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Newegg Wins Patent Troll Case After Court Delays

By Kasey Wang – Edited by Yunnan Jiang and Travis West

The District Court for the Eastern District of Texas recently issued a final judgement for online retailer Newegg, twenty months after trial, vacating a $2.3 million jury award for TQP. TQP, a patent assertion entity commonly known as a “patent troll,” collected $45 million in settlements for the patent in question before Newegg’s trial.

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The Evolution of Internet Service Providers from Partners to Adversaries: Tracking Shifts in Interconnection Goals and Strategies in the Internet’s Fifth Generation

By Robert Frieden – Edited by Marcela Viviana Ruiz Martinez, Olga Slobodyanyuk and Yaping Zhang

In respone to increasing attempts by Internet Service Providers to target customers who trigger higher costs for rate increases, the FCC and other regulatory agencies worldwide have stepped in to prevent market failure and anticompetitive practices. This paper will examine new models for the carriage of Internet traffic that have arisen in the wake of these changes.

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The Global Corporate Citizen:  Responding to International Law Enforcement Requests for Online User Data 

By Kate Westmoreland – Edited by Yunnan Jiang

This paper analyses the law controlling when U.S.-based providers can provide online user data to foreign governments. The focus is on U.S. law because U.S. dominance of internet providers means that U.S. laws affect a large number of global users. The first half of this paper outlines the legal framework governing these requests. The second half highlights the gaps in the law and how individual companies’ policies fill these gaps.

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3D Printing, Net Neutrality, and the Internet: Symposium Introduction

By Deborah Beth Medows – Edited by Yaping Zhang

Jurists must widely examine the pervasive challenges among the advents in Internet and computer technology in order to ensure that legal systems protect individuals while  encouraging innovation.  It is precisely due to the legal and societal quagmires that 3D printing and net neutrality pose that ideally position them as springboards from which to delve into broader discussions on technology law.

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A Victory for Compatibility: the Ninth Circuit Gives Teeth to RAND Terms

By Stacy Ruegilin – Edited by Ken Winterbottom

Microsoft won a victory in the Ninth Circuit last Thursday after the court found that Motorola, a former Google subsidiary, had breached its obligation to offer licenses for standards-essential technologies at reasonable and non-discriminatory rates. The court affirmed a $14.52 million jury verdict against Motorola for the breach.

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by Michael Adelman

Copyright Suit Fails to Prevent Memorial Day Weekend Release of The Hangover: Part II

On Tuesday May 24, the New York Times reported that Judge Catherine D. Perry of the U.S. District Court for the Eastern District of Missouri denied tattoo artist Victor Whitmill’s preliminary injunction that would have halted the release of the film The Hangover: Part II over Memorial Day weekend. Mr. Whitmill claims that Warner Brothers has infringed on his exclusive rights to the Maori-inspired tattoo which he designed and inked on boxer Mike Tyson’s face by putting it on the face of the character Stu, played by Ed Helm, in the film and promotional merchandise. Wired reports that the litigation has prompted an about face by the nation’s preeminent copyright scholar, UCLA law professor David Nimmer, who testified that tattoos should not be copyrightable while serving as an expert witness for Warner Brothers. Likelihood of Confusion noted that Judge Perry strongly indicated Mr. Whitmill stands to recover on his claim in the future, but that she declined to issue the injunction after finding the public interest in letting the movie be released outweighed the harm of infringement.

G8 Nations Issue A Statement on Internet Governance

Ars Technica reports on the recent G8 summit that produced a Declaration of Renewed Commitment for Freedom and Democracy, which extolled the power of the Internet in increasing democratic participation and as a driver of economic growth. The document emphasized the need to safeguard against “arbitrary or indiscriminate censorship” in preserving the Internet as a democratic forum. The G8 nations also announced their commitment to enhancing protections of intellectual property (copyright in particular) through greater international cooperation of governments and private entities.

New Legislation Would Make Unauthorized Internet Streaming a Felony

Ars Technica reported on the testimony of new Register of Copyrights, Maria Pallante, before the House Judicicary Committee about whether illegal online streaming should be upgraded from the current misdemeanor status to a felony punishable by up to 5 years in jail. Pallante asserted that increased bandwidth and greater scrutiny of file-sharing networks have made video streaming sites that display pirated material increasingly popular, and that the law needed to be adjusted to keep pace with technology. This is also the position espoused by the Obama Administration’s White Paper on Intellectual Property Enforcement. But Techdirt warned that by making “performance” of a copyrighted work a felony, the proposed bill (via GovTrack.us) could potentially render the act of embedding or hosting an infringing video a felony.

Amazon Launches New Mac Software Store to Compete with Apple’s App Store

Amazon has recently launched a subsection of its online downloads store specifically oriented to Mac OSX software. Ars Technica reports that Amazon has called this service the “Mac Downloads Store”, probably to avoid another legal dispute with Apple. Slashdot has covered Apple previously filed lawsuit against Amazon for trademark infringement over Amazon’s ‘Appstore for Android’. ComputerWorld analyzes some of the differences between Amazon’s Mac Download Store and Apple’s Mac App Store, speculating that these differences are largely driven by differences in Amazon and Apple’s licensing agreements with software developers.

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

Federal Circuit Heightens Standard for Inequitable Conduct
By Marina Shvarts – Edited by Dorothy Du

Therasense, Inc. v. Becton, Dickinson and Co., 2008-1511, -1512, -1513, -1514, -1595 (Fed. Cir. May 25, 2011) (en banc)
Slip Opinion

The Court of Appeals for the Federal Circuit vacated and remanded the decision of the United States District Court for the Northern District of California, which found U.S. Patent No. 5,820,551 (“the ’551 patent”) unenforceable due to inequitable conduct.

The Federal Circuit heightened the standard for proving inequitable conduct with respect to both the intent and materiality elements. The new test requires specific intent to deceive. A finding of materiality must show that “but-for” nondisclosure, the claim would not have been approved. The holding was a response to concerns about overuse of the inequitable conduct defense and the harshness of the remedy, characterized as the “atomic bomb of patent law.” The case was remanded to the district court to determine whether defendants’ conduct was inequitable under the new test.

Patently-O summarizes the opinion. The Patent Law Practice Center discuses reactions in the patent community. Patent Docs discusses the dissent.

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Posted On May - 31 - 2011 Comments Off READ FULL POST

Federal Circuit Provides Guidance for Obviousness Determinations by the PTO and the Board of Patent Appeals and Interferences
By Abby Lauer – Edited by Dorothy Du

In re Kao, 2010-1307 (Fed. Cir. May 13, 2011)
Slip Opinion

The Federal Circuit vacated and remanded a decision of the Board of Patent Appeals and Interferences (“Board”), which had rejected patent application 11/680,432 (“the ‘432 application”) for obviousness. The Federal Circuit also affirmed findings of obviousness by the Board regarding patent applications 12/167,859 (“the ‘859 application”) and11/766,740 (the ‘740 application”). All of the patent applications at issue claimed controlled release drug formulations containing the opioid pain reliever oxymorphone.

In vacating and remanding the Board’s decision regarding the ‘432 application, the Federal Circuit held that the Board lacked “substantial evidence” in its determination that it would have been obvious for someone skilled in the art to combine the claims of a prior art reference with the controlled release oxymorphone formulation. In addition, the Board did not properly analyze the evidence of secondary considerations of nonobviousness that were presented by the patent holder. The Court agreed with the Board that both the ‘859 and the ‘740 applications were obvious in view of certain prior art references.

PatentlyO provides an overview of the case. Patent Docs provides detailed commentary and analysis.

(more…)

Posted On May - 31 - 2011 Comments Off READ FULL POST

Federal Circuit Ruling in Favor of TiVo Against EchoStar Changes Test for Reviewing Contempt Orders
By Dorothy Du – Edited by Matt Gelfand

TiVo Inc. v. EchoStar Corp., 2009-1374 (Fed. Cir. April 20, 2011) (en banc)
Slip Opinion

The Court of Appeals for the Federal Circuit affirmed in part and vacated in part the decision of the District Court for the Eastern District of Texas, which had found the appellants (collectively “EchoStar”) in contempt of two provisions of the court’s previous permanent injunction order.

In its en banc decision, the Federal Circuit vacated the district court’s finding that EchoStar was in contempt of the provision of the permanent injunction that forbid it from infringing TiVo’s DVR software patents. The court overruled its two-step KSM inquiry for reviewing post-infringement contempt proceedings and replaced it with a new test that goes straight into the “more than colorable differences test.” The case was remanded to the district court for a factual determination of whether there are more than colorable differences between the prior infringing product and EchoStar’s modified product. However, the court affirmed the district court’s finding of contempt for the disablement provision of the injunction.

Forbes provides a brief overview of the case. Patently-O outlines the new rules for post-infringement contempt proceedings. CNET, which reported on the parties’ views of the outcome, states that EchoStar plans to appeal the case to the Supreme Court, and to seek a stay on the injunction in the meantime.  (more…)

Posted On May - 21 - 2011 1 Comment READ FULL POST

Written by Mehdi Eddebbarh & Jack Burns
Edited by Albert Wang
Editorial Policy

I. Introduction

Patent law strives to stimulate innovation by awarding inventors a temporary monopoly over patented inventions.  Antitrust law seeks to ensure efficient competition, in part by restricting monopolistic behavior.  Perhaps the most scrutinized area of intersection between patent law and antitrust law is the proper treatment of “reverse payments,” also referred to as “pay-for-delay” settlements.  Arkansas Carpenters Health and Welfare Fund v. Bayer AG, 625 F.3d 779, 780 (2d Cir. 2010) (Pooler, J., dissenting).  These are settlement agreements in patent infringement litigation in which a patent holder pays the alleged infringer to concede the validity of the patent and refrain from entering the market.  Henry N. Butler & Jeffrey Paul Jarosch, Policy Reversal on Reverse Payments: Why Courts Should Not Follow the New DOJ Position on Reverse-Payment Settlements of Pharmaceutical Patent Litigation, 96 Iowa L. Rev. 57, 60 (2010).

Senators Chuck Grassley and Herb Kohl recently introduced legislation in Congress that would create a presumption that pay-for-delay deals in the pharmaceutical industry are illegal.  Additionally, there is currently a circuit split over the proper standard for determining whether reverse payment settlements are improper.  The Supreme Court has not spoken on the issue, and recently denied a petition for certiorari by the Plaintiffs-Appellants in Arkansas Carpenters Health and Welfare Fund v. Bayer AG challenging the reverse payment settlement in that case.  Amicus curiae supporting the petitioners included 32 state Attorneys General and the American Antitrust Institute.

This commentary will explain why Congress and the judiciary should continue to allow pioneer patent holders and firms challenging those patents to use reverse payment settlements to settle their disputes.  To that end, this commentary will explain the importance of recognizing the right to exclude granted by patent laws and discuss the judicial policy in favor of settlements.  Some courts have referred to this as the “exclusionary zone of the patent,” and have essentially found that because patents provide a monopoly, any anticompetitive effects stemming from the exclusion of generic manufacturers through settlements should be recognized as a valid outgrowth of rights inherent in the patent grant.

While recognition of those underlying policies provides significant deference to patent holders, it also provides an incentive for patent holders to conduct sham litigation to eliminate threats to the validity of weak patents.  Thus, Congress should amend the current regime to clarify that where a reverse payment is challenged, some scrutiny of the patent’s validity is necessary.  Further, Congress should amend the 180-day exclusivity period, currently granted only to the first generic firm to challenge a pioneer patent, to give a subsequent challenger the same benefit where the first challenger settles.  (more…)

Posted On May - 13 - 2011 Comments Off READ FULL POST
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