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Intellectual Property

Privacy and Cell-Site Simulators

Criminal Law & Procedure Practice Group Teleforum Tuesday, July 19, 01:00 PMFederalist Society Teleforum Conference Call

Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user’s vicinity.

It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.

Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?

Featuring:

  • Howard W. Cox, Adjunct Professor, George Washington University
  • Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law

Protecting Property Rights in the Sharing Economy

Environmental Law & Property Rights Practice Group Teleforum Thursday, July 14, 03:00 PMFederalist Society Teleforum Conference Call

On June 1, Arizona Governor Doug Ducey signed legislation prohibiting local and municipal governments from banning Internet-based “sharing economy” rental services like Airbnb and VRBO, which connect travelers with short-term vacation rentals. Property rights advocates have applauded the legislation, claiming that cities across the country have been banning private short-term rentals without legitimate justification, turning responsible property owners into outlaws simply because they allow guests to stay in their homes. Opponents assert that allowing commercial sharing-economy hosts to operate what they characterize as “illegal hotels” is unfair to conventional hotel operators who are forced to compete on an uneven playing field, as well as to property owners who may suddenly find their buildings and neighborhoods filled with busy rental properties. Our experts will discuss the legislation and broader issues relating to property rights and the sharing economy.

Featuring:

  • Grady Gammage, Jr., Founding Member, Gammage & Burnham PLC
  • Christina Sandefur, Executive Vice President, Goldwater Institute

Commissioner Ajit Pai on the FCC Television Set-Top Box Proposal - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Ajit V. Pai, Alexander Okuliar July 01, 2016

In this teleforum, FCC Commissioner Ajit Pai talked about the FCC’s proposed rulemaking to transform the pay television industry and competition for the television set-top boxes sitting in millions of homes across the country. The proposed rule seeks to unbundle the sale of programming from the sale of set-top boxes. The FCC wants third party technology companies to “build devices or software solutions that can navigate the universe of multichannel video programming with a competitive user interface.” The proposal has sparked tremendous debate among pay-television providers, technology companies, state and federal lawmakers, the Administration, and others. Advocates for the proposal think it could spur competition and unlock value for consumers with better and cheaper solutions for accessing video programming. Others believe the Commission’s proposal interferes with free market forces, creates more problems than it solves, and could compromise consumer privacy.

What is the FCC’s proposal? What are the implications for consumer privacy, advertising, and free market competition? Is a compromise possible? Commissioner Pai will explore these and other issues in this important teleforum, explain his dissent to the proposal, and offer us his vision for moving forward.

Featuring:

  • Hon. Ajit V. Pai, Federal Communications Commission
  • Interviewer: Alexander P. Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP

America Invents Act Again at Issue: Cuozzo Speed Technologies, LLC v. Lee - Podcast

Intellectual Property Practice Group Podcast
Kristen Osenga June 21, 2016

On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee. In this case, the Supreme Court examined two provisions of the inter partes review, a proceeding created to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity.

Cuozzo Speed Technologies (Cuozzo) owns a speed limit indicator patent. Garmin International (Garmin) petitioned the US Patent and Trademark Office (PTO) for inter partes review of Cuozzo’s patent. The Patent Trial and Appeal Board of the PTO agreed to reexamine claim 17, as requested by Garmin, as well as claims 10 and 14. After the inter partes review proceeding, the Board concluded that all three claims (10, 14, and 17) were invalid. Cuozzo appealed to the U.S. Court of Appeals for the Federal Circuit, arguing that 1) the Board improperly instituted inter partes review of claims 10 and 14, because Garmin had not challenged these claims and 2) that the Board improperly used a claim construction standard set forth by PTO regulation calling for claim terms to be given their “broadest reasonable construction,” a standard that differs from that used in district court litigation (“ordinary meaning”). A divided Federal Circuit rejected both arguments, noting that 1) decisions to institute inter partes reviews are nonappealable by statute and 2) that the application of the broadest reasonable construction standard was a reasonable exercise of the PTO’s rulemaking authority. The Supreme Court granted certiorari to review both issues.

With respect to the appealability of decisions to institute inter partes review, the Supreme Court agreed with the Federal Circuit. 35 U.S.C. § 314(d) states “The determination by the Director [of the PTO] whether to institute an inter partes review under this section shall be final and non-appealable.” The statute means what it says. With respect to the claim construction standard, the Supreme Court also agreed with the Federal Circuit, holding that the PTO has the authority to issue and abide by its broadest reasonable construction regulation.

Our expert discussed the opinion of the Court, delivered by Justice Breyer, including the Supreme Court’s reasoning behind the holdings in Cuozzo Speed Technologies, as well as a concurrence authored by Justice Thomas and an opinion concurring-in-part and dissenting-in-part written by Justice Alito and joined by Justice Sotomayor.

Featuring:

  • Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law

The American IP System

Short video featuring Adam Mossoff
Adam Mossoff June 15, 2016

Adam Mossoff, Professor of Law at the Antonin Scalia Law School, George Mason University, gives a brief overview of the United States' intellectual property system. He discusses the United States' innovative manner of treating patents and trademarks as property rights. He also explains how the United States has influenced many modern countries' approaches.