By Lisa Y. Wang

In April, we published an article about Fox Broadcasting Co. v. Dish Networks, LLC, where Fox Broadcasting was requesting a preliminary injunction against Dish Network, claiming that were engaged in copyright infringement by offering their Auto Hop on Dish Networks’ DVRs. As of that date, a judge declined to issue a preliminary injunction and Fox had appealed to the Ninth Circuit Court of Appeals. On July, 24, 2013, the Ninth Circuit rejected Fox’s appeal, and affirmed the district court’s refusal to enjoin Dish Network’s features. It affirmed the lower court’s reasoning that the consumer is the party causing a copy to be made, and not Dish Network. So if you subscribe to Dish Network and have the Auto Hop and "PrimeTime Anytime" features, no need to panic and switch cable/satellite providers, you can still watch your favorite television shows, commercial-free, without even touching the fast-forward button.

The Ninth Circuit confirmed that DVR recording is protected fair use, and since Fox did not have any copyright interest in the advertisements (the only content that was being skipped), it could not show that it was irreparably harmed by the features.   However, it may be a bit premature for Dish Network to break out the champagne, despite Dish’s executive vice-president’s statement that, "This decision is a victory for American consumers."   That is because this decision was made using the very high legal standard required to justify a preliminary injunction, and the deferential standard of review applied to denials of preliminary injunctions. 

Continue Reading UPDATE: You Can Still Hop Through Commercials

By Anji Mandavia

Currently pending before the United States District Court for the Northern District of Illinois is a case that will determine whether the Estate of Sir Arthur Conan Doyle has any remaining copyright interest in the iconic character of Sherlock Holmes, and his friend and companion in sleuthing, Dr. John Watson.   

The fictional detective and his sidekick first made their appearances in “A Study in Scarlet,” published in 1887. By 1923, Doyle had written and published some fifty-six short stories and four novels wherein Holmes and Watson solved numerous cases through Holmes’ unique analytic and deductive methods, all the while interacting with various supporting characters, including Scotland Yard’s Detective Lestrade, their landlady Mrs. Hudson, Holmes’ brother Mycroft, and his arch-nemesis Professor Moriarty.   Each of those pre-1923 works is now in the public domain in the United States. Approximately ten Sherlock Holmes stories, published after 1923, remain protected by copyright.

Malibu lawyer, and Sherlock Holmes aficionado, Les Klinger, is the author of numerous books and articles regarding the Sherlock Holmes canon. In 2011, he published, as co-editor, a collection of new short stories by contemporary writers featuring Sherlock Holmes and some of his supporting characters, titled “A Study in Sherlock.” In connection with that publication, the Doyle Estate demanded, and Klinger’s then-publisher paid under protest, a license fee for the use of Holmes and the other characters in the story collection. Continue Reading Character Copyright — Is Sherlock Holmes in the Public Domain?

By Audrey A. Millemann

In Association For Molecular Pathology v. Myriad Genetics, Inc., decided on June 13, 2013, the United States Supreme Court held that isolated natural genes (DNA) are not patentable. Thus, genes that exist in a living organism, such as the human breast cancer genes BRCA1 and BRCA2 at issue in this case, are not made patentable because the inventor isolates them from the other genomic DNA. The Court was careful to explain that other inventions related to genes, however, are patentable. In particular, the Court held that the synthetic copy of a gene known as “complimentary DNA” (cDNA) is patentable, as well as methods of isolating genes and methods of using cDNA. 

The decision was not surprising. The law has long been that naturally occurring biological compositions are not patentable subject matter. The Court applied that rule logically to find that a gene as it exists in a living organism is not patentable just because someone discovers it. In contrast to natural DNA, cDNA is not found in the living organism. The Court found that cDNA is a copy of the natural gene, synthesized in the lab; it is different from the natural gene in that it does not include the non-coding portions of the DNA that are present in the natural gene. The Court concluded that the cDNA is therefore patentable as a man-made composition.

BRCA1 and BRCA2 genes are associated with an increased risk of breast and ovarian cancer. A woman with specific mutations in these genes has a 50% to 80% chance of having breast cancer, compared with 12% to 13% risk for women without these mutations, and a 20% to 50% chance of having ovarian cancer. Myriad discovered the location of these genes and sequenced the most common mutations. They used this information to develop a screening test to determine if a woman has a high risk of cancer due to the presence of the BRCA1 and BRCA2 gene mutations.

Continue Reading (NATURAL) GENES ARE NOT PATENTABLE

The landscape of patent law has been rapidly changing over the last several years. President Obama recently signed into law the America Invents Act (the “AIA”) which offered the first identifiable attempt by the United States government to stem the tide of claims asserted by non-practicing entities, also known pejoratively as “patent trolls.” Among the many changes included in the AIA is the requirement for non-practicing entities to file individual lawsuits against accused infringers rather than multiple defendants, thereby creating a potentially significant increase in the cost of litigation. This provision of the AIA, and other proposals directed at non-practicing entities, are often premised on the assumption that every lawsuit filed by these so-called “trolls” is frivolous.

While it’s true that a significant number of lawsuits filed by non-practicing entities have no merit, and are settled by the accused parties merely to avoid the costs associated with defending a patent infringement lawsuit, it is inaccurate and potentially counterproductive to assume that all patent litigation initiated by a non-practicing entity is meritless. Yet, recent comments by President Obama grouped all non-practicing entities together and cast them all as a significant drain on U.S. businesses and an overall drag on technology companies. The White House stated that “stopping this drain on the American economy will require swift legislative action.”

Continue Reading Are Patent Trolls Good?

By Kay Brooks

Today the United States Supreme Court ruled that Section 3 of the federal Defense of Marriage Act (DOMA) is unconstitutional. The case, United States v. Windsor, 570 U.S. ____ (2013), involved the portion of DOMA that stated that the federal government will only recognize marriages between opposite-sex spouses for purposes of federal law. There are over 1,000 federal laws that address marital status, and DOMA’s Section 3 denied validly married same-sex couples myriad protections and responsibilities under federal law. Because of the Windsor decision, same-sex spouses who are validly married under state law will now also be treated as married under federal law.

 

Continue Reading Supreme Court Rules DOMA Section 3 Unconstitutional