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Observing Mauna Kea’s Conflict

Written by: Aaron Frumkin

Edited by: Anton Ziajka

Believing the machinery desecrates their sacred summit and the scarce natural resources it shelters, native Hawaiians have opposed telescope development on Mauna Kea. While it seems that their beleaguered resistance to telescope development will fail yet again with the proposed Thirty Meter Telescope (TMT), this Note attempts to articulate their best arguments in hopes of properly framing the social costs associated with the great scientific and technological gains that TMT will surely provide.

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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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By Lauren Henry

Senate Judiciary Committee Approves Anti-Piracy Bill

Ars Technica and CNET report that the Senate Judiciary Committee has unanimously approved a bill that would blacklist websites deemed to be “pirate websites” from the Domain Name System, ban credit card companies from processing US payments to such sites, and forbid online ad networks from working with the sites. The bill — known as the Combating Online Infringement and Counterfeits Act, or COICA — received the strong support of content industry leaders, who perceive it as protecting their intellectual property, and the vociferous opposition of free speech advocates. Peter Eckersley at EFF’s Deeplinks blog argues that COICA fails to monetize content distribution for intellectual property holders, increases data traffic costs, and unconstitutionally restricts freedom of speech.

Limewire: Pirate Edition Provokes Search for Its Creator

Ars Technica reports that the RIAA and LimeWire are attempting to identify the creator of LimeWire: Pirate Edition. Days after a federal judge ordered LimeWire to shut down all software and cease distribution, LimeWire: Pirate Edition appeared. The new version of the program is functionally equivalent to LimeWire, as it is based on LimeWire’s open-source code. RIAA and LimeWire are conducting independent investigations to find the culprit.

Democrats Propose Cybersecurity Bill to Empower DHS to Punish Tech Firms

CNET reports that Democrats have proposed legislation that would give the Department of Homeland Security the power to fine technology companies $100,000 a day for failure to comply with the agency’s directives. The bill, known as the Homeland Security Cyber and Physical Infrastructure Protection Act, would give the DHS broad authority to enforce cybersecurity measures upon any “system or asset” deemed to be a “component of the national information infrastructure.” Critics argue that DHS lacks the institutional competency to effectively administer such powers, and that private companies need no additional incentives to enact security measures.

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

Federal Circuit rules that prosecution laches requires evidence of prejudice
By Jonathan Allred – Edited by Elizabeth Akerman

Cancer Research Technology Ltd. v. Barr Laboratories, Inc., No. 2010-1204 (Fed. Cir. Nov. 9, 2010)
Slip Opinion

The Federal Circuit overturned the District Court of Delaware, which had ruled that the plaintiff’s patent was unenforceable for prosecution laches, and, in the alternative, invalid for inequitable conduct.

Prosecution laches is an equitable defense to infringement when the plaintiff has delayed the prosecution of a patent application unreasonably. In this case, the Federal Circuit held that prosecution laches requires a finding of prejudice – evidence that the accused infringer “invested in, worked on, or used the claimed technology during the period of delay” – in addition to an unreasonable delay in prosecution.

As the opinion notes, the usefulness of the doctrine will be limited now that patent terms are measured from the effective filing date and not the date of refilling.

The Federal Circuit also overturned the Delaware court’s ruling on inequitable conduct.

Patently-O offers a synopsis and disagrees with the dissent. Inventive Step summarizes the opinion. The Patent Prospector provides the text of the opinion with commentary sympathetic with the dissent interjected throughout. (more…)

Posted On Nov - 17 - 2010 Comments Off READ FULL POST

­­The U.S. Government’s View on Gene Patentability Likely Changed
By Harry Zhou — Edited by Matt Gelfand

Brief for the United States as Amicus Curiae Supporting Neither Party, Association for Molecular Pathology v. USPTO, No. 10-1406 (Fed. Cir.)
Brief hosted by the New York Times

On October 29, the U.S. Department of Justice (“DOJ”) filed an amicus curiae brief in the U.S. District Court for the Federal Circuit in Association for Molecular Pathology v. USPTO, No. 10-1406. In its brief, the DOJ advocates for a change in policy for the patentability of genomic DNA.

The DOJ brief draws a distinction between “human-engineered DNA molecules” and “isolated but otherwise unmodified genomic DNA.” While recognizing engineered DNA molecules as patentable “human invention,” the DOJ nonetheless argues that genomic DNA isolated from human cells without further manipulation or alternation should not constitute patentable subject matter. This bifurcated position of the DOJ is in conflict with the Patent and Trademark Office’s longstanding practice of granting patents for isolated genomic DNA.

JOLT Digest previously reported on the district court’s opinion and examined the decision’s possible implications. Summaries of the DOJ brief are available from Patently-O and The Patent Prospector. The New York Times provides coverage of the patent law community’s reaction to the brief. (more…)

Posted On Nov - 12 - 2010 Comments Off READ FULL POST

District Court Dismisses Facebook User’s Claims that Account Termination Violated First and Fourteenth Amendments and Various State Laws
By Samantha Kuhn – Edited by Matt Gelfand

Young v. Facebook, Inc., 5:10-cv-03579-JF/PVT (N.D. Cal. Oct. 25, 2010)
Opinion hosted by Justia.com

On October 25, 2010, the U.S District Court for the Northern District of California granted Facebook’s motion to dismiss Karen Beth Young’s complaint that, in terminating her account, Facebook violated the First and Fourteenth Amendments as well as state contract and tort law, for failure to state a claim upon which relief may be granted. The court has granted Young a thirty-day period during which she may file an amended complaint.

With respect to the claim that Facebook deprived Young of equal protection by failing to accommodate her need for human interaction (resulting from bi-polar disorder), the court held that because Young failed to allege a deprivation of rights “under color of state law,” she has not stated a claim under 42 U.S.C. § 1983. In so holding, the court noted that the simple existence of contracts and relationships between Facebook and the government are insufficient to establish a claim under § 1983. Young, the court suggests, would have to show some nexus between those specific contracts and the alleged rights violations or, if certain Facebook activities amounted to state action, a causal relationship between those activities and the injuries suffered.

With respect to the claims for breach of contract, breach of the implied covenant of good faith and fair dealing, negligence, and fraud, the court held that Young failed to state a claim on all four counts due to the absence of applicable contractual obligations on Facebook’s part, an explicit disclaimer in Facebook’s Statement of Rights and Responsibilities that released responsibility for safety from third party conduct, and a lack of specificity in Young’s allegations. In addition to the specific shortcomings of Young’s pleading in this case, the court referred to the policy concerns manifested in the Communications Decency Act of 1996, which severely restricts the liability of interactive computer service providers for content posted by third parties.

A brief summary of the claims and bases for dismissal can be found in Evan Brown’s article on the Internet Cases blog. Eric Goldman provides an additional overview of the court’s conclusions and takes issue with the court’s concession that, had Young argued that there was a bad faith or arbitrary cancellation of her account, this could potentially constitute a violation of the implied covenant of good faith and fair dealing. (more…)

Posted On Nov - 9 - 2010 1 Comment READ FULL POST

David Hosp and Ed Weiss offer their perspectives on the Cablevision case
By Paul Cathcart – Edited by Ryan Ward

On Thursday, November 4th, JOLT and the Cyberlaw Clinic at the Berkman Center for Internet and Society hosted a talk by David Hosp and Ed Weiss, two attorneys who worked on opposite sides of the “Cablevision” case, Cartoon Network v. CSC Holdings, 536 F.3d 121 (2008). In that case, the Second Circuit held that Cablevision’s “Remote Storage” Digital Video Recorder (RS-DVR) system did not directly infringe the copyright interests of Cablevision’s content providers. JOLT Digest previously reported on the Second Circuit’s decision when it was released in August 2008.

The two speakers took turns discussing their experience on the case. (more…)

Posted On Nov - 7 - 2010 Comments Off READ FULL POST
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Photo By: Jeff Ruane - CC BY 2.0

Observing Mauna Kea'

Written by: Aaron Frumkin Edited by: Anton Ziajka I.     Introduction Perched quietly atop ...

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Federal Circuit Flas

By Cristina Carapezza Rosen Wins TV Headrest Patent Suit The Federal Circuit ...

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Government Agents In

By Sheri Pan - Edited by Jens Frankenreiter United States v. ...

Photo By: Robert Scoble - CC BY 2.0

Mississippi Attorney

[caption id="attachment_3907" align="alignleft" width="150"] Photo By: Robert Scoble - CC ...

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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...