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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 Lauren Henry

Music Industry Disputes the Legality of Amazon’s Media Storage Locker

Last week, Amazon debuted a new music storage storing and streaming service, which enables users to store their music in the cloud and view their content on other devices using an Android app. Ars Technica reports that the music content industry disputes Amazon’s right to offer this service without securing additional licenses. While Amazon has declares its right to provide the service without further licensing, Engadget reports that Amazon might be negotiating licensing agreements behind closed doors. The Guardian suggests that this innovation could change and liberate the way consumers interact with media, and positions Amazon to remain an industry leader in cloud computing. Musicweek notes that since Amazon’s user experience is technically imperfect, other companies with similar models — including Apple and Google — threaten to encroach upon the new ground Amazon broke.

Google to Implement Privacy Program under Google Buzz Settlement

On Wednesday, the FTC announced that it reached a settlement with Google regarding the company’s privacy practices during its rollout of Google Buzz, a social network and microblogging web application. FindLaw discusses the major elements of the settlement agreement, including the implementation of a privacy program dedicated to consumer privacy risk identification and fixes, which will be subject to third-party audits every two years for the next two decades. In an editorial, the Los Angeles Times suggested that this settlement “defines for the industry what the FTC expects of all companies,” and should be heeded by other companies engaged in social networking. Google’s director of privacy issued an apology and promised to improve the company’s privacy practices via the official Google blog.

Facebook Hit with $1 Billion lawsuit over “Third Intifada” Page

TechCrunch reports that Mark Zuckerburg and Facebook have been sued for $1 billion under allegations of assault and negligence, after Facebook removed a page calling for a third Palestinian intifada too long after the page was created. Facebook commented that its policy of permitting free speech led it to permit the page to remain until it became dominated by calls for violence; the page had initially been a forum for peaceful protest. The complaint accuses the defendants of acting tortiously to “further their revenues and the net worth” of the company. TechCrunch and Slate note that the lawyer behind the lawsuit, Larry Klayman, is no stranger to high profile, controversial litigation, having sued Hilary Clinton, the so-called Ground Zero Mosque, Venezuelan President Hugo Chavez, and his own mother.

 

Posted On Apr - 5 - 2011 Comments Off READ FULL POST

Appropriation artist found to have infringed copyrights after failing to show transformative use
By Matthew Becker – Edited by Chinh Vo

Cariou v. Prince, No. 08 Civ. 11327 (DAB) (S.D.N.Y. March 18, 2011)
Slip Opinion
hosted by Scribd

In a closely watched copyright case, the United States District Court for the Southern District of New York granted summary judgment for the plaintiff, Patrick Cariou, ruling that the appropriation artist Richard Prince, in conjunction with the Gagosian Gallery, infringed Cariou’s copyrighted works.

The Southern District held that Prince’s works, paintings and collages that incorporated significant portions of Cariou’s published photographs, were not entitled to defense under the doctrine of fair use. Most relevant in this analysis was a consideration of the purpose and character of the use, with a focus on whether Prince’s works were “transformative,” requiring that they “in some way comment on, relate to the historical context of, or critically refer back to the original works.” The court concluded from Prince’s testimony that he did not have an interest in the original meaning of Cariou’s photographs, but simply wanted to reproduce them to send his own message, and therefore the transformative content of his works was “minimal at best.”

The NYT Arts Beat provides an overview of the case. The Art Law Blog criticizes the decision for its narrow interpretation of transformative use, noting that other cases, such as Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), have found works to be transformative even when they did not comment directly on the original copyrighted work. (more…)

Posted On Apr - 3 - 2011 1 Comment READ FULL POST

Federal Judge Rejects $125m Google Books Settlement
By Philip Yen – Edited by Chinh Vo

The Authors Guild, et al. v. Google Inc., No. 05 Civ. 8136 (S.D.N.Y. Mar. 22, 2011)
Opinion
hosted by The Authors Guild

Circuit Judge Denny Chin, sitting for the United States District Court for the Southern District of New York, rejected the $125 million Google Books class action settlement agreement between the Internet giant and groups representing authors and publishers. The court said that the deal went “too far” and held that the settlement was not fair, adequate, and reasonable.

Under Rule 23(e) of the Federal Rules of Civil Procedure, a settlement of a class action requires approval of the court. This will only be given if the court determines that the settlement was “fair, adequate, and reasonable.” Joel A. v. Giuliani, 218 F.3d 132, 138 (2d Cir. 2000). Although recognizing the many benefits that the Google Book Project could yield, the district court identified a number of countervailing policy considerations that weighed against approving the agreement. In particular, the court was concerned that the proposed settlement would release claims well beyond the scope of the pleadings, overreach into copyright regulation (a realm better left to Congress), give Google a monopoly on certain types of books, and implicate international law. Additionally, the court found that the plaintiffs had not adequately represented the interests of certain class members.

The Copyright Litigation Blog provides an overview of the case. The Electronic Frontier Foundation praises the court’s acknowledgment of privacy concerns and class action analysis, but takes issue with some of the its treatment of copyright law. (more…)

Posted On Apr - 2 - 2011 Comments Off READ FULL POST

Federal Circuit Rules Federal Law Trumps State Law in Interpretation of Patent Ownership Rights
By Flora Amwayi – Edited by Jonathan Allred

Abraxis Bioscience, Inc. v. Navinta LLC, 2009-1539, 2011 WL 873298 (Fed. Cir. Mar. 14, 2011)
Slip Opinion

The Federal Circuit denied a petition for an en banc rehearing of a Federal Circuit panel order dismissing Abraxis’ patent infringement case against Navinta. The court dismissed the case on the grounds that Abraxis did not have standing to sue for infringement since it did not own the patents at the time the original complaint against Navinta was filed. The original panel order hinged on whether interpretation of patent ownership should be governed by New York state law (as outlined in choice of law provisions) or by federal rules of patent ownership and assignment (Federal Circuit law). See 35 U.S.C. § 261.

By denying the en banc rehearing, the court affirmed the panel’s holding that the resolution of ownership and assignment question is an issue of Federal Circuit law since it determines a plaintiff’s standing to sue for patent infringement. In so holding, the court stated that “state law cannot retroactively override federal law to revive failed agreements.”

The Patent Law Blog provides an overview of the case. The Patent Prosecutor criticizes the decision as a refusal to correct the Federal Circuit’s intrusion into state contract law. (more…)

Posted On Mar - 28 - 2011 Comments Off READ FULL POST

By Nathan Lovejoy

Lime Wire Damages Limited To One Statutory Damage Award Per Work

Judge Kimba Wood ruled on March 10th that the statutory damages provision of the Copyright Act authorizes only one damage award per work infringed rather than one award for every infringement. Wood noted that had she adopted the record industry plaintiff’s interpretation the potential damages against the file-sharing software company would be “more money than the entire recording industry has made since Edison’s invention of the phonograph in 1877.” Wood granted summary judgment against Lime Wire in May, and issued an injunction in October which required Lime Wire to cease distribution of its popular program. The trial for damages is set for May 2nd.

AT&T’s Acquisition of T-Mobile May Face Serious Scrutiny

An FCC official indicated to the Wall Street Journal that AT&T’s planned acquisition of T-Moble — which would make the company the largest mobile phone service, surpassing Verizon — would undergo serious scrutiny, saying “[i]t will be a steep climb.” This likely comes as no surprise to AT&T, as the WSJ notes elsewhere that “AT&T seems to understand what it’s up against.” The acquisition deal was announced last week.

Netflix’s Customer Data Practices Challenged

Five plaintiffs have alleged that Netflix has violated the Video Privacy Protection Act (“VPPA”) through its practice of collecting and retaining records of streaming and rental activity of its customers. The VPPA mandates that video rental companies destroy old records that contain personally identifiable information. This law was passed in the wake of Judge Robert Bork’s Supreme Court nomination hearings, during which his video rental history was published.

Righthaven Lawsuit Dismissed On Fair Use Grounds

At a hearing last week, U.S. District Judge James Mahan said that he would dismiss a copyright infringement claim brought by the private enforcement outfit Righthaven on behalf of the Las Vegas Review Journal (“LVRJ”). After the Oregon-based non-profit Center for Intercultural Organizing posted a full-text copy of a LVRJ article on their website, Righthaven filed suit last August without any prior contact or take-down requests. In November, Judge Mahan requested that the parties brief the fair use issue. Righthaven’s for-profit approach to copyright enforcement has been heavily criticized; Mahan’s ruling was welcomed by critic EFF, who represent defendants in other Righthaven cases. Righthaven has filed 250 lawsuits since March 2010, and has suffered one other loss on a fair use claim.

Posted On Mar - 26 - 2011 Comments Off READ FULL POST
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