Google employees brought the car to Texas from the company’s headquarters in Mountain View, California. On Tuesday, Austin Mayor Lee Leffingwell, Police Chief Art Acevedo, and TxDOT officials took turns being driven in autopilot mode by the Google car from the Hilton Austin through downtown and on Interstate 35.

“The car has a laser fitted on top that will give the computer a 360 degree view allowing the computer to recognize cars, people and road paint during the day and night. There are cameras behind the windshield to detect traffic lights, turn signals and brake lights. The front radar can measure the distance and speed of surrounding vehicles. All of this technology combined allows the car to see the world in 3-D.” That being said, the car can only drive on pre-mapped roads, which means it has to be driven manually on roads while the computer maps it “which in turn will allow other self-driving cars to drive on the same road within a few days.”[1]

The automobile’s groundbreaking technology and the buzz it created for all 1,300 attendees at a conference put on by the Texas Department of Transportation (TxDOT), exposed how Texas law is unprepared for roads filled with vehicles that drive themselves.[2]

Anthony Levandowski, project manager for Google’s self-driving car research, said the company brought their newest Lexus RX450h test model with its autopilot technology to the Texas Transportation Forum to familiarize elected officials and members of the transportation industry with the emerging technology. Levandowski said the company hopes to have the software on the market within five years, and wants the technology to be proven and tested before its release.[3]

Google did not seek permission to drive the vehicle on Texas roads and highways, since neither Austin nor Texas laws appear to address self-driving technology.[4] Although no Texas or federal laws address such technology being used on the roads, Levandowski said that it would and should change.[5] While no states specifically prohibit self-driving cars, California, Nevada and Florida have already passed laws to allow some self-driving cars on the road.[6] Before the Nevada DMV issued its first license for a driverless car to Google last year, it established regulations for the vehicles. Currently, the DMV is only accepting applications for testing autonomous vehicles and they are not available to the general public.[7]

A member of the House Transportation Committee, State Rep. Joe Pickett, D-El Paso, said he had not considered the issues that may arise from autonomous vehicles but that it is something he finds worth discussing.

The Texas transportation code “currently refers only to “a person” operating a vehicle. Levandowski described an updated version as specifying ‘for a vehicle to operate, it must have a licensed driver inside.’”[8] Other states, such as Washington are currently facing similar concerns in modifying their transportation codes.[9]

“It’s worth a discussion because government is usually reactive instead of proactive…The first time [a self-driving car] runs over a fire hydrant or, even worse, a person, there will be a flurry of bills filed,” Pickett stated. [10]

As self-driving cars become more common, other legal questions that will have to be faced: Who is to be blamed for injuries to a third party in accidents? Who is to be sued in an accident involving a self-driving car, the owner or the manufacturer? What is the expectation of vigilance by the humans in the autonomous vehicle? How are insurance companies going to adapt to this new technology?[11] From the definitions of the words used in a statute to the general intent and “spirit of the law,” changes in law will have to keep up with technological progress on the roads in Texas and the rest of the United States.

Problems with the Current Rule 37(e)

The rapid growth of electronically stored information (“ESI”) is at the root of the problem of too many sanctions.  To illustrate, the total volume of digital information created increased from 130 exabytes (EB; 1 EB=1 billion gigabytes) to 1227 exabytes in 2010.  And it keeps growing.  For example, enterprise data is estimated to double every three years.  The increasing volume of ESI makes it too costly to preserve everything. But knowing when the preservation obligation is triggered and what information must be preserved is difficult.  Because of this, even litigants acting in good faith may find themselves in trouble.  The failure to preserve ESI was the most common misconduct that led to sanctions in e-discovery cases.

Rule 37(e) was added to the Federal Rules in 2006 to protect litigants acting in good faith from sanctions for failure to preserve.  Although Rule 37(e) is called a “safe harbor” provision, it fails to provide satisfactory protection.  This is because the Rule’s protective language is unclear and can be interpreted narrowly.  Consequently, the rule is applied inconsistently across jurisdictions and between individual judges.  Litigants cope with this situation by adhering to the most strict standards to avoid potential sanctions in later litigation.  For example, Microsoft reported in 2011 that it preserves 787.5 GB of data for every 2.3 MB of data that are actually used in litigation, which is a ratio of 340,000 to 1.

Unsurprisingly, the phenomenon of over-preservation drives the cost of litigation above what is necessary, placing an undue burden on organizations that face frequent litigation.  The ambiguity of law has also led to increased sanctions motions for spoliation, or the act of destroying or altering evidence, shifting the focus away from the merits of the case and often resulting in settlement amounts disproportionate to the underlying merits.

The Proposed Amendment to Rule 37(e)

The Discovery Subcommittee of the Advisory Committee on Civil Rules proposed an amendment last November as a solution to these problems.  According to its drafters, the amendment provides better protection than the current rule and sets a uniform national standard regarding sanctions for failure to preserve.

Subdivision (e)(1) provides a variety of measures that courts can use instead of sanctions, such as “additional discovery” and “curative measures.”  These measures encourage courts to be more flexible rather than rely heavily on sanctions.  Another subdivision, (e)(2)(A), sets the uniform standard of culpability that requires that “the failure [to preserve be] willful or in bad faith.”  This standard of culpability essentially rejects the negligence or gross negligence standard set by the 2nd Circuit.  Under this provision, the court must also find “substantial prejudice in the litigation” in addition to willfulness or bad faith before imposing sanctions.  Subdivision (e)(2)(B) of the amendment creates a narrow exception allowing for sanctions in the absence of willfulness or bad faith, but only when the loss of information “irreparably deprived a party of any meaningful opportunity to present a claim or defense.”  Finally subdivision (e)(3) of the amendment gives a non-exhaustive list of factors to consider when determining whether there was willfulness or bad faith.

Reactions to the proposed amendment vary.  Many critics agree with the drafters that the proposed amendment to Rule 37(e) expands the protection under the current “safe harbor” rule.  However, many also question whether the additional protection will do enough to solve the problem.  Critics have identified a number of issues regarding proposed amendment, including its failure to give clear guidance in construing core concepts such as “reasonable anticipation of litigation” and “irreparably deprived.”  Subdivision (e)(2)(B) of the amendment, though purporting to be a very narrow exception, still makes it possible for courts to bypass the requirements under subdivision (e)(2)(A), which would weaken the protective effect.  Additionally, the factors listed in subdivision 37(e)(3) are a potential source of confusion, as even the drafters themselves could not reach consensus on them.

Will It Solve the Problems?

The proposed amendment to Rule 37(e) arguably provides more protection than the current rule.  However, we have to wait to see the extent to which the amendment solves the over-sanctioning problem because its success will depend on the courts’ interpretation.  Further, other unpredictable factors, such as its effect on plaintiffs in manufacturing defect cases, can also lead to complications that increase or decrease the effectiveness of the new Rule.  In the meantime, lawyers would be well advised to look to the Sedona Conference for guidance in the e-discovery area, as it is an often cited authority in the court opinions.

The most straightforward way would be to purchase the Comedy Central channel for your TV, but there are three major problems with this. First, in most areas, you cannot just purchase Comedy Central individually. You have to buy a bundle that include dozens or hundreds of other channels that you have no interest in. Moreover, you’re not interested in all of the shows on Comedy Central. If you just want to watch Workaholics, why do you have to purchase (and pay for) all the extra stuff? Second, young people increasingly do not own TVs, nor do they want to. They consume content on their computers which usually do not have TV tuners. Third, even if you had a TV and you were willing to pay for the extra channels, you still can’t watch old episodes of the show. And it is highly inconvenient to watch new episodes of the show as they air without purchasing a DVR since you would have to be physically present in front of your TV when the show is on. While this may have been a fact of life in the 1990s, consumer expectations have changed with technology, and it is no longer an acceptable solution.

Another way would be to purchase DVDs of old episodes of Workaholics. At the time of writing, Seasons 1 and 2 are out on DVD. But purchasing DVDs to watch old episodes of a TV show is an inconvenient solution for three reasons. First, my colleague just wants to watch the show once, not pay for the privilege of owning it on DVD, and with the demise of brick-and-mortar rental stores like Blockbuster, DVD rental is no longer realistic. Second, many of the same people who don’t have TVs also don’t have DVD players in their computers. Macbook Airs, for instance, do not have DVD players. Third, my colleague runs a distribution of GNU/Linux as his operating system, and playing a DVD he owns on his own computer can be illegal under the Digital Millennium Copyright Act because it requires circumventing the encryption present on most DVDs. This is not a problem, of course, for those using Microsoft Windows or an Apple product, since those large technology companies can afford to negotiate with the content studios for a legal copy of the DVD decryption key.

Netflix is a promising solution, and it can be good for watching old TV shows and movies, but the service usually does not get content until years after it has aired. For instance, Workaholics Season 1 is available on Netflix but not Seasons 2 or 3. Netflix also does not work on GNU/Linux since it requires Microsoft Silverlight (an abandoned competitor of Adobe Flash). This makes Netflix useless for my colleague. Nonetheless, most young people I know have a Netflix subscription, which demonstrates that they are willing to pay for content when it is available in a convenient form.

Finally, there is the possibility of purchasing episodes on iTunes or Amazon Instant Video. But both of these are not compatible with GNU/Linux (at least not officially), and my colleague only wants to watch (or “rent”) the episode once, not own the episode for repeated viewings. Although these services allow “renting” some episodes, this option is only available for certain content.

None of these solutions are good, and for a GNU/Linux user, there is simply no convenient, legal way to consume movies and television. The solutions are particularly bad when compared with how easy it is to steal content via the internet. I do not know anyone who likes stealing from the people that put so much work into producing high-quality content. But the unwillingness of the owners to offer the content in a medium acceptable to consumers at a reasonable price often incentivizes people to do so.

The music industry once suffered from this problem: it wasn’t long ago where you had to purchase a full 16-song CD just to get the one song you were interested in. The generation that grew up with Napster, however, came to expect convenient, cheap access to music that interested them. Music studios did not easily let go of its antiquated business model, but once they started offering MP3s for sale online for a reasonable price in a format that could be played by everyone without restrictions (such as $1 per song on Amazon MP3), illegal music downloads have decreased precipitously. In fact, among many young people, stealing music has become all but taboo because of the ease with which you can purchase music legally.

Sooner or later, the movie and television industry must adapt correspondingly. Consumers stopped paying for full CD albums when more convenient, if illegal, means for obtaining music were available. The music industry rightly and responsively refined its business model, and today most music consumed is purchased legally. The cable television channel “bundles” are much like the CD albums of the 1990s. People do not want to pay for content that they do not want to consume. Like the music industry, the movie television industry must refine their business model in a thoughtful and responsive way if they want to diminish the incentives for their customers to steal.

There is currently no case law precedent bearing on the issue of the legality of adblocking software; however, there is precedent on the issue of whether ad skipping should be allowed under the copyright law. In Sony Corp. of America v. Universal City Studios, Inc., otherwise known as the Betamax case, Universal Studios contested the legality of home video recorders because they allowed viewers to skip the advertisements that were normally part of television broadcasts by fast-forwarding through them. The court dismissed that argument and reasoned that the viewer still had to receive and record the commercials as part of the transition, and that fast-forwarding is a process that would be too tedious for most viewers. In fact, the court found that only 25% of viewers took advantage of the fast-forwarding feature. In 1982, Judge Posner held in WGN v. United Video, that commercial skipping created an unauthorized derivative work since it reduced the copyright owner’s income, which was funded by the purchase of commercials through advertising. The ruling is not controlling, however, because ad-skipping was not the focus of the case.

More recently, Realplay TV was sued in 2002 for its commercial skipping features, but the company soon faced bankruptcy so no legal decision was reached. The issue was once again revived this year when Fox sued Dish Network in Fox Broadcasting v. Dish Network for its ad-free primetime television service and its AutoHop features. Although no final decision has been rendered yet, the District Court for the Central District of California ruled that the copies that are made from the AutoHop feature were infringing, but denied Fox’s preliminary injunction because it found that Fox’s damages were not suitable for an injunction. R. Stanton Dodge, general counsel for Dish Network, saw the decision as in line with the Betamax decision and a victory for consumer choice and the right of consumers to enjoy their TV programs however they wanted to.

Given the current legal atmosphere in for commercial skipping features in TV programs, it seems like it will only be a matter of time before companies turn to ad-blocking on the Internet as well. In fact, although there has been no litigation on the matter, individual website owners have already taken action against the Adblock software. In response to Firefox’s Adblock Plus add-on, some websites have already started blocking Firefox users from their websites. One such site, whyfirefoxisblocked.com, writes that because of Adblock’s effectiveness on all websites, “blocking Firefox is the only alternative.”

So far, Palant suspects that the reason major Internet presences like Google have not gone after Adblock Plus is because the program is not popular enough and would be a waste of time for them. However, according to John Palfrey, executive director of Harvard Law School’s Berkman Center for Internet and Society, if the adblock software begins to cut away at the advertising companies’ revenues, there would “absolutely” be litigation around the issue.

The fall-out from the Paula Broadwell investigation has resulted in more than the resignation of CIA Director David Petraeus. It’s resulted in increased scrutiny over government access to electronic data without the use of a warrant. Just this week, Senate
committee has unanimously approved of a measure amending the Electronic Communications Privacy Act (ECPA) of 1986 which would increase security for e-mails. Instead of an administrative subpoena for certain electronically stored data, the government would need to meet the higher standard of showing probably cause that a crime had been committed. Although the bill is not expected to make it to the House until the new year, for those concerned about lack of protections, it is an
important step in ensuring digital security in an age where e-mail, Facebook, Twitter, and other internet use have become a pervasive fact of life. Even with the Senate’s recent actions, the area remains murky; recently, a court ruled Twitter was compelled to sell its data in fulfillment of its contract with a data-mining company.

A Compassionate Use of Patent Law
While some companies have become famed for their patent wars, not many companies make the news for refraining from patent litigations. Johnson & Johnson has announced that it will not pursue patent litigation against companies which make a copy of its anti-retroviral drug, Prezista (or generic darunavir), if those generics are going to patients in Africa or developing nations. Johnson & Johnson stated in a press release that ”intellectual property should not be a barrier to ensuring a sustainable supply of medically acceptable darunavir in the world’s poorest countries.” While prices are already reduced to $2.22 per day after J&J licensed its drug to a South African generics manufacturer, this move will hopefully encourage other manufacturers to participate, lowering prices even further. While the move is calculated to help those in need, Johnson
& Johnson has not participated in the new Medicines Patent Pool which is designed to make intellectual property available by pooling patents for generic makers to use.

An Inconvenient Solution at Doha

With time running out on the Kyoto Protocol, nations are meeting at Doha to discuss the possibility of a new climate deal or at least extending the time commitments on the aging treaty. The Kyoto Protocol mandates binding cuts in carbon emissions for those nations party to the treaty. While the United States never signed the Kyoto Protocol, international climate laws have become increasingly geared towards curbing carbon emissions. Just two years ago, another
UN conference agreed to limit temperature rises to near pre-industrial levels. However, this has proven difficult to accomplish, not the least because several developed nations, including Japan, Russia, and Canada, are pulling out of the treaty or else can use hot air permits to increase their emissions.

Research in Motion Loses Patent Dispute
RIM has lost a patent dispute in an arbitration against Nokia this month concerning its current license agreement. The judgment is not appealable but is enforceable in U.S. Courts, leading RIM to the dilemma of either needing to stop its production of wifi enabled devices or else license the technology from Nokia and pay royalties. The cell-phone maker has already filed suit in the Northern District of California.

Google’s Antitrust Woes
Although the Federal Trade Commission has yet to act, reports have circulated that it is investigating and in talks with Google to resolve concerns over unfair trade practices relating to both its search engine and phone technologies. The European Union is also conducting its own investigation into Google’s business practices.

On Nov. 16, 2011, a coalition of the world’s five largest patent offices – the IP5 – announced the upcoming release of the IP5 Statistics Report 2011 Edition (which is not available to the public yet). The IP5 comprises the U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO), and the State Intellectual Property Office of the People’s Republic of China (SIPO). The IP5 Offices, which together handle about 90% of the world’s patent applications, is working together to explore ways to optimize their joint efforts to improve quality and efficiency of the examination process and to explore and optimize work sharing opportunities between the Offices.

The IP5 have been engaged in ten collaborative projects that were devised to harmonize the search and examination environment of each office and to standardize the information-sharing process. For example, the Common Access to Search and Examination Results project aims at building a service by which examiners of the IP5 will be able to refer to related dossier information of other offices in one stop, and proceed with the examination taking into consideration the search/examination results, cited documents and classifications of other Offices. In the Common Training Policy project, the IP5 aims at enhancing the trust among the IP5 Offices with regard to the mutual utilization of examination results. Just on Oct. 26, 2012, the fourth IP5 Examiners’ Workshop, hosted by the State Intellectual Property Office of the P.R.C., closed in Beijing. It provided examiners from the IP5 offices with an opportunity to discuss the topics of searching, prior art, novelty and inventive step, based on common patent applications in the fields of chemistry, mechanics and electricity.

That being said, the work sharing scheme will only be applicable to patent prosecution under the Patent Cooperation Treaty (“PCT”). While the PCT provides a valuable way to protect an invention internationally, if one decides to pursue patent in only a few countries, PCT applications tend to be more complicated, time consuming and expensive than filing applications separately in each country. It is worthwhile to explore the possibility of sharing documents and search results among the IP5 Offices beyond PCT applications. Limiting the sharing to documents and search results only can reduce the concern that an applicant will be unfairly prejudiced in one office because his application is rejected by another. It can also save an examiner substantial time and improve examination quality by giving him a second prior art search result for reference.

“Predictive coding”, also referred to as “technology-assisted review” or “content-based advance analytics,” is a technique for sorting through enormous collections of Electronically Stored Information (“ESI”) in order to produce only those documents which are responsive of an opposing litigant’s request and which are not subject to a privilege exempting them from discovery. There are multiple approaches to predictive coding, but the basic process begins when a computer creates a set of rules derived from the review and subsequent indexing (or “coding”) of a sample set of documents by the party responding to the discovery request. Those rules are then applied to the entire set of documents, producing a set of only those documents that conform to the rules established in the sample. Samples of the excluded documents are then evaluated and recoded, the rules are adjusted accordingly, and the process is iterated until the parties are sufficiently confident that the documents found by this process are only those necessary to fulfill the obligations of discovery. Usually, those documents are then reviewed by human eyes.

Predictive coding is an alternative to the more traditional “keyword search.” Keyword searches rely on human review of documents that contain any of a set of keywords, as defined through discussion among litigants. A keyword search reviews only a limited set of results; it is not, like a predictive coding search, a review of the entire body of ESI. Though they remain relevant–even preferable in certain situations–keyword searches have frequently been compared to a game of “Go Fish.” Stated perhaps less derisively “[s]earching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context.” Nat’l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency.

2012 marked the first time a court compelled the use of predictive coding in discovery over the objection of a party. See Global Aerospace v. Landow Aviation. Similarly, In EORHB, Inc. v. HOA Holdings, LLC, Delaware’s Chancery Court, sua sponte, requested that both parties not only use predictive coding but also use a common provider.

The rulings of two other courts on predictive coding, however, reveal precisely where the battle for the future of e-discovery will be fought: in the details of the process (this is confirmed by academic proponents of the technology).  The marquee case on predictive coding of the year, Moore v. Publicis Groupe SA, like Global Aerospace, compelled the use of predictive coding over the objections of a party. Unlike Global Aerospace, however, the objections in Moore were over the procedure for executing predictive coding, not the use of the technology itself. Similarly, an Illinois court refused to step in to demand the use of predictive coding in Kleen Products LLC v. Packaging Corp. of Am., for fear that the litigants would not be able to come to a mutually permissible plan for implementing the technology.

In many of these cases, the courts rely on the recommendations of the Sedona Conference, a forum that recommends best practices for e-Discovery. The Sedona Conference’s proposals are published and submitted to the judiciary for their perusal, and sometimes endorsement. The Sedona Conference envisions a cooperative discovery process, in which the litigants agree on the standard for confidence in the system’s accuracy (e.g., Is it sufficient to re-sample the excluded set three times? Or must the responding party test the set four times?).

The current dialogue on predictive coding demonstrates two important points: (1) its inevitable proliferation is all but certain, and (2) opposing litigants will need to cooperate in order to ensure its effectiveness. As this article (also linked above) demonstrates, the technology–particularly its shortcomings–is misunderstood. With such misinformation, and the fear it induces, the cooperation necessary for the beneficial use of predictive coding will be elusive. Legal practitioners should quickly become more acquainted with this technology, its benefits and criticisms, and the newly expanding body of law surrounding it so that their first reaction to the words “predictive coding” is not one of fear, but of hope for a cheaper, faster, and more accurate discovery process.

The omnipresent imbroglio involving former CIA Director General David Petraeus (Ret.), uncovered by anonymous emails leading the FBI to mistress Paula Broadwell, has highlighted some limits of privacy on the internet. Although Broadwell attempted to hide the true identity of the anonymous email account she used to harass Jill Kelley by using public wireless networks, her efforts were fairly easily foiled by the FBI. Using geo-location and other meta-data stored by webmail providers when users log in, the FBI was able to cross-reference a variety of locations with guest lists from hotels to narrow the list of possibilities to Broadwell. The relative ease with which the FBI is presumed to have accessed the sensitive information (data at least six months old may be accessed with only a subpoena issued by a federal prosecutor) has prompted a round of heavy handwringing among the media and advocacy groups. Google reports the United States nearly quadruples the next closest country in surveillance requests.

Google loses defamation suit in Australia

Google recently lost a defamation suit with damages in excess of $200,000 to Australian music promoter Milorad Trkulja. The calumny? Searches for 62-year old in Google yielded results relevant to elements of Melbourne criminal underworld, many of whom were speculated to have been involved with an unsuccessful hit on Trkulja in 2004. After Google failed to remove the results, Trkulja sued Google for defamation, arguing that the search led to reputational damage.

In a decision denying Google’s application for judgment notwithstanding the verdict, Judge David Beach declined to upset the jury’s determination that Google was a “publisher,” and found that Google’s passive role did not warrant reversal. Trkulja’s attorney, Christopher Dibb, claimed the judgment marked the first such defamation suit against a search engine. Google is considering an appeal.

Facebook settlement could be pending

A halting settlement negotiation in a class action suit alleging privacy violations stemming from Facebook’s “sponsored stories” feature may soon come to an end. The complaint alleged that Facebook violated user privacy rights by showing that a user “likes” an advertiser in other user’s news feed without permission or compensation. The first attempt at settlement in May was rejected by U.S. District Court Judge Richard Seeborg, who claimed the deal – which gave $10 million to charity and covered another $10 million in legal fees – didn’t “make any sense.” The new deal, to which both plaintiffs and Facebook have agreed, would give $10 to each affected consumer, establish a mechanism for users to track how advertiser’s used their “likes,” and would allow the parents of minors to disable the feature.

A détente

Although a settlement with competitor Samsung seems remote, Apple and HTC ended their patent disputes over the weekend. The terms of the deal are undisclosed, but given Apple’s success against HTC in the International Trade Commission already, there is speculation the 10-year licensing agreement favors Apple. For its own part, HTC claims the agreement will have “no material impact on the finances of the company.”

In Voter Verified, Inc. v. Premier Election Solutions, Inc., Federal Circuit Judge Alan Laurie upheld the Middle District of Florida decision holding Claim 49 of the ‘449 patent to be invalid on obviousness grounds. The lower court holding of obviousness rested in part on a posting entitled “Computerized Voting” by Tom Benson on the web-based periodical Risks Digest. In the posting, Benson described, “a solution to the problem of checking [voter] accuracy” involving a printed ballot similar to the one disclosed in the ‘449 patent.

Voter Verified challenged the lower court’s reliance on the Benson posting as a prior art printed publication to be used in an obviousness inquiry. It argued that the posting should be excluded from the court’s inquiry because (1) “[a] web-based article must be searchable  on the internet by  pertinent terms to qualify as a prior art ‘printed publication’ as defined by Section 102(b) of the Patent Act” and (2) “[t]he defendants failed to show any indexing on any database that would have allowed the interested public to locate the website containing the Benson article.”

Judge Laurie rejected these arguments, expanding the definition of printed  publication prior art. The Federal Circuit opinion states, “while often relevant to public accessibility, evidence of indexing is not an absolute prerequisite to establishing online references like the Benson article as  printed publications within the prior art.” The Court added, “a person of ordinary skill interested in electronic voting would have been independently aware of the Risks Digest as a prominent forum for discussing such technologies.” Therefore, whether the publication was indexed does not carry much weight in the prior publication inquiry.

The court then held Claim 49 of the patent to be invalid due to its obviousness. It ruled that the Benson posting’s content would have made Claim 49 obvious to a person of ordinary skill in the art of computerized voting technologies. In addition to holding Claim 49 invalid due to obviousness, the Federal Circuit affirmed the District Court holding of no invalidity for the majority of the remaining claims. It also affirmed the lower court’s holding of non-infringement.

AT&T has announced that it will begin easing restrictions on the use of the iPhone Facetime video-calling application, enabling users on its LTE network to access the feature within the next 8 to 10 weeks. AT&T had previously stated that it would restrict Facetime use to customers on its Mobile Share plan.  Although AT&T justified its restrictions as necessary to prevent the data-hungry application from overburdening its system, public interest groups alleged that the restrictions violate network neutrality regulations and vowed to file a complaint with the FCC if the restrictions remained in place.  AT&T’s reversal came in response to these threats, although the groups maintain that since many users are still left without access to Facetime over AT&T’s older 3G cellular network, the new policy still falls short.

Apple and the Patent Wars

Speaking of Facetime, Apple was recently hit with a $368M judgment for using technology in its Facetime service that infringes domain name security and virtual private network patents held by VirnetX.  VirnetX followed the victory by filing a new lawsuit to include Apple’s newly released products.  Apple’s week got even worse when the Court of Appeal of England and Wales ordered Apply to pay Samsung’s legal fees after it published a “false and misleading notice” following the iPad design patent lawsuit in the UK.

Megaupload’s Continuing Legal Troubles

Following Kim Dotcom’s announcement of a follow-up to Megaupload called me.ga, authorities from the African nation of Gabon, which owns the .ga domain, have seized www.me.ga citing the desire to “protect intellectual property rights”.  Kim Dotcom is currently in the process of defending himself against extradition to the United States where he faces charges of criminal copyright infringement and conspiracy to commit money laundering.  Dotcom tweeted that the seizure of the new domain name “demonstrates the bad faith witch hunt the US government is on.”

Australia’s Unfiltered Internet

Australia has formally abandoned its plan to filter its domestic Internet.  Instead of implementing a comprehensive filter, officials say they will use Interpol’s “worst of” child abuse site list to prevent Australian internet users from accessing child abuse materials online. The filtering program had been criticized for being impractical and unworkable while potentially putting Australia in the same league as China when it comes to censorship.  Rather than require new filtering legislation, the new policy will be implemented using existing telecommunication law.