ALEXANDRIA — A federal district court in the Eastern District of Virginia recently held that an event planner who “scraped” data about hotels, restaurants, bars, and meeting rooms from a publicly available Web site did not violate the Computer Fraud and Abuse Act (CFAA).

The plaintiff in Cvent, Inc. v. Eventbrite, Inc., 2010 U.S. Dist. LEXIS 96354 (E.D. Va. Sept. 14, 2010) operated a Web site that assisted customers in locating venues for organizing large-scale events. The Web site contained a massive database that listed detailed information about venues all over the world, including the availability, capacity, and amenities of meeting rooms in various cities. Defendant Eventbrite offered event planning services through its Web site and set out to create a similar “Venue Directory” that would contain information about hotels, restaurants, bars, and meeting rooms.

Rather than aggregate this data on its own, however, Eventbrite hired a computer engineer to “scrape” the data from Cvent’s online database. “Data scraping” is a technique in which an automated program scans and copies information that was intended for human viewing. The legal issue was whether data scraping violates laws prohibiting the unauthorized access of data from protected computers.

Credit: NIST

Cvent argued that Eventbrite’s scraping violated section 1030(a)(2) of the CFAA, which prohibits accessing a protected computer without authorization—or exceeding authorized access—in order to obtain information. In dismissing this claim, the court noted the distinction between unauthorized use of data and unauthorized access to data. Only unauthorized access constitutes a violation of the CFAA. Cvent’s database, however, was publicly available on its Web site and could be accessed without any password or login information. In the court’s words, “the entire world was given unimpeded access” to Cvent’s database and Eventbrite had therefore not violated the CFAA when it scraped that information.

Cvent argued unsuccessfully that it had, in fact, limited Eventbrite’s access by virtue of a “browsewrap” agreement containing its Terms of Use, which stated that “No competitors or future competitors are permitted to access our site or information, and any such access… is unauthorized.” The court noted, however, that despite this language, Cvent took no “affirmative steps” to prevent competitors from accessing its database. Because the browsewrap agreement was not prominently displayed, and could only be discovered by following a series of links, no reasonable user could be expected to notice it.

Cvent, Inc. v. Eventbrite, Inc. stands in contrast to Snap-On Business Solutions Inc. v. O’Neil & Associates, Inc., 2010 U.S. Dist. LEXIS 37688 (N.D. Ohio Apr. 16, 2010), another data scraping case decided last spring in which the court refused to grant the defendant summary judgment on the plaintiff’s CFAA claims. There, the information on the targeted Web site had been password-protected and the log-in screen alerted visitors that their use of the site was governed by an End User License Agreement, which users could link to directly. Because of these features, the court concluded that a genuine issue of fact existed as to the scope of authorization and the existence of a contract.

These cases offer important lessons for Web site operators concerned about data scraping. As Cvent demonstrates, the operators of targeted Web sites may be without recourse under the CFAA if the information was made publicly available. However, the Snap-On case provides examples of measures that Web site operators can take to protect themselves.

When patent examiners examine patent applications, they will look at whether there exists certain prior art in related field to decide whether the patent application is novel.  Novelty is one of the requirements a patent application must meet in order to become a valid patent.  It is important for practitioners to understand the standard for determining a legitimate prior art, in order to evaluate the chances of winning a patent infringement dispute.

A recent Federal Circuit case, In re Giacomini, 2010 U.S. App. LEXIS 13804 (Fed. Cir. July 7, 2010), extended the scope of the secret prior art defined in 35 U.S.C. 102 (e).  A secret prior art means a prior art filed before but published after the subject patent application is filed.  Under the decision, a US patent or published application will be considered prior art as of the filing date of its qualifying provisional application.  In this case, the Federal Circuit held that, agreeing with USPTO’s position, when a provisional application is used as a prior art, the filing date is the 102(e) priority date, rather than the actual filing date of the later formal application.

35 U.S.C. 102(e)(2), bars the patentability if the invention was described in a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent.  Giacomini’s patent application was first filed on Nov. 29, 2000 and the USPTO examiner found a prior art, U.S. patent 7,039,683 (the “Tran Patent”), against Giacomini’s patent application.   The Tran Patent was filed in December 2000 (after Giacomini) and issued in 2006. However, the USPTO asserted that the patent should be considered as a 102(e) prior art because it claims priority to a U.S. provisional application that was filed in September 2000.

In a prior case, In re Klesper, 397 F.2d 882 (C.C.P.A. 1968), the United States Court of Customs and Patent Appeals (CCPA, the  Federal Circuit’s predecessor court) held that the 102(e) follows the prior precedent of treating a prior art disclosure found in an issued patent as being disclosed as of the “filing date of the earliest U.S. application to which the patent is entitled, provided the disclosure was contained in substance in the said earliest application.”  The Federal Circuit agreed that this provision applies equally to provisional patent applications.  Thus, the Tran Patent shall have the same patent-defeating effect as to the claimed invention as though it was filed on the date of the Tran Patent’s provisional application.

Patent practitioners should be aware of this current development while conducting their prior art search.  Provisional applications could be another source of legitimate prior arts, and should not be overlooked.

WASHINGTON–D.C. District Court Chief Judge Royce C. Lamberth issued a preliminary injunction blocking stem-cell research funding on grounds theresearch violates a Congressional order, the Dickey-Wicker Amendment, that prohibits federally-funded research in which human embryos are destroyed. In particular, the court concluded the plaintiffs, which included the Christian Medical Association, “demonstrated a strong likelihood of success that the [National Institutes of Health Guidelines for Human Stem Cell Research promulgated in response to President Obama’s executive order] violate [the Amendment].”

The National Institute of Health had argued the Amendment was ambiguous and therefore the court should defer to the agency’s interpretation of the statute under Chevron U.S.A., Inc., v. Natural Resources Defense. In particular, the Institute argued the term “research” is ambiguous so its interpretation of the term should be entitled to Chevron deference. But the Court rejected that argument because Congress had directly spoken to the issue so the court gave effect to this Congressional intent:

Congress has spoken to the precise question at issue—whether federal funds may be used for research in which an embryo is destroyed. The Dickey-Wicker Amendment provides that no federal funds shall be used for “research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under45 C.F.R. § 46.204(b) and section 498(b) of the Public Health Service Act (42 U.S.C. 289g(b)).”Pub. L. No. 111-8, § 509(a)(2). Thus, as demonstrated by the plain language of the statute, the unambiguous intent of Congress is to prohibit the expenditure of federal funds on “research in which a human embryo or embryos are destroyed.” Id. Contrary to defendants’ argument, the term “research” as used in the Dickey-Wicker Amendment has only one meaning, i.e., “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” 45 C.F.R. § 46.102(d) . . .

Volokh Conspiracy blogger Russell Korobkin argued the court’s interpretation of the Amendment is incorrect on the merits. In particular, he argued the Amendment only bars spending federal dollars on research “in which” embryos are directly destroyed, but does not prevent research involving hESC stem cell lines created by replication of existing stem cells:

The key language here is not the word “research,” but rather the phrase “in which.” That is, Dickey-Wicker does not prohibit federal funding of research that is “related to,” “associated with” or “has a connection to,” or “builds upon the fruits of” embryo destruction. It only prohibits funding of research “in which” embryos are destroyed. It is important to remember that Dickey-Wicker is an appropriations rule, so the reasonable interpretation of the scope of the “research” in question is to follow the money in the grant request. If the grant application seeks money for an acitivity that directly results in embryo destruction, this proposal constitutes research “in which” the embryo is destroyed. If an applicant seeks money to study an existing hESC line, the research in question is not research “in which” the embryo is destroyed.

NEW YORK–Artists United, a coalition of New York City artists has sued the New York Department of Parks and Recreation in federal court to challenge the constitutionality of a limit on the number of vendors allowed in Central Park and other heavy-traffic areas.

According to the New York Post, the new regulations, which went into effect July 19, allot the 120 daily vending locations on a first-come, first-serve basis.  Chelsea Now reports that Federal Judge Richard Sullivan reserved decision on a preliminary injunction to stop the rules from becoming effective. But the Judge said he would hold another hearing  if lawyers for the artists or the city requested it.

Information about the new rules is available from the City of New York Parks & Recreation. The rules revise §§1-02 and 1-05(b) of Title 56 of the Official Compilation of Rules of the City of New York.

BOSTON–The First Circuit has rejected an effort by prescription drug analysts to challenge Maine’s law  allowing doctors to keep prescription drug histories secret. The three-judge panel in Boston upheld the constitutionality of 22 Me. Rev. Stat. tit. 22, section 1711-E(2-A), which allows Maine physicians to keep identifying information away from those marketing prescription drugs to doctors.

The district court had granted plaintiffs’ motion for an injunction prohibiting enforcement of Maine’s law ongrounds the ban violated First Amendment rights. The Circuit court reversed because: (1) the statute regulates conduct, not speech; (2) even if the statute regulates commercial speech, the regulation satisfies constitutional standards; (3) the Maine statute constitutionally protects Maine prescribers’ choice to avoid unwanted solicitations based on their identifying data; (4) the statute was not vague; (5) the statute does not violate the Dormant Commerce Clause because it regulates prescription drug information intermediaries’ out-of-state use or sale of Maine prescribers’ data; and (6) the statute does not impose disproportionate burdens on interstate commerce.

The case, decided August 4, 2010, is IMS Health Inc. v. Mills, 08-1248.