The Court of Appeals stated that a preliminary injunction could only have been granted to the Plaintiffs if they could demonstrate that Aereo infringed upon their public performance right under the Transmit Clause (17 U.S.C. § 101) of the 1976 Copyright Act. The Defendants relied on the Cablevision analysis of the Transmit Clause, which the Court used in its analysis as precedent for what it found to be a “similar factual context.”  In Cablevision, the question was whether the company’s newly-designed Remote Storage Digital Video Recorder infringed copyright holders’ public performance and reproduction rights. In Cablevision, it was held that “unless a transmission itself is public, the transmitter does not infringe the public performance right.”  Since each subscriber is assigned a unique antenna in the Aereo business model, the transmissions were found to be private performances and did not violate the Plaintiffs’ copyrights.

The Court of Appeals decision fully affirmed the District Court’s denial of all motions for a preliminary injunction against Aereo. In a press release on April 1, 2013, Aereo’s CEO and founder Chet Kanojia declared that the Court of Appeals decision confirmed “that Aereo’s technology falls squarely within the law and that’s a great thing for consumers who want more choice and flexibility in how, when and where they can watch television.”

Mr. Kanojia’s statement may be partially true – the Aereo decision does indeed appear to be a “great thing for consumers” – but other courts already disagree with the Second Circuit on whether or not the technology is “squarely within the law”. In the Ninth Circuit, in Fox Television Stations Inc. v. BarryDriller Content Systems PLC, Plaintiffs were granted a preliminary injunction because the court found a likelihood of success on the merits. The court in BarryDriller rejected the reasoning in Cablevision, stating that in any event its holding was at odds with Ninth Circuit precedent set in On Command Video Corp. v. Columbia Pictures Industries (which held that transmissions from a hotel system to private rooms were public performances).

Unsurprisingly, several of the Plaintiffs in the Aereo case have announced their intention to continue fighting for damages and to “protect [their] copyrights …” (CBS and Fox have even threatened to become pay-for-cable channels, possibly paving the way for the other networks). The networks may be expecting the law to move in the Ninth Circuit’s direction, further motivated by the fact that even Aereo’s likely natural allies – such as Cablevision itself – are speaking out against the startup, criticizing the company’s decision not to pay for licensing and retransmission consent. The fight may not be over, but for now, Aereo and its investors are confident enough in their case to expand the service to a total of at least 23 cities across the United States.

In a niche where consumers and even certain experts feel that cable companies are running a “monopoly”, or at the very least an oligopoly, business models providing more consumer choice do meet a growing market demand. Aereo provides its services at costs much lower than those charged by cable companies – at rates starting at $1/day or $8/month. The goal of its founder is to give consumers the choice to “unbundle” packages, paying only for what they want to see (such as news or movies), when they wish to see it. However, providing a service that makes consumers happy does not resolve questions of legality, and in an online world where the east and west coasts are drawn ever closer together, it seems that the differing opinions presented by the Second and Ninth circuits will have to be reconciled before this new frontier of television can attract more conservative settlers.

The nonobviousness and written description requirements set forth in sections 103 and 112 of the Patent Act provide additional and, some argue, more effective filters for claims directed towards genetic material. According to some academics, these requirements have been much further developed in the case law, are more finely tuned to address patents on genetic material, and provide more appropriate filters for separating truly inventive additions to human knowledge from unpatentable matter. Two landmark cases illustrate how these requirements have been used to invalidate claims directed towards genetic material.

First, the Federal Circuit invalidated patent claims for failing to meet the written description requirement in Regents of the University of California v. Eli Lilly & Co. The patent specification described cDNA encoding rat insulin, which the court held did not give the patentee a right to also claim the cDNA encoding human insulin. The court emphasized that even if the disclosure was sufficient to enable a person of skill in the art to make and use that cDNA, it still failed to meet the written description requirement. On the other hand, the court noted, a recitation of the actual nucleotide sequence would suffice. As some scholars argue, the requirement so applied compels applicants “to spell out the exact sequence of all the DNA they hope to claim, rather than just the function of the genes.” Denise DeFranco argues that the primary goal of applying the requirement in this way to biotechnology patents “is to limit inventors to their actual inventions.” Indeed, at the time the Plaintiffs in Eli Lilly applied for the patent claiming human insulin, they had only cloned the rat insulin gene, and did not clone the human insulin gene until two years later.

In another significant biotechnology case in 2009, In re Kubin, the Federal Circuit invalidated patent claims on obviousness grounds. The case involved a claim to the isolation and sequencing of a gene encoding a protein domain known as NAIL. In light of the prior art references, which taught a prophetic method for isolating the gene that codes for the NAIL protein as well as a probe specific to the protein, the court held that the claims were invalid. Prior to this holding, similar patents had been upheld even when the prior art included as much or more information as that considered in Kubin, such as the actual polypeptide sequence of the protein at issue and not just a probe for the protein. This decision has thus been characterized as “a major change in the law that will lower the bar for finding biotechnology patents obvious.” Joanne Kwan postulates that following Kubin, biotech inventions such as claims to isolated genes that encode particular proteins may now be routinely invalidated as obvious under Section 103.

This post does not comment on the social desirability of allowing patents on genetic material, nor on the legal merits of the arguments in Myriad. Rather, it seeks to highlight that the question raised by the patentable subject matter challenge in Myriad is a narrow one, a “coarse eligibility filter” in the words of the Federal Circuit. The Patent Act provides a number of other requirements to ensure that patents on genetic material aren’t improvidently granted when, for example, the inventors have not actually cloned the gene they are claiming, or when the protein of interest, a motivation to isolate the gene coding for that protein, and illustrative instructions for cloning the gene already exist in the prior art. Regardless of the precedent ultimately set by Myriad, these and other additional statutory requirements will continue to have a significant impact on the validity of patent claims directed to genetic material.

This is not the end of the story, of course. As the case developed in the United States, Apple and Samsung were, and continue to be, in a legal battle all over the world. Seoul Central District Court compromised and ruled that Samsung didn’t copy the look and feel of Apple. It further ruled that Apple had infringed upon some of Samsung’s wireless technology, while Samsung had violated Apple’s bounce-back effect. The result was a light slap on the wrist. Both companies had to pay a minimal amount in damages and had some of their older devices banned. More recently on September 21, 2012, a German court ruled that Samsung’s products didn’t violate Apple’s patents.

The discrepancy between the federal jury decision and those of other international courts brings into question whether juries are equipped to handle these types of technical cases. The jury instruction was reportedly over 100 pages, but the jury was able to deliberate after only 3 days. Of course, patents are not the only technical subject where the jury has a say, and there may have been other factors that led to these differing opinions, such as having a home court advantage.

Regardless, Apple and Samsung plan to continue the case in the US. Apple reportedly has been seeking about $700 million in additional damages and a permanent injunction preventing the sale of several of Samsung’s products, while Samsung plans to appeal the verdict and may include a patent infringement claim for violation of Samsung’s patents in LTE technology. LTE is a technology that provides faster connectivity than the standard 3G technology included in the previous generations of iPhones and is included in the new iPhone 5.

Stakes are very high for both companies as they continue their legal battle. There are many differing arguments as to whether patents on software and the magnitude of Apple’s award really promote innovation and new inventions. However, it is important to note that most of the claims were directed towards Samsung’s implementation of Android and Google has already responded to the lawsuit by making changes like implementing a new way to integrate pinch-to-zoom in its latest software.

Furthermore, it likely gives a window of opportunity for Microsoft and Nokia, which increases consumers’ choices. Nokia has opted to stop the development of its own software and decided to bet its future on Microsoft’s new Windows 8 platform. Microsoft’s operating system features a completely different interface and Nokia’s Lumia phones sport a distinct look. While Microsoft has had trouble gaining traction, this controversy could arguably help Nokia and Microsoft’s push to be more main stream.

The mobile market is one of the fastest growing areas in technology. Despite the fact that software patents are controversial and the boundaries are not fully defined, with more companies trying to tap the growing market, consumers will see a lot of new options in the market.

The Prometheus patents covered the concept of adjusting the dosage of thiopurine drugs based on the level of metabolites in a patient’s blood. The patents on the thiopurine drugs involved have long since expired and the patents in question claim no specific method for measuring the metabolite level in a patient. The now invalidated claims had two steps. The first step was simply the administration of the drug. The second step was the measurement of the metabolite in the patient after the administration. The remainder of the claim describes the correlation. If the metabolite concentration is higher than a certain value, this “indicate[s] a need” to reduce the next dose and vice versa.

The Mayo Clinic used the thiopurine metabolites test developed by Prometheus until 2004 when it developed its own test. Prometheus sued Mayo in 2004, alleging that the patents covered more than just the particular test that Prometheus had developed. Prometheus argued that the patents covered the entire process in the claims without any restriction to a particular method of administration or measurement. In effect, this prevented anyone else from making use of the correlation between certain metabolite levels and drug dosages however the patents were allowed as applications of this correlation.

The district court held that patents were invalid under §101 because they claimed scientific correlations which were natural phenomena that resulted from natural body processes. However, the Federal Circuit overturned this ruling and upheld the validity of the patents. The Federal Circuit relied on the machine or transformation test in coming to its decision. Understanding that the machine or transformation test is only a “useful  and important clue, an investigative tool,” the Federal Circuit held that the steps in the claims comprised a method of treatment which was a proper application of a scientific principle. In addition, the Federal Circuit noted that the method of treatment claimed in the patents satisfied the transformation prong of the machine-or-transformation test. Prometheus Laboratories, Inc. v. Mayo Collaborative Services, 628 F.3d 1347, 1355-57 (Fed. Cir. 2010).

The Supreme Court started its analysis by noting that the relationship between the concentration of metabolite in a patient’s blood and the efficacy of another dosage of the thiopurine drug is a law of nature that is not patentable. The relationship itself is simply a consequence of how the metabolite interacts with one’s body in a way that is separate from any human action. Thus, to be patentable, the claims have to contain additional features that conclusively show that the process applies the law of nature.

Identifying three additional features in the Prometheus patents, the Court found them all to be insufficient to deem the process an application of a law of nature. The first feature, the administration step, was dismissed as only identifying the people interested in the correlation. Specifically, the people interested are doctors using thiopurine drugs and this group existed before these patents existed. The measuring step does not make this claim patentable because the methods of measuring metabolite levels are well known in the art. Telling doctors to engage in routine, well known activity does not make this process patentable. Lastly, the explanation of the correlation adds little to the actual application of the process and just describes the law of nature. At most, it suggests that doctors should consider the test results when deciding the next dosage of the drug.

Because the features in the Prometheus claims were simply drafting efforts rather than substantive additions, the Supreme Court struck down the patents. However, the Court did not shed much light on what exactly constitutes an additional feature that would demonstrate an application of a law of nature. Finding the three additional features in the Prometheus claims to be insufficient gives some guidance, but no other specific explanation was provided.

Flicking your index finger up to scroll through an address book? Pinching a map or image to zoom out? Slicing watermelons to bits in Fruit Ninja? They’re all (arguably) covered by United States patent number 7966578 (“the ’578 patent”). Though the capacitive touchscreen technology incorporated in the iPhone and most every modern smartphone is not itself claimed in Apple’s patent, the very means by which mobile phone users interact with that piece of hardware apparently is. The strength of the ’578 patent has more recently been called into question by Judge Lucy Koh of the Northern District Court of California, who in October of 2011 ruled that although Samsung’s devices indeed infringe Apple’s patent, Apple still bears the burden of demonstrating the patent’s validity before relief may be granted. Judge Koh more recently denied Apple’s zealous bid to enjoin sales of Samsung smartphones and tablets in the United States.[i]

Apple has additionally based a significant portion of its legal battle against Samsung on similarities in design between the companies’ respective device families. In a recent and rather embarrassing courtroom exchange, Samsung’s attorneys themselves were unable to differentiate their new Galaxy 10.1” tablet from Apple’s iPad 2 while the two were held over the presiding judge’s head at a distance of ten feet. Samsung’s lead mobile device designer last week voiced offense at Apple’s allegations concerning such similarities, declaring, “the Galaxy [smartphone] is original from the beginning,” and the child of Samsung’s own independent efforts. Hardware design similarities are further aggravated by software-based visual overlaps, including the incorporation of rounded square icons in the modified Android operating system that ships with so many of Samsung’s new phones.

Adding fuel to the fire, Samsung filed numerous countersuits hinging on its ownership of patents in standardized technologies like 3G and UMTS communications protocols. That move was frowned upon in the European Union, where Samsung is presently being investigated by the European Commission’s Directorate-General for Competition for alleged antitrust violations on that basis. Due to the necessity of wide access to those industry-standard protocols, Samsung is legally required to license the manufacture of devices incorporating those technologies in a fair, reasonable, and non-discriminatory manner. Samsung’s attempts to secure injunctions against Apple in Europe have failed as a result of those protocol patents’ essentiality to cross-compatibility between different manufacturers’ devices and the wireless networks on which they reside.

So what does this all mean for consumers?  Germany has granted a preliminary injunction against Apple’s sale of the iPhone, while Australia temporarily banned sales of Samsung’s Galaxy tablet. Apple’s litigation with Motorola over two patents unrelated to the Samsung dispute further prompted a German court to enjoin sales of certain Apple devices within its borders. German smartphone buyers are now faced with a market severely limited by the effects of these interwoven lawsuits. Samsung has further sought to enjoin the sale of Apple products in its home country of Korea, as well as in Italy, Japan, and a handful of other prominent markets. Indeed, the Apple-Samsung dispute now comprises at least 21 separate suits in ten countries. The outcomes of these lawsuits could have dire effects on the availability of the mobile technologies that consumers have already begun to take for granted.

Apple has never been friendly to the idea of licensing its technologies out to competitors, and unlike Samsung, does not hold patents subject to mandatory licensing under European Union law. Experts opined last year that Apple was trying to knock Samsung, HTC, and other prominent competitors as far down as possible in anticipation of the upcoming holiday season, but domestic sales figures have remained strong on all sides. Apple’s March 16 release of the iPad 3 brought with it nearly $1.5 billion in revenue when upwards of three million units were sold over the opening weekend. If not for the fact that Android device sales significantly eclipsed iOS units’ in 2011, Apple would not appear to need any additional assistance in securing mobile device market share.

As much as Apple fanboys (and girls) would love to see the company’s family of i-devices remain at the top of the pack, some argue that litigation wins on these patent and trademark issues could spell disaster for competitive, and therefore innovative, markets. Google’s Android operating system, which relies heavily on the methods of use allegedly covered in Apple’s patents, would likely suffer significant immediate losses, presenting the risk that consumers will be forced into a “very closed world of Apple’s making.”

On the contrary, the mobile device market has developed so rapidly since Apple’s 2007 release of the original iPhone that Apple’s legal victories could work to usher the development of revolutionary new interfaces for the next generation of mobile devices. In developing its Kindle Fire, released in November of last year, Amazon worked hard to dodge intellectual property infringement issues by designing a tablet that is more easily distinguishable from the iPad than the Galaxy has proven in court. The device is notably smaller and incorporates a proprietary set of algorithms governing the use of pinch-zoom functions and the like. Consumers appear to have greeted Amazon’s device warmly as a marriage of low price and respectable functionality, though solid sales figures have been difficult to pin down. Whether it, along with other Android-based devices, will maintain strong market presence over the long term depends largely upon the wider impacts of the Apple-Samsung litigation and concurrent government antitrust investigations.

Additional considerations in the present round of litigation include the fact that Apple is one of Samsung’s biggest parts consumers, regularly buying huge quantities of capacitive touchscreens and semiconductors from the vertically integrated Korean giant. Samsung further owns patents in the iPhone 4S antenna design, but has yet to use this ammunition to its advantage in the present rounds of litigation. How these factors play into the smartphone wars is a dynamic yet to be observed, but here’s hoping that whatever happens means more and cooler options at market in the months to come!

Streaming has challenged downloading as the content consumption mode of choice, and entertainment lobbyists are scrambling to keep pace with the sea of change. The
media industry mainly takes issue with “rogue sites,” (which are often hosted outside of the U.S. and unresponsive to DMCA Takedown Notices), that provide access to streaming copies of infringed works. The industry’s latest failed effort, the PROTECT IP Act (PIPA), would have once again attacked the entire streaming ecosystem:

• suspected infringing sites;
• a broad array of online actors (ISPs, domain name registries, search engines, advertising and payment networks) that point Internet users in their direction;
• users who stream content from sites in question.

The bill was a bipartisan effort that resumed the aims of earlier bills that had stalled after opponents, including Sen. Rob Wyden (D-OR), denounced the bills’ potential to “muzzle free speech, stifle innovation, and economic growth.”

With regards to copyright infringement, Protect IP in its original embodiment would have provided that:

1. Private IP rights holders or the U.S. Attorney General may take action against the registered owner and operators of a site “dedicated to theft of U.S. property,” pursuing a court-ordered preliminary injunction or temporary restraining order under FRCP 65.
2. Within five days of getting notice of a court order, ISPs and search engines must take “technically feasible and reasonable measures” to block access to the site (including DNS blocking). Ad and payment networks would also be required to block financial transactions to and from the site.
3. Online providers are granted immunity from suit if they voluntarily undertake measures to block offshore sites if they have a “reasonable belief” that the site’s main purpose is infringement.
4. Anyone who willfully streams infringing content would be subject to criminal sanctions under 18 U.S.C. § 2319.

The DNS blocking measure was removed after public outcry, but the continuing existence of search blocking and other onerous provisions only sparked more outrage from a growing contingent of concerned Web denizens. Many acknowledged the need to protect valuable intellectual property, but took issue with the ham-fisted solutions put forth by PROTECT IP. The Electronic Frontier Foundation and other critics denounced the bills’ one-sided legislation process, as well as their broad remedies that would have enabled claimants to shut down sites without affording due process to opponents. Protests mounted, culminating on January 18 in a daylong Internet blackout by Reddit, Wikipedia, and more than 7,000 other information providers. Afterwards, one-time supporters of PROTECT IP announced a change of heart – including the bills’ co-sponsors, Sen. Marco Rubio and Rep. Ben Quayle. The protests staved off a preliminary Senate vote on PIPA that had been scheduled for January 24 of this year, and the bills have since been tabled.

Despite the faltering of PROTECT IP, there is no ebb in proposed measures to curb piracy. International debate is churning over a new measure, the Anti-Counterfeiting Trade Agreement (ACTA). The U.S. has already signed onto the treaty, and the treaty will take worldwide effect after six ACTA countries have ratified it. The main ambit of the bill is to bring other countries into alignment with strict anti-counterfeiting provisions already in place in the US and the UK. As secretive negotiations continue, however, potential persists for overbroad remedies and more draconian interpretations. Countries are allowed to construe treaty provisions in accordance with their current rules of law; less permissive countries, such as Morocco, would be expected to have harsher penalties for infringement.  The ACTA is supposed to target “widespread [unlawful] distribution,” but this aim could fall prey to looser interpretations. Looser interpretations would, for example, punish hobby bloggers who make vaguely transformative uses of copywritten expressions (e.g.,LOLcats), or squash low-level file sharers who send a few file bits up into the cloud.

ACTA aside, current methods of IP enforcement have left their Internet imprint. Following the shutdown and indictment of Megaupload, other online file storage sites have curbed their services in fear of similar retribution. As a result, those who seek to reaffirm DMCA safe harbors, maintain the online status quo, or even push for additional freedoms, will need to remain vigilant for the foreseeable future.