#Spokeo v. Robins

[empiricalscotus]

Roberts Court Jurisprudence: What Was and What Will Come

What is the Supreme Court’s most important work? Although peoples’ answers may vary, one of the Court’s most important outputs is its opinion language. Through its precedent, the Court develops standards for people to follow and for lower courts to articulate in subsequent decisions.  Precedent guides decision making from the top down and affects outcomes for millions of individuals. What cases…

[bedpissercastiel]

what if samuel alito started throwing it back in the halls of the supreme court

[altabattery00]

Perché ricevo così tante chiamate di spam? E come faccio a fermarlo?

Il recente diluvio di chiamate automatiche che abbiamo dovuto sopportare ci ha condizionato a temere che i nostri smartphone funzionino effettivamente come previsto. Non è giusto che siamo arrivati ​​a temere lo squillo del telefono perché sappiamo nel nostro cuore che la chiamata non proviene da un amico o da una persona cara, ma invece da qualche cattivo lontano che usa la sintesi vocale per cercare di convincici che il mandato della nostra auto è scaduto.

I telefoni americani sono stati bombardati da oltre 50 miliardi di chiamate automatiche nel 2021 e il flagello è diventato una priorità assoluta per la FCC (e la denuncia numero uno che riceve dai consumatori). Ci sono alcuni colpevoli da incolpare per la nostra fine in questo pasticcio. Fortunatamente, ci sono anche alcune cose che puoi fare per ridurre la frequenza delle chiamate spam che raggiungono il tuo numero.

Molti utenti dei social media attribuiscono la colpa all'ex presidente della FCC Ajit Pai nominato da Trump, ma lui è solo un pezzo del puzzle.

Perché sta succedendo Come tanti problemi palesemente americani, la nostra fedeltà a un certo sistema economico è in parte responsabile dell'assalto delle chiamate spam. Non è un caso che molte forme di robocall, come quelle effettuate da operatori di telemarketing o esattori, siano perfettamente legali. Il Telephone Consumer Protection Act, approvato nel 1991 per aiutare a frenare la prima ondata di chiamate spam, ha concesso ai consumatori il diritto di citare in giudizio i molestatori telefonici. Ma la sentenza SCOTUS del 2016 per Spokeo Inc. v Robins si è schierata con le imprese e ha stabilito che un querelante deve dimostrare di essere ferito oltre l'essere infastidito per portare un robodialer alla corte federale.

Per i truffatori, questo framework ostile per i consumatori si abbina meravigliosamente alla tecnologia ID chiamante relativamente poco sofisticata che i gestori stanno solo cercando di riparare. Utilizzando "fornitori di gateway", i robocallers internazionali possono raggiungere le reti telefoniche statunitensi mascherate da numeri nativi. Solo una volta che lo spam viene segnalato da un dialer infastidito, i gestori vengono avvisati che quella chiamata non proveniva dall'interno della casa.

Vuoi saperne di più su come ottenere il meglio dalla tua tecnologia? Iscriviti oggi alle newsletter delle migliori storie e offerte di Mashable.

Stai zitto Se il tuo problema più grande con le chiamate automatiche è il loro fastidio sonoro, puoi stroncarlo sul nascere semplicemente attivando la funzione "silenzio chiamanti sconosciuti" nelle impostazioni del tuo iPhone o Android. Questa funzione invierà tutte le chiamate in arrivo dai numeri con cui non hai ancora comunicato direttamente alla segreteria telefonica.

Gli utenti di iPhone dovrebbero accedere al menu delle impostazioni generali, toccare "telefono" accanto all'icona verde e scorrere verso il basso fino a visualizzare "silenzia i chiamanti sconosciuti". Tocca quella frase e vedrai un interruttore che attivi. Poiché i menu delle impostazioni del dispositivo Android variano leggermente da produttore a produttore, l'attivazione di questa funzione potrebbe richiedere un po' più di esplorazione. Tieni d'occhio le variazioni sul nome di questa funzione, come "blocco chiamate moleste", "blocco chiamate anonime" o semplicemente "blocco chiamate". Se preferisci lasciare disattivata questa funzione, puoi sempre bloccare il numero di ogni spammer uno per uno, quando entrano. Ci vorrà un po' di dedizione e impegno, ma la promessa di tranquillità potrebbe valere la pena per alcuni.

Come ultima risorsa, puoi anche attivare permanentemente la modalità "Non disturbare" del tuo telefono e accedere alle sue impostazioni per fare in modo che solo quelli nei tuoi contatti salvati possano raggiungerti. Probabilmente puoi vedere gli svantaggi dell'adozione di misure così drastiche, ma è bello sapere che è un'opzione. Paga per sbarazzartene Alcuni gestori telefonici offrono livelli aggiuntivi di filtraggio delle chiamate spam se paghi un po' di più ogni mese. AT&T offre Call Protect Plus per $ 3,99 al mese e T-Mobile vende Scam Shield Premium per $ 4 al mese in più. Se pagare il tuo operatore in più per una maggiore protezione ti sembra troppo impegnativo, puoi provare a utilizzare un'app di terze parti come Hiya, Nomorobo, Robokiller e Truecaller all'incirca allo stesso prezzo al mese dei servizi dell'operatore. Registrati Questo potrebbe essere più un placebo che altro, ma puoi sempre aggiungere il tuo numero al registro Do Not Call su https://www.donotcall.gov. Se tutto va come dovrebbe, i venditori di telemarketing dovrebbero smettere di chiamarti entro un mese. Il problema principale di questo approccio è che funziona solo per frenare le chiamate automatiche legali. È improbabile che i robocaller che già infrangono la legge si fermino improvvisamente perché il tuo numero è ora tecnicamente off-limits.

[pennsylvaniaprelawland-blog]

The Legal Consequences of Cyberattacks

Kevin Simmons, Villanova University Class of 2020

June 5, 2018

To many, cybersecurity is a confusing term that is thought to simply protect your credit card information when you go online shopping. In reality, cybersecurity is quickly becoming the most essential protection method against criminal activity on all levels: personally, financially, legally, and militarily. Our society is becoming more reliant on technology, computers, networks, and databases every day and this allows people with expert knowledge and bad intentions to exploit this societal reliance. Many institutions have taken note of this and are beefing up their cybersecurity divisions in response. For example, many banks have hired military veterans who are experts in cybersecurity and counterintelligence to help combat cybercrime which is “one of the world’s fastest-growing and most lucrative industries,” resulting in $445 billion lost last year [1]. One of the biggest security breaches in history was the attack on Equifax, a credit-reporting agency, which occurred sometime between May and July in 2017. This security breach brought the threatening issue of cybercrime to the public eye as nearly 143 million people were affected in the breach, giving hackers access to “names, Social Security numbers, birth dates, addresses, credit card numbers, and the numbers of some driver’s licenses” [2].

As more breaches are attempted by hackers, even with the increased cybersecurity, more and more people will be affected by the attacks. This is going to lead to an increased role for lawyers in the defense of clients who are the victims of these hackers’ attacks. According to Article III of the Constitution, plaintiffs are only able to bring a case to court if they have standing to sue, meaning that they are the actual party that suffered harm. But, this has lead to much confusion in the wake of cyberattacks because “they now face the risk of future harm that may (or may not) occur due to the breach” [3].  Courts have been discussing whether the threat of future harm instead of actual harm is enough to establish Article III standing. An example of this came about in the ruling of CareFirst Inc. v. Attias, where CareFirst Inc., a health insurer, was sued after a data breach. Questions arose about how the court would rule this case after Spokeo v. Robins, “which found that a plaintiff must affirmatively plead particularized and concrete injury to establish Article III standing” [3].In the ruling of CareFirst Inc. v. Attias, Circuit Judge Griffith agreed with the Spokeo v. Robins ruling and explained how the district court dismissed the case for lack of standing, “finding the risk of future injury to the plaintiffs too speculative to establish injury in fact” and “holding that they had alleged neither a present injury nor a high enough likelihood of future injury” [4].

In my opinion, I think we will begin to see a change in how courts rule when it comes to Article III standing. I feel that many of these rulings that claim there is no concrete injury are coming too soon, as it is still to be determined what will happen to someone’s credit card information, Social Security number, etc. after a data breach. If these data breaches lead to widespread actual harm, it will be interesting to see how data breaches in the future will be handled in our courts. For the time being, it is important for all lawyers to begin to educate themselves about technology. As time goes on, more cases will have to do with technology and it is important to know enough to be able to ask the right questions to IT professionals and understand their answers [5]. Also, similar to banks and other institutions, law firms around the country should continue improving their cybersecurity to protect client information and lessen the risk for a data breach.

________________________________________________________________

[1] https://www.nytimes.com/2018/05/20/business/banks-cyber-security-military.html?rref=collection%2Ftimestopic%2FCyberwarfare&action=click&contentCollection=timestopics&region=stream&module=stream_unit&version=latest&contentPlacement=2&pgtype=collection

[2] http://money.cnn.com/2017/09/08/technology/equifax-hack-qa/index.html

[3] https://www.csoonline.com/article/3245743/legal/the-year-ahead-in-cybersecurity-law.html

[4]https://www.cadc.uscourts.gov/internet/opinions.nsf/D38E2807B2E5DA5E8525816F0050E8C5/$file/16-7108.pdf

[5] https://abovethelaw.com/2018/04/data-security-and-data-breaches-whats-a-lawyer-to-do/?rf=1

[jovialcrownbeliever]

The court denied a creditor's motion for a new trial

Overview

HOLDINGS: [1]-The court denied a creditor's motion for a new trial and/or relief from its findings of fact and conclusions of law in a debtor class action claiming that the creditor violated 15 U.S.C.S. § 1693k(1) of the Electronic Funds Transfer Act (EFTA), when it conditioned its extension of credit on borrowers' repayment by preauthorized electronic funds transfers, because the U.S. Supreme Court's decision in Spokeo, Inc. v. Robins did not compel the finding that a class representative lacked U.S. Const. art. III standing under the EFTA as a violation of her right under § 1693k(1) was a legally cognizable, concrete injury; [2]-As the issue of standing under California's Unfair Competition law (UCL), Cal. Bus. & Prof. Code § 17200, was never raised before the post-trial briefs, the court permitted the class representative to present testimony as to her standing under the UCL.

Outcome

An attorney for lawsuit San Diego manages large and small legal issues in lawsuits that any business may need to negotiate as a regular course of business. Creditor's motion denied, class of debtors' motion granted in part and denied in part.

 Procedural Posture

On remand, appellant insureds sought reconsideration of a decision that affirmed the dismissal of appellants' breach of insurance contract action, arising out of respondents' refusal to defend appellants in a property mismanagement suit.

Overview

Appellant insureds were sued for the alleged mismanagement of a third party's property. Appellants sought to have respondent insurers defend them in the lawsuit under their liability insurance policies, but respondents refused. Thereafter appellants brought a breach of contract action against respondents. Respondents filed a demurrer, which the trial court sustained without leave to amend; it subsequently dismissed appellants' complaint. Appellants sought further review. On appeal, the court reversed and directed the court to grant appellants' leave to amend. The court examined the policies issued by respondents and held that respondents had a duty to defend. The court held that the third party lawsuit for interference with a prospective economic advantage was identical to the cause of action for unfair competition that was covered by the policies. The court found that appellants' complaint as originally presented failed to set forth their causes of actions with specificity, but held that these flaws could have been corrected if appellants had been given an opportunity to amend their complaint.

Outcome

The court reversed and directed that the trial court grant appellant insureds leave to amend their complaint because respondent insureds' policies required the duty to defend, and the lack of specificity in appellants' complaint could have been cured by an amendment.

[fnord888]

Is there any hope of applying the Spokeo, Inc. v. Robins “injury-in-fact” standing requirements to DMCA anti-circumvention cases?

I���ve only seen it cited in the privacy/financial reporting law context, as the original Spokeo case was. Facially, it would seem to apply “bare procedural violations” of the anti-circumvention provisions. I am, however, sufficiently cynical about the US justice system that I have doubts about whether it will actually be applied that way.

[empiricalscotus]

The Supreme Court now hears around 70 arguments a term and each case tends to have issues unique from others on the Court’s docket.  After the Court’s merits docket is assembled each term though, similarities between cases become apparent and these similarities may present an area of law where the Court is more invested and wants greater resolution. Such areas can be either broad based or narrow.

Last term the Court settled multiple issues surrounding the First Amendment. The Court resolved public-sector employees’ First Amendment rights regarding agency fees in Janus, First Amendment retaliatory arrest claims in Lozman, acceptable political apparel at polling places in Mansky, and analyzed the compatibility of California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act with the First Amendment in Becerra.  It also worked through the free exercise First Amendment question in Masterpiece Cakeshop, while it left the free speech component of the case unanswered.

During the 2016 term the Court worked through several issues relating to patent law in the cases Samsung v. Apple, SCA Hygiene, Life Technologies, Sandoz, Impressions Products, and TC Heartland. Although there was a dropoff in such cases for the 2017, the Court hard several salient patent cases last term as well with Oil States, SAS Institute, WesternGeco.

What will the Court hear this term?  According to Professor Rory Little, the Court’s merits docket is currently filled with criminal law cases.  That is not all though. While the Court’s argument calendar currently lacks blockbuster cases, certain patterns are evident in the types of cases the Court has already accepted for oral argument.

One of the most interesting ways to locate underlying patterns without significant prior information about the contents is through unsupervised learning and more specifically through topic modeling. Empirically minded legal academics have used topic models to gauge issues before the Court in the past. In a recent paper, Professors Michael Livermore, Dan Rockmore, and Allen Riddel used topic models to longitudinally study agenda formation in Supreme Court.  Professor Douglas Rice used topic models in an article looking at differences in framing between Supreme Court majority and dissenting opinions.  In another article, Professors Benjamin Lauderdale and Tom Clark used topic models along with other methodological tools to highlight issues in Supreme Court cases along with the justices’ preferences based on case issues.  This post takes a cut at the Court’s recent cases to see what the justices’ have examined in the past several terms as well as what they will review this term.

This is an interesting and dramatic time for the Supreme Court.  While the expectations ran high for a conservative agenda this term based upon Kennedy’s departure, now the reality is setting in that the Court might be with eight justices for at least the near future and so the conservative agenda might be shelved, if only momentarily.  The public expects the Court to handle cases with significant impact in the near future although the majority of the public’s position is not always aligned with that of the majority of the justices.  The uncertainty about the ninth seat on the Court has in any case left the Court without cases dealing with hot-button issues like abortion or voting rights.

Although one of the key aspects surrounding topic models is that they don’t require much prior substantive knowledge of the area under exploration, one setting that users input is the number of issues that the algorithm will uncover. This number could be arbitrary but is usually either based on some expectation or can be narrowed through a process of iterating the algorithm several times with different parameters for the number of topics.

2013-2017

The texts I used to generate the topics were each case’s question or questions for the Court as contained on the Supreme Court’s website (here is an example from last year’s case Jennings v. Rodriguez).  Although the estimate of topics is rough at best, I set the number of issues for cases between 2013 and 2017 to 25 and the number of words per topic to six (although sometimes the number of words is greater than six if there are equally weighted words).  The words in the topics were stemmed so that words with the same root were combined (for example tell, tells, and telling would be grouped together).  The topics were derived as follows:

When evaluating topics, notice that the beta values or relative level of significance below each topic are on different scales. The larger the number in these scales indicates a greater importance of a term to a topic and consequently the presumed importance of the term to cases that fall within that topic.

Some of the topics can clearly be associated with case categories. Topic 5, for instance, focuses on patent cases, Topic 13 on qualified immunity, Topic 17 on bankruptcy, and Topic 20 on criminal sentences. The cohesion between terms in other topics is vaguer.  Topic 22 for example likely deals with campaign contributions and 21 on statutes with differential race-based effects.  Topic 1 might relate to the review of state statutes but also might be more in line with rules of federalism.  Topic 9 likely has some relationship to employment discrimination although this is still not entirely clear based on the words alone.

We can get a better sense of the connective glue between terms in a topic by matching cases with their top topics (cases are weighted into multiple topics but for the purpose of this analysis only the top ranked topic per case was retained).  This also allows us to differentiate cases by their underlying issues as well as group similar cases together.The next figure is an exhaustive list of 320 argued cases between the 2013 and 2017 terms along with each case’s top issue.

With topics and cases in hand, we can begin the process of matching cases to topics and interpreting how and why cases fit into their respective topics.

An example from each of the Court’s terms between 2013 and 2017 will help illustrate this interpretive technique.  During the 2013 term, the Court decided McCullen v. Coakley,which dealt with abortion protester buffer zones.  The case’s top topic was 18 with the word stems: statut, enforc, provid, articl, base, individu, resolv, and public. While the link between these terms and abortion clinics may not have been clear at the outset, more clarity is attained with a little information about this case (even the modicum provided above) as it relates to this topic.

In the 2014 term the Court heard the employment discrimination case Young v. United Parcel Service. The case specifically looked at disparate treatment of pregnant women where some but not others were afforded accommodations.  This case fell under Topic 7 with the term stems: appeal, issu, provid, determin, clear, and offici.  While these stems do not clearly indicate that they relate to employment discrimination on their face, when related to this case the relationship becomes evident.

The Court heard the standing related case, Spokeo v. Robins, during its 2015 term.  Spokeo, a case looking at when parties have standing to bring a case, fell under Topic 9.  Topic 9 looks at requirements and elements which both fit well with questions of standing. Spokeo also looked at the enforcement of rights between private parties.  Based on the topic terms Spokeo is properly categorized under Topic 9.

During the 2016 term the Court heard the criminal sentencing case Beckles v. U.S.  Beckles’ main topic is number 20, which among other things includes sentences, decisions, retroactivity, guidelines, and minimum. These are all very important words in relationship to Beckles which specifically dealt with the Federal Sentencing Guidelines.

Last term the Court heard the case Gill v. Whitford. Although the substantive questions in the case remained largely untouched, the gerrymandering case which fell under Topic 21 dealt with election districts, voting plans, and violations of the First and Fourteenth Amendments.

Cases are not isolated to one topic though, and topics do not always clearly establish the main issues in cases. Take last term’s case Carpenter v. U.S. Carpenter’s main topic is 7. Carpenter dealt with Fourth Amendment protections against warrantless searches of cell tower records. Topic 7 does not overtly describe these facets with its terms. Carpenter most likely falls into a mix of several topics with no topic in particular dominating its composition. Based on this analysis, not all case issues are going to be clarified by the main topics although some cases will be described much better than others.

2018

For the 2018 term I examined the questions presented in 42 petitions related to arguments that the Court will or already did hear.  Since this sample is more limited than the larger sample of cases between the 2013 and 2017 terms, I limited the number of topics to seven with seven terms per topic (unless multiple terms had equal weights).

Topic 1 clearly deals with capital punishment and Topic 2 relates to arbitration agreements. The cohesion between words in other topics either less clear or to include a mix of issues. The cases that fall under certain topics may also provide the connective glue between words in the topic.

Since the number of cases for the 2018 term was more manageable with 42, I included the relative weights of each topic for each case as is displayed below.

Some cases bear strong relationships to one topic while others to multiple topics.  We see that 17-8151, Bucklew v. Precythe, and 17-7505, Madison v. Alabama, both death penalty cases, have Topic 1 as their main topics. Bucklew has a greater relationship to Topic 1 though than Madison.

Azar v. Allina Health Services looks at whether the Department of Health and Human Services is required to follow certain procedures before providing challenged instructions to Medicare contractors. The case, number 17-1484 is predominately under Topic 2 which looks at employers and requirements although doesn’t examine other terms under the topic like design and immunity. Number 17-5554, Stokeling v. U.S., a criminal case, also falls mainly under Topic 2. This case looks at requirements and elements of “violent felonies” but has little to do with other aspects of the topic like design and arbitration.

Case number 17-71, Weyerhaeuser Company v. U.S. Fish and Wildlife Service, which was recently argued before the Court is mainly under Topic 5.  This topic covers many of the essential aspects of the question in this case like critical, habitats, and land, although several of the other words like author, instruct, and career are unrelated to the case’s question.

Not all cases are classified equally well by these topics and some cases are better categorized by multiple topics rather than by just one. Looking at the different sets of topics we can get a sense of the cases the Court heard or will hear based on words related to the cases’ main questions.  We can also look at the set of topics to give a sense of the terrain of cases before the Court.  Several of the topics for the 2018 term have words related to criminal law. Others focus on arbitration and employment which is another of the Court’s focal points early in this term. Other, less apparent aspects of this term’s cases are also brought to light with these topics. Topic 3 for example focuses on foreign, nation, and states, all which are components of the questions in Jam v. Int’l Finance Corp. and Republic of Sudan v. Harrison.

This method for examining case issues will not perfectly locate all issues before the Court. It will, however, provide a good summary of important issues and especially of ways to bracket multiple cases under similar topics. It may also illuminate new ways of categorizing cases that were previously undetected through qualitative analysis alone.

On Twitter @AdamSFeldman

Helping lawyers make efficient use of data @ Optimized Legal

Applying topic models to issues before the Supreme Court and uncovering what the Court will tackle during its current term. Let the good times roll. The Supreme Court now hears around 70 arguments a term and each case tends to have issues unique from others on the Court’s docket.  

[emiksel]

Ninth Circuit Revisits Spokeo and Holds that Violations of the FCRA Can Establish Standing to Sue Under Title III

The United States Supreme Court opinion in Spokeo (“Spokeo II) was viewed as a major decision in cybersecurity litigation. We at Mckenna Storer addressed the importance of that decision in this space in “No Harm, No Foul: Why Spokeo v. Robins is a Win for Data Privacy Defendants”. The results following that decision have been mixed for plaintiffs and defendants. In Spokeo II, the Court remanded the case to the U.S. Court of Appeals for the 9th Circuit, which recently issued its opinion on remand. The 9th Circuit held that Plaintiff has standing to sue Spokeo for violations of the Fair Credit Reporting Act (FCRA).

The 9th Circuit addressed whether Plaintiff Robins sufficiently pled a concrete injury such that he had standing to sue Defendant Spokeo under Article III of the United States Constitution. Robins argued that Spokeo’s alleged violation of the FCRA was sufficient to establish concrete injury. Guided by the Spokeo II opinion, the 9th Circuit considered the extent to which a violation of a statutory right can itself establish an injury sufficiently concrete for the purposes of Article III standing. Spokeo II made clear that a plaintiff must demonstrate an injury that is real and not abstract or merely procedural.

Download Ten Data Privacy Issues Every Business Must Address

Additionally, the Court stated that intangible harm may rise to this level as with restrictions on free speech or harm to one’s reputation. Despite this earlier statement, Spokeo II recognized that some statutory violations alone can manifest concrete injury. As the 2nd Circuit summarized in Strubel v. Comenity Bank, Spokeo II “instruct[s] that an alleged procedural violation [of a statute] can by itself manifest concrete injury where Congress conferred the procedural right to protect a plaintiff’s concrete interests and where the procedural violation presents ‘a risk of real harm’ to that concrete interest.”

Based on its interpretation of Spokeo II, the 9th Circuit addressed two questions on remand: (1) whether the statutory provisions of the FCRA were established to protect concrete interests, and (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm, to such interests.

The court answered the first question in the affirmative. Specifically, the court determined that consumers have a concrete interest in accurate credit reporting about themselves. This determination is based on both the importance of credit reports in daily life and Congress’ judgment identifying this harm.

The court also affirmatively answered the second question. In doing so, the court focused on the information that was inaccurately reported; specifically, the plaintiff’s age, marital status, educational background, and employment history. The court determined that inaccurately reported information in this case was sufficient to present actual harm, or material risk of harm. The court also noted that not every inaccuracy will give rise to a concrete harm.

This most recent Spokeo opinion has confirmed what has been evident in cybersecurity litigation since the Supreme Court’s ruling in this case. The question of whether a plaintiff has standing to sue will be specific to the facts of each case. There is no bright line rule taking this issue off the table, so challenges to standing will continue to be raised by defendants in cybersecurity litigation.

If you have any questions concerning cybersecurity litigation defense, or any data privacy and security matter, please contact Tim Hayes at McKenna Storer.

If you found this content helpful, you may also value other Privacy and Data Security articles.

This post was originally published at https://www.mckenna-law.com/blog/Ninth-Circuit-Revisits-Spokeo+

[marymosley]

This case is an example of a “picture claim” that works to avoid the prior art.

Toy’s picture-claim wins the day before the PTAB.

ChoiRock Contents Factory v. Aldric Saucier, Spin Master, Ltd. (Fed. Cir. 2020)

This case centers on Spin Master’s patented transformable toy. U.S. Patent 7,306,504. Korean toymaker ChoiRock petitioned for IPR, but the PTAB sided with the patentee — holding that the challenged claims had not been proven unpatentable.

On appeal, the Federal Circuit issued a split opinion on obviousness with Judges Bryson (Author) and Taranto in the majority affirming patentability and Judge Dyk dissenting (with regard to most of the claims).

Standing to Appeal: Before reacting the merits, the court first considered whether the patent petitioner had standing to appeal. ChoiRock challeged the patent in an IPR that reached final decision and thus has a statutory right to appeal under 35 U.S.C. 319.

A party dissatisfied with the final written decision of the PTAB under section 318(a) may appeal the decision pursuant to sections 141 through 144. Any party to the inter partes review shall have the right to be a party to the appeal.

In addition to the statutes, Federal Courts also have their own standing requirements based upon the limited jurisdiction offered by the case-and-controversy requirement found in Article III of the U.S. Constitution (as interpreted).  When a patent challenger appeals an adverse ruling from the PTAB it must establish that it sits in conflict with the patent holder regarding the patent in a way that is sufficiently concrete. In Spokeo, the Supreme Court offered a three part requirement of (1) injury in-fact; (2) the injury being fairly traceable to challenged conduct of the other-side; and (3) the injury being redressable by the court. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

IPR appeals offer an interesting setup because the parties have been vigorously fighting over patent validity at the PTAB and because the statute expressly purports to create a right-to-appeal.  Still, the Federal Circuit requires that the appellant show that the patentee has been wielding the patent in a way that causes injury to the challenger.

Here, Spin Master sent a letter to ChoiRock indicating that the company was infringing several of its patents, including the patent at issue here and, according to the court, ChoiRock “provided evidence establishing that it has concrete plans to begin selling that product line in the United States by early 2020.”  The Federal Circuit does not review this evidence of concrete plans. I pulled-up the briefing and found the unhelpful briefing regarding this evidence:

Obviousness:

The basic argument on obviousness is that the prior art teaches all of the elements.

On appeal, however, the Federal Circuit agreed with the PTAB that the prior art’s “display member” include a “plurality of revealers rotatably connected to [a] movable member[]”.  Rather, only the head was a rotatably connected revealer (one is not a plurality).  This is where Judge Dyk dissented — arguing that the arms and legs were also “revealers.”

This case is an example of a “picture claim” that works to avoid the prior art. published first on https://immigrationlawyerto.tumblr.com/

[neptunecreek]

Victory! Lawsuit May Proceed Against Facebook’s Biometric Surveillance

Biometric surveillance by companies against consumers is a growing menace to our privacy, freedom of expression, and civil rights. Fortunately, a federal appeals court has ruled that a lawsuit against Facebook for its face surveillance may move forward.

The decision, by the federal Ninth Circuit about an Illinois privacy law, is the first by an American appellate court to directly identify the unique hazards of face surveillance. This is an important victory for biometric privacy, access to the courts for ordinary people, and the role of state governments as guardians of our digital liberty.

Illinois’ Biometric Information Privacy Act

The Illinois Biometric Information Privacy Act of 2008 (BIPA) is one of our nation’s most important privacy safeguards for ordinary people against corporations that want to harvest and monetize their personal information.

BIPA bars a company from collecting, using, or sharing a person’s biometric information, absent that person’s informed opt-in consent. BIPA also requires a company to destroy a person’s biometric information when its purpose for collection is satisfied, or within three years of the company’s last contact with the person, whichever is sooner. BIPA provides the strongest enforcement tool: a “private right of action,” meaning a person may file their own lawsuit against a company that violates their privacy rights.

The Illinois General Assembly explained, when passing BIPA, that “biometrics are unlike other unique identifiers” because they are “biologically unique to the individual.” As a result, “once compromised, the individual has no recourse, [and] is at heightened risk for identity theft.” Lawmakers also pointed out that the ramifications of biometric technology “are not fully known.”

In Rosenbach v. Six Flags (2019), the Illinois Supreme Court held that BIPA does not require a plaintiff to prove an injury beyond a violation of the statute itself. The court reasoned:

When a private entity fails to adhere to the statutory procedures, as defendants are alleged to have done here, the right of the individual to maintain their biometric privacy vanishes into thin air. The precise harm the Illinois legislature sought to prevent is then realized. This is no mere “technicality.” The injury is real and significant.

EFF filed an amicus brief in Rosenbach in support of this outcome, along with the American Civil Liberties Union, ACLU of Illinois, the Center for Democracy and Technology, the Chicago Alliance Against Sexual Exploitation, Illinois Public Interest Research Group, and Lucy Parsons Lab.

Patel v. Facebook

In 2010, Facebook launched its “Tag Suggestions” feature. It uses face recognition technology to match known faces in user profile pictures and other photos to unknown faces in newly uploaded photos. If this face surveillance system generates a match, then Facebook will notify the person who uploaded the photo and suggest a “tag.” If that person accepts the tag, then the person in the photo will be identified by name. Facebook imposed this face surveillance system on users by default. To avoid it, a user must affirmatively opt-out, which most users won’t do.

Facebook has migrated some of its users from its “Tag Suggestions” feature to its “Face Recognition” feature, according to the Federal Trade Commission’s recently filed consumer deception complaint against Facebook. The default remains application of face surveillance.

In 2015, Illinois residents filed a class action lawsuit in federal court called Patel v. Facebook. The plaintiffs allege that Facebook’s “Tag Suggestions” feature violates BIPA. They reason that this feature collects and uses their biometric information without their informed opt-in consent, and does not satisfy the statutory destruction deadline. Facebook removed the case from Illinois to California, where Facebook has its headquarters.

The Patel trial court denied Facebook’s motion to dismiss, and certified a class of Facebook users. The appellate court allowed Facebook to take an immediate appeal of the class certification decision.

“Standing” and Spokeo

The key issue on appeal in Patel was whether the plaintiffs had sufficiently shown that Facebook’s biometric surveillance caused them a concrete injury. The U.S. Constitution limits the federal courts to deciding “cases and controversies.” That means a plaintiff cannot sue a defendant unless they can show “standing,” meaning that the defendant has injured them in a concrete manner.

You’d think that when a company violates a person’s rights under a statute, and that statute provides that person a private right of action to sue that company, then that person automatically has constitutional standing. Unfortunately, you’d be wrong. In Spokeo, Inc. v. Robins (2016), the U.S. Supreme Court held that a person in such circumstances might or might not have standing. This depends, among other things, on the legal history of the particular statutory interest at issue. EFF filed an amicus brief in Spokeo (along with CDT, the Open Technology Institute, and the World Privacy Forum) arguing that standing in such cases should be automatic, but that view did not carry the day.

Spokeo can sometimes be a barrier to the enforcement of consumer data privacy laws. For example, when a company’s negligent data security practices cause massive breaches of consumers’ personal information, the company may argue that the injured consumers cannot sue based solely on violations of data security statutes. Rather, the company may argue, the Constitution also requires them to show a financial or physical injury, such as identity theft. This is one of the problems in our legal system that limited the recently proposed settlement of the Equifax data breach litigation. (Don’t forget to file your settlement claim against Equifax.)

The New Appellate Court Ruling in Patel

On August 8, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held that the Patel plaintiffs have constitutional standing to sue Facebook for violating their statutory privacy rights under BIPA. In doing so, the appellate court forcefully explained the hazards of face surveillance and the importance of BIPA’s privacy protections.

The court presented centuries of history of U.S. legal protections for privacy, sounding in the common law and the Constitution. For example, in the context of the Fourth Amendment, the Supreme Court has repeatedly held that “advances in technology can increase the potential for unreasonable intrusions into personal privacy.” The appellate court cited the Supreme Court’s protection of the public from home-intruding heat detectors in Kyllo v. United States (2001), GPS location tracking in United States v. Jones (2012), cellphone searches in Riley v. California (2014), and cell-tower location tracking in Carpenter v. United States (2018).

The court held that “an invasion of an individual’s biometric privacy rights has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Quoting Carpenter, the court explained that biometric information is “detailed, encyclopedic, and effortlessly compiled.”

Most importantly, the appellate court explained the grave privacy threats posed by Facebook’s face surveillance:

Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location. Facebook can also identify the individual’s Facebook friends or acquaintances who are present in the photo. Taking into account the future development of such technology as suggested in Carpenter, it seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building. Or a biometric face template could be used to unlock the face recognition lock on that individual’s cell phone. We conclude that the development of a face template using facial-recognition technology without consent (as alleged here) invades an individual’s private affairs and concrete interests.

The appellate court also upheld the trial court’s certification of a class of Facebook users. Facebook reportedly plans to seek review by the full appellate court.

EFF filed an amicus brief in Patel regarding the privacy menace of face surveillance, along with the ACLU, its Illinois and California affiliates, CDT, and Illinois PIRG.

Lessons For Legislators

Especially after the new Patel decision, Illinois’ BIPA is one of the most important data privacy laws in the country. What lessons does BIPA hold for legislators who want to better protect their constituents from corporations that place their profits before our privacy?

First, a privacy law is only as strong as its enforcement tools, and the best enforcement tool is a private right of action. In many cases, government agencies can’t or won’t enforce a statute. So people must be free to protect their own rights by filing their own lawsuits.

Second, Congress must not pass a weak federal data privacy law that preempts stronger state privacy laws. Many big tech companies told Congress for years that they could self-regulate. Now some of them are asking Congress for regulation. What changed? They want to dodge Illinois’ BIPA and other state consumer data privacy laws, like California’s Consumer Privacy Act and Vermont’s data broker registration statute.

Thus, opposition to preemption and support for private enforcement are EFFs two most important demands, among our many proposals for new consumer data privacy legislation.

Next steps

The Ninth Circuit’s new ruling in Patel is a watershed in privacy law. It allows litigation to go forward challenging Facebook’s biometric surveillance of users absent their informed opt-in consent. It explains, more forcefully than any American appellate court opinion to date, the extraordinary privacy hazards of face surveillance. It holds that a loss of statutory privacy rights under Illinois BIPA is, by itself, a sufficient injury to show constitutional standing under Spokeo. And it clearly demonstrates the necessity of private rights of action, and why Congress must not preempt stronger state laws.

Most importantly, it shows what all of us must do now: contact our federal and state legislators, and demand that they enact strong consumer data privacy laws. Illinois BIPA, as strengthened by Patel, is a model for others to follow.

from Deeplinks https://ift.tt/33m0aaQ

[centuryassociates]

Illinois Supreme Court Decides Actual Harm Not Required to Bring Claim Under BIPA

On January 25, 2019, the Illinois Supreme Court published its widely anticipated decision in Rosenbach v. Six Flags Entertainment Corporation et al., addressing the question of what it means to be an “aggrieved” person under the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. (“BIPA”). Under BIPA, aggrieved persons are entitled to seek liquidated damages and injunctive relief. In a unanimous decision authored by Chief Judge Karmeier, the court held that individuals seeking relief under BIPA “need not allege some actual injury or adverse effect” to be considered aggrieved persons.

The court’s decision reversed a lower court ruling that distinguished between “actual” and “technical” BIPA violations. BIPA requires private entities to (i) inform individuals about the collection and storage of their biometric identifiers or information, (ii) detail the purpose and length of time for which such data will be collected, stored, or used, and (iii) obtain a written release from individuals prior to the collection of such data. The lower court characterized violations of these three requirements alone as “technical” violations of BIPA that would not entitle plaintiffs to relief absent allegations of “injury or adverse effect.”

In coming to its decision, the Illinois Supreme Court first considered the plain meaning of the term “aggrieved” in other statutory schemes. The court found it instructive that the term “aggrieved” in another Illinois statute, the AIDS Confidentiality Act, 410 ILCS 305/1 et seq., is understood to be satisfied merely by violating a substantive right created by the statute. Like BIPA, the AIDS Confidentiality Act also creates a private right of action for “aggrieved” persons.

The court next turned to the legal and dictionary definitions of the term “aggrieved” and determined that both supported understanding the term to mean violation of a right created by the statute, without the need to show actual harm. The court also contemplated the legislative intent underlying BIPA’s enactment. In doing so, it adopted language from Patel v. Facebook Inc., a Northern District of California decision that characterized violations of BIPA’s procedural protections as “[t]he precise harm the Illinois legislature sought to prevent.” The court further identified two ways by which the Illinois legislature crafted BIPA to protect biometric data: (i) by imposing procedural “safeguards” on the collection, storage, and use of biometrics and (ii) by providing individuals with a private right of action to enforce statutory requirements. The second, according to the court, “is as integral to implementation of the legislature’s objectives as the first” because of its deterrent effect.

Ultimately, the court expressed that both the “plain” and the “unambiguous” meaning of the statute, in conjunction with the legislative purpose of BIPA, required a finding that “aggrieved” persons include those individuals who have suffered only a violation of their statutory rights.

This decision will affect numerous pending federal and state BIPA actions that have struggled to interpret BIPA’s statutory requirements. It may also re-ignite pressure on the Illinois legislature to clarify and limit the scope of the statute—an effort contemplated by an amendment that was introduced, but not passed, last year. Despite developments in the Illinois state courts, a recent Northern District of Illinois decision suggested that BIPA claims brought in federal court may not be able to satisfy Article III standing requirements under the Supreme Court’s decision in Spokeo v. Robins absent an “actual” harm. Thus, the Rosenbach decision, while significant in its substance, may have limited effect in the federal courts.

Illinois Supreme Court Decides Actual Harm Not Required to Bring Claim Under BIPA posted first on https://centuryassociates.blogspot.com/

[benrleeusa]

[Orin Kerr] Article III Standing in Frank v. Gaos

Why I think there is standing: Think property, not privacy.

Some readers have followed the pending Supreme Court case of Frank v. Gaos, which involves the settlement of class actions using cy pres awards. As Will Baude explained here back in November, the Justices called for additional briefing after oral argument on whether there is Article III standing in the case. The briefs and reply briefs have now been filed, and I thought I would add my own thoughts on why think there is standing.

A confession at the outset: I am not an expert in standing doctrine. But I do know a thing or two about the cause of action in this case. It happens to involve a statute, the Stored Communications Act, that I have spent a rather absurd amount of time studying and teaching over the last two decades. Because the standing test under Spokeo hinges in part on the substantive cause of action, I thought I would explain what Congress was doing when it created this cause of action. If I'm understanding Spokeo correctly, I think that understanding provides a solid basis for Article III standing.

Here's the scoop. As I explained in this article, Congress created the SCA in 1986 to create home-like privacy protections for Internet communications. In the physical world, the law already protects your home. The Fourth Amendment requires a warrant to enter your home. And if someone comes into your house and takes your stuff away, you can sue them for the tort of conversion. But in 1986, it didn't look like those protections would apply to the computer network equivalent of your home, your personal communications such as your private e-mail. First, it wasn't at all clear in 1986 that the Fourth Amendment applied at all to e-mail. And second, e-mail service providers had total access to user e-mails, and it wasn't at all clear that there was any legal prohibition on providers taking those e-mails and sharing them with the world.

Those problems led Congress to enact the SCA with two key parts. First, Section 2702 imposes a ban on service providers voluntarily disclosing user communications unless an exception applies. Second, Section 2703 imposes a ban on the government from compelling service providers to hand over user communications without greater legal process such as a warrant. The two statutory sections are network versions of traditional legal causes of action. Section 2702 stands in the place of the traditional tort of conversion. It stops service providers from taking away your private electronic stuff just like the tort of conversion stops the superintendent of an apartment building from entering apartemnts and taking away tenants' physical stuff. Section 2703 stands in the place of traditonal Fourth Amendment law. It requires the government to get a warrant to compel a provider to fork over e-mails just like the Fourth Amendment requires a warrant for the government to enter a home.

That brings us back to Frank v. Gaos. The plaintiffs are Internet users who object to the fact that when you click on a website link, a referral header is ordinarily sent to the website you're visiting that reveals where you have been. It turns out that when you do a search, your search terms ordinarily appear in your website address. That means that when you click on a link following a search, you're ordinarily passing on the search terms that you entered to the website that you're then visiting. In this case, a class action was brought against Google on behalf of Google users claiming that Google was violating the SCA, and in particular Section 2702, by operating this way. As the plaintiffs saw it, Google was disclosing private search terms of its users in violation of the statute.

From my perspective, I have to say, this seems like an extremely weak SCA case. If I understand the claim, I don't see how it amounts to a violation of Section 2702. The communications here are the search terms in the users' browers. When users click on the links, their actions pass on the communications to the next site they are visiting. The disclosure is by the user, not the provider. Given that, I don't see how the search engine was acting as either a provider of ECS or an RCS with respect to those communications -- prerequisites for the ban in Section 2702 to apply. But that's the merits of the case, not standing, and only standing is before the Court.

On standing, the question asked by Spokeo, Inc. v. Robins is whether a plaintiff suffered an invasion of a legally-protected interest that is "concrete and particularized" so as to establish injury-in-fact. "It is instructive," Spokeo explains, "to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts."

It seems to me that the answer is yes. If you imagine that the SCA was violated, that means that the defendant committed an intangible version of the tort of conversion. For Section 2702 to have been violated, Google must have been acting like the Internet equivalent of a superindendent who entered tenants' apartments, took their property, and sent it to someone else without the tenants' permission. The alleged wrong has a close relationship to a traditional common law conversion tort.

The parties have mostly missed this because they (and some Justices at argument) seem to be thinking about this as a privacy case. They're thinking about Section 2702 as a privacy statute. And they're thinking about the cause of action as either similar to or different from a privacy tort. That raises some difficult issues, and it's not surprising that the privacy-focused approach led the Justices to want more briefing.

But I think the case is easier when you realize that Section 2702 is better understood as an intangible conversion statute, not a privacy tort statute. The SCA reflects Congress's judgment that your digital files are your stuff. Someone else can't come along and take that stuff from you. And in the digital world, taking your stuff means copying it and distributing it to someone else. It doesn't matter if the files are particularly private. It just matters that the stuff is your stuff. It's true that concepts of conversion can be an awkward fit when applied to unauthorized copying of digital information -- see this brilliant student note from 1996 for more. But the basic idea behind Congress's cause of action in Section 2702 is digital conversion of personal property.

As I understand Spokeo, that goes a long way towards establishing Article III standing. By alleging a Section 2702 violation, the plaintiffs are alleging a concrete and particular harm: Conversion of their personal property, albeit through intangible means of copying and distributing it.

[divorceyourring]

Argument analysis: Justices skeptical of “cy pres” class-action settlements

It’s not hard to see where the justices are leaning in Frank v. Gaos, the first important class-action case of the year. This case involves a “cy pres” settlement, a common device in class actions that award trivial sums to a large class of plaintiffs. When the costs of identifying class members and distributing proceeds make it impractical to locate and identify all of the plaintiffs, courts commonly approve a settlement that takes a portion of the settlement proceeds and distributes them to some public-interest or charitable recipient that serves an interest parallel to the interests served by the judgment in the case. Those arrangements are called “cy pres” settlements on the theory that they come as close as possible (“cy près comme possible,” in Norman French) to awarding damages to the plaintiffs.

Theodore H. Frank for petitioners (Art Lien)

The great majority of those cases distribute a portion of the settlement that goes unclaimed when it is impractical to locate all members of a large class. This case, though, is a “full” cy pres case, which distributed the entire settlement on a cy pres basis. The problem is that the entire settlement amount was $8.5 million (owed by the defendant Google to a class of more than 100 million members, in a privacy challenge to Google’s practice of sharing information about its customers’ internet searches). After attorney’s fees, the settlement amounted to approximately 6.5¢ to each of the class members. Concluding that it was not feasible to distribute the fund to the class members (because it would cost more than 6.5¢ per plaintiff to make a distribution), the lower court instead, after awarding $2.1 million in attorney’s fees, distributed the remainder of the settlement fund to initiatives studying internet privacy and involuntary information-sharing at a variety of locations including such institutions as Carnegie Mellon University, AARP, and the law schools at Harvard, Stanford and Chicago-Kent.

One thing that is clear is that this case will not produce a ringing endorsement of cy pres settlements, as the attitudes of the justices suggested perspectives ranging from deep skepticism to well-settled hostility. One salient possibility, which consumed a fair share of the argument time, is that the court will conclude that the plaintiffs lacked standing under the Supreme Court’s 2016 decision in Spokeo v. Robins. The Spokeo court held that a plaintiff in federal court cannot establish standing simply by alleging a violation of a federal statute; the plaintiff must identify some cognizable real-world harm. The problem in this case is that the trial court’s reason for concluding that the class-action plaintiffs had standing was precisely the reason later rejected by the Supreme Court in Spokeo. It might be that the plaintiffs could establish standing on some other theory, but the case before the Supreme Court, in its current posture, does not include any explanation of how the plaintiffs have standing.

The U.S. solicitor general pointedly raised this problem in the government’s brief, suggesting that the court might wish to send the case back to the lower courts to let them address the problem in the first instance. It is clear from the argument that the justices take the problem seriously, though it is not at all clear what they will do about it. Justice Samuel Alito (the author of the court’s opinion in Spokeo) seemed to think that the existing allegations of the complaint (written before Spokeo) are so plainly inadequate that the court should simply dismiss the complaint out of hand: “It’s a question of law. … If it wasn’t alleged properly, … then there isn’t any standing. Why … is a remand necessary?” In response to the suggestion that the standing problem had not been fully briefed, he asked whether it made sense for the court to ignore the defects of the existing complaint just “to see whether the plaintiff might be able to come up with some additional allegations.” At points in the argument, Justice Stephen Breyer seemed to have the same perspective, asking, “[W]here is an allegation of some kind of injury that would actually concretely and particularly hurt him?” Other justices, though – Justices Ruth Bader Ginsburg and Neil Gorsuch – seemed to think that it might be appropriate to remand the matter for the lower courts to consider the standing question.

On the merits of the cy pres question, several of the justices expressed great skepticism about the propriety of the “full” type of cy pres settlement at issue here – in which the plaintiffs in the class receive no recovery at all. The most favorable perspective was that of Justice Sonia Sotomayor, who emphasized an amicus brief from Harvard professor William Rubenstein showing that full cy pres settlements are extremely rare: Rubenstein’s research found that only 18 of them have ever been approved. Sotomayor observed that it’s “not as if it’s occurring routinely.” And agreeing that the petitioner, Theodore Frank, who argued the case on his own behalf, could “point to some potentially abusive situations,” she viewed all of Frank’s examples of “abusive” settlements as coming from cases in which “the circuit court rejected a cy pres award.” So, she suggested, “[i]t seems like the system is working.”

Breyer also suggested a similarly guarded approach, asking whether it would work if the court “[di]dn’t say never” to full cy pres settlements, but obligated lower courts to “scrutinize very carefully” those cases, recognizing that “what’s happening in reality is the lawyers are getting paid and they’re making sometimes quite a lot of money for really transferring money from the defendant to people who have nothing to do with it.”

The three other justices who spoke most frequently to the subject – Chief Justice John Roberts, Alito and Justice Brett Kavanaugh – all expressed more serious doubts about the fundamental propriety of the arrangement. Alito, for example, repeatedly asked about the likelihood that the class members would support distributions to the named beneficiaries. For example, he asked early in the argument whether “[i]n a case such as this, is any effort made – and would it even be possible – to determine whether every absent class member or even most of the absent class members regard the beneficiaries of the cy pres award as entities to which they would like to make a contribution?” With mock incredulity, he then went on to comment: “So the parties and the lawyers get together and they choose beneficiaries that they personally would like to subsidize? That’s how it works?”

Roberts focused on two general points. One was the idea that the indirect benefit provided by a cy pres award is simply too remote to count as relief. As he put it at one point: “I mean, I think you either decide the cy pres award provides relief or it doesn’t provide relief. If it doesn’t provide relief, you don’t get a fee for it.” Later, more pointedly, he scoffed at the idea that the problem at issue in this case “is going to be meaningfully redressed by giving money to AARP [one of the cy pres beneficiaries]. … As if … this is only a problem for elderly people? … Including a group that engages in … political activity, having nothing to do with the inability of elderly people to conduct searches?”

Andrew J. Pincus for respondent Google LLC (Art Lien)

Roberts also repeatedly noted the appearance of impropriety that plagues the selection of beneficiaries. At one point, for example, he asked whether counsel for Google, Andrew Pincus, would “agree that the district court should never be the one suggesting possible recipients of the funds of a settlement he has to approve.” Later, in the same vein, he suggested that “it’s just a little bit fishy that the money [paid by Google as defendant] goes to a charity … that Google had contributed to in the past.”

For his part, Kavanaugh repeatedly emphasized how “strange” it is to give the proceeds of class litigation “to people who weren’t injured at all, who have affiliations with the counsel.” He repeatedly asked why it wouldn’t “always [be] better to at least have a lottery system, then, that one of the plaintiffs, one of the injured parties gets it, rather than someone who’s not injured? Why isn’t that always more reasonable?” When counsel for the plaintiffs, Jeffrey Lamken, responded that a lottery system would be tantamount to treating membership in a plaintiff class as a lottery ticket, Kavanaugh responded “[a]t least [the award’s going to] someone who … paid for the lottery ticket as opposed to giving the billion-dollar award to someone who didn’t buy the lottery ticket. … It reduces, to pick up on the Chief Justice’s comments, the appearance of favoritism and collusion, which is rife in these cases.”

Jeffrey A. Lamken for respondents Paloma Gaos et al. (Art Lien)

Alito’s last comment of the hour captured the tone on which the argument ended:

How can you say that it makes any sense? The purpose of asking for compensation, it’s not injunctive relief that would benefit a broad class, … it’s compensation for the … class members. And at the end of the day, what happens? The attorneys get money, and a lot of it. The class members get no money whatsoever. And money is given to organizations that they may or may not like and that may or may not ever do anything that is of even indirect benefit to them.

An argument like this one could lead in several different directions. The court could reverse the judgment, holding that the plaintiffs have failed to make allegations sufficient to show standing. Perhaps a bit more likely, the court could send the case back for more consideration of the standing question. Or the court could reach the merits and address the cy pres topic directly. If it does reach the merits, I think the most that the parties to the settlement can hope for is a sharply critical opinion suggesting that full cy pres settlements are appropriate only in the rarest of cases – and sending this settlement back for re-evaluation by the courts below.

Posted in Frank v. Gaos, Featured, Merits Cases

Recommended Citation: Ronald Mann, Argument analysis: Justices skeptical of “cy pres” class-action settlements, SCOTUSblog (Nov. 1, 2018, 1:28 PM), http://www.scotusblog.com/2018/11/argument-analysis-justices-skeptical-of-cy-pres-class-action-settlements/

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[empiricalscotus]

Developing the Court's Precedent 2016

Developing the Court’s Precedent 2016

Through the course of a single term, the Supreme Court went from a “boring” eight member body to one apparently itching to take on polarizing political issues.  This transformation took place in the Court’s first full term without Justice Scalia since 1986.  Some (including Justice Breyer) speculated that Scalia’s absence would have a large impact on the Court.  Others see Gorsuch as a jurisprude…

[thegoviza]

Inter Partes Review Appeals: The Federal Circuit's Standing Requirement

Under the America Invents Act, manufacturers possess a powerful tool for combatting overly broad competitor patents: inter partes review (IPR). IPR allows any party to challenge one or more patent claims by filing a petition with the Patent Trials and Appeals Board (PTAB) at the United States Patent and Trademark Office (USPTO), showing that the challenged claims are likely invalid on specific grounds. A petitioner is not required to show that it has suffered actual injury due to the challenged patent. This means that anybody can challenge patent claims by IPR.

Accordingly, IPR is an attractive option for a manufacturer concerned that its forthcoming product might trigger a patent infringement suit. If the PTAB agrees with the petitioner that one or more claims are invalid, it will cancel the challenged claims, clearing the way for new product development. A petitioner unhappy with the Board’s decision to uphold challenged claims, on the other hand, may appeal to the Court of Appeals for the Federal Circuit.

But the Federal Circuit isn’t for everybody. Although any party can file an IPR petition, not just anybody can appeal an IPR decision in federal court. Instead, the Federal Circuit requires that IPR appellants establish standing to appeal by showing actual injury, or injury-in-fact. Earlier this month, the Federal Circuit began to address this requirement as it relates to IPR appeals in JTEKT Corporation v. GKN Automotive Ltd.

The Challenged Patent

GKN Automotive Ltd. owns U.S. Patent No. 8,215,440 (“the ‘440 patent”), which covers a drivetrain for a four-wheel drive vehicle. The drivetrain at issue contains primary and secondary drivetrains, and it can be switched between two-wheel drive and four-wheel drive modes.

JTEKT Corporation, which had been working on its own drivetrain concept, petitioned the PTAB for IPR of claims 1-7 in the ‘440 patent. After GKN disclaimed claims 1, 4, and 5, the Board concluded that claims 6 and 7 were invalid. However, the Board upheld claims 2 and 3. Concerned that the surviving claims presented a litigation risk for its drivetrain concept, JTEKT appealed the Board’s findings on claims 2 and 3 to the Federal Circuit.[1]

The Federal Circuit’s Ruling

JTEKT makes clear that the Federal Circuit’s doors are not always open to IPR challengers. Judge Dyk, writing for a three-judge panel, stated that even though U.S. patent law allows petitioners to appear before the PTAB without showing actual injury, the law “cannot be read to dispense with the Article III injury-in-fact requirement for appeal to this court.”[2] Therefore, the burden is on the IPR petitioner to show actual injury before appealing to the Federal Circuit.

The Federal Circuit then outlined the broad contours of the injury-in-fact requirement for IPR appeals. For starters, it cited Supreme Court precedent requiring that an injury-in-fact be “concrete and particularized,”[3] not merely “conjectural or hypothetical.”[4]  Applying this standard to IPR appeals, the court wrote:

Our cases establish that typically in order to demonstrate the requisite injury in an IPR appeal, the appellant/petitioner must show that it is engaged or will likely engage in an activity that would give rise to a possible infringement suit or has contractual rights that are affected by a determination of patent validity.[5]

When it filed its appeal, JTEKT did not have a product on the market that would infringe the ‘440 patent. The Federal Circuit carefully pointed out that the absence of an infringing product does not necessarily preclude standing to appeal, then offered the following guidance:

[W]here the party relies on potential infringement liability as a basis for injury in fact, but is not currently engaging in infringing activity, it must establish that it has concrete plans for future activity that creates a substantial risk of future infringement or likely [will] cause the patentee to assert a claim of infringement.[6]

In this case, JTEKT had begun developing its own driveshaft concept in 2015 but had not finalized its design. Instead, the record indicated that JTEKT was in the process of validating its driveshaft concept and conducting customer demonstrations, leaving open the possibility that its design would further evolve. Without a final product to analyze for infringement, the Federal Circuit was unwilling to recognize an injury-in-fact. Furthermore, the court noted that estoppel  based on participation in the IPR does not constitute injury when the appellant/petitioner is not engaged in activity likely to spawn an infringement suit.[7] Finding no such activity, the court dismissed JTEKT’s appeal for lack of standing.

But the Federal Circuit left the finer contours of the injury-in-fact requirement unclear. Although the court asserted that an appellant need not go so far as to concede infringement, it did state that an appellant must show “that its product creates a concrete and substantial risk of infringement or will likely lead to claims of infringement.”[8] Without offering many clues about what constitutes “concrete and substantial” risk of infringement, the Federal Circuit refused to recognize such a risk in JTEKT, absent a final product design that could support an infringement analysis.

Considerations for Automotive Manufacturers

To recap, IPRs undoubtedly are a useful tool for invalidating patent claims that obstruct new product development. A manufacturer can initiate these proceedings without establishing actual injury. It is a different story, however, if a petitioner appeals an adverse IPR decision to the Federal Circuit. In that case, the Federal Circuit seems to require that an appellant/petitioner possesses a final product design which creates a “concrete and substantial” risk of infringement.

What evidence demonstrates design finality without conceding infringement is unclear, but future cases decided at the Federal Circuit will no doubt flesh out this standard. In the meantime, the JTEKT ruling puts additional pressure on automotive manufacturers developing new components that closely resemble patent-protected competitor products. Such manufacturers face a difficult choice when considering IPR strategy. They may either:

(1) challenge a competitor patent early in the design process, risking estoppel and an adverse IPR decision that cannot be appealed for lack of standing; or

(2) sink research and development dollars into designs that pose a higher infringement risk but create standing to appeal an adverse IPR decision.

In either case, automotive manufacturers challenging competitors’ patents by IPR should be prepared to show that their product designs are mature enough to support an appeal, should the Board side with the patentee. At the same time, it may be tricky to make this showing without conceding infringement. Nonetheless, IPR remains an effective tool for challenging overly broad patents that stymie automotive product development, provided that petitioners challenge competitor patents sufficiently late in the design process to underwrite standing for appeal, without sacrificing the flexibility required to change course if problematic patent claims survive inter partes review.

————————————–

[1] See 35 U.S.C. § 114(c) (2016).

[2] JTEKT Corp. v. GKN Auto. Ltd., No. 2017-1828, 2018 WL 3673005, at *1 (Fed. Cir. Aug. 3, 2018).

[3] Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016).

[4] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

[5] JTEKT, 2018 WL 3673005, at *2 (internal citations and quotations omitted).

[6] Id. (emphasis added).

[7] Id. at *3.

[8] Id. (emphasis added).

Inter Partes Review Appeals: The Federal Circuit's Standing Requirement published first on https://888migrationservicesau.tumblr.com

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Inter Partes Review Appeals: The Federal Circuit's Standing Requirement

Under the America Invents Act, manufacturers possess a powerful tool for combatting overly broad competitor patents: inter partes review (IPR). IPR allows any party to challenge one or more patent claims by filing a petition with the Patent Trials and Appeals Board (PTAB) at the United States Patent and Trademark Office (USPTO), showing that the challenged claims are likely invalid on specific grounds. A petitioner is not required to show that it has suffered actual injury due to the challenged patent. This means that anybody can challenge patent claims by IPR.

Accordingly, IPR is an attractive option for a manufacturer concerned that its forthcoming product might trigger a patent infringement suit. If the PTAB agrees with the petitioner that one or more claims are invalid, it will cancel the challenged claims, clearing the way for new product development. A petitioner unhappy with the Board’s decision to uphold challenged claims, on the other hand, may appeal to the Court of Appeals for the Federal Circuit.

But the Federal Circuit isn’t for everybody. Although any party can file an IPR petition, not just anybody can appeal an IPR decision in federal court. Instead, the Federal Circuit requires that IPR appellants establish standing to appeal by showing actual injury, or injury-in-fact. Earlier this month, the Federal Circuit began to address this requirement as it relates to IPR appeals in JTEKT Corporation v. GKN Automotive Ltd.

The Challenged Patent

GKN Automotive Ltd. owns U.S. Patent No. 8,215,440 (“the ‘440 patent”), which covers a drivetrain for a four-wheel drive vehicle. The drivetrain at issue contains primary and secondary drivetrains, and it can be switched between two-wheel drive and four-wheel drive modes.

JTEKT Corporation, which had been working on its own drivetrain concept, petitioned the PTAB for IPR of claims 1-7 in the ‘440 patent. After GKN disclaimed claims 1, 4, and 5, the Board concluded that claims 6 and 7 were invalid. However, the Board upheld claims 2 and 3. Concerned that the surviving claims presented a litigation risk for its drivetrain concept, JTEKT appealed the Board’s findings on claims 2 and 3 to the Federal Circuit.[1]

The Federal Circuit’s Ruling

JTEKT makes clear that the Federal Circuit’s doors are not always open to IPR challengers. Judge Dyk, writing for a three-judge panel, stated that even though U.S. patent law allows petitioners to appear before the PTAB without showing actual injury, the law “cannot be read to dispense with the Article III injury-in-fact requirement for appeal to this court.”[2] Therefore, the burden is on the IPR petitioner to show actual injury before appealing to the Federal Circuit.

The Federal Circuit then outlined the broad contours of the injury-in-fact requirement for IPR appeals. For starters, it cited Supreme Court precedent requiring that an injury-in-fact be “concrete and particularized,”[3] not merely “conjectural or hypothetical.”[4]  Applying this standard to IPR appeals, the court wrote:

Our cases establish that typically in order to demonstrate the requisite injury in an IPR appeal, the appellant/petitioner must show that it is engaged or will likely engage in an activity that would give rise to a possible infringement suit or has contractual rights that are affected by a determination of patent validity.[5]

When it filed its appeal, JTEKT did not have a product on the market that would infringe the ‘440 patent. The Federal Circuit carefully pointed out that the absence of an infringing product does not necessarily preclude standing to appeal, then offered the following guidance:

[W]here the party relies on potential infringement liability as a basis for injury in fact, but is not currently engaging in infringing activity, it must establish that it has concrete plans for future activity that creates a substantial risk of future infringement or likely [will] cause the patentee to assert a claim of infringement.[6]

In this case, JTEKT had begun developing its own driveshaft concept in 2015 but had not finalized its design. Instead, the record indicated that JTEKT was in the process of validating its driveshaft concept and conducting customer demonstrations, leaving open the possibility that its design would further evolve. Without a final product to analyze for infringement, the Federal Circuit was unwilling to recognize an injury-in-fact. Furthermore, the court noted that estoppel  based on participation in the IPR does not constitute injury when the appellant/petitioner is not engaged in activity likely to spawn an infringement suit.[7] Finding no such activity, the court dismissed JTEKT’s appeal for lack of standing.

But the Federal Circuit left the finer contours of the injury-in-fact requirement unclear. Although the court asserted that an appellant need not go so far as to concede infringement, it did state that an appellant must show “that its product creates a concrete and substantial risk of infringement or will likely lead to claims of infringement.”[8] Without offering many clues about what constitutes “concrete and substantial” risk of infringement, the Federal Circuit refused to recognize such a risk in JTEKT, absent a final product design that could support an infringement analysis.

Considerations for Automotive Manufacturers

To recap, IPRs undoubtedly are a useful tool for invalidating patent claims that obstruct new product development. A manufacturer can initiate these proceedings without establishing actual injury. It is a different story, however, if a petitioner appeals an adverse IPR decision to the Federal Circuit. In that case, the Federal Circuit seems to require that an appellant/petitioner possesses a final product design which creates a “concrete and substantial” risk of infringement.

What evidence demonstrates design finality without conceding infringement is unclear, but future cases decided at the Federal Circuit will no doubt flesh out this standard. In the meantime, the JTEKT ruling puts additional pressure on automotive manufacturers developing new components that closely resemble patent-protected competitor products. Such manufacturers face a difficult choice when considering IPR strategy. They may either:

(1) challenge a competitor patent early in the design process, risking estoppel and an adverse IPR decision that cannot be appealed for lack of standing; or

(2) sink research and development dollars into designs that pose a higher infringement risk but create standing to appeal an adverse IPR decision.

In either case, automotive manufacturers challenging competitors’ patents by IPR should be prepared to show that their product designs are mature enough to support an appeal, should the Board side with the patentee. At the same time, it may be tricky to make this showing without conceding infringement. Nonetheless, IPR remains an effective tool for challenging overly broad patents that stymie automotive product development, provided that petitioners challenge competitor patents sufficiently late in the design process to underwrite standing for appeal, without sacrificing the flexibility required to change course if problematic patent claims survive inter partes review.

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[1] See 35 U.S.C. § 114(c) (2016).

[2] JTEKT Corp. v. GKN Auto. Ltd., No. 2017-1828, 2018 WL 3673005, at *1 (Fed. Cir. Aug. 3, 2018).

[3] Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1545 (2016).

[4] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

[5] JTEKT, 2018 WL 3673005, at *2 (internal citations and quotations omitted).

[6] Id. (emphasis added).

[7] Id. at *3.

[8] Id. (emphasis added).

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