Interpreting the BPCIA – Is the “Patent Dance” Mandatory?

Background Biologics are a type of therapeutics derived from, or made by, the biological processes of a living organism, such as human cells, animals, microorganisms, or yeast.1 Examples of biologics include some vaccines, blood or blood components, hormones, and antibodies. Unlike standard chemical drugs, which are relatively small molecules, biologics are often large and complex molecules that are not easily produced through synthetic manufacturing pathways. Due to their production mechanism, it is difficult to create Continue Reading →

Social Media and the Discovery Process

We are using an increasing number of mediums to communicate today, and with this advent in technology, lawyers must likewise learn the new rules associated with discovery and social media – or adapt and stretch the old rules. Facebook, Twitter, Instagram, Tumblr, and others are all new platforms for sharing and obtaining information, some of which may be used in litigation. Given the relative novelty of these channels, the discovery process for them is still Continue Reading →

Claim Construction Under Teva: How Much Deference?

The claims of a patent define the scope of the exclusive right granted to the patentee. Claims should be written such that a person of ordinary skill in the art can understand the boundaries of the invention. The language, which can sometimes be ambiguous, typically consists of a mix of ordinary languages as well as technical and legal jargon. Thus, an important step for courts, in resolving patent infringement disputes, is the interpretation of the Continue Reading →

Cy Pres Remedies in the Internet Privacy Class Action Context

Last November, the Supreme Court denied certiorari in Marek v. Lane, a class action case concerning potential privacy violations arising from Facebook’s short-lived and controversial “Beacon” program, which automatically posted information regarding users’ transactions on third-party websites to the users’ Facebook feeds. The class action ended in a settlement, in which Facebook agreed to pay $9.5 million into a cy pres fund to “establish a charitable foundation” that would “fund organizations dedicated to educating the Continue Reading →

Freeing the Market in Silicon Valley

Silicon Valley is known for being home to tech giants such as Apple and Google. These companies, and others like them, set the bar for technological innovations which are generated by and depend upon the hard work of thousands of employees. The Valley is vaunted for its respect for the power of an individual’s idea, and these types of success stories have characterized the area for decades. Why then, in this culture of respect for Continue Reading →

How Should International Purposeful Availment Grow with the Internet?

Courts have used internet activity to find personal jurisdiction in the United States.  Many of these cases have relied on either the Zippo test from Zippo Manufacturing Co. v. Zippo Dot Com, Inc or the Calder test from Calder v. Jones.  The Zippo test applies a sliding scale where a court looks at the interactivity versus passivity of a website to find purposeful availment and is considered to be the main standard in internet jurisdiction Continue Reading →

Is Netflix’s “Watch Instantly” Streaming Service Statutorily Discriminatory Against the Deaf? The Answer is Yes and No.

Netflix has established itself as the world’s premier on-demand Internet streaming media service, with thousands of movies and TV episodes available for unlimited and instant download and more than 33 million subscribers around the world. Yet, despite its overall popularity, over the past year Netflix has found itself defending against allegations that its “Watch Instantly” video stream service is statutorily discriminatory against deaf and hearing-impaired subscribers in Nat’l Ass’n of the Deaf v. Netflix, Inc., Continue Reading →

Smartphone Wars: Part II

On August 24th, Apple won decisively in Apple v. Samsung. The jury awarded Apple $1.04 billion for infringing Apple’s intellectual property. This was less than the $2.5 billion that Apple requested, but the jury found that Apple wasn’t infringing any of Samsung’s patents. Of the many patents that were disputed, the judgment turned on three patents and Apple’s trade dress argument. The pertinent features were the following: (i) bounce-back effect; (ii) pinch-to-zoom feature; and (iii) Continue Reading →

Smartphone Wars

Apple sues Samsung for patent infringement. In response, Samsung files international countersuits on patents of its own. Courts around the world grant preliminary injunctions to each company on a number of their claims, while United States and European Union government agencies investigate allegations of antitrust violations. What’s going on here? Let’s start with the shiny new weapon that Apple added to its arsenal in June of last year: a patent on the original iPhone, the Continue Reading →

Your Smartphone; A Prosecutor’s Best Witness

Introduction Witnesses in the United States may choose to exercise their right to “plead the Fifth,” or refuse to answer a question because the response could provide self incriminating evidence of an illegal act. But how strong is this right if a prosecutor is already aware of where a witness was, what they saw, what they heard, and in some ways even what they were thinking at any given time on any given day? I Continue Reading →