By Jeff Pietsch

On May 15, 2007, the 9th U.S. Circuit Court of Appeals created a significant exception to the immunity granted to a website operator under 47 U.S.C. § 230 “The Communications Decency Act” (“CDA”). The court held that Roommate.com can be held liable for publishing content from member questionnaires created by using drop-down menus and distributing member profiles, but is immune from liability for publishing users’ responses to open-ended fields or questions. (Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 2007 WL 1412650 (9th Cir.). With this recent ruling, website operators will need to determine when the protection provided by the CDA for Internet services applies to its site.

Continue Reading Interactive Websites May Lose Protection Under the Communications Decency Act

By Audrey Millemann

The first case the Federal Circuit Court of Appeals has decided under obviousness since the United States Supreme Court’s decision on April 30, 2007 in KSR International Co. v. Teleflex, Inc., 1727 S.Ct. 127 (2007) came just nine days later: LeapFrog Enterprises, Inc. v. Fisher-Price, Inc. (2007 WL 1345333; May 9, 2007).

United States patent no. 5,813,861, owned by LeapFrog, discloses a talking electronic toy or learning device called LeapPad that makes sounds in response to the user selecting a letter. The toy helps teach children phonics. Fisher-Price makes a toy called PowerTouch that performs some of the same functions as LeapFrog’s toy. The PowerTouch device includes a processor in a device that holds a special type of book used with the device, such that when the child selects a word on the page, the device audibly pronounces the word, then pronounces each phoneme of the word, and then pronounces the word again.

Continue Reading No Surprise: After KSR, Federal Circuit Finds Obviousness

By James Kachmar

Businesses, especially consultants, frequently include a no-hire provision in connection with service or consulting agreements. These provisions are usually intended to prevent the client from soliciting or hiring away the consulting company’s employees. No-hire provisions have two primary goals:  First, to protect the employees of one business from being recruited away by the companies they provided services to. The second goal is to help retain customers, i.e., if the client business is able to recruit a consulting business’s employees, there would be no further need for the consulting company’s services.

 On June 25, 2007, the Court of Appeals for the Fourth Appellate District struck down a “no- hire” provision in VL Systems, Inc. v. Unisen, Inc. (Case No. G037334). Though the VL Systems Court emphasized that there were limitations on the extent of its holding, companies that rely on “no-hire” provisions, and the attorneys who advise them, should take heed of some of the concerns raised by the VL Systems Court.

Continue Reading Caution Regarding “No-Hire” Provisions

Scott Hervey, a partner with Weintraub, Genshlea, Chediak Law Corporation, presented a discussion entitled IP Strategies For Start-Up Companies to the Environmental Health Entrepreneurship Academy program through the UC Davis Center for Entrepreneurship.  The academy was comprised of leading environmental health graduate students and faculty from a number of schools throughout the UC system.  Scott’s presentation can be reviewed by clicking on the link below.

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By Scott Hervey

Under contemporary Copyright Law, a database is a “compilation.” A compilation is defined under the Copyright Act as “a work formed by the collection and assembling of preexisting materials or of data….” While the inclusion of a compilation as a protectable work was statutorily introduced in The Copyright Act of 1976, compilations were protected as “books” as early as the Copyright Act of 1790.

In 1991 in Feist Publications, Inc. v. Rural Tel. Serv. Co, the Supreme Court resolved a split among the circuits regarding the elements of a compilation that entitle it protection under the Copyright Act. Certain circuits had adopted what was known as the “sweat of the brow” doctrine which looked at the compiler’s effort – his own expense, skill, labor or money – as the critical contribution justifying protection. Other circuits moved away from the labor/investment approach of the sweat of the brow doctrine, and granted protection to those compilations that were sufficiently original to be considered protectable works of authorship.

Continue Reading The 11th Circuit Reminds All That Copyright Protection For Databases Is Alive And Well