Articles Posted in 2012

On Monday, in the shadow of then-Hurricane (now-Superstorm) Sandy, the U.S. Supreme Court heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case involving the applicability of U.S. copyright law to copies of works created and legally acquired abroad and subsequently imported into the United States.

In the case, Supap Kirtsaeng, a college student from Thailand studying in the United States, launched a small online business selling textbooks. His family in Thailand bought foreign edition textbooks printed by Wiley Asia and mailed them to Kirtsaeng. Kirtsaeng then sold the textbooks online on sites such as eBay.com and reimbursed his family for the costs of purchase and shipping, retaining the remaining profits from the sale.

John Wiley & Sons subsequently sued Kirtsaeng in the U.S. District Court for the Southern District of New York, alleging copyright infringement, trademark infringement, and unfair competition under New York state law. As to the copyright claim, the district court judge determined that the language in 17 U.S.C. § 109(a), known as the “first sale doctrine,” does not include copyrighted goods manufactured abroad.

As Hurricane Sandy moves toward New Jersey and Delaware, we thought it might be useful to pull some resources for those folks living in the projected path of the storm, as we did last year for Hurricane Irene. We hope that everyone in the area has found safe shelter and has all the necessities to weather the storm.

Federal Resources

Hurricane Resource Center– from Ready.gov – Resources and steps to take to protect yourself, your family and property.

• FEMA on Facebook
• FEMA on Twitter
• FEMA on YouTube

The National Flood Insurance Program

• National Flood Insurance Program Insurance Agent Locator – from Floodsmart.gov
• National Flood Insurance Program Laws & Regulations
  • 42 USC Chapter 50 National Flood Insurance
  • 44 CFR Chapter 1 Emergency Management and Assistance
• FEMA Flood Insurance Library

NOAA – National Hurricane Center

U.S. Coast Guard

Image credit: lev radin / Shutterstock.com

Apple published a roundabout apology today (see below) after losing an appeal in the British courts over a lawsuit claiming that some Samsung tablets infringed the registered design of the Cupertino, California, company’s iPad.

The publication notice was made to comply with an earlier July 18, 2012, ruling by a lower court requiring Apple to publish, at its own expense, a link and explanation to the judgment rendered by HHJ Birss QC on July 9, 2012.

The apology listed below was issued after an iPad-toting British judge upheld a lower court finding that three different Samsung tablet computers “do not infringe Apple’s registered design No. 000181607-0001.”

The phrase ‘registered design’ refers to a legal status conferred by the UK’s Intellectual Property Office for “grant[ing] exclusive rights in the look and appearance of your product.”

Sir Robin Jacob, who wrote the judgment for the panel of three British Court of Appeal judges who heard and decided the case, candidly disclosed that he has an Apple iPad (“I own one”).

United States v. White, US 7th Cir. (10/26/12)

Civil Rights, Constitutional Law, Criminal Law

White created a website to advance white supremacy and included a statement that “everyone associated with the Matt Hale trial has deserved assassination for a long time.” The site also included information related to the foreperson of the jury that convicted Hale, a white supremacist, of criminally soliciting harm to a federal judge. Although a jury convicted him of soliciting the commission of a violent federal crime against a juror, 18 U.S.C. 373, the district court held that the government failed to present sufficient evidence for a reasonable juror to conclude that White was guilty of criminal solicitation, and that White’s speech was protected by the First Amendment. The Seventh Circuit reinstated the conviction and remanded for sentencing. A rational jury could have found beyond a reasonable doubt that, based on the contents of the website, its readership, and other contextual factors, White intentionally solicited a violent crime against Juror A by posting Juror A’s personal information on his website. Criminal solicitation is not protected by the First Amendment.

American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation, US 6th Cir. (10/25/12)

Communications Law, Constitutional Law

American Freedom Defense Initiative is a nonprofit corporation that wanted to place an advertisement on the side of city buses in Michigan. The advertisement read: “Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com”. Suburban Mobility Authority for Regional Transportation (SMART), refused to display the advertisement. AFDI sued, claiming a First Amendment violation. The district court granted a preliminary injunction, holding that plaintiffs likely could show that SMART’s decision was arbitrary. The Sixth Circuit reversed. SMART’s policy prohibits: political or political campaign advertising; advertising promoting the sale of alcohol or tobacco; advertising that is false, misleading, or deceptive; advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons; and advertising that is obscene or pornographic; or in advocacy of imminent lawlessness or unlawful violent action. The restrictions, which concern a nonpublic forum are reasonable, viewpoint-neutral limits that do not deny AFDI’s First Amendment rights. The injunction would cause substantial harm to others, compelling SMART to post on its buses messages that have strong potential to alienate people and decrease ridership; the public interest would not be served by this preliminary injunction.

Yesterday, WhitServe LLC filed a lawsuit against Apple alleging infringement of a patent WhitServe owns. Filed in the U.S. District Court for the District of Connecticut, the lawsuit

The patent, U.S. Patent No. 7,921,139, is described as a “System for sequentially opening and displaying files in a directory.” Invented by Wesley W. Whitmyer, Jr.—sole member of WhitServe LLC according to a business search for the Connecticut company—the patent was filed December 1, 2006.

The allegedly infringing Apple products include Mac OS X Leopard, Mac OS X Lion, and Mac OS X Mountain Lion. According to the complaint, Apple introduced the “Quick Look” feature into its operating system with the release of Mac OS X Leopard on October 26, 2007—nearly one year after the patent at issue was filed. The complaint describes the Quick Look feature as allowing a user to “instantly preview almost any file, and even play media files, without opening an application.”

After detailing 37 ways in which Quick Look infringes on the plaintiff’s patent, the complaint asks for injunctive relief as well as damages for harm suffered.

Unlike many patent lawsuits against the technology giants like Apple, this suit stands out as being by the actual inventor of the patent at issue, rather than merely a patent holding company. Whether the merits of the suit will pan out for the plaintiff remains to be seen.

According to a new infringement lawsuit filed Tuesday in federal court (read it below), the Google Wallet app violates a Canadian resident’s U.S. patent.

Plaintiff Peter Sprogis holds U.S. Patent No. 7,298,271 for a “Method and apparatus for providing awards using transponders.” The ‘271 patent abstract describes a customer loyalty program using ‘electronic data storage elements’ (EDSE) like RFID tages can be used to encourage customer loyalty by offering coupons or loyalty points for visiting a business.

Sprogis accuses Google of infringing at least nine claims listed in his patent.

The plaintiff’s claims appear to paint a wide swath over Google’s app. Google Wallet enables Android phone users to securely store credit and debit card information on their mobile devices to shop locally as well as online.

Facebook, online advertising agency adSage, and a web-based wholesaler of Chinese goods are named as defendants in a new class-action trademark lawsuit  accusing them of enabling the placement of, or placing ads for, counterfeit NFL apparel on the social network. (read it below)

Inkies Sports, Inc. d/b/a Krystal’s NFL Shoppe, a New Mexico-based retail store that only sells “officially licensed NFL merchandise” filed suit. Krystal’s charges that a litany of ads on its Facebook page offer competing, counterfeit merchandise at prices that can be 80% – 90% below the MSRP of an authentic, officially licensed NFL jersey.

But should Facebook and advertising agencies be held accountable for alleged wrongdoings of third party advertisers accused of hawking cheaper counterfeit goods? Prior case law suggests not.

Two years ago a federal appeals court held that eBay was not liable to Tiffany, Inc. for trademark infringement or dilution by offering Tiffany goods for sale that third parties listed for sale. It sent the case back to a lower court to further examine Tiffany’s false advertising claim, and determine whether extrinsic evidence showed that advertisements misled or confused consumers about Tiffany products offered for sale. The U.S. District Court ultimately ruled that eBay was not liable for false advertising, since it failed to obtain survey data showing that a substantial portion of consumers were misled.

Apple was hit with a patent infringement lawsuit (read it below) over Siri, the Cupertino, California company’s computer voice search-and-speak technology inside newer iPhones, iPads and iPod Touch devices. The twist in this case, however, is that patent holder Rensselaer Polytechnic Institute isn’t the one suing.

Instead, the plaintiff is Dynamic Advances, LLC, a Tyler, Texas-based company created last year by patent monetizer Erich Spangenberg. The LLC’s members and officers include the Spangenberg Family Foundation and Techdev Holdings.

Spangenberg is known for his sue first, ask questions later approach to patent litigation.

A lawsuit filed Friday in a New York federal court confirms that Dynamic Advances, LLC is a non-practicing entity (NPE) allegedly holding an exclusive license to sue, enforce, and monetize Rennselaer’s patent portfolio:

Dynamic Advances facilitates Rennselaer’s goal of commercializing its patented inventions to the benefit of the general public, and to further Rennselaer’s mission to apply science to the common purposes of life.

Pleadings in the case docket do not currently include a copy of any alleged exclusive patent license agreement between Rennselaer and Dynamic Advances.

The patent at issue is U.S. Patent No. 7,177,798 for a “Natural language interface using constrained intermediate dictionary of results.” The USPTO awarded the patent in 2007.

A consumer Apple iPhone class-action antitrust lawsuit (read it below) accuses the Cupertino, California, company of conspiring to monopolize early iPhone purchasers’ voice and data plans by locking them into exclusivity contracts with AT&T Mobility, in violation of federal antitrust law.

The proposed class of plaintiffs includes consumers who bought iPhones between October 19, 2008, and February 3, 2011. This corresponds to the period of time when Apple sold three versions of the company’s iPhone: the original, 3G, and 3Gs models.

The plaintiffs are asking for a permanent injunction prohibiting Apple from selling locked iPhones that can be be used only with AT&T Mobility SIM cards, unless consumers get adequate disclosure before their purchase, and an order requiring Apple to give an unlock code to any iPhone customer who wants one.

Plaintiffs Zack Ward and Thomas Buchar also seek an unspecified amount of treble damages against Apple under federal law, in addition to attorneys fees. Apple is the sole defendant in the lawsuit; neither AT&T Mobility, nor any related business units at the telecom was named a party.

The suit alleges that Ward and Buchard each wanted to switch their iPhone plans from AT&T to a different, competing telecom provider. Buchar also contends that by locking iPhone customers’ SIM cards when traveling outside the U.S., he was unable “to switch his iPhone service to a local voice and data service provider while roaming.”

The lawsuit chastises AT&T for unlocking SIM cards on other phones it sells, like Blackberry and Samsung devices, and claims that “[t]here is but one exception: the iPhone,” citing a five-year exclusivity agreement between Apple and AT&T Mobility.

This case has a quite a few hurdles to overcome, however.

Burns v. Astrue, Utah Supreme Court (10/12/12)
Family Law, Public Benefits, Trusts & Estates
Here the Supreme Court answered a question of Utah law certified to it by the U.S. district court. The question was, “Is a signed agreement to donate preserved sperm to the donor’s wife in the event of his death sufficient to constitute ‘consent in a record’ to being the ‘parent’ of a child conceived by artificial means after the donor’s death under Utah intestacy law?” In this case, after she gave birth, the wife of the donor applied for social security benefits based on the donor’s earnings. The Social Security Administration denied the benefits, finding that the wife had not shown the child was the donor’s “child” as defined by the Social Security Act. The wife subsequently filed a petition for adjudication of paternity, and the district court adjudicated the donor to be the father of the child. On appeal, the U.S. district court certified the state law question to the Supreme Court. The Court held that an agreement leaving preserved frozen semen to the deceased donor’s wife does not, without more, confer on the donor the status of a parent for purposes of social security benefits.

Annechino v. Worthy, Washington Supreme Court (10/18/12)
Banking, Consumer Law, Insurance Law
The issue before the Supreme Court in this case was whether particular officers and employees of a bank owed a quasi-fiduciary duty to particular bank depositors. Michael and Theresa Annechino deposited a large amount of money at a bank specifically to ensure that their savings would be protected by the Federal Deposit Insurance Corporation (FDIC). The Annechinos relied on bank employees’ recommendations of how to structure their accounts to meet FDIC coverage rules. Unfortunately, the bank went into receivership, and the FDIC found that nearly $500,000 of the Annechinos’ deposits were not insured. The Annechinos alleged that individual officers and employees of the bank owed them a duty, the breach of which resulted in their loss. The trial court granted summary judgment in favor of the individual defendants, and the Court of Appeals affirmed. Upon review, the Supreme Court affirmed the Court of Appeals. The officers and employees of the bank did not owe the Annechinos a quasi-fiduciary duty. Holding the officers and employees personally liable under these facts would have contravened established law regarding liability for acts committed on behalf of a corporation or principal.

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Background Briefs and Video of Oral Argument