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

By Amanda Liverzani

PTO’s Statutory Interpretation on Patent Term Adjustment Upheld

Federal Circuit Affirms Garmin Fitness Watches Do Not Infringe on Pacing Patents

Online Shopping Cart Patents Deemed Invalid in Infringement Action Against Victoria’s Secret and Avon

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Alleged mastermind behind the undercover trading platform Silk Road convicted in Manhattan court

By Jens Frankenreiter – Edited by Katherine Kwong

On February 4, a federal jury in Manhattan rendered its verdict in the trial against Ross Ulbricht, the person allegedly in charge of the online black market platform Silk Road. The jury found Ulbricht guilty on all charges. The case is important as it represents an attempt by the government to regain control over an area of the internet where tools such as bitcoin and Tor are used to create an online space beyond the reach of the authorities.

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Whack-a-troll Legislation

Written by Asher Lowenstein     —   Edited by Yaping Zhang

Patent assertion entities’ extensive litigation activities in different states enables to assess the efficacy of the proposed bills against legal strategies these trolls, such as MPHJ Technology, have engaged in. The legal battles confirm some of the concerns about the usefulness of proposed regulatory measures.

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3D Systems and Formlabs Settled Two-Year Patent Dispute

By Yixuan Long – Edited by Yaping Zhang

On December 1, 3D Systems and Formlabs settled their two-year legal dispute over the 520 Patent infringement. Terms of the settlement are undisclosed. The patent covered different parts of the stereolithographic three-dimensional printing process, which uses a laser to cure liquid plastic. 3D Systems was granted the ‘520 Patent in 1997. Formlabs views the settlement as enabling it to continue its expansion and keep developing new products.

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Privacy Concerns in the Sharing Economy: The Case of Uber 

By Sabreena Khalid – Edited by Insue Kim

Recent revelations about Uber’s disconcerting use of personal user information have exposed the numerous weaknesses in Uber’s Privacy Policy. The lack of regulation in the area, coupled with the sensitive nature of personal information gathered by Uber, makes the issue one requiring immediate attention of policy makers.

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By Emily Hootkins

FTC Proposes ‘Do Not Track’ System for the Web

CNET reports that the Federal Trade Commission is endorsing a “Do Not Track” mechanism for the web, reminiscent of its popular “Do Not Call” list. David Vladeck, director of the FTC’s Bureau of Consumer Protection, envisions the concept as “a setting similar to a persistent cookie” that would signal whether the consumer is willing to be tracked or receive targeted advertisements. PC Magazine highlights some potential technical difficulties of such a proposal, such as the absence of a persistent, individualized identifier: unlike telephone numbers, a person’s IP address can change, and computers are often operated by multiple users. The FTC is currently asking stakeholders to submit comments on this proposal.

Federal Authorities Drop Charges in Xbox-Modding Suit

PCWorld reports that the first criminal trial for game-console modding has been dismissed. The prosecution dropped the case “based on fairness and justice,” after conceding its error in not disclosing to the defense important facts that would be presented in the first witness’ testimony. As Wired reports, federal authorities charged Matthew Crippen with modifying Xboxes to enable them to play pirated games. Crippen was prosecuted under untested provisions of the Digital Millennium Copyright Act; it remains to be seen whether the government will make another attempt at pursuing criminal charges for game-console modding.

Congress Approves Legislation to Regulate Sound Volume of Television Advertisements

The Wall Street Journal reports that Congress has approved legislation prohibiting television advertisements from being played at volumes louder than regular television programming. The bill, known as the Commercial Advertising Loudness Migration (CALM) Act, will require advertisers to adopt industry technology that modulates sound levels. Ars Technica notes that loud commercials are consistently one of the most common consumer FCC complaints about television. If President Obama signs the bill into law, advertisers will have one year to come into compliance with the Act.

Senate Judiciary Committee Passes Fashion Design Protection Bill

The Wall Street Journal reports that the Senate Judiciary Committee has unanimously passed the Innovative Design Protection and Piracy Prohibition Act. If enacted, this bill will give clothing designers intellectual property rights in their fashion designs. The bill provides a three-year term of protection for designs that demonstrate novelty and originality. According to Reuters, the bill contains important exceptions that address controversial aspects of previous bills providing for fashion copyrights. There is an “independent creation” defense, which a designer can assert if an independently-created design happens to overlap with a copyrighted design. The bill also includes a home sewing exception, and establishes a strict standard that requires designs to be “substantially identical” to support claims of infringement.

Posted On Dec - 5 - 2010 Comments Off READ FULL POST

Federal Appeals Court Affirms the Denial of A123’s Motion to Reopen
By Stuart K. Tubis – Edited by Janet Freilich

A123 Systems, Inc. v. Hydro-Quebec, No. 2010-1059 (Fed. Cir. Nov. 10,  2010)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit affirmed the judgment of the U.S. District Court for the District of Massachusetts, which had denied A123’s motion to reopen and dismissed the court’s declaratory judgment against Hydro-Quebec (“HQ”).

The Federal Circuit addressed three major issues in its decision. First, it held that “because HQ had acquired less than all substantial rights in the patents in suit, [the University of Texas ("UT")] is a necessary party to A123’s declaratory judgment action.” Second, the court upheld UT’s sovereign immunity rights, despite the fact that UT had waived those rights in a related litigation in Texas. Finally, the court found that UT was both a necessary and an indispensable party to the action under Fed. R. Civ. P. 19, and that the district court properly dismissed the action due to UT’s absence in the litigation.

The Green Patent Blog provides an overview of the case. Patent Prospector also discusses the case, with some commentary below. (more…)

Posted On Dec - 2 - 2010 Comments Off READ FULL POST

By Greg Tang

TSA Offends Travelers with Body Scanners, Fails to be Accountable

The Electronic Frontier Foundation (EFF) commented on the TSA’s use of body scanners in airports across the country, which has raised serious public concerns over the indignity and invasiveness of the body scanners and pat-down searches. The EFF expressed skepticism over the effectiveness of the body scanners in detecting terrorist attacks like the Christmas Day Bomb of 2009, citing various sources, including a TSA document, that have shown materials such as liquid, powder, and thin plastic — as well as passenger clothing — to be undetectable by the scanners. The EFF also reported on the Government Accountability Office’s criticisms of the TSA. The TSA has routinely refused to release test results to the public or perform cost-benefit analyses before adopting new technologies, despite estimated direct costs of $2.4 billion over a 7-year life cycle for the body scanners.

FCC Commissioner Casts Doubt Over Net Neutrality Rules

Ars Technica reported on comments that FCC Commissioner Robert McDowell made regarding the likelihood of FCC-issued net neutrality rules in a talk to the Federalist Society last Monday. The Commissioner expressed uncertainty regarding the substance and timing of any potential rules. The comments came just one week after FCC Chair Julius Genachowski spoke at the Web 2.0 summit in San Francisco, promising to make the rules happen and lambasting Google and Verizon for proposing their own version of open Internet rules back in August. McDowell cautioned against “taking a giant leap into a potentially dark and dangerous regulatory abyss,” and instead advocated cooperation with the FTC, trade associations, consumer groups, and Internet engineers to use existing consumer protection and antitrust laws to punish bad actors and help consumers — a proposal similar to the self-regulatory approach suggested by Comcast last week.

Novell Acquired by Attachmate; IP Goes to Microsoft

Enterprise Linux provider Novell announced last Monday that it would merge with Attachmate, with some intellectual property assets going to a consortium organized by Microsoft. InfoWorld reported on speculations that Microsoft would acquire core Unix IP from the deal, but ComputerWorld confirmed that Attachmate retains control over Novell’s copyrights for the Unix operating system. Since SCO Group launched its attack on Linux in 2003, claiming ownership of Unix intellectual property and copyright infringement by the open-source Linux operating system, Novell has defended the Linux community by defeating SCO in court and declining to pursue copyright action against Linux users. However, Novell has been subjected to criticism from the open-source community in 2006 for reaching a patent agreement with Microsoft over claims that Linux infringed upon Microsoft’s patents.

Jury Awards $1.3 billion in Copyright Damages from SAP to Oracle

Ars Technica reported on the record $1.3 billion that German software maker SAP was ordered to pay rival Oracle in their copyright infringement lawsuit in the Northern District of California. Oracle sued SAP in March 2007 for allegedly using customers’ login credentials to download software and technical support materials from Oracle’s servers. Despite admitting to the inappropriate downloads, SAP had hoped for damages of $41 million from the jury. Several jurors have stated that the award was determined by focusing on how much SAP would have paid if it simply licensed the rights from Oracle, a common method for determining losses in piracy cases.

US Government Cracks Down on Piracy by Seizing Over 70 Domain Names

The New York Times reported that the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) division seized over 70 websites suspected to be involved in file-sharing and counterfeiting goods early Friday morning. The popular file-sharing blog TorrentFreak explained that the websites were shut down by ordering ICANN, the non-profit corporation responsible for mapping human-understandable domain names into numeric IP addresses, to redirect traffic from the seized domains to ICE’s takedown notice. OSNews raised concerns that the method used by the ICE could escalate to censorship of websites outside the US (such as whistleblower site WikiLeaks), as ICANN operates the root domain name servers for the entire Internet. The domain name seizures resemble actions authorized under the Combating Online Infringement and Counterfeits Act, which just passed the Senate Judiciary Committee last week.

Posted On Nov - 28 - 2010 Comments Off READ FULL POST

New York Appellate Court Rejects Demand for Facebook Records
By Irina Oberman – Edited by Ian C. Wildgoose Brown

McCann v. Harleysville Ins. Co. of N.Y., No. 10-00612, 1179 (N.Y.A.D. 4 Dept. Nov. 12, 2010)
Slip Opinion

The Appellate Division of the Supreme Court of the State of New York affirmed the Supreme Court’s denial of defendant’s motion to compel disclosure of photographs on Facebook and defendant’s motion for authorizedaccess to plaintiff’s Facebook account. The Supreme Court had ruled that defendant’s first request was “overly broad,” and that the amended request had failed to establish a factual predicate that the Facebook account was relevant. The Appellate Division agreed with the Supreme Court, noting that defendant was simply engaging in a “fishing expedition” to find relevant evidence. The Appellate Division modified the Supreme Court’s order, however, allowing defendant to file future discovery requests relating to plaintiff’s Facebook account.

The New York Personal Injury Law Blog provides an overview of the case and contrasts it with the Romano v. Steelcase ruling in September. Internet Cases blog warns that although the ruling is significant, it merely addresses overly-broad discovery requests and should not be construed as a decision to protect private personal information per se. (more…)

Posted On Nov - 28 - 2010 Comments Off READ FULL POST

USPTO Patent Denial Lawsuits Subject to FRE and FRCP
By Harry Zhou – Edited by Ian C. Wildgoose Brown

Hyatt v. Kappos, No. 07-1066 (Fed. Cir. Nov. 8, 2010) (en banc)
Slip Opinion

The U.S. Court of Appeals for the Federal Circuit, sitting en banc, vacated and remanded the decision of the U.S. District Court for the District of Columbia, which had ruled that a patent applicant is barred from introducing new facts into evidence in a civil action against the United States Patent and Trademark Office (“USPTO”) brought under 35 U.S.C. § 145. The district court had ruled that the new facts should have been produced to the USPTO in the original application.

The Federal Circuit reversed its precedent, holding that a district court does not review a decision of the USPTO under the Administrative Procedure Act (“APA”)’s deferential court/agency standard on issues where the applicant offers new facts in evidence. The only limitations on the admissibility of new evidence in a § 145 civil action are those “contained in the Federal Rules of Evidence and Federal Rules of Civil Procedure.” The court remanded the case for further proceedings.

271 Patent Blog offers a brief summary of the decision. Patently-O features an analysis of the decision’s likely impacts. IPWatchdog provides a survey of the case law and statutory background relevant to the decision. (more…)

Posted On Nov - 23 - 2010 Comments Off READ FULL POST
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