Banking on Your Child’s Future: Is There Sufficient Legal Recourse Against the Unregulated Private Cord Blood Bank Industry?

bankingBy Robin Hammond

Cord blood and tissue banking has significantly increased in the past few years, with 2.6% of parents using private banks and over a thousand transplants from public banks. Some benefits are concrete, and others speculative. The stem cells collected can be used to treat several diseases, including leukemia, lymphoma, anemia, and some immune system disorders. Currently, there are over 200 registered clinical trials currently underway around the world investigating the role that stem cells may play in the various systems of the human body, including Macular Degeneration and Cerebral Palsy.

The standards for public and private banks vary like night and day. As with many emergent technologies, the regulation of private banks has been slow. Currently, private banks only need to provide the FDA with their business name and address to be FDA registered. In contrast, public banks are licensed by the FDA and are responsible for adhering to strict quality standards including documentation on processing, storage and sterility, and site inspection. Additionally, public banks are coordinated by Be The Match®, which works with doctors and researchers to improve cord blood transplantation and education as mandated by the Stem Cell Therapeutic and Research Act of 2005 and Reauthorization Act of 2010. Continue reading “Banking on Your Child’s Future: Is There Sufficient Legal Recourse Against the Unregulated Private Cord Blood Bank Industry?”

Setting the Stage for another Fight of the Soul of Patent Law

Patent-WarsBy Don Wang

On September 18, 2015, the Federal Circuit, sitting en banc, rendered another divisive decision, SCA Hygiene Products AB v. First Quality Baby Products. In the very first paragraph of the dissent opinion, Judge Hughes harshly states, “[p]atent law is governed by the same common-law principles, methods of statutory interpretation, and procedural rules as other areas of civil litigation. Today, the majority adopts a patent-specific approach to the equitable doctrine of laches. In doing so, the majority overlooks Congress’ intent and Supreme Court precedent . . .” Ouch!

The Supreme Court’s 2014 “Raging Bull” copyright decision, Petrella v. Metro-Goldwyn-Mayer, Inc, prompted the issue. In that case, the Supreme Court eliminated the “judicially-created laches defense [in copyright cases] because Congress, through a statute of limitations, ha[d] already spoken on the timeliness of copyright infringement claims.” The Patent Act similarly provides a six-year rolling limitation period, but Federal Circuit precedent held that the statute of limitations and laches defense can coexist in patent law. Interestingly, the Supreme Court specifically remarked in the Raging Bull case that it had “not had occasion to review the Federal Circuit’s position [that laches can bar past damages in patent law].” Taking the cue from the Supreme Court, SCA Hygiene appealed to the Federal Circuit en banc review and argued that there is no “principled distinction” between the statute of limitations in the Copyright Act and Patent Act. Continue reading “Setting the Stage for another Fight of the Soul of Patent Law”

Sports Broadcasters Facing Antitrust Lawsuits

nyy_1200x630By Talia Loucks

Sports fans that live far from their favorite teams have a difficult time watching games. I discovered this in the 90s when I was a Seahawks fan living in Colorado. The agreements between regional sports networks, the teams, and television service providers make it extremely difficult for out-of-market fans to access games. Baseball and hockey fans, however, are currently trying to fix this. Out-of-market fans won a small victory this past May when Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York granted a motion for a class action certification.

The cases, Garber v. MLB and Laumann v. NHL, are antitrust challenges to sports broadcasting. Plaintiffs in both cases are challenging the multilateral agreements between the leagues (MLB and NHL), regional sports networks (“RSNs”), and multichannel video programming distributors (“MVPDs”)—DirecTV and Comcast—“that limit options, and increase prices, for baseball and hockey fans that want to watch teams from outside the home television territory (“HTT”) where the fans live.” Fans, who live in cities far from the teams they love, must purchase out-of-market packages that broadcast all games outside of the market. Furthermore, because of the exclusivity of networks such as the Yankees Entertainment Sports Network (“YES”) and other similar team-specific networks, often fans that have purchased out-of-market packages still cannot watch their favorite teams. Continue reading “Sports Broadcasters Facing Antitrust Lawsuits”

Winner Winner, Apple Dinner: Federal Circuit Issues Injunction Against Samsung for Patent Infringing Devices

samsung-apple211By Vijay Kumar

Another chapter of the Apple/Samsung cell phone wars was written earlier this month when the Federal Circuit ruled that Apple Inc. should have been granted an injunction against Samsung Electronics Co. devices for certain patent-infringing features. The ruling is significant, not only because of its effect on the two biggest cell phone manufacturers, but also because it will likely have a significant effect on a patentee’s ability to get injunctions granted. Samsung is appealing the decision to a Federal Circuit en banc panel.

The technology at issue dealt with features of mobile phones including spelling correction, linking phone numbers in a document to a dialer, and slide-to-unlock features. This appeal stems from a May 2014 district court decision from the Northern District of California, in which Apple was awarded $120 million in damages, but denied an injunction. Continue reading “Winner Winner, Apple Dinner: Federal Circuit Issues Injunction Against Samsung for Patent Infringing Devices”

A New (Old) Sheriff: The FTC’s Authority on Cybersecurity Affirmed

chainsBy Julie Liu

As we know well from news coverage of hacks and leaked information, consumers and employees take a gamble whenever they give their personal information to a company. Consciously or not, these individuals count on the company’s technological savvy in combination with its data security policies to keep the information safe. While this status has not changed much since businesses first became digitized, regulations are gradually catching up. For the Federal Trade Commission (FTC), cybersecurity has been a top priority in recent years, and it will likely tighten its grip on businesses with inadequate security measures.

Late last month, the U.S. Court of Appeals for the Third Circuit issued its long-awaited ruling in FTC v. Wyndham Worldwide Corporation, a case which reevaluated the FTC’s authority to regulate cybersecurity. Litigation began in 2012 when the FTC sued Wyndham Worldwide, a hotel chain company, for unfair business practices. The FTC alleged that Wyndham’s inadequate data security led to three data breaches at Wyndham hotels in two years. According to the complaint, these breaches compromised more than 619,000 payment card accounts and caused over $10.6 million in fraud loss. Wyndham responded with a motion to dismiss the complaint, arguing that the FTC did not have the authority to bring the suit in the first place. The district court denied the motion last year, and the Third Circuit has now affirmed this order on interlocutory appeal.

Continue reading “A New (Old) Sheriff: The FTC’s Authority on Cybersecurity Affirmed”

Artificial Nature: Will the astounding become common?

leafBy Robin Hammond

From artificial leaves to digital rodent brains, computer scientists are successfully implementing processes from the natural world. Does the Alice ruling on software patentability provide a glimpse into how these technologies will be treated in the future? In 15 years, will computer-implemented natural processes be patent-ineligible?

The utilization of natural processes in computing is astounding. Recently, researchers in Melbourne developed a solar-power device that is close to simulating photosynthesis. The Energy and Environmental Science journal published these details in an article; in the article, researchers claim “This simple and adaptable system addresses key criteria for the large-scale deployment of an artificial photosynthesis device” to “provide a cheap, clean and renewable source of hydrogen as the ultimately sustainable fuel.” In August, news broke that IBM had created a digital equivalent of a small rodent’s brain, a type of chip with neuro-synaptic architecture, called TrueNorth. Both the chips and subsequent software recreate a brain’s neurons and synapses. The TrueNorth chip is another leap forward for computing through ‘deep learning’. Deep learning operates in two stages: “First, companies … must train a neural network to perform a particular task. If they want to automatically identify cat photos, for instance, they must feed the neural net lots and lots of cat photos. Then, once the model is trained, another neural network must actually execute the task. You provide a photo and the system tells you whether it includes a cat. The TrueNorth, as it exists today, aims to facilitate that second stage.”

It has taken many years, but the courts are finally addressing the realities of software patentability. In Alice, the Supreme Court did an about-face in terms of the validity of business-method and software patents. No longer are ideas or processes patentable because a computer executes them. While the opinion did not itself mention software, it has heralded in a new age of hostility at the U.S. Patent and Trademark Office toward business-method and software patents, with many courts overturning patents under the new standard of Alice.

In 15 years, will natural processes that are merely implemented by computers be novel enough to qualify for patents? Or will the two-step inquiry applied in Alice be similarly interpreted once these processes become commonplace? The analysis under Alice begins with the question: does the invention consist in significant part of a patent-ineligible concept—for example, a law of nature, natural phenomenon or abstract idea? If so, the invention is patent-eligible only if the remaining parts of the invention have an “inventive concept”—one or more elements that ensure a patent on the invention amounts in practice “to significantly more than a patent upon the ineligible concept itself. In Alice, the patents at issue were for computerized escrow. The court decided that the abstract idea of escrow was patent-ineligible and performing escrow on a computer was not sufficient to provide an inventive concept: “A mere instruction to implemen[t an abstract idea] on … a computer … cannot impart patent eligibility.”

Does the shift in the patentability of software patents in Alice foretell the future of the patentability of artificial nature? One could foresee a future where the idea of brain functioning (arguably a natural phenomenon) is in itself not patentable, and the mere implementation of specific neuro-synaptic architecture by a computer would not rise to the level of inventive concept. Or will future courts embrace Judge Rader’s broad interpretation of the applicability of §101? Where natural laws are restricted to “universal constants created, if at all, only by God, Vishnu, or Allah”; “even gravity is not a natural law“; and the slightest bit of labor mixed with nature is property under Lockean reasoning.

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The Continuing Saga of Cell Phone Tracking

cell phone, blog post

By Kelsey O’Neal

We count on our cell phones to be fast. We hate waiting for a call or a text. Our cell phones constantly emit signals to the closest cell tower. These fast signals instantly gratify us. But as you carry your phone, it creates a mass of data called cell site location information (CSLI). You don’t even have to use your phone; just having it on creates the cell site location information. U.S. federal law is divided on whether the government needs a warrant to get this information. On July 29th, 2015, U.S. District Court Judge Lucy Koh issued an opinion which requires that a government agency get a warrant before it requests 60 days of cell site location information.

Judge Koh wrote that tracking cell phones with historical cell site location information is particularly dangerous because law enforcement can use the cell site information to look into people’s homes and learn detailed information about an individual’s personal life. Judge Koh ruled that the government must obtain a search warrant to access these personal details because: (1) people expect privacy from government intervention when they are at home; (2) people have a higher expectation of privacy when it comes to long-term surveillance, and (3) cell phone location data can reveal a great deal about an individual because everyone turns on their cell phone and carries it with them. Twelve states agree with Judge Koh; six states already have a law that requires the police to get a warrant, and six are trying to get one.

However, not all states or courts agree with Judge Koh. Early this year, an 11th Circuit panel held that the police do NOT have to get a warrant to look at CSLI. Additionally, a 6th Circuit panel in Cincinnati held that you do not have a reasonable expectation of privacy if you accidentally butt-dial, ahem, pocket-dial, somebody. Why? The court compared it to leaving your curtains open; while there is still a privacy interest, it’s not nearly as strong because you are letting people look in your home. It would be simple to protect your privacy by shutting your curtains, or, by password protecting your phone.

It looks like this particular fight could head toward the Supreme Court, and the result could impact all cell phone users. Until that time, you should probably put your phone in airplane mode the next time you rob a bank.

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An Action-Packed Summer for PTAB

uspto_seal_full_colorBy Don Wang

If you spent this past summer looking forward to the most recent Fantastic Four movie, I am deeply sorry for the utter disappointment. However, if you have been following the news of the Patent Trial and Appeal Board (PTAB) instead, this has been a truly great summer! Following the roll-out of the American Invents Act, the United States Patent and Trademark Office (USPTO) started to solicit public comments for a proposed rule change package for trials before the PTAB and has proposed a pilot program to have a single Administrative Patent Judge determine the institution of an Inter Partes Review. Continue reading “An Action-Packed Summer for PTAB”

The UK Orders Google to Remove Links to “Right to be Forgotten” Stories

google_img By Juliya Ziskina

The United Kingdom’s Information Commissioner’s Office (ICO) has ordered Google to remove search results linking to news stories about the removal of information under the 2014 “right to be forgotten” ruling. Under the “right to be forgotten” ruling, Europeans who feel they are being misrepresented by search results that are no longer accurate or relevant—for instance, information about old financial matters, or misdeeds committed as a minor—can ask search engines like Google to delink the material. If the request is approved, the information will remain online at the original site, but would no longer come up under certain search engine queries.

Google had previously removed links relating to an offense committed by an individual almost 10 years ago. At the time, the individual had requested removal of the links under the “right to be forgotten” ruling. Several publications produced news stories detailing this removal request, and it became a news story in itself. Google retained links to those articles, and they still appeared in the search results for the individual’s name. The individual complained—and now the ICO has ordered Google to remove the newer articles. Google refused to remove links to these later articles, which included details of the original criminal offense. Google argues that these articles are an essential part of a broader news story about the “right to be forgotten,” and that the articles are in the public interest.

Google faces criminal charges and financial sanctions if it does not comply with the ICO’s order. These criminal consequences and fines may have a dire effect on Google’s ability to freely distribute information.

The “right to be forgotten” ruling gives European nations a mechanism to censor legal information and web pages. Not only does the ICO want to invoke the right to be forgotten, but it also wants to erase evidence that it implemented the policy. The EU designed this law to protect privacy, but these new developments are an unsettling new leap into government censorship.

However, Europeans can still use American Google to get uncensored information. European governments cannot force Google to alter results on its American search engine. The “right to be forgotten” ruling restricts, but leaves untouched. European governments may eventually try to patch this hole. But for now, the right to be forgotten disappears at the American border.

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China Poised to Tighten Grip on Cybersecurity with New Law

CyberSecurityBy Andrew H. Fuller

As Cybersecurity becomes a prominent global issue for nation states, governments consider options to curb their nation’s digital vulnerability. On July 6th, China, an undisputed major player on the global digital frontier, released the Cyber Security Law of the People’s Republic of China (“CSL”) for public comments. The CSL will, among other things, encourage education and training in cybersecurity related fields, establish new protections and rights for personal and sensitive data, and create government set standards for information technology hardware and software. Once adopted, the CSL will be the first Chinese law that exclusively focuses on cybersecurity. Continue reading “China Poised to Tighten Grip on Cybersecurity with New Law”