Articles Posted in 2012


Ernest Hemingway makes his way into our Daily Summary picks this week. . .

907 Whitehead Street, Inc. v. Secretary of the U.S. Dept. of Agriculture, et al., US 11th Cir. (12/07/12)
Agriculture Law, Government & Administrative Law

hemingway_houseThe Ernest Hemingway Home and Museum appealed the district court’s post-trial order denying it declaratory and injunctive relief. The Museum challenged the jurisdiction of the USDA to regulate the Museum as an animal exhibitor under the Animal Welfare Act (AWA), 7 U.S.C. 2131 et seq. The court concluded that the Museum’s exhibition of the Hemingway cats (descendants of Hemingway’s polydactyl cat, Dexter), which roamed freely on the Museum’s grounds, substantially affected interstate commerce where the Museum invited and received thousands of admission paying visitors from beyond Florida, many of whom were drawn by the Museum’s reputation for and purposeful marketing of the Hemingway cats and where the exhibition of the Hemingway cats was integral to the Museum’s commercial purpose. Therefore, Congress had the power to regulate the Museum and the exhibition of the Hemingway cats via the AWA.

Read More: Hemingway Cat Descendants Are Regulated by Federal Law, Appeals Court Says

Moore v. Madigan, US 7th Cir. (12/11/12)
Constitutional Law

Plaintiffs challenged an Illinois law that forbid carrying a gun ready to use (loaded, immediately accessible, uncased), with exceptions for police, security personnel, hunters, members of target shooting clubs,  a person on his own property, in his home, in his fixed place of business, or on the property of someone who has permitted him to be there with a ready-to-use gun,720 ILCS 5/24-2. Carrying an unloaded gun in public, uncased and immediately accessible, is prohibited, other than excepted persons, unless carried openly outside a vehicle in an unincorporated area and ammunition is not immediately accessible. The district court dismissed, holding that the Second Amendment does not create a right of self-defense outside the home.  The Seventh Circuit reversed, but stayed its mandate for 180 days to allow the legislature to draft new restrictions. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. Evidence, although inconclusive, is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois failed to provide more than merely a rational basis for believing that its sweeping ban was justified by increased public safety.

Read More: Federal court overturns Illinois’s concealed carry gun ban

Rayess v. Educ. Comm’n for Foreign Med. Graduates, Ohio Supreme Court (12/6/12)

Appellee, a graduate of a foreign medical school, was required to be certified by the Educational Commission for Foreign Medical Graduates (commission) before applying for medical residency in Ohio. Appellee thus applied to take a United States Medical Licensing Examination (USMLE) examination administered by the commission. Appellee took and failed Part I of the examination. Fifteen years later, Appellee sued the commission for breach of an express written contract, alleging that the commission had failed to administer part I of the USMLE in accordance with the terms and conditions contained in an informational pamphlet provided by the commission, and the breach caused him to fail the examination and suffer damages. The trial court granted the commission’s motion for judgment on the pleadings, concluding that the documents attached to the complaint did not constitute an express written contract and that, even if a contract existed, the statute of limitations for oral contracts barred recovery. The court of appeals reversed. The Supreme Court reversed, holding that the informational pamphlet was not a written contract, and thus, Appellee could prove no facts in support of his claim entitling him to relief, and the commission was entitled to judgment as a matter of law.

Read More: Can a General Informational Brochure, an Application to Take a Test, and Payment of a Fee Constitute a Written Contract?

Posted in: Legal Research

printingThe Ninth Circuit Court of Appeals recently announced that it will move to “in-house publishing” of its opinions. According to the press release, “Court staff now manage the process of converting opinions from the original word processing documents into Adobe PDF files, which are then uploaded onto the website, where they can be viewed and/or downloaded by the public.” This task was previously managed by West Publishing, and bringing it in house is expected to save the court $350,000 in the first year.

Hooray? Sort of. I’m glad the Ninth Circuit will be saving itself over a quarter of a million dollars, but that’s basically the only public benefit here. In fact, the headline on the press release is a bit misleading, because the court is not officially publishing their own opinions – West is still doing that. The documents they post are only slip opinions. They are official and can be cited only for a short time before they are published by the official publisher (The Federal Reporter, owned by Thompson West). In order to effect real savings and provide true open access for the public, the Ninth Circuit needs to take this further and actually publish their own opinions.

Right now, when the Ninth Circuit judges issue an opinion and release it on the Web, it is immediately available to read and cite as a slip. After that, however, they send the opinions to Westlaw, who copy-edits each opinion and adds a citation in order to resell it in this final “official” version (in the Federal Reporter). I talked with David Madden in the Public Information Office at the Court, and he confirmed that this process will not change; West’s Federal Reporter will continue to publish the official opinions.

Posted in: Legal Research

shutterstock_733276On December 11, a federal jury in Delaware found that Apple’s iPhone violates three patents held by MobileMedia Ideas LLC (“MMI”), a Maryland company. The company first filed the patent infringement lawsuit on March 31, 2010, in the U.S. District Court for the District of Delaware, where it was assigned to Judge Sue Robinson.

In its complaint, MMI alleged that Apple’s manufacture and sale of the iPhone product violated 14 patents owned by MMI. After extensive discovery and pretrial procedures, the case went to a jury trial. The jury returned a verdict for MMI, finding that Apple directly infringed on three of the patents at issue:

  • U.S. Patent No. 6,070,068: “Communication terminal device and method for controlling a connecting state of a call into a desired connection state upon a predetermined operation by a user” (originally assigned to Sony)
  • U.S. Patent No. 6,253,075: “Method and apparatus for incoming call rejection” (originally assigned to Nokia)
  • U.S. Patent No. 6,427,078: “Device for personal communications, data collection and data processing, and a circuit card” (originally assigned to Nokia)

MMI has filed lawsuits against other technology companies as well, including Research In Motion (RIM) and HTC Corporation, but they have not yet been resolved.

Posted in: Apple, Patent

In light of the Supreme Court’s decision last week to hear two cases regarding same sex marriage, we’ve collected some recent articles on the topic written by our Verdict writers. Check back with Verdict to see more on the issue throughout the 2012 – 2013 court term.

Posted in: Legal News

Our daily opinion summary writers have pulled a few opinions of note for you to check out this week. If you’re interested in signing up for our free summaries or subscribing to various summary feeds, you can do so here.

Cellco Partnership v. FCC, US DC Cir. (12/04/12)
Communications Law, Constitutional Law

Posted in: Legal Research

Yesterday, December 6, a Canadian company filed two lawsuits against Apple, alleging that the Cupertino, California, company infringed on several of its patents. One lawsuit, filed in the U.S. District Court for the Southern District of Florida, names both Wi-LAN (the Canadian corporation) and Wi-LAN USA (its subsidiary) as the plaintiffs. The other lawsuit was filed on behalf of only the Canadian corporation in the U.S. District Court for the Eastern District of Texas.

Both lawsuits target Apple products compliant with the Third Generation Partnership Project – Long Term Evolution (“3GPP LTE”) standard, specifically the iPhone 4S, iPhone 5, and iPad (3rd Generation).

The Texas lawsuit alleges infringement of U.S. Patent No. 6,381,211, entitled “Processing data transmitted and received over a wireless link connecting a central terminal and a subscriber terminal of a wireless telecommunications system” and issued in 2002. Wi-LAN seeks damages and an injunction against Apple for manufacturing and selling 3GPP-complaint products that allegedly infringe on its patented system.

The lawsuit filed in Florida alleges infringement on U.S. Patent No. 8,315,640, entitled “Methods and systems for transmission of multiple modulated signals over wireless networks.” It also alleges that Apple’s products infringe on U.S. Patent No. 8,311,040, entitled “Packing source data packets into transporting packets with fragmentation.” Both patents were filed in 2010 and issued only last month, November 2012.

Complaint in Wi-LAN USA, Inc. v. Apple Inc. (S.D. Fla.)

Tagged: 3gpp, Apple, iPad, iPhone, lte

Earlier this week, on December 3, Apple was sued in the U.S. District Court for the Northern District of California for an alleged patent infringement. The plaintiff in the lawsuit is a California corporation vaguely named Technology Licensing Company Inc.

According to the complaint, the Technology Licensing Company owns U.S. Patent No. 5,734,862, entitled “System for selectively buffering and displaying relevant frames from interleaving frames associated with respective animation sequences stored in a medium in response to user selection” and issued in 1998. According to the U.S. Patent and Trademark Office, the inventor of the patent at issue is Charles J. Kulas, a patent attorney and former electrical engineer based out of San Francisco, California.

The complaint does not detail how Apple allegedly infringes on the patent, but it appears to relate to the making and reading of DVDs.


On November 30, Google was hit with yet one more class action lawsuit over Gmail’s method of scanning emails to deliver personalized advertising to its users. The named plaintiff in this case, Kristen Brinkman, filed the lawsuit in the U.S. District Court for the Eastern District of Pennsylvania.

Like in the other cases, this case alleges that the way Google automatically scans the emails of its Gmail users to deliver personalized ads is unlawful. The complaint cites Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §5701 as prohibiting the behavior in which Google allegedly engaged.

There is nothing unusual about this case as compared to any of the other related cases filed against Google (in California, Florida, and Illinois). The complaint lays out as the proposed class of plaintiffs “[a]ll natural persons located within the Commonwealth of Pennsylvania who sent e-mails from a account e-mail address to an account e-mail address the owner of which was also located within Pennsylvania from within” the statute of limitations.”


It appears that court opinions in FDSys are being indexed by the search engines now. If you’ll recall, the GPO announced last year that it was importing opinions from some federal courts into its centralized database (FDSys). In theory, this means that users would be able to search across a large collection of government documents that will now include published court opinions.

FDSys now contains opinions from 28 federal courts, including 3 Circuit Courts of Appeal (the 2nd, 8th, and 10th). I am happy to see that these are now indexed by Google, so the opinions will appear among search results when individuals search the web. It’s one step closer to aggregating this information in one central location.

Of course, FDSys is still very limited. It’s only pulling opinions from a few courts, and it doesn’t seem to be up to date. I searched for a case from October (Windsor v. United States), and could not find anything. The GPO announced last year that its funding was cut, so this program may be stalled.

Posted in: Laws, Legal Research