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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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Written by Katie Booth
Edited by Vivian Tao
Editorial Policy

I. Introduction: Not all data uses are created equal.

Google recently introduced a new social networking tool called the Google+ project, which capitalizes on the fact that consumers want more control over whom they share their personal information with online. Google+ allows users to set up separate groups—such as a group for friends, a group for family, and a group for coworkers—and then share different information with each group. This recognizes a simple fact of life: As Google puts it, “[n]ot all relationships are created equal.” The popularity of the national Do Not Call Registry, which prohibits telemarketers from calling phone numbers listed in the registry, is another example of consumers’ desire to keep particular groups of people, such as telemarketers, from using their personal data.

In Sorrell v. IMS Health, however, the Supreme Court held that the First Amendment did not allow the government to regulate speech on the basis of the types of categorical distinctions between speakers that consumers make all the time. Invalidating a Vermont statute that prohibited data mining companies from using physician prescription data for marketing purposes, the Court held that the government could not engage in “content” or “viewpoint” discrimination against marketers by prohibiting the commercial use of this data while permitting its non-commercial use. Sorrell at 2659, 2663-64.[1] This ruling, which seemingly has its roots in the Court’s Citizens United decision, eviscerates the commercial speech doctrine—the First Amendment doctrine governing speech with a commercial viewpoint and content—by effectively holding that the government cannot regulate commercial speech, such as marketing, differently than other types of speech just because the speaker is a corporation or the content of the speech is commercial.

If Sorrell applies to the world of online data, then the Court leaves legislatures with difficult choices when it comes to regulating data privacy. Under Sorrell, legislatures cannot regulate the commercial use of data any differently than its non-commercial use. This means that proposed legislation such as the Commercial Privacy Bill of Rights Act of 2011 (“Commercial Privacy Bill”), which aims to do precisely the opposite, would likely not pass constitutional muster. Instead, legislatures may have to consider universal opt-in or opt-out schemes, under which consumers could individually opt in or out of the use of their personal data for any purpose, not just commercial use. In its opinion, the Sorrell Court mentioned HIPAA, the Health Insurance Portability and Accountability Act of 1996, which requires all consumers to receive and acknowledge notice of the ways in which health care providers may use their personal data, approvingly in this context. However, both opt-in and opt-out data privacy schemes may negatively affect innovation, research, and even privacy. If legislatures choose to pass consumer data privacy laws in the wake of Sorrell, they will face difficult choices between competing values and may ultimately leave consumer data privacy up to the market.  (more…)

Posted On Aug - 17 - 2011 Comments Off READ FULL POST

Court Shuts Down DVD Streaming Service Zediva
By Daniel Robinson – Edited by Kassity Liu

Warner Bros. Entertainment Inc., et al. v. WTV Systems, Inc., No. CV 11-2817-JFW (C.D. Cal. August 1, 2011)
Slip Opinion

On August 1st, the District Court for the Central District of California granted a preliminary injunction ordering Zediva, an online video service, to shut down.

The order, by Judge John Walker, held that the Plaintiffs Warner Bros. and other movie studios were likely to succeed on the merits of their copyright claim, and that the potential harm the service posed to the plaintiffs outweighed the burden of an injunction on the defendants. In so holding, the court held that the defendants’ service violated the plaintiffs’ public performance right by transmitting content from DVDs to its subscribers.

Reuters provides an overview of the case. Techdirt criticizes the decision, arguing that streaming a DVD to one customer is not a “public performance.” Ars Technica provides a detailed description of the holding. (more…)

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

Federal Circuit Upholds Patentability Of Isolated Genes
By Albert Wang – Edited by Kassity Liu

Ass’n for Molecular Pathology v. USPTO, No. 2010-1406 (Fed. Cir. July 29, 2011)
Slip Opinion

The Federal Circuit reversed the United States District Court for the Southern District of New York on the issues of whether Myriad’s patent claims regarding the BRCA gene and BRCA screening were valid. The Circuit affirmed on the issues of standing and patentability of Myriad’s method of comparing DNA sequences.

Judge Lourie, writing for the Circuit, reasoned that the isolated BRCA gene was chemically different from the gene in its naturally occurring state. Similarly, Myriad’s patient-screening included enough transformation to be patent-eligible.

PatentlyO provides an overview of the case. Genomics Law Report provides further analysis and predicts further uncertainty to come with regard to gene patents, noting that the decision only curtails attacks based on patentability of the subject matter. PharmaPatents criticizes the court’s distinction between isolated DNA and other products extracted from nature. The Digest previously covered the district court’s decision(more…)

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

by Heather Whitney

Google calls competitors’ patent acquisition anticompetitive; Microsoft claims Google was invited

Techcrunch reports that Google accused Microsoft of buying the Nortel patents in order to supress competition from Android, Google’s popular mobile operating system. On Wednesday, Google SVP and Chief Legal Officer David Drummond released a blog post calling, among other things, the recent Nortel patent auction win by a consortium including competitors Microsoft, Apple, and Oracle anticompetitive, done to stifle Android innovation through litigation. On Thursday, Microsoft’s General Counsel, Brad Smith, tweeted a response, explaining that Microsoft asked Google to bid jointly but Google refused. Microsoft’s Head of Communication tweeted a follow-up, attaching an image of an email sent from Kent Walker, Google’s GC, to Microsoft’s GC, where Google expressly declined to bid jointly. Google responded again, as did Microsoft. In the end, Google contends that a joint bid would not have protected Android from patent litigation since Microsoft would have the patents too. Microsoft argues Google refused to join in the bid because Google was looking to buy up additional patents to use to go after Microsoft.

Facebook’s Marketing Director says online anonymity has to “go away”, leaves Facebook to start her own media company

According to the Huffington Post, during a discussion last Tuesday on cyber bullying, Facebook’s Marketing Director Randi Zuckerberg gave a solution: get rid of online anonymity all together. “I think anonymity on the Internet has to go away. People behave a lot better when they have their real names down… I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.” The EFF responded, claiming that while private companies like Facebook can require users to give their real names, requiring anybody roaming the Internet at all to do so constitutes a freedom of expression “disaster”. Faster Forward, a Washington Post blog, reports that, while purportedly unrelated, Zuckerberg submitted her letter of resignation a week and a day later. In her letter, Zuckerberg said she plans to leave and start her own social media company.

Eighth Circuit affirms that student’s IM with threats to third party not protected speech

Education Week reports that the Eighth Circuit, in D.J.M. v. Hannibal Public School District, affirmed a lower court’s ruling that a student’s instant message containing a threat to third party students, sent outside of school, is not protected speech. The Appeals Court found that because the student directed his IMs at a student who could reasonably be seen to forward the threats to the actual victims, it was a true threat. The Eighth Circuit also analyzed the situation under the Tinker “substantial disruption” test, finding that the IM comments, given that they were easy to copy and thus foreseeably likely to be forwarded on to school administrators, constituted such a substantial disruption of the school.

Senator Grassley objects to rumored removal of NIH conflict of interest disclosure requirements.

Senator Chuck Grassley wrote a letter to Office of Management and Budget this week, urging them not to strip a proposed transparency rule of one of its central features – a requirement that universities post the financial conflicts of publicly funded medical researchers on  a public website. Senator Grassley’s letter was prompted by a Nature article reporting that the requirement had been dropped. Senator Grassley also demanded documents related to meetings on the rule attended by Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs. Pharmalot reports that Sunstein is rumored to have disliked the website requirement. Grassley has asked for a response from OMB by August 25.

Posted On Aug - 10 - 2011 Comments Off READ FULL POST

District Court Says CAN-SPAM Act Does Not Violate First Amendment
By Samantha Kuhn – Edited by Chinh Vo

U.S. v. Smallwood, 09-CR-00249 (N.D. Tex. July 15, 2011)
Slip Opinion hosted by Scribd.co

The District Court for the Northern District of Texas rejected a First Amendment challenge to the CAN-SPAM criminal statute, which prohibits the computer transmission of “multiple commercial electronic mail messages, with the intent to deceive or mislead recipients . . . . as to the origin of such messages.”

The court first rejected defendant Alicia Smallwood’s motions challenging her indictment for, among other things, electronic mail fraud in violation of 18 U.S.C. §§ 1037(a)(2) and (b)(2)(c) (“CAN-SPAM Act”). The court determined that Smallwood was engaging in “clearly proscribed conduct” and was therefore not entitled to challenge the statute for vagueness. As a result of this finding, the main issue in the case became whether the statute was overly broad in its regulation of protected speech and thus a violation of the First Amendment. The arguments presented by Smallwood for over-breadth centered around the statute’s limitations on commercial speech, and the court rejected them.

Eric Goldman provides commentary on the outcome and implications of the opinion. For a background on the CAN-SPAM Act’s requirements, see Cybertelecom.

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Posted On Aug - 9 - 2011 Comments Off READ FULL POST
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