Serv. Emps. Int’l Union Local 1 v. Husted, US 6th Cir. (10/31/12)
Election Law

The Sixth Circuit granted Ohio a stay of the district court’s October 26 order granting a preliminary injunction that requires the state to count provisional ballots cast in the wrong polling place due to poll-worker error (wrong-place/wrong-precinct ballots) in the November election. The court previously affirmed an order that Ohio count right-place/wrong-precinct provisional ballots caused by poll-worker error.  Plaintiffs failed to show strong likelihood of success on the merits of constitutional claims concerning wrong-place/wrong-precinct ballots. The salient feature of the right-place/ wrong-precinct problem was disenfranchisement, by worker error, of voters who arrive at the correct place, a situation caused by Ohio’s system of multi-precinct polling places. Though voters rely on workers to direct them to the proper precinct in the polling place, they are not as dependent in identifying their correct polling place. Ohio law requires officials to provide notice of where they are eligible to vote; information is easily accessible. There is sparse evidence of workers sending voters to the wrong polling location. The state has a legitimate interest in maintaining its precinct-based voting system; there is a strong public interest that militates against changing the rules during early voting. The injunction would interfere with orderly election administration and cause confusion among poll workers and voters.

A snippy apology is apparently not what the judges involved in Apple’s U.K. patent litigation over Samsung tablets ordered, according to testy statements made at a U.K. Court of Appeal hearing today.

Judge Robin Jacob court told Apple and Samsung lawyers this morning that the iPad maker had 24 hours to revise its currently published statement about the verdict in favor of Samsung on Apple’s UK website, replace it with a new one apologizing for inaccuracies, put the link on its home page, and use at least an 11-point font.

The website notice that Apple published last Friday highlighted a lower court judge’s statement that the Samsung tablets involved in the lawsuit “are not as cool” as Apple’s iPad.  Apple also piled on a host of earlier judicial platitudes emphasizing that the iPad has “extreme simplicity . . . is striking . . . . It is a cool design.”

The original July 18, 2012 order by Judge Colin Birss of the Patent Court, granted Samsung’s request to require Apple to publish a simple, one-paragraph statement on its website, and in a number of print publications:

“On 9th July 2012 the High Court of Justice of England and Wales ruled that Samsung Electronics (UK) Limited’s Galaxy Tablet computers, namely the Galaxy Tab 10.1, Tab 8.9 and Tab 7.7 do not infringe Apple’s registered design 000181607-0001. A copy of the full judgment of the High Court is available via the following link [insert hyperlink].”

Judge Birss ordered Apple to publish the notice only in the U.K., denying Samsung’s request that Apple publish it on each of the company’s country-specific European websites. He also rejected Samsung’s request that the notice be on Apple’s UK website for a year, concluding that six months was more appropriate. The judge’s rationale was that “this a very fast moving industry and I bear in mind the risk of prejudice to Apple” of a more extended publication requirement.

Last week, on October 26, Kickflip, Inc. (doing business as, and hereinafter referred to as, Gambit) filed a lawsuit against Facebook, Inc. in the U.S. District Court for the District of Delaware, alleging violations of federal antitrust laws.

According to its complaint, Gambit was “a leading virtual-currency and payment-processing provider” to developers that published games for social networks, including Facebook. Gambit explains that “[s]ocial games are usually free to play,” relying on a competitive market of virtual currency and payment-processing service providers to transfer virtual currency into actual revenue for the developer.

However, according to Gambit, Facebook began offering its own virtual-currency services in 2009, but with a 30% fee. When Facebook’s services failed to gain significant market (a failure Gambit attributes to its high fee), it allegedly began engaging in anticompetitive behavior, such as requiring game developers on its platform to use the Facebook virtual-currency services. The complaint alleges that Facebook subsequently required exclusive use of its own virtual-currency services.

On Monday, Apple filed an Ex parte application for discovery against Motorola Mobility (‘Motorola’) to defend against the Google subsidiary’s patent claims in Germany. Motorola’s claims allege that Apple’s iPhone and iPad wireless devices infringe two of the company’s European patents.

One central Apple legal defense to Motorola’s European patent claims is that the telecommunications hardware maker would not offer it fair, reasonable, and non-discriminatory (‘FRAND’) licensing terms over the wireless patents in dispute, “in violation of German and European antitrust laws.”

FRAND contract disputes also remain an issue in the companies’ U.S. patent lawsuits. In Wisconsin, for example, Apple declared today that Motorola’s essential wireless patents are worth, at most, only one dollar per iPhone.

Motorola’s European patents at issue involve:

• EP 1 010 336 (the ‘336 patent) — Method for Performing a Countdown Function During a Mobile-Originated Transfer for a Packet Radio System
• EP 1 053 613 (the ‘613 patent) — Method and System for Generating a Complex Pseudonoise Sequence for Processing a Code Division Multiple Access Signal

The relief sought by Apple under 28 U.S. § 1782 is commonly used when parties litigating abroad can assist foreign courts with relevant information in dispute, the request is reasonable and narrowly tailored, no foreign prohibition exists against the request, and no foreign prohibition exists against the request.

Last Friday, Intercarrier Communications LLC (“ICC”), a Texas limited liability company, filed lawsuits against at least thirteen different technology companies, including Apple Inc. Other defendants include the makers of such popular apps as TextNow and PingChat! (by Enflick), Viber, WhatsApp, and Glympse. The lawsuits were filed in the U.S. District Court for the Eastern District of Virginia, which seems on its face unusual for a Texas company.

In its suit against Apple, ICC alleges that Apple Messages and FaceTime products for iOS and OS X infringe on a patent it owns, U.S. Patent No. 6,985,748. According to its description, that patent is entitled “Inter-carrier Messaging Service Providing Phone Number Only Experience” and was invented by Chris Knotts. All of Knotts’s registered patents are related to inter-carrier messaging. According to the Texas Comptroller of Public Accounts, ICC registered with the Secretary of State on April 23, 2012.

Complaint in Intercarrier Communications LLC v. Apple Inc.

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.