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Headline Cyber Tech & E-Commerce Legal News from LexisNexis®


Oral Arguments Held In Apple, Samsung Smartphone Design Patent Dispute
WASHINGTON, D.C. - An award of infringer's profits in a design patent case should consist only of those profits attributable to the article of manufacture to which the design patent is applied and not all profits realized from the total product, an attorney for petitioner Samsung Electronics Co. told the U.S. Supreme Court on Oct. 11 (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 15-777, U.S. Sup.).

Solicitor General To Participate In Supreme Court Samsung, Apple Patent Case
WASHINGTON, D.C. - In a Sept. 26 miscellaneous order list, the U.S. Supreme Court granted a motion by the U.S. solicitor general to participate as amicus curiae in the upcoming oral arguments in a design patent lawsuit between Samsung Electronics Co. and Apple Inc. pertaining to Apple smartphone designs (Samsung Electronics Co. Ltd., et al. v. Apple Inc., No. 15-777, U.S. Sup.; see related story this issue).

Federal Circuit Affirms Infringement Ruling In Apple, Samsung Patent Suit
WASHINGTON, D.C. - In an Oct. 7 en banc majority opinion, the Federal Circuit U.S. Court of Appeals affirmed a trial court's judgment and a jury verdict in favor of Apple Inc. against Samsung Electronics Co. in a dispute over smartphone technology patents, vacating an earlier panel ruling that had reversed the lower court's ruling (Apple Inc. v. Samsung Electronics Co., Ltd., et al., Nos. 2015-1171, 2015-1195 and 2015-1994, Fed. Cir.; 2016 U.S. App. LEXIS 18225).

Jury Finds Apple's Devices Infringe Cellular Patent, Awards Plaintiff $22 Million
TYLER, Texas - After a seven-day trial in Texas federal court, a jury on Sept. 14 found that Apple Inc. infringed the asserted claims of a patent related to a method for detecting buffer status conditions, awarding the patentee more than $22 million (Cellular Communications Equipment LLC v. Apple Inc., No. 6:14-cv-00251, E.D. Texas).

Federal Circuit Rules For Hulu, Finds Video Distribution Patent Anticipated
WASHINGTON, D.C. - A covered business method (CBM) review of an interactive video distribution patent correctly ended in findings of patent invalidity under 35 U.S. Code Section 102, the Federal Circuit U.S. Court of Appeals ruled Sept. 26 (Intertainer Inc. v. Hulu LLC, No. 15-2065, Fed. Cir.; 2016 U.S. App. LEXIS 17452).

Fraud Detection Patent Recites Ineligible Matter, Federal Circuit Concludes
WASHINGTON, D.C. - Finding no error in a Florida federal judge's determination of patent ineligibility under 35 U.S. Code Section 101, the Federal Circuit U.S. Court of Appeals on Oct. 11 affirmed dismissal of a dispute over a fraud detection patent (FairWarning IP LLC v. Iatric Systems Inc., No. 15-1985, Fed. Cir.; 2016 U.S. App. LEXIS 18313).

Federal Judge Rules For Amazon In Patent Claims Against Kindle, Fire Products
SAN FRANCISCO - Inc. on Sept. 20 won dismissal with prejudice of allegations that it infringed two patents amid findings by a California federal judge that the patents in suit do not pass muster under 35 U.S. Code Section 101 (TriDim Innovations LLC v. Inc., No. 15-5477, N.D. Calif.; 2016 U.S. Dist. LEXIS 127483).

Apple Takes Aim At Flexible Interface Patent In New Petition
ALEXANDRIA, Va. - In several petitions for inter partes review filed with the Patent Trial and Appeal Board on Oct. 11, Apple Inc. attacked the validity of a patent covering digital emulation (Petition for Inter Partes Review of U.S. patent No. 6,470,399, No. IPR2016-01839, PTAB).

EBay Seeks Inter Partes Review Of Graphic User Interface Patent
ALEXANDRIA, Va. - In a Sept. 22 petition for inter partes review filed with the Patent Trial and Appeal Board, eBay Inc. and others allege that a graphic user interface (GUI) patent is invalid under 35 U.S. Code Section 103 (eBay Inc., et al., v. Global Equity Management Pty. Ltd., No. IPR2016-01828, PTAB).

Hypermedia Navigation Patent Is Invalid, Netflix Says In New Petition
ALEXANDRIA, Va. - Citing four pieces of allegedly invalidating prior art, Netflix Inc. on Sept. 15 sought inter partes review before the Patent Trial and Appeal Board of a patent relating to the use of one device to select content for playback on another device (Netflix Inc. v. Convergent Media Solutions LLC, No. IPR2016-01812, PTAB).

Microsoft's Petition For Inter Partes Review Granted By Patent Board
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on Sept. 14 revealed that it will review a patent covering teleconference technology, at the request of Microsoft Corp. (Microsoft Corp. v. Keith A. Raniere, No. IPR2016-00663, PTAB).

Oracle Patent Will Face Inter Partes Review By Patent Board
ALEXANDRIA, Va. - Six claims of a patent covering database query optimization will be the subject of an upcoming inter partes review (IPR), the Patent Trial and Appeal Board announced Sept. 14 (Realtime Data LLC v. Oracle International Corp., No. IPR2016-00695, PTAB).

Judge Denies States' Bid To Enjoin Privatization Of Domain Name System Functions
GALVESTON, Texas - In a Sept. 30 minute order, a Texas federal judge denied an application for declaratory and injunctive relief by four U.S. states that sought to halt the transfer of the U.S. government's trusteeship of certain name and addressing functions for the Internet domain name system (DNS) under its contract with the Internet Corporation for Assigned Names and Numbers (ICANN) to a newly formed private entity (State of Arizona, et al. v. National Telecommunications and Information Administration, et al., No. 3:16-cv-00274, S.D. Texas).

Government Defends TCPA Constitutionality In Facebook Text Message Suit
SAN FRANCISCO - The U.S. government intervened in a putative consumer class action in California federal court Oct. 17, filing a memorandum defending the constitutionality of the Telephone Consumer Protection Act (TCPA) in response to a question raised by defendant Facebook Inc. related to allegations that the social network violated the act by sending text notifications without user consent (Christine Holt v. Facebook Inc., No. 3:16-cv-02266, N.D. Calif.).

Class Certification Again Sought In Suit Over Laptops Installed With Spyware
ERIE, Pa. - Eighteen months after the Third Circuit U.S. Court of Appeals affirmed their ability bring class claims against a rent-to-own (RTO) retailer that purportedly installed spyware on their computer, a Wyoming couple on Oct. 14 again moved for class certification to pursue their claims under the Electronic Communications Privacy Act (ECPA) (Crystal Byrd, et al. v. Aaron's Inc., et al., No. 1:11-cv-00101, W.D. Pa.).

Government To 9th Circuit: En Banc Review Of Computer Fraud Ruling Not Merited
SAN FRANCISCO - In an Oct. 11 brief in the Ninth Circuit U.S. Court of Appeals, the U.S. government defends a July 2016 panel ruling in which a majority found that a man violated the Computer Fraud and Abuse Act (CFAA) by accessing his former employer's network, arguing that his bid for en banc review should be denied (United States of America v. David Nosal, No. 14-10037 and 14-10275, 9th Cir.).

Backpage CEO Partly Granted Extension To Comply With Senate Subcommittee Subpoena
WASHINGTON, D.C. - Despite finding that LLC Chief Executive Officer Carl Ferrer did not properly invoke common-law privileges to a U.S. Senate subcommittee document subpoena, a District of Columbia federal judge on Sept. 16 granted in part his motion to extend the time to comply with an order enforcing the subpoena in light of his recent efforts to produce the requested documents (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 1:16-mc-00621, D. D.C.).

Plaintiff In Website Dispute Seeks To Quash Subpoenas Directed At Personal Life
CHICAGO - A woman bringing cybersquatting, fraud and defamation claims over a website created by her ex-boyfriend filed a motion to quash his discovery subpoenas in Illinois federal court on Oct. 5, asserting that the subpoenas were intended to harass and intrude on her personal life and lack any probative value related to the claims at issue in the case (Emily Mackie, et al. v. Mason Awtry, et al., No. 1:14-cv-09206, N.D. Ill.).

ABC, Yahoo Sued Over Broadcast, Posting Of Live Birth Video
NEW YORK - American Broadcasting Cos. Inc. (ABC) and Yahoo! Inc. were named as defendants in a Sept. 22 complaint in New York federal court by a man who claims that the companies breached the copyright in his video of a live birth that was aired on television and posted online without his permission (Kali Kanongataa v. American Broadcasting Companies Inc., et al., No. 1:16-cv-07382, S.D. N.Y.).

Oracle Denied New Trial, Judgment In Java Suit Post-Trial Proceedings
SAN FRANCISCO - Oracle America Inc. saw its post-trial motions for judgment as a matter of law (JMOL) and for a new trial denied by a California federal judge Sept. 27, who found that defendant Google Inc. did not engage in any discovery misconduct meriting a new trial (Oracle America Inc. v. Google Inc., No. 3:10-cv-03561, N.D. Calif.).

Divided Federal Circuit Reverses Eligibility Ruling In Anti-Virus Patent Suit
WASHINGTON, D.C. - Although affirming findings by a Delaware federal judge that two anti-virus patents are invalid under 35 U.S. Code Section 101, a divided Federal Circuit U.S. Court of Appeals on Sept. 30 reversed findings that a third patent asserted in the case claims patent-eligible subject matter (Intellectual Ventures I LLC v. Symantec Corp., et al., Nos. 2015-1769, -1770, -1771, Fed. Cir.; 2016 U.S. App. LEXIS 17695).

Trademark Counterclaim Survives Motion In Software Copyright Federal Litigation
TRENTON, N.J. - Counterclaims of contributory copyright infringement were rejected Sept. 22 by a New Jersey federal judge as barred by the economic loss doctrine because the allegations giving rise to the counterclaim are not "separate and distinct" from a related breach of contract counterclaim (Air Express International d/b/a DHL Global Forwarding Corporation v. LOG-NET Inc., No. 12-1732, D. N.J.; 2016 U.S. Dist. LEXIS 129409).

With Registration Requirement Now Met, Judge Reinstates Software Copyright Case
CHARLESTON, W.Va. - One month after dismissing a purported copyright infringement case, a West Virginia federal judge on Sept. 12 granted a plaintiff leave to amend in light of the plaintiff's recently received copyright registrations (CSS Inc. v. Christopher Herrington, et al., No. 16-1762, S.D. W.Va.; 2016 U.S. Dist. LEXIS 122869).

What The UC Berkeley Web Accessibility Ruling Means For Online Education
By Kevin Gumienny On August 30, 2016, the Department of Justice informed University of California, Berkeley (UC Berkeley) that large segments of UC Berkeley's free, publicly available online content was not accessible to individuals with hearing, vision, or manual disabilities. The DOJ's letter to university administration stated that UC Berkeley's courses were in violation of the Americans with Disabilities Act of 1990, which prohibits discrimination against qualified individuals with disabilities by public entities.1 UC Berkeley's experience with making online content accessible to people with disabilities is not unique. In recent years, many universities have been making learning available on the web, most popularly through MOOCs, massive open online courses, which often attempt to translate the experience of taking college classes to a format available through web browsers and other online formats. In addition to offering web-based education to the public, universities use the web to augment traditional courses through assignments, additional reading, online quizzes, lecture supplements, and other ways in which university lecturers can add dimensions beyond the traditional classroom lecture or laboratory experience.

Supreme Court Declines To Stay Senate Subcommittee Subpoena On CEO
WASHINGTON, D.C. - In a Sept. 13 order, the U.S. Supreme Court denied an application for stay filed by LLC CEO Carl Ferrer, in which he sought relief from a District of Columbia Circuit U.S. Court of Appeals order requiring him to comply with a U.S. Senate subcommittee subpoena related to an investigation of online sex trafficking (Carl Ferrer v. Senate Permanent Subcommittee on Investigations, No. 16A236, U.S. Sup.; 2016 U.S. LEXIS 4452).

DEA's Subpoena Of Hotmail Account Did Not Violate 4th Amendment, 7th Circuit Rules
CHICAGO - The U.S. Drug Enforcement Agency (DEA) did not violate the Fourth Amendment to the U.S. Constitution in issuing subpoenas on a man's email provider and Internet service provider (ISP) because he had no expectation of privacy in his computer's Internet protocol (IP) address, a Seventh Circuit U.S. Court of Appeals panel found Aug. 17, affirming a district court's denial of the defendant's motion to suppress in a drug possession case (United States of America v. Frank Caira, No. 14-1003, 7th Cir.; 2016 U.S. App. LEXIS 15098).

9th Circuit Finds AT&T Exempt From FTC Data-Throttling Suit As A Common Carrier
SAN FRANCISCO - In an Aug. 29 ruling, a Ninth Circuit U.S. Court of Appeals found that AT&T Mobility LLC qualifies as a common carrier under the Federal Trade Commission Act (FTC Act) and, as such, is exempt from the Federal Trade Commission's claims of alleged "data throttling" brought under the act (Federal Trade Commission v. AT&T Mobility LLC, No. 15-16585, 9th Cir.; 2016 U.S. App. LEXIS 15913). May Be Liable For Failure To Warn Of Violent Member, 9th Circuit Says
SAN FRANCISCO - Partly reversing a lower court's summary judgment ruling in favor of LLC (Match), a Ninth Circuit U.S. Court of Appeals panel on Sept. 1 held that a woman's claim that the dating website failed to warn her about another member, who brutally attacked her, is not precluded by the Communications Decency Act (CDA) (Mary Kay Beckman v. LLC, No. 13-16324, 9th Cir.; 2016 U.S. App. LEXIS 16218).

IPhone User Sues Apple For Failure To Honor Phone Upgrade Program
SAN JOSE, Calif. - In a putative class complaint filed Sept. 12 in California federal court, a New York man alleges breach of contract and unfair competition against Apple Inc. for its purported failure to live up to its pledge to annually furnish the latest models of iPhones to members of its "iPhone Upgrade Program" (Emil Frank v. Apple Inc., No. 5:16-cv-05217, N.D. Calif.).

Citing A Lack Of Damages, Lenovo Opposes Certification In Laptop Spyware Suit
SAN JOSE, Calif. - In an Aug. 19 brief opposing class certification in a suit over purported spyware that was preinstalled on computers, Lenovo (United States) Inc. told a California federal court that the case is "about a theoretical software security vulnerability that never materialized," arguing that certifications is inappropriate because the plaintiffs have not demonstrated any injury from the disputed software (In Re: Lenovo Adware Litigation, No. 5:15-cv-02624, N.D. Calif.).

Minnesota High Court: Lending Firm's Email Solicitations Conferred Jurisdiction
ST. PAUL, Minn. - A loan referral firm's sending of more than 1,000 solicitation emails to recipients it knew were in Minnesota constituted sufficient contacts to establish jurisdiction over it in the state, the en banc Minnesota Supreme Court ruled Aug. 24, affirming two lower court rulings in a consumer protection class action (Scott Rilley, et al. v. MoneyMutual LLC, No. A14-1307, Minn. Sup.; 2016 Minn. LEXIS 526).

9th Circuit Finds Yelp Not Liable For Negative Locksmith Reviews Under CDA
SEATTLE - A locksmith failed to plausibly establish that Yelp Inc. was the creator of negative online reviews of his business, a Ninth Circuit U.S. Court of Appeals panel held Sept. 12, affirming a trial court's finding that the locksmith's libel claims were barred by the immunity provisions of the Communications Decency Act (CDA) for interactive computer service providers (Douglas L. Kimzey v. Yelp Inc., No. 14-35487, 9th Cir.; 2016 U.S. App. LEXIS 16665).

5th Circuit: Tracking Software Trade Secret Claims Not Preempted By Copyright Act
NEW ORLEANS - A $15 million judgment on allegations of trade secret misappropriation will stand, in light of findings on Sept. 7 by the Fifth Circuit U.S. Court of Appeals that the case is not preempted by the Copyright Act (GlobeRanger Corporation v. Software AG, No. 15-10121, 5th Cir.; 2016 U.S. App. LEXIS 16429).

9th Circuit: Willful Copyright Infringement Claim Improperly Rejected
SAN FRANCISCO - A California federal judge erred in granting Live Nation Merchandise Inc. summary judgment on allegations of willful infringement because a reasonable jury could have concluded that Live Nation distributed a plaintiff's photographs with knowledge that copyright management information (CMI) had been removed, the Ninth Circuit U.S. Court of Appeals ruled Aug. 18 (Glen E. Friedman v. Live Nation Merchandise Inc., No. 14-55302, 9th Cir.; 2016 U.S. App. LEXIS 15178).

Internet Service Provider Launches Appeal Of Copyright Verdict
ALEXANDRIA, Va. - The U.S. District Court for the Eastern District of Virginia on Aug. 23 transmitted to the Fourth Circuit U.S. Court of Appeals an Aug. 19 notice of appeal by Cox Communications Inc. and CoxCom (Cox, collectively) of a December 2015 jury verdict that the Internet service providers (ISPs) committed contributory copyright infringement (BMG Rights Management [US] LLC v. Cox Communications Inc., et al., No. 14-1611, E.D. Va.).

Twitter, Facebook, Google: Communications Decency Act Bars Terrorism Aiding Suit
OAKLAND, Calif. - In a Sept. 2 filing in California federal court, Twitter Inc., Facebook Inc. and Google Inc. jointly moved to dismiss a lawsuit alleging that they violated federal law by knowingly allowing terrorist organizations such as the Islamic State group (IS or ISIS) to use their online platforms, arguing that the claims brought by a terror victim's father are precluded by the Communications Decency Act (CDA) (Reynaldo Gonzalez v. Twitter Inc., et al., No. 4:16-cv-03282, N.D. Calif.).

Victims' Families File Amended Complaint In Terrorism Aiding Suit Against Twitter
OAKLAND, Calif. - Two weeks after a California federal judge dismissed their suit against Twitter Inc. under the Anti-Terrorism Act (ATA), the family members of two terror attack victims on Aug. 30 filed an amended complaint focusing on Twitter's purported "provision of material support" to ISIS and its supporters via its social network services (Tamara Fields, et al. v. Twitter Inc., No. 4:16-cv-00213, N.D. Calif.).

NLRB: Chipotle's Social Media Policy Violates Labor Law
WASHINGTON, D.C. - The National Labor Relations Board on Aug. 18 enforced, with some modifications, a decision by an administrative law judge (ALJ) finding that the social media code of Chipotle Services LLC (doing business as Chipotle Mexican Grill) violates the National Labor Relations Act (NLRA) and that the fast food chain committed further violations by directing an employee to delete certain tweets, prohibiting the employee from circulating a petition challenging the chain's break policy and terminating the employee for his actions (Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing Committee, a project of the Fast Food Workers Committee, Nos. 04-CA-147314 and 04-CA-149551, NLRB).

Siding With Facebook, Divided Federal Circuit Invalidates 5 Patent Claims
WASHINGTON, D.C. - The Patent Trial and Appeal Board properly held two claims of two patents invalid, but erroneously deemed five other claims not anticipated and not obvious, according to a divided ruling by the Federal Circuit U.S. Court of Appeals on Sept. 9 (Software Rights Archive LLC v. Facebook Inc., et al., Nos. 15-1649, -1650, -1651, Fed. Cir.; 2016 U.S. App. LEXIS 16561).

California Federal Judge Denies Fee Request By Oracle In Patent Dispute
SAN FRANCISCO - Efforts by Oracle Corp. to recoup attorney fees it incurred defending patent infringement allegations - and to have those fees assessed against counsel for the plaintiff under the vexatious litigation statute - were unsuccessful on Aug. 22, when a California federal judge disagreed that the case qualifies as "exceptional" under 35 U.S. Code Section 285 (Thought Inc. v. Oracle Corporation, No. 12-5601, N.D. Calif.; 2016 U.S. Dist. LEXIS 111661).

Google Asks High Court To Review Use Of Prosecution History In Patent Claim Dispute
WASHINGTON, D.C. - Google Inc., facing allegations that it infringed an inventor's patents for computer malware protection software, asked the U.S. Supreme Court in an Aug. 10 brief to resolve how the Federal Circuit U.S. Court of Appeals should use prosecution history to settle claim construction disputes (Google Inc. v. Alfonso Cioffi and The Estate of Allen Frank Rozman, No. 16-200, U.S. Sup.).

Fraud Prevention Patent Targeted In New Petition For Patent Board Review
ALEXANDRIA, Va. - A claimed method of sending to a verified user a warning that a potentially fraudulent event has occurred and then requiring the user to acknowledge the event is invalid under 35 U.S. Code Section 101, according to an Aug. 24 petition for covered business method (CBM) review filed with the Patent Trial and Appeal Board (Twilio Inc. v. Telesign Corporation, No. CBM2016-00099, PTAB).

Sony Petitions Patent Board For Review Of Web Communication Patent
ALEXANDRIA, Va. - A patented method of communicating online with pre-stored sequences of actions or scripts is directed to nonstatutory subject matter under 35 U.S. Code Section 101, Sony Mobile Communications (USA) Inc. alleges in an Aug. 19 petition for covered business method (CBM) review with the Patent Trial and Appeal Board (Sony Mobile Communications [USA] Inc. v. Content Aggregation Solutions LLC, No. CBM2016-00098, PTAB).

Patent Board Won't Review Internet Navigation Method Patent
ALEXANDRIA, Va. - Efforts by an infringement defendant to invalidate a patented method of gathering and presenting summary information as HyperText Markup Language (HTML) were unsuccessful on Aug. 16, when the Patent Trial and Appeal Board denied a petition for covered business method (CBM) review (Plaid Technologies Inc. v. Yodlee Inc. and Inc., No. CBM2016-00037, PTAB).

St. Jude: Hacking Report Was Scheme To Profit By Short Selling
MINNEAPOLIS - Heart device maker St. Jude Medical Inc. on Sept. 7 sued a hedge fund and a cybersecurity research firm for defamation for issuing a report that St. Jude's devices can be hacked and that patients should disable remote monitoring devices (St. Jude Medical, Inc. v. Muddy Waters Consulting LLC, et al., No. 16-03002, D. Minn.).

D.C. Circuit Stays Senate Subcommittee Subpoena On CEO
WASHINGTON, D.C. - The chief executive officer of online classifieds website operator LLC was granted temporary relief from a U.S. Senate subcommittee's discovery subpoena on Aug. 12 when a District of Columbia U.S. Circuit Court of Appeals panel granted his emergency motion to stay, which was filed the same day (Senate Permanent Subcommittee on Investigations v. Carl Ferrer, No. 16-5232, D.C. Cir.).

Reddit Opposes Label's Petition To Identify Poster Of Twenty One Pilots Single
NEW YORK - In a memorandum filed Aug. 10 in New York state court, Reddit Inc. opposed an effort by Atlantic Recording Corp. to obtain via subpoena identifying information of a Reddit user who purportedly leaked a high-profile song before its release date, with Reddit arguing that the record label failed to demonstrate that it had meritorious claims that justified such preaction disclosure (Atlantic Recording Corp. v. Reddit Inc., No. 156210/2016, N.Y. Sup., New York Co.).

Google, Oracle Spar Over Post-Judgment Sanctions For Financial Info Disclosure
SAN FRANCISCO - In an Aug. 8 opposition brief filed in California federal court, Oracle America Inc. calls a post-trial motion for civil contempt and sanctions by Google Inc. "unprecedented," asserting that the discovery trial statements that purportedly disclosed confidential information "were responsive" to arguments from Google and probing questions from the presiding magistrate (Oracle America Inc. v. Google Inc., No. 3:10-cv-03561, N.D. Calif.; See related story this issue).

6th Circuit Revives Florida Man's Wiretap Suit Against Spyware Firm
CINCINNATI - A plaintiff sufficiently alleged that the developer of software that was used to intercept and record his communications was an active participant in these actions, a Sixth Circuit U.S. Court of Appeals panel majority found Aug. 16, reversing a trial court's ruling that dismissed the plaintiff's claims under the Electronic Communications Privacy Act (ECPA) for failure to state a claim (Javier Luis v. Awareness Technologies, et al., No. 14-3601, 6th Cir.).

4th Circuit Orders Forfeiture Of Megaupload's Foreign-Held Assets
RICHMOND, Va. - A Fourth Circuit U.S. Court of Appeals panel majority on Aug. 12 upheld a trial court ruling ordering the forfeiture to the U.S. government of New Zealand and Hong Kong-held assets of now defunct Internet file storage service Megaupload and others involved in a criminal copyright infringement conspiracy, finding the forfeiture to be supported by the Civil Asset Forfeiture Reform Act (CAFRA) (United States of America v. Finn Batato, et al., No. 15-1360, 4th Cir.; 2016 U.S. App. LEXIS 14861).

Oracle To California Federal Court: Google's Copying Of Java Was Not Fair Use
SAN FRANCISCO - Oracle America Inc. argues in a July 27 brief that a California federal jury was wrong to find that Google Inc.'s use of its copyrighted Java software code was protected by fair use because a reasonable jury could not have found that the use of the Java code was not transformative (Oracle America, Inc. v. Google Inc., No. 10-03561, N.D. Calif.).

7th Circuit Partly Affirms Discovery Sanctions Against Attorney In File-Sharing Suit
CHICAGO - In a July 19 ruling, a Seventh Circuit U.S. Court of Appeals panel affirmed discovery sanctions against an attorney in a "porno-trolling collective" for what it called egregious and obstructive behavior in failing to comply with a trial court's sanctions awards against it in the wake of a dismissed file-sharing lawsuit (Lightspeed Media Corp., et al. v. Anthony Smith, et al., No. 15-2440, 7th Cir.; 2016 U.S. App. LEXIS 13195).

Terrorism Aiding Suit Against Twitter Dismissed Under Communications Decency Act
OAKLAND, Calif. - Finding that the family members of two terror attack victims who alleged that Twitter Inc. aided terrorists in violation of the Anti-Terrorism Act (ATA) sought to treat Twitter as the speaker of messages posted by ISIS, a California federal judge on Aug. 10 dismissed their claims as barred by the Communications Decency Act (CDA) (Tamara Fields v. Twitter Inc., No. 4:16-cv-00213, N.D. Calif.; 2016 U.S. Dist. LEXIS 105768).

8th Circuit Affirms Dismissal Of Suit Over GameStop's Disclosure Of Information
ST. LOUIS - Although it found that a plaintiff had standing to bring putative class claims against a gaming website operator for purported disclosure of users' personally identifiable information (PII), an Eighth Circuit U.S. Court of Appeals panel majority on Aug. 16 concluded that the plaintiff failed to state a claim upon which relief can be granted, affirming a trial court's dismissal of his complaint (Matthew Carlsen v. GameStop Inc., et al., No. 15-2453, 8th Cir.; 2016 U.S. App. LEXIS 14999).

9th Circuit Affirms Pandora Privacy Suit Dismissal Per Michigan High Court Ruling
SAN FRANCISCO - Two weeks after the Michigan Supreme Court determined that the lead plaintiff in a putative class action against Pandora Media Inc. did not constitute a customer of Pandora's online streaming service per Michigan's Video Rental Privacy Act (VRPA), a Ninth Circuit U.S. Court of Appeals panel on July 21 affirmed a lower court's dismissal of the suit (Peter Deacon v. Pandora Media Inc. No. 12-17734, 9th Cir.; 2016 U.S. App. LEXIS 13333).

New Jersey Man Sues Pokemon Go Developer For Placing Stops On Private Property
OAKLAND, Calif. - The developer of Pokemon Go, a popular "augmented reality" game that is played on smartphones, is liable for nuisance for placing virtual parts of the game known as "Pokestops" and "Pokemon gyms" on or adjacent to private property, a New Jersey man alleges in a class complaint filed July 29 in a California federal court (Jeffrey Marder, et al. v. Niantic, Inc., et al., No. 16-4300, N.D. Calif.).

Complaint: Digital Millennium Copyright Act Provisions Violate 1st Amendment
WASHINGTON, D.C. - A complaint filed July 21 in the U.S. District Court for the District of Columbia targets the "anti-circumvention" and "anti-trafficking" provisions of the Digital Millennium Copyright Act (DMCA), stating that they chill "protected and noninfringing speech that relies on copyrighted works" without providing speakers with the traditional safeguard of "the fair use doctrine" in violation of the First Amendment to the U.S. Constitution (Matthew Green, et al. v. U.S. Department of Justice, et al., No. 1:16-cv-01492, D. D.C.).

Lenovo Laptop Purchasers Seek Certification Of Fraud, Privacy Claims Over Adware
SAN JOSE, Calif. - A group of consumers who purchased laptops that were preinstalled with purported malware filed a motion for class certification in California federal court on July 22 of their unlawful access, consumer protection and related claims against the computer manufacturer and the software developer (In Re: Lenovo Adware Litigation, No. 5:15-cv-02624, N.D. Calif.).

Apple's Waiver Claim Fails, But Federal Circuit Upholds Noninfringement Ruling
WASHINGTON, D.C. - A California federal judge properly construed the terms "specified connection" and "UL connections" in a dispute over wireless communication patents, according to an Aug. 1 ruling by the Federal Circuit U.S. Court of Appeals in favor of defendant Apple Inc. (Wi-LAN USA Inc., et al. v. Apple Inc., No. 15-1256, Fed. Cir.; 2016 U.S. App. LEXIS 13860).

Federal Circuit Affirms: Paging Patents Not Invalid, Not Infringed By Apple
WASHINGTON, D.C. - A California federal judge's decision that upheld a verdict of patent invalidity and noninfringement following a seven-day jury trial was not erroneous, the Federal Circuit U.S. Court of Appeals ruled Aug. 1 (GPNE Corp. v. Apple Inc., No. 15-1825, Fed. Cir.; 2016 U.S. App. LEXIS 13862).

Federal Circuit: Online Loan- Processing Patents Are Ineligible Under Section 101
WASHINGTON, D.C. - A North Carolina federal judge erroneously denied the real estate website Zillow Inc. summary judgment on allegations that it infringed two patents directed to a process for coordinating loans on a loan-processing computer over the Internet, because both patents are directed to ineligible subject matter, the Federal Circuit U.S. Court of Appeals ruled July 26 (LendingTree LLC v. Zillow Inc., Nos. 14-1435, -1531, 15-1186, Fed. Cir.; 2016 U.S. App. LEXIS 13462).

Federal Circuit Partly Vacates Ruling In Favor Of Apple In Patent Case
WASHINGTON, D.C. - A California federal judge's determination that Apple Inc. was entitled to a summary judgment that it did not infringe various claims of four patents was erroneous, the Federal Circuit U.S. Court of Appeals ruled July 22 (Unwired Planet LLC v. Apple Inc., No. 15-1725, Fed. Cir.; 2016 U.S. App. LEXIS 13364).

Judge Says Electronic Files Patent Cannot Satisfy Alice Eligibility Standard
PITTSBURGH - Efforts to enforce a patent against myriad defendant insurers failed Aug. 4 when a Pennsylvania federal judge agreed with the insurer that the patent claims ineligible subject matter and "does not clear" the bar set in Alice Corp. Pty. Ltd. v. CLS Bank Int'l. (134 S. Ct. 2347, 2355 [2014]) (Intellectual Ventures I LLC v. Erie Indemnity Company, et al., No. 14-220, W.D. Pa.; 2016 U.S. Dist. LEXIS 102289).

Apple Seeks Review Of Quality Control Patent Before Patent Board
ALEXANDRIA, Va. - A claimed method of measuring and reporting the quality of communications between a mobile device and a base station was well known to people of ordinary skill in the art before it was patented, Apple Inc. alleges in a July 22 petition for inter partes review (IPR) by the Patent Trial and Appeal Board (Apple Inc. v. Cellular Communications Equipment LLC, No. IPR2016-01480, PTAB).

Connecticut Federal Judge Grants Summary Judgment On Typosquatting Claim
HARTFORD, Conn. - Citing a lack of evidence linking two digital marketing companies with the use of various domain names featuring a deliberate misspelling of a plaintiff's trademark, a Connecticut federal judge on July 29 dismissed allegations that the defendant that hired the companies violated the Anti-Cybersquatting Consumer Protection Act (ACPA) (Edible Arrangements LLC v. Provide Commerce Inc., No. 14-250, D. Conn.; 2016 U.S. Dist. LEXIS 99291).

Travel Websites Say Delta Fails To Assert Fraud Claims In Trademark Suit
TRENTON, N.J. - An airline company fails to assert a common-law fraud claim in allegations that a group of travel websites posed as company representatives to charge consumers inflated flight cancellation and modification fees, the travel websites argue in a July 12 reply brief in support of their motion to dismiss a trademark infringement lawsuit filed in a New Jersey federal court (Delta Air Lines, Inc. v. Fly Tech, LLC, et al., No. 16-02599, D. N.J.).

Patent Board Reconsiders, Reaffirms Rejection Of Software Deployment Patent Claims
ALEXANDRIA, Va. - The Patent Trial and Appeal Board on July 25 agreed to reconsider its May 2016 rejection of 21 claims in a patent directed to software deployment but again affirmed an examiner's rejection of the claims on obviousness grounds (Ex parte Jacob Taylor, et al., No. 014-006775, PTAB).

Policy-Driven Adoption For Accessibility (PDAA), Adding Vendor Governance Evaluation To State Procurement
By Hiram Kuykendall (Complete version of commentary with charts available. Document #24-160818-199X.) The challenge of procuring software that is perceivable and usable by people who have vision, hearing, mobility, and / or cognitive challenges can be a daunting task for both the public and private sector. There have been many attempts to lessen this burden on state procurement officers such as the adoption of the Voluntary Product Accessibility Template (VPAT)1 and Government Product / Service Accessibility Template (GPAT)2. Each of these vehicles approach accessibility from the perspective of the individual software package. While this seems to be an intuitive approach, both the VPAT and GPAT rely on the software provider to self-evaluate a product's level of compliance. The result of these evaluations can be less than clear for a procurement officer to understand and make decisions since responses are technical and tend to be vague. In response to this, the National Association of State Chief Information Officers (NASCIO)3 created an additional evaluation tool, the Policy-Driven Adoption for Accessibility (PDAA)4, that examines an organization's commitment to accessibility by having them self-report on the organization's inner accessibility governance. The theory is if an organization has strong accessibility policies, procedures, and integration throughout the organization, then it stands to reason that the software products will have higher degrees of accessibility. And finally, combining the PDAA with VPAT / GPAT, the procurement officer should have a good view of both an organization's commitment to accessibility as well as the technical levels of product compliance, albeit a self-reported one.