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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section

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Michigan IT Lawyer a Publication of the State Bar of Michigan Information Technology Law Section State Bar of Michigan Michigan IT Lawyer A Publication of the State Bar of Michigan Information Technology Law Section http://www.michbar.org/computer Table of Contents Bits and Bytes from the Chair March 2011 . Vol. 28, Issue 2 By Mark G. Malven, Dykema Gossett PLLC . Bits and Bytes from the Chair ................1 . Save the Date!!! ......................................2 I hope all of you are enjoying our beautiful Spring weather here in Michi- . Recent Developments in Information gan. (NOTE: I write this knowing that by the time this is published it may well Technology Law .....................................3 be snowing again!) As your Chair I wanted to let you know about some recent . Mission Statement—Information and upcoming events. Technology Law Section, State Bar of On the evening of March 10, in conjunction with our Council Meeting, we Michigan .................................................8 sponsored a presentation by Professor John Rothchild at Wayne State Univer- . The Pitfalls of an Internet Persona: sity Law School on the currently hot topic of “Net Neutrality” and the related Evidentiary and Privacy Concerns of legislative and regulatory efforts by the FCC. Thank you, Professor Rothchild, Online Social Media ...............................9 for a very informative and entertaining presentation. Also, a special thank you . Job Search Assistance! ........................26 to Council member Nilay Davé for his suggestion of Prof. Rothchild, and for his hard work arranging this event. Publicly Available Websites for IT Lawyers ............................................26 We also have a number of valuable activities upcoming: . 2011 Edward F. Langs Writing Award ..26 • On Thursday April 21, we will be co-sponsoring a Spring Networking Event at The Post Bar in Novi from 5 to 8 pm. This will be a reprise of our successful spring networking event last year in conjunction with DetroitNET.org, which is one of the largest networking groups for IT professionals in the region. Last year was great fun and this will be a can’t-miss event. • We will be sponsoring an IT Law-themed edition of the July Michi- Michigan IT Lawyer is published every other gan Bar Journal. month. Previously published issues of the Michigan IT Lawyer, and its predecessor the Michigan Computer Lawyer, are available at • Our Fourth Annual Information Technology Law Seminar will be http://www.michbar.org/computer/newslet- Wednesday, September 21, 2011. Based on the success of the ters.cfm. If you have an article you would like 2010 seminar, the seminar will once again be presented as an all-day considered for publication, send a copy to: format, from 9 a.m. to 4 p.m., with a cocktail reception afterward. We Michael Gallo are again working in cooperation with the Institute for Continuing Legal 2700 Renshaw Drive Education (ICLE), and the venue is the St. John’s Inn in Plymouth, with Troy, Michigan 48085 e-mail: [email protected] Continued on next page Michigan IT Lawyer a webcast also available. There are sponsorship spots still available, so if your organization would be interested please contact Charlie Bieneman 2010-2011 at [email protected]. Information Technology Section Council • Our Annual Meeting will be Wednesday, September 21, 2011 during Chairperson . Mark G. Malven Chairperson-elect . Charles A. Bieneman the lunch session of the IT Law ICLE Seminar. If you have any questions, Secretary . Karl A. Hochkammer please feel free to contact me at [email protected]. Treasurer . Ronald S. Nixon If you have any suggestions, comments etc. for how we may be of further CounCil MeMbers Charles A. Bieneman service to you as a member of the IT Law Section, please do not hesitate to Susanna C. Brennan contact me. William Cosnowski, Jr. Nilay Sharad Davé Jeanne M. Dunk Best regards, Mark Malven Samuel J. Frederick . Michael Gallo . Brian A. Hall Karl A. Hochkammer William J. Lamping, Jr. Mark G. Malven Tatiana Melnik Ronald S. Nixon Save the Date!!! Carla M. Perrota Vincent I. Polley Claudia Rast On Thursday, April 11, 2011, instead of doing something taxing, plan on David R. Syrowik something more relaxing: Join the Information Technology Law Section for our Mary Ann Wehr Spring Networking Event! This year we are again joining forces with DetroitNET. Immediate Past Chair org at The Post Bar, 42875 Grand River Avenue, Novi, Michigan, from 5 to 8 PM. Jeremy D. Bisdorf Our Section will be a co-sponsor of one of Michigan’s premier I.T. networking Ex-Officio events, which is attended by hundreds of I.T. professionals, recruiters, job-seek- Claudia V. Babiarz ers and lawyers. And best of all, the event is FREE to attend! Registration details Thomas Costello, Jr. will be available soon. For more information, check www.detroitnet.org! Kathy H. Damian Christopher J. Falkowski Robert A. Feldman The Fourth Annual Information Technology Law Seminar will be Wednesday, Sandra Jo Franklin Mitchell A. Goodkin September 21, 2011, from 9 a.m. to 4 p.m. Reserve the date on your calen- William H. Horton dar, and plan to take advantage of a great line up of speakers while receiving Lawrence R. Jordan continuing legal education credit! Based on the success of the 2010 seminar, Charles P. Kaltenbach Michael S. Khoury the conference will once again be presented as an all-day format. Once again J. Michael Kinney the Information Technology Law Section of the State Bar of Michigan is work- Edward F. Langs* ing in cooperation with the Institute for Continuing Legal Education (ICLE), and Thomas L. Lockhart Janet L. Neary the venue is the St. John’s Inn in Plymouth, with a webcast also available. If you Kimberly A. Paulson know of an organization that may be interested in sponsoring the event, please Paul J. Raine* contact Charlie Bieneman at [email protected]. Watch for further details Jeffrey G. Raphelson Frederick E. Schuchman III over the upcoming months, and please save the date! Steven L. Schwartz Carol R. Shepard Anthony A. Targan Attend the Information Technology Section’s Annual Business Meeting. Stephen L. Tupper Mingle with Section peers, learn about opportunities to get more involved with Commissioner Liaison the Section, and participate in the election of Section Council Members. The Richard J. Siriani Information Technology Section’s 2011 Business Meeting will be held during the Newsletter Editor lunch session of the Fourth Annual Information Technology Law Seminar. Be Michael Gallo there! Please contact Mark Malven at [email protected] if you have ques- *denotes deceased member tions about the event. 2 . Vol. 28, Issue 2 . March 2011 Michigan IT Lawyer Recent Developments in Information Technology Law By David R. Syrowik, Brooks Kushman P.C. PATENTS – Case Law – U.S. Supreme Court by competitors’ computer security products. Finjan Inc. v. Secure Computing Corp. As reported at 81 BNA’s PTCJ 137, on November 29, 2010 the U.S. Supreme Court, in a case involving the popular As reported at 81 BNA’s PTCJ 342, on January 11, 2011 Word program, grants a petition for writ of certiorari in Mi- the U.S. Court of Appeals for the Federal Circuit ruled that a crosoft Corp.’s attack on the clear-and-convincing evidence patent owner’s lawsuit against Google Inc. was not “objec- standard for challenges to the validity of a patent. Lowering tively baseless,” reversing a lower court’s award of $626,000 the standard to a preponderance of evidence – as Microsoft in attorneys’ fees to Google as sanctions for the patent requests – could significantly decrease the strength of every owner’s frivolous claims. iLOR LLC v. Google Inc. patent owner’s case in litigation. Microsoft Corp. v. i4i L.P. As reported at 81 BNA’s PTCJ 171, on December 8, 2010 the U.S. Court of Appeals for the Federal Court held, in COPYRIGHTS – Case Law – U.S. Supreme Court delivering its first ruling on patentable subject matter since As reported at 81 BNA’s PTCJ 140, on November 29, the U.S. Supreme Court’s Bilski v. Kappos decision, that to 2010 the U.S. Supreme Court, declines review of a case in be found unpatentable under 35 U.S.C. § 101, an invention’s which a defendant accused of infringing copyrights in sound abstractness must “exhibit itself so manifestly as to override recordings by making unauthorized copies through online the broad statutory categories” of patent eligibility. Research downloading is denied the opportunity to pursue an innocent Corporation Technologies Inc. v. Microsoft Corp. infringer defense. Harper v. Maverick. As reported at 81 BNA’s PTCJ 173, on December 7, 2010 the U.S. Court of Appeals for the Federal Circuit ruled that a TRADEMARKS – Case Law – U.S. Supreme Court patent on an invention that simply replaced a phone-and-fax As reported at 81 BNA’s PTCJ 141, on November 29, based solution with an internet-based approach was invalid 2010 the U.S. Supreme Court denies a petition for a writ of for obviousness. The court reverses the district court’s certiorari in a case appealing the Second Circuit’s ruling that award of $16.5 million for infringement of Western Union online auction site operator eBay Inc. is not liable for trade- Co.’s patents on money transfers using the internet to set up mark infringement or dilution – either directly or secondarily the transactions. Western Union Co. v. MoneyGram Payment – based on some sellers’ listing of counterfeit Tiffany jewelry, Systems Inc. because it takes action when it has knowledge of fraud with As reported at 81 BNA’s PTCJ 371, on January 20, 2011 regard to any specific listing. Tiffany (NJ) Inc. v. eBay Inc. the U.S. Court of Appeals for the Federal Circuit ruled that an infringing “use” of a system patent claim occurs if one party ANTITRUST – Case Law – U.S.
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