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United States Federal Circuit Judges Express Concerns for Current State of Patent Eligibility Law

There will be no en banc review of a Federal Circuit panel decision that an important medical diagnostic method is ineligible for patent protection under 35 U.S.C. 101. However, in opinions accompanying the order denying review, several Federal Circuit judges expressed concerns for medical diagnostics under the current state of patent eligibility law. Ariosa Diagnostics, Inc. v. Sequenom, Inc., Fed. Cir., No. 14-1139, 2 December 2015.

The patent at issue is directed at a process for detecting paternally-inherited fetal DNA in maternal blood samples and for performing a prenatal diagnosis based on that DNA. This method permits the diagnosis of possible birth defects without using highly intrusive measures.

The Federal Circuit panel decision acknowledged that the invention in this case revolutionized prenatal care. However, it ruled that the claimed method is patent-ineligible under Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct. 1289 (2012), because it acts on natural phenomenon with well-understood, routine, and conventional steps. In a concurring opinion, Judge Linn reluctantly agreed but only because of the Supreme Court’s sweeping and unnecessary statements about patent eligibility.

The Federal Circuit on December 2, 2015, denied the petition for en banc review.

To read the opinions accompanying the en banc order in this case, click here; to read the panel decision in this case, click here.

History of Software Patents in the United States

A good article from the National Law Reviewing regarding the history of software patents in the U.S.

See History

Dot Horse

An interesting blog post concerning the new Dot Horse gTLD:

http://everythingtrademarks.com/2015/09/13/dot-horsing-around/

"Despite its stated purpose, it has – inexplicably – brought together a community of equine parodists. "

Ninth Circuit Rules That Copyright Holders Must Consider Fair Use Before Issuing DMCA Takedown Notice

Media companies and other copyright holders may need to change the way they deal with infringing content on the Internet.  In a closely watched copyright case, Lenz v. Universal Music Corp. (also known as the "Dancing Baby" case), the United States Court of Appeals for the Ninth Circuit ruled yesterday that copyright holders must consider fair use before issuing takedown notices to remove allegedly infringing content from websites such as YouTube and Facebook. This decision has significant implications for owners of copyright-protected content, especially studios, record labels, publishers and other entities with large content catalogs, as well as individuals and businesses that rely on fair use to exploit copyrighted material owned by others. 

Redlands Council Threatens Lawsuit against Facebook Posters

See Brisbane Times

"Redland City Council has sought to shut down online criticism by sending threatening legal letters to residents over comments made on social media.

Five residents have received the legal threats in the past week over Facebook posts that suggested, among other things, that political donations from developers had swayed council decisions."

Australian Government releases survey into online copyright infringement

The research is said to show that Australia has high levels of online copyright infringement.

See Government Website with full survey results.

Copyright and eBooks

From Australian Copyright Agency:

The UK Publisher’s Association has successfully gained an order to have that country’s five main internet service providers block consumer access to websites promoting the online theft of ebooks.
Investigations found at least 80 per cent of the reportedly 10 million ebook titles on seven offshore websites were infringing copyright and almost a million takedown notices had been issued to the sites. The sites make substantial sums of money from referral fees and advertising, with none of that income returning to publishers or authors.
The UK Publishers Association Chief Executive, Richard Mollet, said: “A third of publisher revenues now come from digital sales but unfortunately this rise in the digital market has brought with it a growth in online infringement. Our members need to be able to protect their authors’ works from such illegal activity; writers need to be paid and publishers need to be able to continue to innovate and invest in new talent and material.” Read the media release here.
The UK decision reflects our own situation in Australia where a two-pronged approach aims to curb online piracy.
Firstly, the creative and telecommunications sectors have jointly established a new code to combat internet piracy. It involves an escalating series of infringement notices being issued to repeat infringers and has been submitted for registration to the Australian Communications and Media Authority.
At the same time, the Federal Government has legislation before the Senate to allow rights holders to apply to a court for an order requiring ISPs to block offshore websites promoting online theft.
The Copyright Agency supports these moves and will continue to campaign for copyright and stand up for creators’ rights.
Murray St Leger,

Chief Executive

Should you go to law school in Australia?

You may have seen reference to the New South Wales Law Society report on the “Future Prospects of Law Graduates” in last Friday’s Australian. If you have not seen the full report here is the link to it. http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/980877.pdf

Dallas Buyers Club decision - who won?

The Australian Federal Court decided today that ISP iiNet was required to identify some of its customers who have downloaded the movie "Dallas Buyers Club".  The court imposed restrictions and costs on the copyright holder.  No email addresses were ordered to be disclosed.  Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317.

See Court Decision and SMH Article.

Music Copyright

"On Tuesday, a federal jury in Los Angeles concluded that Robin Thicke and Pharrell Williams, the performer and primary songwriter-producer of the 2013 pop hit “Blurred Lines,” committed copyright infringement by using elements of the 1977 Marvin Gaye song “Got to Give It Up” in their composition without proper credit. The jury awarded Mr. Gaye’s family approximately $7.3 million, a combination of profits from the song and damages. That’s an attention-getting amount of money, but the verdict itself is far more damning."

See NYT article

Left Shark Copyright

An interesting story about copyright in a costume for dancing shark.  Read the lawyer's response at the end of the story.

Copyright Infringement Detection Service

An interesting service from South Australia, called www.plfer.com.  It is a copyright infringement detection service.  Created by the founder of Davnet.  See story here.

Recommended Reading

I recommend these recent books, which relate to law and technology.  Kindle editions are available.






User Generated Content

An interesting story from England.  A hotel fined a guest for a bad review on TripAdvisor.

See Couple Fined by Hotel for Bad Review

See also this article, that mentions some lawsuits regarding user generated content

Computer Implemented Method Not Patentable Subject Matter in Australia

A unanimous Full Federal Court in Australia today decided that a computer implemented method of creating an investment index is not patentable, on the basis that the substance of the claimed invention – an abstract idea or scheme – was itself not patentable subject matter, and simply implementing that invention via a computer would not render it patentable.

See Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150

See also this case note.

Many internet related inventions may not be patentable subject matter in Australia as a result of this decision.

Hate Speech on Facebook

If someone posts something hateful, and possibly illegal, on your Facebook page, what should you do?

See Smart Company article about Anzac biscuits.

Negligence and pure economic loss

Australian High Court decision on concurrent liability in contract and negligence for pure economic loss.

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 (8 October 2014): http://www.austlii.edu.au/au/cases/cth/HCA/2014/36.html
A unanimous decision against finding concurrent liability in negligence to a contractual counterparty who had the opportunity to negotiate non-price terms with a builder. Would a software or IT enterprise customer be in any different position when dealing with a technology or telco provider?

Reloadable Cards

There appears to be a market for reloadable payment cards.  Part of the growth in this market is driven by online sales of goods and services.  See article on eMerchants.

New Zealand AdWords Case

Trade mark infringement found when competitor purchased Google AdWords that were trademarks of the other.

InterCity Group (NZ) Ltd v Nakedbus NZ Ltd [2013] NZHC 379 


See also comment.

Use of a competitor's mark in advertising could amount to an infringement of their trade mark unless it is clearly for descriptive or comparative purposes only e.g. if the advertisement includes sufficient text to differentiate the product or service that of the competitor. 

Legal Lessons from the Ice Bucket Challenge

See this article:  Legal Lessons from the Ice Bucket Challenge.

"Viral cause marketing is an enticing way to build attention for a brand. Before you embark on a strategy that seeks to copy the summer phenomenon of the ALS Ice Bucket Challenge, consider the legal ramifications."

Defamation and the liability of search engine providers

The following Supreme Court of NSW decision was delivered last week by McCallum J: Bleyer v Google Inc [2014] NSWSC 897 http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172529.

Her Honour expressly declined to follow Beach J in Trkulja v Google, and preferred the English line of cases. This was not a final decision on the merits (consideration was in the context of a permanent stay application, given low prospects of success), however the reasoning in this case is likely to be given significant weight in any future consideration of these issues. Her Honour does leave open the question, however, of whether liability may arise once notification of a complaint is received by the search engine provider.

An extract:

[83]  The evidence before me establishes that there is no human input in the application of the Google search engine apart from the creation of the algorithm. I would respectfully disagree with the conclusion reached by Beach J in Trkulja that the performance of the function of the algorithm in that circumstance is capable of establishing liability as a publisher at common law. I would adopt the English line of authority to the effect that, at least prior to notification of a complaint (and on the strength of the evidence before me), Google Inc cannot be liable as a publisher of the results produced by its search engine.

The Master Switch

I have just finished reading an excellent book, called "The Master Switch" by Tim Wu.  It is not a legal book, but more of an economic history.  It has a number of references to patent law.  Well worth reading.

Privacy

The Australian Privacy Commissioner has released a revised guide to "reasonable steps" to protect personal information.

Comments due 27 August.

"Effective ICT security requires protecting both computer hardware (the physical devices that make up a computer system) as well as the data (including personal information) that the computer hardware holds from misuse, interference, loss, unauthorised access, modification and disclosure. However, ICT security measures should also ensure that the hardware and the information stored on it remain accessible and useful to legitimate users."


However, absolute security is not only impossible but undesirable.  See for example, here and here

Letter from Amazon

Amazon wrote a detailed letter to authors, regarding e-book pricing.  See full text of letter here.

The letter asks authors to email Hachette's CEO directly.

WSJ article about the letter.

Online Copyright Infringement

The Australian Government has today released the Online Copyright Infringement Discussion Paper and is seeking public submissions on the draft proposals designed to address online piracy.
Australia has one of the highest rates of online copyright piracy in the world. This has a significant impact on Australia’s creative industries, including music, television, cinema, software, broadcast and publishing industries, which employ more than 900,000 people and generates more than $90 billion in economic value each year.
The ease with which copyrighted content can be digitised and distributed online means there is no easy solution to preventing online copyright infringement.  International experience has shown that a range of measures are necessary to reduce piracy and ensure that we can continue to take full advantage of the legitimate opportunities to create, provide and enjoy content in a digital environment. 
Everyone has a role to play in reducing online copyright infringement. Rights holders need to ensure that content can be accessed easily and at a reasonable price. Internet service providers (ISPs) can take reasonable steps to ensure their systems are not used to infringe copyright. Consumers can do the right thing and access content lawfully.
The Government’s preference is to create a legal framework that will facilitate industry cooperation to develop flexible and effective measures to combat online piracy. This Discussion Paper seeks the views of the public and stakeholders on proposals to establish such a legal framework.
Importantly, the Government expects that consumer interests will be taken into account in the development of any industry scheme or commercial arrangements.
The Discussion Paper is available on the Online copyright infringement—public consultation page of the Attorney-General’s Department website. Submissions are sought by end of 1 September 2014 and can be emailed to copyrightconsultation@ag.gov.au.
From King & Wood Mallesons:
The proposals are of most interest to copyright owners, to ISPs and to online intermediaries, although the proposed authorisation amendment to the Copyright Act 1968 (Cth) may have a broader application.
In this alert we look at the three proposals outlined in the Discussion Paper, and further questions raised within it.

How should damages be assessed for privacy and cybersecurity breaches

Listen to this podcast where I discuss how damages should be assessed in privacy and cybersecurity lawsuits. The Lawyers Weekly Show host J...