Blog Post

Obama Administration Calls for Supreme Court to Review Lexmark Decision

Aiden Scott

In a case that is surely near and dear to anybody who has gone through the plight of owning an inkjet printer, the Obama administration has called for the Supreme Court of the United States to review the Court of Appeals decision in Lexmark International, Inc., v. Impression Products, Inc.[1] The Solicitor General has requested that the Supreme Court review the U.S. Court of Appeals for the Federal Circuits’ decision. This month, they held that Impression Products had infringed Lexmark’s patents. The alleged “infringement comes from their sale of refurbished Lexmark ink cartridges that were sold with “single use” or “no resale” restrictions.”[2]

They urge that the Federal Circuit has “misconstrued 150 years of precedent”, and through its effect “unsuspecting downstream purchasers are at risk of spatent infringement suits.” [3] The gravamen of the case is to determine how far “patent owners can control the use of their products after an authorized sale, domestic, or foreign.”[4] Further, the Solicitor General argues that the decision by the Federal Circuit “would substantially erode the exhaustion doctrine.”[5] In any case, we will have to patiently wait to see if the court will grant cert.      

 

[1] Barbara Grzincic Administration Backs U.S. Supreme Court Review of Lexmark Patent Exhaustion Ruling, Reuters legal, (Oct. 14, 2016), https://1.next.westlaw.com/Document/Ie4d1ab6091f511e68f45b58dd1e656b4/View/FullText.html?originationContext=docHeader&contextData=(sc.Category)&transitionType=Document&needToInjectTerms=False&docSource=c904320afb854063b83b1d38880e8ad5.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

Are Satellites the Next Cybersecurity Battleground?

Jeffrey Cullen

Alyssa Newcomb explains that many of our everyday activities rely on global positioning systems (GPS). Satellites in space are used in many different ways including intelligence gathering, communication, and navigation.[1] There has been much discussion about the vulnerability of our data through the use of the Internet. One realm that people may overlook is the technology that we have in space and its susceptibility to being hacked. The systems that we have in space are becoming older and face new threats. The space systems are not advancing at the same rate as our technology on earth and are at a high risk of being interfered with by hackers. It is said that any disruption to the satellite system could have major ramifications due to the interconnectedness of the system.[2] Accessibility to space is increasing. Therefore, updated security measures are needed in order to properly protect information.

 

[1] Alyssa Newcomb, Hacked in Space: Are Satellites the Next Cybersecurity Battleground?, NBC News (Oct. 3, 2016), http://www.nbcnews.com/tech/security/hacked-space-are-satellites-next-cybersecurity-battleground-n658231.

[2] Id.

Comcast to Cap Residential Data

Shamsheer Kailey

Beginning November 1, Comcast is applying 1-terabyte data cap to residential broadband customers in nearly a dozen states. Which means additional fee will be charged for going over the monthly limit. Usually, home Internet providers avoid placing a cap on data usage leaving it to the discretion of the wireless carriers. This is going to change.

Even though Comcast claims that users will not hit the limit, the cap will restrict many customers. Some of the states affected are: California, Colorado, Minnesota, Oregon, Washington, Wisconsin among others.

Customers will be provided alternatives to opt out of the data cap. Pay Comcast $50 a month extra for unlimited data or switch to an expensive fiber-optic service, Gigabit Pro, for $300 a month. Switching to lower-end plan with slower service will also let the customers avoid the plan.

According to the Charlie Douglas, a company spokesman the fact that the change affects primarily western and central U.S. and not northeast customers is intentional. However, the possibility hasn’t been ruled out.

______________________________________________________________________

Brian Fung, Nearly a dozen new states are about to get Comcast data caps, Washington Post (October 7, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/10/07/comcasts-internet-just-got-a-lot-more-like-cellphone-service/

“Life Does Not Stop and Start at Your Convenience” The Aid in Dying Movement Gains New States

Emma Fusco

Aid in dying has been a movement that has been under fire, with states like Oregon taking much of the flack.  Luckily for them, the backlash will likely now be dispersed over more states.  New York, Colorado, and the District of Columbia may soon join Oregon and a handful of other states where doctors are permitted to prescribe lethal doses of painkillers to terminally ill patients. [1]

Oregon, Washington, Vermont, California, and Montana are all under very strict guidelines in order to grant physician-assisted dying, and the pending regulations in the aforementioned three states are likely to follow in their footsteps.[2]  In order for physicians to legally assist patients in dying, two physicians must come to the conclusion that the patient seeking aid in dying is likely to die within six months.[3]  The terminally ill patient must also be of sound mind and free of coercion.[4]  Some states also require for the request for the lethal dose of drugs to be ask for again 15 days after the initial inquiry of such drugs.[5]

In states where this practice is banned, terminally ill patients are left two only two options.  The first is to somehow obtain a lethal dose of drugs under the table, exposing health care workers to law suits.[6]  The second option is to refuse food and starve to death.[7]  Is this how you would chose to die?

 

[1] The Editorial Board, Aid in Dying Movement Advances, N.Y. Times, Oct. 10, 2016, at A20.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

Distributed Denial of Service Attack on East Coast

Nicholas Fedorka

It all started on on Friday morning, October 21st at 7:10 AM and wasn’t fixed until almost 12 hours later.  Dyn, a New Hamspshire-based company that monitors and routes Internet Traffic, was the victim of a distributed denial of service attack (DDoS).  This same issue affected East Coast users from accessing Twitter, Spotify, Netflix, Amazon, Tumblr, Reddit, PayPal and other sites.  DDoS attacks flood servers with so many fake requests for information that they cannot respond to real ones, often crashing under the barrage.  It’s unclear who orchestrated the attack.  

The most troubling fact was that the attackers relied on an easy-to-use program called Mirai.  This system allows even unskilled hackers to take over online devices and use them to launch DDoS attacks.  The software uses phishing emails to first infect a computer or home network and then spreads everything on it.  Dyn is getting “tens of millions” of messages from around the globe sent by seemingly harmless but Internet-connected devices.  Kyle York, Dyn’s chief strategy officer said “It could be your DVR, it could be a CCTV camera, a thermostat.  I even saw an Internet-connected toaster on Kickstarter Yesterday,” said York.  

Lily’s Place: A Treatment Option for Opioid Addicted Newborns

Samantha Cirillo

Today, the United States is facing an opioid epidemic. The number of pregnant women using heroin, opioids, or methadone has increased more than 5 times the rate since 2000. As a result, according to the National Institute on Drug Abuse, every 25 minutes a baby is born with opioid withdrawals in the United States. This is a dramatic increase from hospitals only seeing one or two Neonatal Abstinence Syndrome cases a year.

When a woman is pregnant and using opioids, the substance can pass through the placenta causing the fetus to develop a physical drug dependence. Once the baby is born they are removed from the drug supply causing them to go through withdrawals. The symptoms associated with these withdrawals may include excessive crying, vomiting, sleep problems and muscle cramps.

The treatment for babies in withdrawal is fairly simple. They receive small doses of methadone or morphine to wean them from their addiction. Treatment for withdrawals is far less intensive and technical than other newborns in an intensive care unit suffering from other life-threatening conditions. However, due to the rise in opioid use, opioid addicted newborns are taking up a majority of the space in the neonatal intensive care units in many hospitals.

After many efforts, the community of Huntington, West Virginia believes to have found the solution to free up Hospital Intensive Care Units and save taxpayer money. Huntington is far too familiar with the opioid epidemic having an opioid overdose death rate of 10 times the national average.

The first attempt to find a solution came in 2012 when the city’s hospital, Cabell Huntington Hospital, created a separate newborn therapy unit just to treat withdrawal symptoms. Babies with withdrawals do not require the same high-tech equipment and therefore the newborn therapy unit was able to cut cost in half when compared to the treatment received in the neonatal intensive care unit.

On October 1, 2014, Huntington opened the first transitional therapy center in the country called Lily’s Place. The goal of the center is to eventually allow parents to have the ability to take care of their babies at home, while the baby is still receiving treatment over a period of 3-6 weeks.

The center is run by the same doctors and nurses at Cabell Huntington Hospital, social workers, nurses, and administrative staff. Typically, opioid addicted babies are safely able to leave the hospital after 2 weeks. From the hospital they are sent to Lily’s Place to continue treatment and observation.

The center is set up with 15 private nurseries that allow parents to visit throughout the day and occasionally spend the night. While babies are receiving treatment, the center’s social workers help parents and family members prepare to welcome the newborns home. Babies may continue to experience withdrawal symptoms for several months and the center trains family members on care techniques to be continued when released.

Social workers also help parents or family members find jobs, housing, addiction treatment, and financial help if necessary. Once the babies are completely weaned off of the small doses of methadone they are released to the trained parents or family members. The center continues to observe the family’s status by visiting the home every month.

Lily’s Place has been seen as a model for other communities and over 30 groups across the country are hoping to replicate the center in their own communities. To help with starting a neonatal abstinence center, Lily’s Place created a how-to book titled “How to Create a Neonatal Withdrawal Center”. The second center of its kind is set to open in April 2017 in Dayton, Ohio.

The road was not always smooth for Lily’s Place. At first, in order to be recognized as a certified medical center, Lily’s Place had to be classified as a long-term care center for the elderly and disabled. With the support of U.S. Representative, Evan Jenkins, who at the time represented Huntington on the State Legislature, HB 2999 was passed which created a new licensing designation for Neonatal Abstinence Centers.

Jenkins also supported the Comprehensive Recovery and Addiction Treatment Act which included a provision that called upon the government to smooth the regulatory path for communities to have the opportunity to open facilities similar to Lily’s Place. Additionally in order to help with funding, Jenkins is working to negotiate with U.S. Centers for Medicare and Medicaid Services to get approval for Neonatal Abstinence Centers to receive reimbursement through Medicaid.

Christine Vestal, Caring for the opioid epidemic’s youngest victims, L?? A?????? T???? (Oct. 11, 2016), http://www.latimes.com/nation/sns-tns-bc-opioids-infants-20161011-story.html.
L???’? P????: I????? R??????? C?????, http://www.lilysplace.org/.

Zynga’s Patent Infringement Under Alice Test

Justin Farooq

Online game developer Zynga Inc. survived a patent infringement lawsuit asserted by numerous technology companies concerning its online social casino gaming platform on October 13, 2016 when a federal judge in Nevada held that the alleged patents were invalid according to the U.S. Supreme Court’s decision in Alice Corporation PTF. LTD. v. CLS Bank International et al.[1] The U.S. Supreme Court held in Alice that abstract ideas executed on a computer are not patent eligible.[2]  The court denied Alice Corp.’s patents on computerized trading methods and created a two part test for figuring out if a patent is eligible for protection under Section 101 of the Patent Act.[3]  First, the court must assess whether the subject matter at issue is aimed at an abstract idea.[4]  The subsequent inquiry is whether the assertions comprise of something “significantly more” than the abstract idea.[5]  If so, they are patent eligible.

Plaintiffs in this case are CG Technology Development LLC, Interactive Games Limited and Interactive Games LLC.[6]  According to the Nevada judge, “The only limitations on the abstract idea are that it involves a server and a remote processor — components which are extraordinarily commonplace in online gaming. These physical devices are used to implement the abstract idea.”[7]  The court said the claim is focused on the abstract idea of using information to decide the most effective tactics for a player’s ensuing move and that this idea of “risk hedging” is not patentable subject matter.[8]

Many attorneys say numerous significant questions regarding how the test will be implemented require much more guidance from Federal Circuits.[9]  As more courts litigate the issue we will see how courts apply, direct and guide the two step rule from Alice.  

 

[1] Suevon Lee, Zynga Escapes IP Suit Over Casino Gaming Suite Under Alice, Law360 (Oct. 13, 2016, 4:28 PM), https://www.law360.com/technology/articles/851207/zynga-escapes-ip-suit-over-casino-gaming-suite-under-alice.

[2] Id.

[3] Alice Corp. Pty. v. CLS Bank Int’l, 134 S. Ct. 2347, 2358, 189 L. Ed. 2d 296 (2014).

[4] Id.

[5] Id.

[6] Lee, supra note 1.

[7] Id.

[8] Id.

[9] Ryan Davis, 5 Burning Questions About Patent-Eligibility Post-Alice, Law360 (April 3, 2015, 3:07 PM), http://www.law360.com/articles/638936/5-burning-questions-about-patent-eligibility-post-alice.

 

Justices Question $400M Award in Apple-Samsung Case

Teal Johnson

This Samsung and Apple dispute is the first design patent case to make it to the Supreme Court in over 120 years.  Samsung Electronics Co. Ltd. appealed a jury verdict that awarded Apple Inc. $399 million.  The patents-in-suit are U.S. Patent Numbers D593,087, D604,305 and D618,677.  The case is Samsung Electronics Co. Ltd. et al. v. Apple Inc., case number 15-77, in the Supreme Court.

At oral arguments in the appeal some of the supreme court justices questioned the decisions by the district court and the Federal Circuit to set damages as Samsung’s total profits from the accused phones.  Several justices suggested that they did not believe Apple should be awarded the total profits from Samsung’s smartphones that infringe Apple’s design patents.

The design patent statute states that anyone who uses a patented design to an “article of manufacture” or sells an article to which the design has been applied “shall be liable to the owner to the extent of his total profit.”  The arguments are focused on how the “article of manufacture” should be determined.

The justices appear open to Samsung’s argument that damages should have been the profits derived from the parts found to infringe Apple’s design patents instead of all the profits from the smartphones.  The design patents cover the face of the iPhone and the layout of the home screen icons.  Chief Justice John Roberts believes that the design patent is the exterior case of the phone and not the chips and wires.  He stated that it seemed to him that the profits awarded should not be based on the entire price of the phone.

Google Inc. submitted an amicus brief in support of Samsung.  The brief laid out a standard which said that only profit derived from the patented design should be awarded.  Justice Stephen Breyer suggested that this was a workable standard.

The jury was instructed that if Samsung was found to infringe Apple’s design patent, they could award Apple the total profit attributable to Samsung’s infringing products, not just the parts covered by the design patent.  The Federal Circuit court affirmed that approach.

The Supreme Court asked how damages could be measured if the damages were deemed to be profits from only some parts of a product.  Additionally, what evidence and expert testimony would be needed was questioned.  Justice Anthony Kennedy voiced concern of how to instruct the jury on damage measurement under that standard.  He said, “If I were the juror, I simply wouldn’t know what to do under [that] test.”

Samsung’s attorney, Kathleen Sullivan responded that courts could first identify the relevant article of manufacture, which she said in this case should be the front fact of the phone and the icons, and then get evidence and expert testimony on how much those features contributed to the infringers profits.  Apple disagrees arguing that there was no basis for overturning the jury’s damages award because Samsung never argued that the article of manufacture should be anything other than the phones themselves.  There was not a suggestion of what parts that would be considered the article of manufacture under the new test.

Those in attendance of the argument said the justices appeared interested in describing a new standard for design patent damages instead of talking about the damage award potentially being correct.  Several justices appeared to approve of Samsung’s proposal that the courts must first determine the article of manufacture and then how much that contributed to the profit.  When the decisions comes out, it will likely have some type of that two-part test.

See the original Law 360 article here.

The Story Behind the App: Red Zone Map

Annie Millar

We rely on phone applications, or apps, on a daily basis. Without them, our smart phones would simply be used to make calls, something that seems ancient now. There are apps for everything imaginable, including social media, calendars, maps, and fitness trackers. Due to their prevalence in our lives, we tend to overlook the process behind their creation. We overlook the labor, time, and manpower required to execute the apps we take advantage of.

To understand what creating an app entails, I spoke to Theodore (Ted) Farnsworth about his app, Red Zone Map (Red Zone). Red Zone is a mapping technology designed to create safer routes when traveling. As the founder and CEO, Ted Farnsworth began his journey in January of 2015. While traveling from Jerusalem, he recognized how widespread crime was. When traveling through an area where mass murders were occurring less than 25 miles away, if a traveler managed to venture through the wrong town in the wrong country, there could be dire consequences. Although we may not see the type of genocide that occurs in foreign countries, crime is still prevalent here in the United States.

With offices in Tel Aviv, New York City, India, Silicon Valley, and Miami, Red Zone has grown massively from that starting point in a car traveling from Jerusalem. Beginning as a self-funded corporation, Red Zone now has an executive team, as well as 160 employees worldwide.

Understanding how the app functions is key to understanding what makes this technology extremely useful and unique. The app works similar to social media outlets, utilizing crowd sourcing to acquire data. This data is then utilized to help pinpoint where certain criminal activities are taking place, such as shootings, assaults, and robberies. The app then delivers this information directly to your phone in the form of an interactive map, allowing you to see when and where recent criminal activity occurred. So, what exactly makes this app different? It is the first to utilize crowdsourcing to create a worldwide crime database. A database of this magnitude simply does not exist within any government, any entity, or any other app. Even the national Federal Bureau of Investigation’s database is incomplete, only encompassing fifty to fifty-five percent of all available criminal records in the United States.[1]

With a seemingly barren intellectual property market for this technology, Mr. Farnsworth ran with his idea, and he did so with an eye to marketing. The goal was to appeal to the market in order to keep installation costs low, and he did just that. Every time a user downloads an app, the company producing the app is charged an install fee, also known as cost per install (CPI).[2] It is key for mobile app marketers to know their CPI to track revenue.[3] The average CPI for iPhone users in the United States comes in at over two dollars.[4] Red Zone’s CPI comes in at a shocking 0.43 cents per install, all because of marketing.

Mr. Farnsworth is a man who understands the market. As a successful businessman for over thirty years, he knows what works. It is all about getting a direct response, a call to action. In order to get that direct response it is important to appeal to human nature. When an app is able to appeal to human nature in a way that creates a natural response, that app will be successful. Once the market is captured, it is essential to keep that market loyal.

Within the next month, there will be a completely new Red Zone platform. I was given a chance to look at the new interface and explore for myself. The app will be much more than just a map, moving more towards the media spectrum. The app will include real-time stories from across the world. It will appeal to each individual user by allowing them to choose what types of crime to look out for, such as robberies or sexual assaults. The app will work to help keep users in the know about what is happening around them. Mr. Farnsworth is “totally happy with where we’re going,” and users will be too.

 

[1] The Myth of the National Criminal Database. HireRight, (Jan. 27, 2014) http://www.hireright.com/blog/2014/01/the-myth-of-the-national-criminal-database/.

[2] Artyom Dogtiev, What is the average cost per install for different types of apps?, Soko Media Ltd., (Mar.14, 2016) http://www.mobyaffiliates.com/blog/average-cost-per-install-apps/.

[3] Id.

[4] Id.

N.S.A. Contractor Arrested

Lishayne King

At a time when privacy and information concerns are high, it appears that yet another government official is under investigation to determine “whether he stole and disclosed highly classified computer code developed by the [NSA] to hack into the networks of foreign governments.” On August 27th, an F.B.I. raid on contractor Harold T. Martin III’s home uncovered a large number of documents, computers, and other electronic devices, which contained a considerable amount of confidential information. The authorities have not, however, determined how Mr. Martin used the information.

A complaint filed by the Justice Department against Mr. Martin remained sealed until the New York Times “notified the government it intended to publish a story about Mr. Martin.” In a statement issued by Martin’s lawyers, they insisted that Mr. Martin “loves his family and his country,” and did not plan to be disloyal to his country.

The Obama administration’s procedures have become tighter since Mr. Snowden’s leaks, argued the press secretary for the White House, Josh Earnest. He described a task force that has been created to address these recent disclosures. Mr. Earnest further cited that the number of employees with access to confidential information has decreased by 17% over the past few years.

However, another official of the Obama administration stated that investigators believed there was a possibility that Mr. Martin started taking information before Mr. Snowden’s actions were publicized. Further, changes established after Mr. Snowden’s disclosures may not have deterred Mr. Martin.

It appears that Mr. Martin does not match the profile of an “insider threat,” stated one official of the Obama administration. However, further investigation is necessary to determine his motives. The company, Booz Allen Hamilton, that employed Mr. Martin has been cooperative with the FBI and subsequently discharged him after discovering his arrest.

See original New York Times article here: Jo Becker, Adam Goldman, Michael S. Schmidt, and Matt Apuzzo, N.S.A. Contractor Arrested in Possible New Theft of Secrets, New York Times (Oct. 5, 2016), http://www.nytimes.com/2016/10/06/us/nsa-leak-booz-allen-hamilton.html?ref=technology.