Monthly Archives: March 2013

U.S. v. Cotterman: Ninth Circuit Holds Reasonable Suspicion Required for Forensic Laptop Search at the Border

The Fourth Amendment generally requires that government searches must be reasonable, which typically can be satisfied via a warrant. Searches at the border, however, traditionally occupy a special status in connection with U.S. Fourth Amendment law. Recognizing that “the government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border,” border searches are generally deemed “reasonable simply by virtue of the fact that they occur at the border.” While the Ninth Circuit has stated that the border is not an “anything goes” zone, the court has nevertheless previously held that reasonable suspicion is not required before searching electronic devices at the border. As a result, laptops and other electronic devices are commonly subject to cursory searches at the border. For some individuals, these searches can move beyond cursory review and include detailed forensic analysis that can reveal not only every file stored on the device, but also files that have previously been deleted.

Recently, however, the Ninth Circuit issued an en banc decision requiring that reasonable suspicion exist before boarder agents engage in forensic computer searches. The court also noted that password protecting an entire electronic device is not a factor that can be used to trigger reasonable suspicion. The decision is likely to impact law enforcement’s ability to engage in border searches of digital devices. Civil liberties groups have recognized the decision as providing some important additional 4th amendment protection for international travelers. 

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Are Human Genes Patentable? A Preview of Association for Molecular Pathology v. USPTO (“The Myriad Case”)

On April 15, 2013, the Supreme Court will hear the oral arguments for one of the most highly anticipated patent law cases of last year: Association for Molecular Pathology, Inc, et al. v. USPTO, et al. The one and only question before the Supreme Court is whether isolated DNA containing all or portions of the BRCA1 and BRCA2 (Breast Cancer Susceptibility Genes 1 and 2) gene sequences are patentable under 35 U.S.C. § 101. This turns on whether the isolated DNA is just like the native DNA found in the human body, or whether it is transformed into a different compound by isolating it under lab conditions.

Procedural History

The case has had a protracted history reaching back to 2009. The American Civil Liberties Union (ACLU) and the Public Patent Foundation (PUBPAT) initially filed a lawsuit against Myriad Genetics, Directors of the University of Utah Research Foundation (UURF) and the United States Patent and Trademark Office (USPTO), claiming that patents on BRCA1 and BRCA2 violated 35 USC § 101 (the patentable subject matter statute), as well as Article 1, Section 8, Clause 8 of the US Constitution and the First and Fourteenth Amendments. On March 29, 2010, United States District Court for the Southern District of New York concluded that the isolated DNA is not “markedly different” from native DNA because both shared the same function of conveying information and had the same nucleotide sequence. Thus BRCA1 and BRCA2 were held to be unpatentable. The District Court also invalidated Myriad’s method patents, and dismissed the constitutional claims against the USPTO based on the doctrine of constitutional avoidance.

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Bowman v. Monsanto: Patent Exhaustion and the Self-Replicating Invention

What’s the case about?

The Doctrine of Patent Exhaustion holds that the authorized sale of a patented item extinguishes all of the patent holder’s rights to it.  Any subsequent use of that item by the purchaser is not infringement.  In other words, the purchaser of a patented item can do whatever he or she likes with it.  But what if that item is capable of self-replication?  Does the patent holder have the right to control subsequent generations of the item?  This was the issue the Supreme Court confronted in Bowman v. Monsanto.

The story is this: Mr. Bowman, a farmer from Indiana, would plant soybeans two times each year.  For his first crop, he purchased Monsanto’s Roundup Ready seeds.  These seeds contained a patented genetic modification that made them resistant to the weed-killer Roundup.  To make this purchase, Bowman had to agree not to replant any of the 2nd generation soybeans.  He was allowed to plant the seeds once, but was prohibited from replanting the offspring.

Bowman complied with the terms of this agreement for his first crop, but he also planted a second crop of soybeans each year.  He purchased the seeds for this second crop not from Monsanto, but from a local grain elevator at a significantly lower price.  Bowman would sell some of the offspring from this crop and use the rest for replanting.

So how did Bowman infringe Monsanto’s patent?  Well, as it turned out, some of the seeds from the grain elevator contained the Roundup Ready technology.  Bowman knew this—he would plant these seeds and apply herbicide to them, killing all but the Roundup Ready ones.  Monsanto told Bowman to discontinue this practice.  When he refused, Monsanto filed a lawsuit seeking damages and an injunction.

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Can the FCC Comply With the President’s Call for Legalization of Cell Phone Unlocking?

On March 4, 2013, the White House officially responded to an online petition calling for the legalization of cell phone unlocking. The process of unlocking a cell phone usually refers to installing software that allows a cell phone to be used on multiple wireless carriers. Cell phone unlocking had previously been legal under an exemption granted by the Copyright Office pursuant to its DMCA 1201 Rulemaking powers; however, in 2012 the Copyright Office declined to renew the exemption.

Following the end of the exemption, several consumers protested the end of legal cell phone unlocking. A petition to the president was created, and crossed the recently raised 100,000-signature threshold, guaranteeing a response from the Administration. The White House responded to the petition astonishingly fast—within a weekend—by voicing strong support for cell phone unlocking. One of the suggestions put forth by the White House was that the Federal Communications Commission should investigate whether it is within their power to address the legalization of cell phone unlocking. Notably, this suggestion has been well received by the FCC, as Chairman Genachowski has expressed enthusiasm for the FCC investigating the issue. The question remains, however, whether there are steps the FCC can actually take that fall within their agency powers to address the issue. This post explores that question.

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