On April 1^st the U.S. Court of Appeals for the Second Circuit in favour of eBay (for the most part) in their case against Tiffany and Company. The case revolved around the advertisements that eBay had placed for Tiffany jewellery being sold on its site, and the fact that some of the merchandise being sold by its users was counterfeit. Tiffany argued that eBay should be found liable for direct and contributory trademark infringement, dilution, and false advertising.

On the issue of direct trademark infringement, the court decided that because eBay did in fact sell Tiffany merchandise it was allowed to use the trademarks to advertise this. For contributory trademark infringement, it was found that eBay did not induce the trademark infringement caused by its users selling counterfeit goods. It was also ruled that even though eBay may have generally known about such infringement potentially being carried on through its platform, eBay needed to knowingly allow specific instances of infringement to occur in order to be found liable for contributory infringement.

Regarding trademark dilution, eBay’s use of Tiffany’s marks never referred to eBay's own product and eBay could not be found liable for any dilution. The issue of false advertising was remanded back to the district court where there is to be a proper analysis of whether consumers were likely to be misled by eBay's advertisements.

This case raises similar issues to a decided late last year, in which eBay was ordered to pay millions to LVMH Möet Hennessy Louis Vuitton for allowing its users to sell knock-offs of high end brands. The U.S. court looked favourably upon eBay’s measures for removing counterfeit goods, including the fact that it has a staff of 70 individuals whose job is to work with law enforcement in combating IP infringement. However, the French court was not swayed much by such efforts. In general, it seems virtually impossible for courts to come to a set standard of oversight in cases involving online platforms that are open to the public to use for a variety of reasons, primarily because each factual matrix presented can be so different. Businesses may always find it difficult to determine how much they should integrate such protective measures into their business models.

For a more in depth look into the appeals case, see , , and .

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Earlier this week the U.S. Court of Appeals for the Federal Circuit (CAFC) released an en banc decision on the case of . Ariad sued Eli Lilly for infringement of its patent that identified a transcription factor that activated gene expression for a particular function. However, Eli Lilly was not held to be liable because it was found that Ariad’s patent was invalid for not fulfilling the written description requirement in its specification; namely, it did not discuss examples of actual compounds required in the process and sounded more like a theory.

The CAFC focused on the language of , and determined that it required separate written description and enablement requirements, meaning that specifications that enable a person skilled in the art to make and use the invention do not automatically mean that the description is sufficient, despite the seemingly entwined nature of the two concepts within the wording of the statute.

Perhaps due to applicability of the doctrine of equivalents in the U.S., this decision may have brought to practitioners south of the border because of the practical insignificance of distinguishing between the written description and the enablement requirement. However, the ruling seems to have the contentious side effect of potentially requiring greater disclosure for validity purposes. Under the doctrine of equivalents, infringing devices or processes do not have to fall within the literal scope of the original patent claim, so that if they essentially do the same thing (under the triple identity test) then they will be caught under infringement laws. It can be argued that in order to know how to essentially do the same thing it should be sufficient to have specifications that contain proper enablement descriptions. So as per the dissent, if a patent fails the enablement test (which would likely be the case with Ariad’s patent as well) it follows that it must also fail the general written description test, such that much of the judgment’s discussion can be rendered meaningless for the purpose of ultimately finding infringement.

The potentially greater disclosure for validity would seem to especially apply to claims that are generic in nature and that apply to a variety of species. With only an enablement requirement, a list of all species that a genus claim applies to is unnecessary; but it seems that now a more stringent written description may require disclosure of all (or some unknown sufficient number of) species covered. This is supported by the court’s statement that “the specification must demonstrate that the applicant has made a generic invention that achieves the claimed result and do so by showing that the applicant has invented species sufficient to support a claim to the functionally-defined genus”. Ultimately, perhaps this case has the effect of pulling away from the doctrine of equivalents (which would likely apply more to functionally-defined genus claims), so that a patent cannot as easily cover that which is outside its scope as interpreted literally. Nonetheless, according to the USPTO’s own , written descriptions have the policy objectives of: clearly conveying the subject matter claimed in the invention; putting the public in possession of these claims; disclosing the technological knowledge upon which the patent is based; and promoting progress of the useful arts by making sure an adequate description is provided in exchange for the right to exclude. With this judgment, the court can be said to simply be reaffirming the importance of these objectives.

In the Supreme Court of Canada decision of of 2000, it was decided that the U.S. doctrine of equivalents approach should be rejected on the basis that greater certainty about a patent’s scope would be a more fair approach. Though traditionally, claims have been the primary means of understanding an invention’s scope in infringement cases, the written description requirement of a patent is used as well. CIPO has to Chapter 9 of its Manual of Patent Office Practice (MoPOP), which deals with description. 9.02.05 of the draft of the updated version states that “[t]he person skilled in the art ... must be able to practice the full scope of the invention without undue burden or the need to exercise their inventive ingenuity”. It has been argued that these changes could result in even greater disclosure requirements for Canadian patents in the future.

It will be interesting to see the specific effects of both this CAFC decision and the MoPOP revisions with regard to the way patents are prosecuted and interpreted in infringement litigation in their respective countries. The written description’s importance can be explained through a statement from one of the concurring opinions in the judgment: “[t]he practical utility on which commercial value is based is the realm of the patent grant; and in securing this exclusionary right, the patentee is obliged to describe and to enable subject matter commensurate with the scope of the exclusionary right”. Just how strongly both examiners and judges will apply the latest form of the written description requirement is still unknown.

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Last week, Advocate General Paolo Mengozzi of the European Court of Justice released his on the questions referred by a Dutch court concerning the case of Monsanto Technology LLC v. Cefetra BV and Others. The case involves Monsanto’s attempt to prevent imports of Argentinean soy meal, which has been found to contain the DNA sequence protected by the company’s Roundup Ready soybeans patent.

However, this protection does not exist in Argentina, where Monsanto does not hold such a patent. Nonetheless, Monsanto brought a suit against the companies that imported the soy meal for infringing its patent in Europe, based on the protections granted under the European Parliament’s . Article 9 of the directive is particularly important, and reads, “[t]he protection conferred by a patent on a product containing or consisting of genetic information shall extend to all material, save as provided in Article 5(1), in which the product [is] incorporated and in which the genetic information is contained and performs its function.”

The first question referred by the Dutch Court asked whether Article 9 of Directive 98/44 must be interpreted such that patent protection ought to be applied in cases such as the current one where the DNA sequence forms part of the material being imported into the EU but is not performing its function at that time. Monsanto’s patented DNA in question allows soybeans to be resistant to its Roundup herbicide, but this function obviously does not apply to the soy meal. However, it is likely that the soy meal was derived from plants that were resistant to Roundup due to their DNA sequence, and the meal can also potentially be used to create such plants in the future; both are situations in which the patented sequence would be performing its function.

In interpreting this first question, Advocate General Mengozzi said that he would not take a narrow approach such that the genetic information had to be performing its function at the exact same time as the alleged infringement (e.g. in this case, be actively blocking the normal effects of Roundup herbicide as it was being imported). However, he still stated that the additional patent protection of Article 9 must be purpose-bound and only cover the purpose found within the patent, which in this case would not be applicable to the residual DNA found within the soy meal after the plants had been processed. He made the argument that to do so otherwise would allow for “protection for all other possible functions of the same sequence... [which] in practice, make a mere discovery patentable, in breach of the basic principles on patents”.

The second question referred asked whether the protections afforded in Directive 98/44, especially Article 9, could be extended by parallel legislation that is enacted nationally. Advocate General Mengozzi stated that “[t]he body of rules laid down in Directive 98/44 is not complete, but must be deemed to be exhaustive in the areas with which it deals: the corollary being that, in those areas, national legislation cannot provide for a level of patent protection which is wider than that provided for under the directive”. In coming to this conclusion he stated that the main goal of this legislation was not to extend protection for genetic patents, but rather to have consistent laws among EU member states. He also said that granting patent-holders more generous rights would run counter to the objective of promoting the market and competition.

The third question asked whether it mattered that Monsanto’s patent was granted under national patent legislation and before Directive 98/44 was adopted, to which the Advocate General answered that it did not. He came to this conclusion based on a lack of transitional provisions in the directive, the Court of Justice’s past interpretations of similar questions dealing with EU legislation, and the fact that having a multiplicity of laws apply would create difficulties in trade that the legislation was trying to avoid in the first place.

The fourth question had to do with the possibility of the above interpretations conflicting with Articles 27 and 30 of the . The opinion was that no possible conflict could exist. Article 27 has to do with patentable subject matter and not protection, and Article 30 deals with exceptions to patent protection, where the purpose-bound interpretation of Directive 98/44 has to do with the extent of the protection.

Advocate General Mengozzi’s answers to the questions referred, especially the first and second, could potentially have far-reaching consequences for EU members and companies with patents there. If the protections of Directive 98/44 are exhaustive, and must be interpreted as falling under a purpose-bound scheme, this can potentially open the door to what should otherwise be protected substances being openly traded in forms that are not caught by legislation, thereby increasing access to them so that a patent-holder’s rights are more easily infringed in the future. It can also be argued that preventing a member country from enacting legislation that gives more rights to patent-holders could result in a disability in negotiating deals with outside states and companies. Of course, this limitation on sovereignty can be said to simply be the consequences of being a member of the EU. Though the Advocate General’s opinion is non-binding, it carries much weight and has a high chance of being followed.

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Last week an Italian court found three for privacy violations in relation to a video posted on Google Video in 2006. The video showed an autistic boy being bullied by classmates, and it was posted by the classmates themselves. Google actually removed the video after being notified of it, but that was not enough for the judge to decide against convicting its Chief Legal Officer, Global Privacy Counsel, and one of its former Italy board members. As expected, the decision was quite shocking to many, and was even as opening the door to unlimited liability.

It seems that the actual employees convicted were far removed from the uploading of the specific video, but that should not automatically mean that Google should be off the hook. Setting aside the issue of at what point freedom of expression is trumped by other considerations (e.g. privacy, hate speech, etc.), it can still be asked how much liability a facilitator of a criminal act can hold. Should Google have the obligation of checking every single media file uploaded to one of their sites before it is made available for viewing by the public? For business purposes, this would most likely not be feasible any time soon, but should a party’s economic constraints really be a major mitigating factor as far as its responsibility is concerned? If a service is not economically feasible unless performed in a manner that can substantially open the door to criminal activity (however that activity is defined), perhaps the service simply should not be taken on; if it is taken on then the potential negative consequences of the risk should remain attached to the business endeavour. At the same time, any expansion of liability would likely have a chilling effect on a lot technology companies. Nonetheless, lines must exist, and sometimes it is up to the courts to draw them.

Though I personally believe that this decision was a bit extreme, it begs the question: if a party is going to set up an online business that can potentially facilitate illegal activity, how proximate does the party have to be to the activity if it did not directly cause it? This general line of inquiry is applicable to a variety of other situations as well, such as the facilitation of copyright infringement by parties whose product may also be used for legitimate reasons. Another major case along these lines, which will likely be a greater authority for courts in other jurisdictions, was the Australian decision of AFACT v. iiNet, discussed . Defining liability in the online realm is typically much more complicated than for situations that happen in the physical world, and the process will likely be continually changing as well.

The Italian ruling will be appealed, and no doubt if the appeal is unsuccessful then it is very likely that the precedent will open the floodgates of liability to many other hosting platforms within that jurisdiction. As it grows and brings about numerous positives, the internet continues to push legal boundaries as well. This case is but one example of the clashing of interests that courts and lawmakers must be considerate of as they make decisions with respect to such a constantly evolving medium, and imprudent outcomes like this should be avoided.

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On January 27 in Washington, D.C., the Advisory Committee to the Congressional Internet Caucus held their annual . One panel discussion, entitled “Copyright Strikes: When Has a Pirate Graduated to Internet Exile?”, featured commentary on the concept of (aka ‘three strikes’ systems), which can be used to curb the problem of illegal file sharing online.

Such mechanisms generally involve an ISP giving notice to one of its users about complaints that the user has been involved in copyright infringement. If the user’s infringing actions do not cease, then the ISP may impose some sort of penalty, such as cutting off internet access for a period of time. Four speakers, John Morris, John Robertson, Shira Perlmutter, and Matthew Schruers, were moderated by , the executive director of the Internet Education Foundation.

, from the Center for Democracy and Technology, argued that in countries where a three strikes system is in place, there can often be a lack of due process. For each individual case there ought to be a review of whether infringement actually occurred, and perhaps even consideration of fair use issues. Additionally, he argued that it is extremely unfair to cut off internet access for an entire family due to the alleged actions of a 15-year-old file sharer. He proposed that the lawsuit route may be better because access is not cut off for everyone, and the consequences are targeted to the specific infringer. He brought up cases where courts determined that even convicted child pornographers do not deserve to have their internet access terminated. While he agreed that it is vital that society goes back to respecting copyright laws, he believed that lawsuits served as a good tool for educating young people that certain actions are illegal. Towards the end of the panel discussion he indicated that he was of the opinion that if such graduated response systems that currently exist in other countries were brought to the U.S., they would likely not pass constitutional challenge.

is a Member of the U.K. Parliament and is involved in internet policy-making decisions. He stated that a variety of industries in the U.K. have been having problems with being rightfully paid for work that is being stolen by online pirates. This, along with lost revenue for the government in the form of taxes, is why he believes graduated response legislation is necessary. He stated that when a musician has his work copied and does not received anything for it, it is similar to having someone steal your car, drive it around, and then return it to you. But ultimately, graduated response legislation will be for the purposes of catching major online infringers who upload massive amounts of content, and his government is not in the game of criminalizing children who download a few songs. He wants to educate people and actually prevent them from getting involved in the legal system (such as through lawsuits), which is why notices are an excellent method of reducing copyright infringement.

is the Vice President and Associate General Counsel, Intellectual Property Policy, at AOL Time Warner. She agreed with Mr. Robertson on a number of points, including the belief that a system with warnings will give users the opportunity to be educated and informed about the law, and will help them to avoid going to court. She said that there is evidence that an approach with notices is highly effective if people understand that there is a final deterrence. Suspension of internet access is the most straightforward deterrent, and it is not actually exile since users are still able to go to other ISPs or even internet cafés. With respect to due process, she believed that this can in fact be achieved with graduated response legislation, and even the recording industry is on board with the idea of having evidence of infringement meet set standards in order to qualify as enough to warrant notices being sent to users. She disagreed with Mr. Morris about lawsuits being a better choice than a three strikes system, because notices allow users to change their behaviour so that they are not dragged into the legal system and forced to spend thousands of dollars on legal services.

is Senior Counsel for Litigation and Legislative Affairs for the Computer and Communications Industry Association. He spoke a little about the differences between the current system in the U.S. and the laws that are in place or are developing in some European countries. He believes that the U.S. discriminates more between repeat copyright infringers who are guilty and those who have just been alleged to be breaking the law. This type of distinguishing is of the utmost importance if one values due process and wants any punishment to be proportional to the crime. The system in the U.S. is also more voluntary, and depends on contracts instead of legislation. He also had some words of praise for the Canadian system, where there exists a “gentleman’s agreement” about notifications without codification of this system. He seemed to believe that when ISPs give notice to users that they are carrying out infringing activity the users tend to stop, but this does not necessarily justify termination of internet access. Though lawsuits are generally viewed negatively as an alternative, this may be because of the disproportionately large statutory damages that come with a finding of infringement. In general, he did not believe that any top-down government mandates on ISPs to cut off service to users will prove successful.

The discourse was quite insightful and much less adversarial than we may be used to seeing in copyright policy talks. A video of the entire panel discussion can be found .

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, the free online encyclopedia that is open for editing to the general public, with its 14 million articles in over 260 languages, continues to be a life-saver for students around the world. It seems like not so long ago when the dominant mentality was that online content should never be cited in scholarly work, and Wikipedia would have been a prime example of the type of source that should be avoided. Though many still adhere to this type of a standard, that the “number of U.S. patents issued last year that contain one or more references to Wikipedia articles totalled 809, a 59 percent jump from 2008”. Though this is still a fairly small percentage of the 17000 issued patents that contain URLs, and an even smaller percentage of the , it is nonetheless an interesting trend.

The implication of Wikipedia citations in patents is that ordinary individuals, who may not have any specialized knowledge about the topic they are contributing to, can influence whether or not a patent is issued, and perhaps even any infringement claims brought up down the road. I would imagine that most patents containing references to Wikipedia would most likely do so for the purpose of explaining prior art. Though a person skilled in the art would still be the standard used to determine questions of novelty, obviousness, etc., the way prior art is described and explained in a Wikipedia article can still potentially affect a decision-maker’s understanding of the matter.

It can be argued that use of material from Wikipedia cannot be trusted for its correctness since virtually anyone is able to edit an article. Whereas, if one were to instead cite a peer-reviewed journal or other published source, it would be understood that the author(s) of an article there would have met some standards of rigour when submitting a work. However, one major advantage Wikipedia could have over a single source, is that a Wikipedia article may be more reflective of collective knowledge about a topic, since many of its articles have been edited by multiple parties. This collective knowledge may be preferred over a singular expert’s knowledge, especially since other ‘experts’ may have different opinions. Additionally, just because something has been given the blessing of a major publisher, it should not mean that a reader ought not be critical of the work. Such an outlook, whether considering an article from Wikipedia or one from an IEEE journal, is always healthy.

Of course, Wikipedia articles may have other potential issues that could hamper the integrity of the patent issuance process. For example, the anonymity of the edits and posts made to a Wikipedia article allow for few, if any, consequences for the authors for being wrong, which may make these online articles less reliable. Without knowledge of such basic information about the author, Wikipedia articles appear less credible. Additionally, just as with any other website, pages are constantly updated so that information that may have been on there when a patent is drafted may not be there by the time an examiner reads it. The time at which prior art is made available to the public is important, and determining when online information was actually available can be difficult, as explained . However, despite the constant changes made to articles on its site, Wikipedia keeps track of past versions, each with its own permanent link.

To me it seems that an increase in Wikipedia citations in patents should be nothing to worry about, especially with respect to prior art, where a variety of non-scientific texts seem to be cited. I would think that this trend is simply an effect of the larger movement being culturally driven by Web 2.0 influences. As long as examiners are able to thoroughly review an application before issuing a patent, it should be left to their judgment as to whether specific references offer adequate explanations.

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It’s the beginning of a new decade, and of course, the last one has seen the internet experience tremendous growth and change. Perhaps no other company has enjoyed the boom as much as Google. Just over 10 years ago, the then corporation of 8 employees had only . Today, it rakes in revenues of over , has a growing number of applications that are enjoyed by millions of users across the globe, and is still widely recognized as the world’s most popular search engine. With its expanding power and success, however, Google has received quite a bit of ethics-based on a variety of fronts despite its “don’t be evil” .

A recent in the New 91��ɫ Times written by Adam Raff, the co-founder of a competing internet search website, argues that Google has unfairly been stifling legitimate competition through the editorialization of its search results. Raff claims that his site, , had suffered penalties that resulted in artificially being placed lower in Google’s search result rankings (artificial in the sense that they are outside of the scope of the normal algorithms used for determining search result rankings) simply by virtue of being a service. He thus pushes for regulations that promote “search neutrality”, a concept somewhat analogous to network neutrality, which Google supports. (If you do not know where to look for background information about net neutrality, see the following: ).

Foundem has created a that seemingly has as its purposes to share Foundem’s story, promote search neutrality, and attack Google. On this site, it is stated:

Search Neutrality can be defined as the principle that search engines should be open and transparent about their editorial policies, or, better still, should have no editorial policies other than that their results be comprehensive, impartial, and based solely on relevance.

The definition provided seems sensible, however, as Rob Heverley , “search engines cannot be neutral because the nature of search engines is to discriminate”. Therefore, the terms used may not be quite apt, and may even be a bit of a ploy to ride on the coattails of the net neutrality movement. Nonetheless, the underlying argument is an interesting one.

I think that it is safe to say that most users of Google’s search engine expect that the results delivered will be based solely on relevance and will not be influenced by the search’s potential consequences, either directly or indirectly, to Google’s own business interests. According to Raff, this expectation is not met; to legally force that this imposition be met would no doubt be beneficial for consumers, but it would obviously infringe on Google’s ability to provide its service the way it wants. But as Frank Reed , “[w]hy should anyone in the free market be obligated to being relegated to a ‘public service’ status just because they do something better than most?” Though arguing that this would essentially be a relegation to public service status may be a bit of an overstatement, the implementation of regulations enforcing search neutrality would no doubt have many free market proponents up in arms. However, there are many occasions when businesses are limited in their actions and have onerous obligations to meet, so the question that needs to be asked is under what circumstances are such regulations appropriate? Generally, it can be argued that regulations are used to prevent unfair harm.

Google that its mission is “to organize the world's information and make it universally accessible and useful”. In consideration of the exponential growth of the amount of information on the internet, the job has become a lot bigger and much more important to users who need to sort through an excess of information. Google does this job quite well and many consumers and businesses have become somewhat dependent on its doing a good job.  If a company is ranked much lower on a search result than it otherwise ought to be, this can be viewed as a harm to that company. However, it must not be forgotten that in absolute terms Google is giving that same company a benefit by including their listing on its services in the first place; it is only severely limiting this benefit by ranking the company much lower. Thus, this relative harm is not unfair because the benefit of being placed within the search results is not owed in the first place.

As was mentioned, the analogy to net neutrality is not exact, but there are similarities. Frank Pasquale that “[d]ominant search engines and carriers are the critical infrastructure for contemporary culture and politics”.  Internet service providers (ISPs) can be said to be providing a benefit to consumers and businesses by allowing access to information found on websites. So why would it then be fair to prevent ISPs from controlling traffic in ways that favour access to some sites and not others? The potential imposition of net neutrality laws on ISPs can be justified by the policy rationale that in today’s world access to the internet (both by consumers and in order to reach consumers) is of sufficient importance to override the typical freedom of a company to shape its business as they see fit. In my opinion, the ability to promote certain information on the internet and have it found more easily is simply not at the same level of importance and necessity as the ability to have that information accessed.

Just as with any large company, Google’s growing power and reach will lead to greater expectations from those who have a stake in the way it carries out its business. There will always be critics of some of its practices, and these critics will raise good points. But when it comes down to it, it should take a lot to force a company to shape its services so as to act for the benefit of other parties. We can only hope that Google’s sense of corporate social responsibility will act as a restraint on its own interests, and that it considers its role in shaping search services for the benefit of all, just as other internet technology companies ought to as well.

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Last week a eBay to pay €1.7M in damages to LVMH Möet Hennessy Louis Vuitton, a holding company of a number of luxury goods brands, for failing to comply with an injunction set as part of an . The injunction, from a case decided last year, banned eBay users from selling various perfumes, even if they were authentic. Along with that injunction, eBay was fined almost €40M for negligently allowing the sale of counterfeit goods trademarked by such companies as Christian Dior. The online auction and shopping company originally said that it would appeal the prior decision, but it has yet to do so.

The court found that had been posted on eBay’s website by users since the time of the injunction. Apparently eBay has used special software and other measures in order to curb this activity, but these actions were deemed to not be enough for the court. Based on its current model, the reality is that eBay will likely never be able prevent all banned goods from being sold on its site. This decision could lead the way for more litigation claims from other luxury brands against eBay and others, and it is uncertain what measures would have to be taken by online auction platforms to satisfy the requirements of similar injunctions.

On a related note to this case, the European Court of Justice has that “[t]he quality of luxury goods is not only the result of their material characteristics, but also of the allure and prestigious image which bestows on them an aura of luxury”. Along these lines of argument, since eBay gets commission off their sales, they should be held responsible for allowing a platform for trading luxury brands at lower costs, thus ostensibly damaging the reputation and image of these brands. LVMH has claimed that its carefully planned distribution network ought to be protected.

Alex von Schirmeister, a manager of eBay in France, has stated that the enforcement of such restrictive distribution provisions is "". Though I am not sure if I agree with this exact framing of the matter, I do think that that the mode of thinking that this decision seems to be based on vests too much power in the hands of brand owners. Control of authentic products to this extent infringes one of the basic rights of most systems of tangible property law, that of the owner to be able to transfer his or her property. If selling a luxury handbag (that an individual has legitimately purchased earlier) over eBay for a quarter of the retail price is damaging to the brand’s image to such a degree that it must be banned, what about selling that same bag for a tenth of the price at a garage sale? I would think that such collateral effects on intellectual property should not trump a more historically fundamental tenet, but perhaps this French court takes its high fashion a little more seriously than I do.

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Earlier this month a United States District Court to dismiss a lawsuit brought forth against the USPTO, Myriad Genetics, and directors of the University of Utah Research Foundation. The suit had to do with patents covering the genes BRCA1 and BRCA2 (for which mutations have been associated with a higher risk of breast cancer) and their usage in genetic testing. The plaintiffs, composed of a broad range of individuals and organizations from researchers to individual women with breast cancer, claimed that the patents should be unenforceable and that the USPTO’s practices in allowing such gene patents are unconstitutional. For a good primer (pun intended for the molecular biology folks) on the lawsuit and the issues it raises, read Stephanie Anderson’s IPilogue article from this past summer .

In his , Justice Robert W. Sweet, a veteran judge of the Southern District of New 91��ɫ, separated his analysis into five major sections: the subject matter jurisdiction over the claims against the USPTO, the plaintiffs’ standing to sue the USPTO for constitutional violations, the plaintiffs’ standing to sue Myriad and the directors, the personal jurisdiction of the Court over the directors, and the adequacy of the allegations of constitutional violations. All of these issues were, perhaps surprisingly, decided in favour of the plaintiffs.

With respect to the first issue, the USPTO argued that the Court did not have subject matter jurisdiction over the claims because Congress had already created a “comprehensive scheme ... to govern patent grants”, which precludes the courts from getting involved. However, Sweet said that the cases brought up by the USPTO to substantiate its point only included claims that the Patent Act already provided a remedy for; but in this instance there is no “statutory scheme providing a remedy for persons who complain about the constitutionality of patents issued by the USPTO and/or the policies and practices of the USPTO”.

The plaintiffs’ standing to sue the USPTO for constitutional violations is quite interesting considering the potential wide-reaching consequences of such a precedent. Despite the USPTO arguing that there was no sufficient causal connection between its acts and the supposed injuries to the plaintiffs, Sweet ruled:

While the USPTO is correct that Myriad’s refusal to license its patent broadly contributes to Plaintiffs’ alleged injuries, the patents were issued by the USPTO, in accordance with its policies and practices. It is those policies and practices that the Plaintiffs allege are unconstitutional. The injury alleged is therefore “fairly traceable” to the USPTO.

This reasoning could potentially open up the floodgates. The constitutional rights claimed by the plaintiffs as being infringed include freedom of speech under the , and Congress’ power to “promote the progress of science and useful arts” under . Since anyone can claim to be restricted when certain acts become unlawful due to the new existence of a patent-holder’s rights, it seems to me that virtually anyone can then have standing to sue the USPTO for the issuance of any patent it grants.

Regarding the plaintiffs’ standing to sue Myriad and the individual directors of the University of Utah Research Foundation, Sweet determined that the case law dictated that to get standing in such a declaratory judgment case, there must be an affirmative act by the patentee protecting their product, and also “meaningful preparation to conduct potentially infringing activity” on the part of the plaintiff. The first condition was found to be met when threatening cease-and-desist letters were sent by the defendants. The second condition was met for the researcher plaintiffs because they were ready to immediately perform BRCA1 and BRCA2 genetic testing. For the non-researcher plaintiffs, Sweet said that there were no authorities put forward by the defendants to show that indirect contributory infringement is not sufficient for standing in a declaratory judgment action, and that the non-researcher plaintiffs’ solicitation of and contribution to the infringement of the researcher plaintiffs was enough. I would again have to say that this reasoning could further open the floodgates for declaratory judgment litigation by third parties whose rights are only affected in an indirect way.

The issue of the Court’s personal jurisdiction over the directors was not too interesting in comparison to the other parts of the judgment. It was held that even though the directors were located out of state, they entered into a licence agreement that allowed for the marketing of products and services in New 91��ɫ, and also sent cease-and-desist letters to uphold their rights in New 91��ɫ. It was found that these were sufficient connections to the state for the district court to have specific personal jurisdiction.

The adequacy of the allegations of constitutional violations ought to have been a particularly important aspect of the judgment in light of the general novelty of the claims being made. However, Judge Sweet only spent about three pages out of the 85-page decision discussing this. After bringing up case law that rules that a complaint must state a plausible claim for relief in order to survive a motion to dismiss, the judgment briefly went through the specifics of the plaintiffs’ complaint. It was then held that, “[t]he facts alleged in the Complaint are plausible, specific, and form a specific basis for Plaintiff’s legal arguments. Consequently, the pleading requirements as set forth in Iqbal are satisfied.” I suspect that Judge Sweet did not wish to delve too deeply into the substance of this lawsuit at this point in time.

This decision should probably be viewed as quite the victory for the plaintiffs, since they are likely facing an uphill battle. Considering the major implications that would follow if their claims are successful, this suit is definitely one to keep track of. The next step in the process is the hearing of arguments for and against the motion for summary judgment, which is scheduled to occur in just over a couple of weeks.

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On October 29, Facebook published a new that it hopes will allow users to better understand the uses of the information supplied to the website. Elliot Schrage (VP of Global Communications, Marketing and Public Policy), introduced the new policy on by saying that “[t]his is the next step in our ongoing effort to run Facebook in an open and transparent way”. Earlier this year Facebook took a similar approach when it released its , which contained less legalese than its predecessor, the Terms of Use.

Facebook, having over , has drawn much attention over the last couple of years over concerns relating to the vast amount of personal information it administers. In fact, this past summer the Privacy Commissioner of Canada released a in response to a complaint made against Facebook for alleged breaches of the (PIPEDA). Schrage stated that, “[i]n this revision, we're fulfilling our commitment to the Privacy Commissioner of Canada to update our privacy policy to better describe a number of practices”. An issue that was raised a few times in the report was the general difficulty navigating the site to find explicit descriptions of implications of particular features. For example, the difference between deactivating and deleting an account was deemed to be unclear, as the two options were arrived at and explained on different pages, and the deletion option was never quite accessible to begin with from within a user account.

The new policy is now separated into eight sections: 1. Introduction, 2. Information We Receive, 3. Information You Share With Third Parties, 4. How We Use Your Information, 5. How We Share Information, 6. How You Can View, Change, or Remove Information, 7. How We Protect Information, and 8. Other Terms. This policy remains quite similar in substance to the previous one, but the use of plain language and multiple examples make it much simpler to follow and understand. Facebook also seems to be very open with respect to the potential uses of information, such as by third party application developers, despite the possibility of potential users being too worried to join after reading.

Users were given the opportunity to give feedback by commenting on each of the eight sections within a period of one week, however, by the end of this period most sections had only about a hundred comments each, with the introduction having the greatest number at 237. As stated on November 5, on the , the “total number of comments did not reach the threshold to hold a vote”. Apparently in order for that to have happened, (i.e. those who have logged into the site within the past 30 days) would have had to have participated in the feedback. Despite this, it was promised that the posted comments would be read, though it was not mentioned that they would actually be considered.

In light of the fact that so few users commented on the new privacy policy, it is questionable how much of an impact this change will actually have on the number of new individuals signing up. Though it is nice to possess this knowledge in more substantial terms, I would imagine that most people would have continued using Facebook as they had before. Nonetheless, as the Assistant Privacy Commissioner of Canada stressed when releasing that report of findings over the summer, users should be able to understand what they are getting into. This is definitely a step in the right direction, and Facebook should be commended for its efforts.

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