IP Intelligence

IP Intelligence

Insight on Intellectual Property

FilmOn and the Copyright Act §111 Compulsory Licensing

Keys and padlock on the computer keyboard as a data security concept.

Web-based television streaming services have been dealt another blow in their campaign to transmit large broadcasters’ copyrighted programs.  In the latest decision on the issue, a federal judge rejected FilmOn X LLC’s claims that the company could stream protected broadcasts without committing copyright infringement.  Fox Television Stations, Inc. v. FilmOn X LLC, No. 13-758-RMC (D.D.C. Nov. 12, 2015) (opinion under seal).  This ruling follows the Supreme Court’s 2014 decision in American Broadcasting Cos. v. Aereo, Inc., which held that Aereo (a provider of over-the-air television service to Internet-connected devices) was unlawfully publicly performing copyrighted works by providing its subscribers access to television programs over the Internet at about the same time as the programs were broadcast over the air.  Continue Reading

A New Lenz: Google Weighs In on Fair Use

pic 1The Digital Millennium Copyright Act creates a liability “safe harbor” for online service providers that post content that may be protected by copyright. It facilitates the takedown of an infringing work by providing a relatively simple “notice and takedown” procedure. However, the DMCA has been criticized for making it more difficult for individual creators to combat an overreaching copyright holder when the alleged infringement qualifies as fair use. After receiving a sufficient takedown notice, the service provider must take down the work, and the burden is on the creator to defend its fair use. This ends the issue in many cases where the creator has insufficient resources to provide a counter-notice or defend a lawsuit from an aggressive copyright holder. Continue Reading

“Are You Serious”

pic 1On November 19, at its Rockefeller Center offices, BakerHostetler co-sponsored the pitch event “Are You Serious” along with tech company incubators, The Hatchery and SourcePad. The event was designed to teach entrepreneurs from emerging tech companies how to improve their presentation skills through pitches to a panel of venture capital investors. The evening included presentations from four entrepreneurs whose companies had developed beyond the start-up stage through seed funding at different levels. Entrepreneurs from Molo, a marina management software company; Sortbox, an employer branding company; Pci Global Inc., a project management training and computer simulation company; and RideConnect, a ride sharing social network made their pitches to the panel in front of approximately 80 audience members, which was largely composed of other tech company founders as well as several BakerHostetler attorneys. Continue Reading

Momenta Pharma., Inc. v. Teva Pharma. USA Inc.

pills isolated on white background

In Momenta Pharma., Inc. v. Teva Pharma. USA Inc., Nos. 2014-1274, -1277, -1276, and -1278 (Fed. Cir. Nov. 10, 2015) (“Momenta II”), the Federal Circuit found that, pursuant to 35 U.S.C. § 271(g), “made” is limited to steps directly related to manufacturing products and excludes isolated quality control steps. The court also revisited its prior ruling in Momenta Pharma., Inc. v. Amphastar Pharms., Inc., 686 F.3d 1348 (Fed. Cir. 2012) (“Momenta I), and based on the fuller record, decided that post-approval quality control batch testing does not fall within the 35 U.S.C. § 271(e)(1) safe harbor.

This appeal arose from ANDA litigation involving generic versions of Lovenox® (enoxaparin), which is prescribed to prevent blood clots. Momenta I, 686 F.3d at 1349. Enoxaparin is a low molecular weight version of heparin and is produced by breaking the heparin polysaccharide into smaller oligosaccharide fragments. Id. at 1349-50. Unlike traditional small molecule pharmaceuticals, such as penicillin, enoxaparin is not a single molecule but rather a combination of several different molecules. Id. at 1350. This molecular diversity presents an issue for ANDA filers – how to establish bioequivalence to Lovenox®? Id. To address this issue, the FDA identified five “standards for identity” that provide enough information to conclude that a generic enoxaparin is the “same” as Lovenox®. Id. Pursuant to these standards, the FDA required “equivalence in disaccharide building blocks, fragment mapping, and sequence of oligosaccharide species,” and suggested that disaccharide identity could be determined via standard experimental techniques. Id. at 1350-51. Continue Reading

Fox News LLC v. TVEyes, Inc.—Does the Courts’ Expansion of Fair Use Copyright Protection Promote the “Progress of Science and useful Arts” When It Requires Increasing Judicial Oversight Over Activities That Otherwise Would Be Regulated By the Marketplace?

TV studioIn 2014, when District Court Judge Alvin Hellerstein of the Southern District of New York upheld TVEyes, Inc.’s (“TVEyes”) monitoring service as “fair use” in the face of a copyright infringement claim brought by Fox New Network LLC (“Fox News”),[1] the decision was seen as yet another step in the federal courts’ limitations of the rights of copyright owners under the “transformative use” approach to fair use developed by the Supreme Court in Campbell v. Acuff Rose.[2] TVEyes is a media-monitoring subscription service that “records the entire content of television and radio broadcasts and creates a searchable database of that content.” The service allows subscribers to search keywords or phrases to determine and review an aggregation of instances of the search term appearing in the media. Subscribers include businesses and governmental agencies such as the White House, United States Army, and local and state police departments; the service is not available to members of the general public. Clips are limited to 10 minutes in length, and a majority of the clips are two minutes or less; users are required to agree to use the clips for internal purposes only.  Continue Reading

Methods of treating a subset of patients are likely nonobvious if the subset exhibits unexpected results

Pharmacy concept

In Prometheus Laboratories, Inc. v. Roxane Laboratories, Inc.,[1] a recent decision involving methods of treating a specific subset of patients, the Court of Appeals for the Federal Circuit (“Federal Circuit”) ruled that, although the claims of the patent at issue were invalid as obvious, singling out a particular subset of patients for treatment can still be a valid claiming strategy.

Prometheus Laboratories, Inc. (“Prometheus”), is the owner of U.S. Patent No. 6,284,770 (the ‘770 patent), which is directed to methods of treating a diarrhea-predominant female IBS patient using alosetron (marketed as Lotronex®). Claim 5 of the ‘770 patent, which was amended by Prometheus during a self-requested ex parte reexamination, recites:[2]

  1. A method for treating a diarrhea-predominant female IBS patient, while excluding those with predominant constipation, said method comprising:

assessing whether said diarrhea-predominant female IBS patient has experienced symptoms for at least six months; and

administering an effective amount of alosetron or a pharmaceutically acceptable derivative thereof to said patient who has experienced symptoms for at least six months, wherein said effective amount is dependent on the condition of the patient and is at the discretion of the attendant physician.[3] Continue Reading

Anne Frank’s “Diary of a Young Girl”: a Derivative Work with a Co-Author

diaryOn January 1, 2016, Adolf Hitler’s Mein Kampf and Joseph Goebbels’ diaries will both enter the public domain in most of Europe, where the term of protection ends 70 years after the death of a work’s author.

One of the Nazi’s most famous victims, Anne Frank, died the same year as Hitler and Goebbels – 1945. Anne Frank is best known as the author of The Diary of a Young Girl, one of the world’s most widely read books. It was commonly assumed by many that because Anne Frank perished at Bergen-Belsen in 1945, her diary would fall into the public domain on January 1, 2016. Yet Anne Frank Fonds, the foundation in Basel, Switzerland foundation that is the universal heir to the Frank family, says the copyright won’t expire for decades. Continue Reading

The Give and Take of the 2015 Library of Congress Sec. 1201 Copyright Exemptions

Software protection blocking a binary code stream. Digital illustration.

I used to love working on cars. As a teenager I had a 1972 Karmann Ghia, which I could repair, MacGyver-like, with rubber bands, tinfoil, and sticks of chewing gum. But as automotive technology advanced, the prospect of making my own repairs to fuel, emission, or transmission systems dimmed. Installation of electronic control units (ECUs) wiped those prospects out altogether, not because the car’s technological protection measure (TPM) software prevented me but, well, because my own ineptitude did.

So it is that I look askance at the Electronic Frontier Foundation’s declaration of a “Victory for Users” regarding the Library of Congress’s recently promulgated rules on exemptions to anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), effective October 28, 2015. It is crucial to understand that these exemptions are wonderful if you yourself would like to hack into your vehicle’s software and make repairs or enhancements. If you would like to engage someone else to do it for you because your skills with rubber bands and tinfoil don’t cut it anymore, you are out of luck. The Library of Congress made clear that it has authority to grant exemptions under section 1201(a)(1) of the DMCA having to do with conduct of individuals, but not under sections 1201(a)(2) or 1201(b), which relate to products and services that are used to circumvent technological barriers. Continue Reading

The USPTO Global Dossier Service Is Scheduled to Go Live in Mid-November

Intellectual Property_iStock_000040071288_FullThe Global Dossier is a project stemming from a collaboration between the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), the State Intellectual Property Office of the People’s Republic of China (SIPO), and the United States Patent and Trademark Office (USPTO) (collectively, the IP5 Offices). As envisioned by the IP5 Office heads, the Global Dossier will exist as a set of business services accessible through an online portal that will allow for communication between users and all participating patent offices. The hope is that users – such as applicants/patent owners, examiners, and interested third parties – will eventually be able to access information about all patents in the participating offices and to use the electronic services of those offices. The overarching goal is to streamline communication among the participating offices to provide an efficient and cost-effective user environment. Continue Reading

Trending: Facebook Fined, Breaches European Data Privacy Laws

cookieFacebook is yet again being tagged in a breach of data protection laws, but this time it’s ‘checking-in’ to a European court in Brussels, Belgium.

A recent slew of cases, in which Facebook is the leader, hints at stricter and broader privacy laws to protect users’ private data. Harvesting data for marketers and advertisers continues to be the hot topic. A decision on Monday regarding Facebook confirms this.

On Monday, a court in Brussels ordered Facebook to stop collecting digital information about non-users who accessed Facebook users’ profiles or webpages – subjecting it to a fine of $270,000 a day if fails to comply. Just last week, a California federal judge ordered Facebook to turn over data it compiled from users’ private messages and subsequently sold to advertisers. Continue Reading