The University of Washington School of Law on Monday published the Fall 2011 issue of the Washington Journal of Law, Technology & Arts, the nation’s first student-run electronic law journal focusing on technology, commerce, and artistic innovation. The Washington Journal of Law, Technology & Arts publishes concise legal analysis aimed at practicing attorneys on a quarterly basis. This quarter’s edition includes four articles by current students of the Law School and two articles authored by external contributors.

This issue’s lead article, “Ninth Circuit Unmasks Anonymous Internet Users and Lowers the Bar for Disclosure of Online Speakers,” is written by Articles Editor Mallory Allen. The article surveys the prevalent online defamation cases, summarizing the three primary judicial tests applied by state courts in determining whether a plaintiff may compel disclosure of an online commentator. The article posits that the federal circuit courts likely will adopt the reasoning set forth in the July 2010 Ninth Circuit decision In re Anonymous Online Speakers. Continue reading →

Perhaps you have seen the TV commercials for fast-food restaurant chain Chick-fil-A during Saturday college football games: apparently semi-illiterate cows unveil banners urging consumers to “Eat Mor Chikin”[®].  A Vermont artist’s spoof of the restaurant’s trademarked phrase instructs people to munch on more of a leafier substance—kale. Bo Muller-Moore has printed the phrase “Eat More Kale” on merchandise such as apparel and bumper stickers (which have found their way onto Washington State cars), reportedly since 2000. He claims the phrase is meant to promote local agriculture (kale is a type of cabbage). His recent attempt to register “Eat More Kale” with the United States Patent & Trademark Office (USPTO), however, irked Georgia-based Chick-fil-A, which sent him a cease-and-desist letter claiming the marks are confusingly similar, according to press accounts.

Chick-fil-A appears to have an aggressive trademark-enforcement strategy. The letter reportedly alludes to the company’s many successful efforts to rebuff cooptation of the phrase (evidenced by the company’s activity before the Trademark Trial & Appeal Board (TTAB)). Muller-Moore apparently has enlisted the assistance of an IP professor to resist Chick-fil-A’s pressure to cease use of the similar mark. But is the law on Muller-Moore’s side? His case raises two interesting questions: (1) whether Muller-Moore can register the mark, and (2) whether Chick-fil-A can prevent him from using the phrase in commerce on products. Much of the resulting legal analysis probably turns on the likelihood that consumers would confuse the source of goods bearing the respective phrases. This kale conundrum also implicates the broader issue of parodies on products vis-à-vis trademark law. Continue reading →

For the second time in less than two years, the Supreme Court will decide on the patent eligibility of method claims.  In June of this year, the Court granted Mayo’s petition for certiorari in Prometheus Laboratories, Inc. v. Mayo Collaborative Services.  Oral arguments before the Court are scheduled for December 7, 2011.  The case involves the patent eligibility of personalized medicine (PM) technologies.  PM refers to the customization of health care for an individual patient.  PM can take into account a patient’s genetics and other individualized information to optimize therapeutic and preventive care in accordance with the patient’s specific biology and medical conditions.  Examples of PM include genetic screening, engineering of a drug’s molecular structure, or dosage as a function of patient biomarkers.  Given the significant current and future potential benefits of PM, as well as the large capital requirements for medical research, the Court’s ultimate holding will have far-reaching consequences.

The case involves method claims in two issued patents: U.S. Patent No. 6,355,623 and U.S. Patent No. 6,680,302.  Prometheus holds exclusive licenses for both patents.  The patents cover methods for determining optimal dosage, individualized to a particular patient, of a drug used to treat stomach disease.  Claim 1 in the ‘623 patent recites a method for optimizing therapeutic efficacy for treatment comprising (a) administering a drug to a subject and (b) determining levels of metabolites present in the subject.  The determined levels of metabolites correlate with the drug’s toxicity to the subject.  The claim further recites, using a wherein clause, to either increase or decrease the amount of administered drug as a function of the determined levels of metabolites.  Other claims in the patent cover similar, albeit different, methods.    Continue reading →

Following a six-month public comment period, Google’s settlement with the Federal Trade Commission over Google Buzz was approved in late October.  In the settlement order, the FTC agreed with complainant, the Electronic Privacy Information Center (EPIC), that Google used deceptive tactics and violated its own privacy promises to consumers through their recently launched social network, Google Buzz.  The terms of the settlement require Google to implement a more comprehensive and transparent privacy program, bars Google from any future privacy misrepresentations, and requires the company to submit to regular privacy audits for the next twenty years.

Google Buzz had a short-lived but tumultuous existence.  Launched in early 2010 as a social networking tool to be utilized through Google’s Gmail web-based email, Google Buzz was quickly criticized for its lack of privacy protections. In the same month as Google Buzz’s launch, Google faced two legal complaints; one from the EPIC to the Federal Trade Commission alleging that Google Buzz “violated user expectations, diminished user privacy, contradicted Google’s privacy policy, and may have violated federal wiretap laws,” and a second class action suit from a Harvard student alleging that Buzz violated several federal privacy laws. Continue reading →

This week the Federal Trade Commission (FTC) announced that it is contemplating a settlement agreement with online advertiser ScanScout to bar the company from misrepresenting how it tracks consumers’ online behavior through cookies. ScanScout uses online video advertisements embedded with Flash cookies to track and record consumers’ browsing habits. The company’s privacy policy stated that consumers could opt out of receiving cookies by changing their browser settings to prevent cookies. Yet, as the FTC alleged, changing browser settings did not “remove or block the Flash cookies used by ScanScout.”

As the FTC describes, a cookie is “information that a site saves to [a user’s] computer using [a] web browser.” Cookies track and record a user’s browsing activities, including the sites a consumer visits, the search terms a consumer uses, and whether a consumer clicked on an ad. A Flash cookie, in comparison, uses Adobe Flash technology to store information about browsing activities, including settings and preferences. As the FTC explains, using browser settings to delete cookies “won’t necessarily delete the Flash cookies stored on your computer.” Therefore, consumers who followed ScanScout’s directions to delete cookies were allegedly deceived into believing that they had successfully deleted cookies from their computer. Continue reading →