Intellectual Property Law News - DC Circuit
DC Circuit - The FindLaw DC Circuit Court of Appeals Opinion Summaries Blog

Recently in Intellectual Property Law Category

Congress's Democratic leaders want the D.C. Circuit to know they are anything but neutral when it comes to net neutrality. More than two dozen congressional senators and representatives have signed on to an amicus brief supporting the FCC's right to regulate Internet service providers as "common carriers."

The amicus brief puts the Congress members, lead by Senator Edward Markey and Representative Anna Eshoo, against the telecom industry, which has sued to prevent the FCC's new net neutrality rules.

American music would be much worse without college radio. College radio stations helped bring us The Pixies and music-snob mags like CMJ. Your local college radio station is one of the few places willing to let kids spin avant-garde African pop for an hour every week.

But college radio is much less actual radio, these days. Many college radio stations have taken to streaming their music live over the Internet, to potentially much larger audiences. That means more royalty fees, fees the D.C. Circuit just upheld this Tuesday.

TSA Was Arbitrary and Capricious in Dismissing X-Ray Bin Company

As you're waiting in line at the airport to get your full body scan, or have your stuff rifled through, you might peer over at the stack of bins, into which you're hastily stuffing your laptop and shoes, and notice that there are ads in them. Since 2007, the TSA has offset the cost of security checkpoints by selling ad space in the bottom of its X-ray bins.

And it's these bins and their ads that are the basis of a lawsuit decided by the D.C. Circuit Court on Tuesday, one that deals with First Amendment rights, patent infringement -- and murder! (Admittedly, I made that last one up to make the story sound more enticing.)

FDA Lacked Inherent Authority to Reclassify Medical Device: D.C. Cir.

When does a federal agency have "inherent authority"? Not in this case, according to the D.C. Circuit Court in Ivy Sports Medicine v. Burwell.

ReGen Biologics made a device called a Collagen Scaffold for use in knee surgery. ReGen began the process of obtaining FDA approval for the device in 2004. In 2006, several members of Congress from New Jersey, where ReGen is based, expressed concern about the review process. In 2008, the FDA ultimately classified the Collagen Scaffold as a Class II device, which requires less regulation.

But months after getting the approval, a Wall Street Journal article alleged "political pressure" in the Collagen Scaffold approval process. Members of Congress expressed umbrage (no doubt in the most public ways possible) and the FDA investigated, finding that ReGen was a little too close to FDA officials, who didn't follow standard procedures when approving the Collagen Scaffold. The FDA summarily reclassified the device as a Class III device, which had the practical effect of making it unmarketable unless ReGen applied all over again.

The rallying cry for net neutrality is still gaining momentum, as the FCC announced this week that it is seeking public comment on a proposed set of net neutrality rules.

And, as the future of the Internet is up in the air, a district judge upholds a D.C. gun registration law. Read on to learn more.

Net Neutrality: D.C. Circuit Strikes Down FCC's Anti-Blocking Rules

The D.C. Circuit struck down relevant portions of the FCC's Open Internet rules resulting in a slightly more claustrophobic Internet.

The D.C. Circuit eliminated the anti-blocking and anti-discrimination requirements in the FCC's Open Internet Order. The ruling was based on the Verizon v. FCC case, where Verizon challenged the FCC's authority to impose the rules on broadband networks.

This case is a big win for ISPs and sets a strong precedent for future network neutrality cases.

FOIA's Deliberative Process Privilege Protects OLC Opinion

The Court of Appeals for the D.C. Circuit held that FOIA's deliberative process privilege allows the Department of Justice to deny a request for an Office of Legal Counsel (OLC) Opinion.

The OLC Opinion requested by the Electronic Frontier Foundation (EFF) discusses the FBI's authority to request phone records from service providers, but the request was denied after appealing to the D.C. Circuit.

So, how does this case affect FOIA requests?

Streaming company FilmOn filed a motion challenging a prior D.C. district court injunction, preventing the service from broadcasting local TV in various jurisdictions, including Boston.

According to Broadcasting & Cable, FilmOn argued in its newest motion to modify the prior injunction that a recent Massachusetts federal district court decision in favor of online broadcast of local TV has changed the law enough to make an exception for FilmOn in the First Circuit.

The D.C. court injunction already carves out an exception for online broadcast in the Second Circuit, so what is FilmOn's argument?

DISH Network: Unlike Warren G, The FCC Can't Regulate Us

Way back in the 1990s, Congress decided that they wanted to increase the availability and separate market of third party television navigation devices. Traditionally, these set-top converter boxes were leased or loaned from the cable company. This obviously restricted the market for other participants, presumably including TiVo and other DVR providers.

On the other hand, cable companies had adopted the ubiquitous cable box in order to allow them to encode their channels and prevent theft. The proposed law, 629 of the Communications Act, directs the FCC to strike a balance between opening up the third party market, while still allowing cable companies the ability to encode video to prevent theft.

D.C. Circuit Declares Copyright Royalty Board Unconstitutional

The Copyright Royalty Board’s composition is unconstitutional, says the D.C. Circuit Court of Appeals.

The D.C. Circuit’s opinion came out last Friday and found the board, which consists of three judges, to be in violation of the Appointments Clause of the Constitution, reports Thomson Reuters News & Insight.