoven

Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 10-1150 (U.S. Dec. 7, 2011)
Transcript of Oral Arguments

Mayo v. Prometheus returned to the Supreme Court after the Court of Appeals for the Federal Circuit again held that Prometheus’s method patents covered a particular application of a natural phenomenon, not the natural phenomenon itself, and were therefore valid. JOLT Digest covered the Federal Circuit’s initial ruling and its reaffirmation.

The Supreme Court heard arguments concerning whether a treatment that indicates a drug dosage based on correlations between metabolite levels in the patient’s blood and drug efficiency or toxicity is eligible for patent protection. Mayo argued that Prometheus’s patent was invalid because it covered a natural phenomenon: the correlation between metabolite levels, as revealed by a blood test, and patient health. Additionally,  Mayo claimed that the patent preempted all competing tests that would use metabolite levels (above a certain concentration that Prometheus’s patent covers) to adjust drug dosages. Transcript of Oral Argument at 8. Prometheus argued that their patent would not preempt competing tests because another party could file an improvement patent specifying a different range. Id. at 42. Prometheus said that its claims were patentable because it applied the conventional step of measuring metabolites in patients to the discovery of the natural correlation, and analogized its patents to patented processes that detect earthquakes, also a natural phenomenon.

Patently-O provides an overview of the case. Ars Technica criticized the lack of attention that the Court gave to the issue of whether medical patents are legal in general, analogizing the issue to overly-broad software patents. IPWatchdog has predicted that the Court will interpret § 101 as a “coarse filter” and leave Mayo to challenge Prometheus under § 102 and § 103. Published before the Court heard oral arguments, the Wall Street Journal argued that the Court should continue its longstanding policy of providing strong patent protection to encourage investment by finding Prometheus’s diagnostic test to be patentable subject matter. The Washington Post features a discussion of the main arguments. (more…)

Posted On Dec - 13 - 2011 1 Comment READ FULL POST

By Jennifer Wong

Government urges SCOTUS to rule in favor of generic drug maker

The Supreme Court heard oral arguments to determine whether generic drug manufacturer Caraco Pharmaceutical could sue Novo Nordisk to narrow its description for the patent on Prandin, a diabetes drug, in FDA filings. As Reuters reports, Caraco alleges that the description for the patent on Prandin is too broad and prevents any similar generic drug from entering the market. The government filed a brief opposing the Federal Circuit’s earlier ruling in favor of Novo Nordisk, noting that generic drugs can save consumers billions of dollars each year. According to FiercePharma, Novo Nordisk’s primary patent on the Prandin has expired, but the company retains a second patent for the use of the drug in combination with metformin. Novo Nordisk claims that its FDA submission was proper. A decision is expected in late June.

Facebook and FTC reach settlement over privacy practices

On November 29th, the Federal Trade Commission (FTC) announced that it had reached a draft settlement with Facebook over its privacy practices, reports The Economist. The FTC alleged that it had found several cases where Facebook had engaged in deceptive practices that violated federal law. The privacy breaches included failing to make deleted images and videos inaccessible and passing on personal information to advertisers. According to The Washington Post, under the terms of the settlement, Facebook will not face any monetary fines. Facebook has agreed to seek its users’ permission before it makes any changes to its data sharing policy and to undergo an independent privacy audit every two years for the next 20 years. The settlement should be finalized at the end of December after a period for public comment.

Apple loses iPad trademark suit in China

Reuters reports that the Intermediate People’s Court in Shenzhen, China, has ruled against Apple in its trademark infringement suit against computer display manufacturer Proview Technology (Shenzhen). Apple had alleged that Proview Technology infringed on its “iPad” trademark. However, the court disagreed. According to the Financial Times, Proview Technology had registered trademarks for the “iPad” name in China and several other countries in 2000. Apple agreed to purchase the global trademark rights to the name from Proview Electronics (Taiwan), in 2009, but Proview Technology retained the Chinese rights. Proview Technology and Proview Electronics are both affiliates of Proview International, a Hong-Kong-listed holding group. Apple can still appeal the verdict. Proview Technology filed its own infringement lawsuit against Apple in October claiming 10 billion yuan ($1.6 billion) in damages, reports ZDNet.

Posted On Dec - 12 - 2011 Comments Off READ FULL POST

District Judge Seems to Pilot Test SOPA in a Temporary Restraining Order
By Julie Dorais – Edited by Matt Gelfand

Chanel, Inc. v. Does, et al., 11-cv-01508-KJD-PAL (D. Nev. 2011)
Order

On November 14, 2011, the U.S. District Court for the District of Nevada issued a far-reaching temporary restraining order (TRO) in response to luxury goods company Chanel’s allegations that 288 defendants were selling counterfeit goods online. In addition to ordering the seizure of the defendants’ domain names, the ruling requires that domain registries transfer the domain names to GoDaddy.com, that GoDaddy.com redirect incoming traffic to a separate website, and that search engines and social networks remove the domain names from search results.

Commentators note that the remedy bears an uncanny resemblance to the remedies available under the recently proposed Stop Online Piracy Act (SOPA). As explained by Information Today, SOPA would give the government the expanded ability to obtain injunctions to seize domains that appear to be hosting infringing material. The injunctions may also direct certain actions by third parties, such as service providers and search engines. JOLT Digest has covered the proposed bill and the surrounding controversy.

CBS News summarizes the Nevada judge’s ruling and comments on its comparison to SOPA. Technology and Marketing Law Blog, Ars Technica, TechNewsWorld and TechDirt offer critical commentary. In particular, Technology and Marketing Law Blog argues that the ruling raises issues about due process, and questions the enforceability of the broad order. (more…)

Posted On Dec - 12 - 2011 1 Comment READ FULL POST

District Court Awards Damages for Tortious Interference of Trademark Holder’s Social Media Site Contracts
By Chinh Vo – Edited by Matt Gelfand

Ordonez v. Icon Sky Holdings LLC, 10-cv-60156-PAS (S.D. Fla. Aug. 30, 2011)
Slip Opinion (hosted by Justia.com)

The District Court for the Southern District of Florida granted the plaintiff’s motion for default judgment, awarding damages and a permanent injunction in a trademark hijacking suit between parties vying for control of an online presence.

The court held that the plaintiff was the senior user of the “Elizabeth Sky” trademark, and that the defendant used the mark in connection with similar goods and services in violation of trademark and unfair competition law. The court also found that the defendant tortiously interfered with the plaintiff’s contracts with various social media sites when the defendant contacted the sites and demanded they take down the plaintiff’s accounts, alleging trademark infringement. The plaintiff also prevailed on her libel per se claims by showing that the defendant had falsely accused her of identity theft on two third-party websites.

Eric Goldman’s Technology & Marketing Law Blog provides an overview and analysis of the case. Social Media, Esq. and everydaycounsel discuss the holding’s implications for social media contracts. (more…)

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