Perspectives

Is In re Bilski a Déjà Vu?

Stefania Fusco

On October 30, 2008, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) issued a decision that has potentially significant implications for innovation in many fields, but particularly in the online commerce and the software industry. Indeed, with the issuance of In re Bilski, the Federal Circuit has substantially changed its position regarding the criteria for the patentability of a claim to a process and, thus, has reconsidered its own precedent, State Street Bank & Trust Co. v. Signature Financial Group, Inc.... Read more about Is In re Bilski a Déjà Vu?

Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement

Center for Democracy & Technology

One year ago, on June 27, 2005, the Supreme Court released its much-anticipated ruling in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. The unanimous decision held that Grokster and StreamCast, the distributors of popular peer-to-peer "file sharing" software, could be held secondarily liable for copyright infringement committed by their users if Grokster and StreamCast took active steps to induce infringement.... Read more about Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement

A New Perspective on Temporary Copies: The Fourth Circuit's Opinion in Costar v. Loopnet

Jonathan Band
Jeny Marcinko

During the course of routine operations, computers temporarily copy programs and other copyrighted material to their random access memory ("RAM"). In MAI Systems Corp. v. Peak Computer, Inc., the Ninth Circuit held that a temporary copy stored in a computer's RAM could constitute an infringement of the copyright owner's reproduction right. In the decade since MAI, numerous other courts have followed the Ninth Circuit's holding. The United States government has also exported this view in several free trade agreements. In June 2004, however, in CoStar Group, Inc., v.... Read more about A New Perspective on Temporary Copies: The Fourth Circuit's Opinion in Costar v. Loopnet

Keeping the Bar High: The Doctrine of Equivalents in the Aftermath of the Supreme Court's Festo Decision

Kevin P.B. Johnson
Barak D. Jolish

Although the Supreme Court rejected the Federal Circuit’s “absolute bar” to the doctrine of equivalents, the new presumption of prosecution history estoppel, after Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., sets the standard nearly as high. Indeed, a patentee may rebut this presumption only through evidence that (a) the equivalent was unforeseeable; (b) the rationale underlying the amendment bears only a tangential relation to the equivalent; or (c) there was some other reason why the patentee could not reasonably be expected to have described the equivalent.... Read more about Keeping the Bar High: The Doctrine of Equivalents in the Aftermath of the Supreme Court's Festo Decision