Tag Archives: Jane Fraytet

In Alice Corp. v. CLS Bank, the Court Limits Software Patents, but Does Not Eliminate Them


The US Supreme Court ruled against Alice Corporation, the owner of the patent in dispute.

A New York Times article published on June 19, 2014 said that the trial court had invalidated Alice’s patents, stating that the patent holder had only recited abstract concepts. The trial court’s decision was effectively affirmed by the United States Court of Appeals for the Federal Circuit when it issued seven separate opinions, none of which commanded a majority, thus not issuing clear guidance and direction for software patent protection.

Adam Liptak of the N.Y. Times stated that the Court of Appeals decision for the Federal Circuit in the Alice Corp. v. CLS Bank International summarized that the use of Alice’s computer software was not unique, but was simple business software – considered “a building block of the modern economy”, but not deserving patent protection.

According to the US Supreme Court, adding the use of a computer added nothing.

Stating an abstract idea while adding the words ‘apply it’ is not enough for patent eligibility,”  and because the petitioner’s system and media claims add noth­ing of substance to the underlying abstract idea, we hold that they,  too are patent ineligible under §101.

Charlotte Law students, staff and faculty can use their library barcode to view these two BNA articles for a more complete summary of this U.S. Supreme Court patent case decision:

~Jane Fraytet~

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North Carolina Will Be Introducing Legislation to Rein in Patent Trolls


State legislation to control patent trolls could move to the House floor this week. A state-wide coalition has formed to enact legislation “that would entitle companies victimized by frivolous demands of lawsuits from NPEs (Nonpracticing entities) to obtain attorney’s fees and treble damages.” A proposed North Carolina bill would aim to rein in patent trolls; the primary sponsor of the bill is state legislator Tom Murry- who said it was very important to pass this bill since there is such a high concentration of technology companies in North Carolina. According to an article that appeared in the Charlotte Observer on May 24, 2014, “the legislation has broad industry support from a coalition that likens the litigation tactics of patent trolls to extortion”.

Updates on this bill will be posted to this blog when and if the bill passes the North Carolina legislature.

~Jane Fraytet~

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Patent Trolls May Think Twice After Supreme Court Moves To Curb Their Abuses*


Sonia Sotomajor recently wrote two Supreme Court opinions both unanimous and both dealing directly and indirectly with parties known as “patent trolls”. The concepts reviewed in Highmark dealt with the concept of “exceptional cases” and reviewing District Court cases de novo:

The District Court in Highmark found the case “exceptional” and granted Highmark’s motion that their attorney fees be paid by the plaintiff. The Federal Circuit Court reviewed the District Court’s determination de novo and reversed the decision in part. as to the attorney fees.

All aspects of a district court’s exceptional-case determination under §285 should be reviewed for abuse of discretion. Prior to Oc­tane Fitness, LLC v. ICON Health & Fitness, Inc., ante, p. ___, this determination was governed by the framework established by the Federal Circuit in Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378. Octane rejects the Brooks Furniture framework as unduly rigid and holds that district courts may make the exceptional­ case determination under §285 in the exercise of their discretion. The holding in Octane settles this case. Decisions on “matters of dis­cretion” and holds that district courts may make the exceptional ­case determination under §285 in the exercise of their discretion. HIGHMARK INC. v. ALLCARE HEALTH MANAGEMENT SYSTEM, INC.

In the second opinion that Sotomayor wrote Octane Fitness, she wrote that the case law relied upon in Octane from the Brooks case was unduly rigid:

 (a) Section 285 imposes one and only one constraint on district courts’ discretion to award attorney’s fees: The power is reserved for “exceptional” cases. Brooks Furnitureis too restrictive in defining the two catego­ries of cases in which fee awards are allowed. The first category— cases involving litigation or certain other misconduct—appears to ex­tend largely to independently sanctionable conduct. But that is not the appropriate benchmark. A district court may award fees in the rare case in which a party’s unreasonable, though not independently sanctionable, conduct is so “exceptional” as to justify an award. For litigation to fall within the second category, a district court must de­termine that the litigation is both objectively baseless and brought in subjective bad faith. But a case presenting either subjective bad faith or exceptionally meritless claims may sufficiently set itself apart from mine-run cases to be “exceptional.” The Federal Circuit imported this second category from Professional Real Estate Inves­tors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, but that case’s standard finds no roots in §285’s text and makes little sense in the context of the exceptional-case determination. Pp. 8–10.

(2) Brooks Furniture is so demanding that it would appear to render §285 largely superfluous.

In conclusion, the Wall Street Journal Blog stated that the defense bar hopes that these  rulings will make patent-holding firms,” think twice before filing cases based on flimsy patents.”*

~Jane Fraytet~

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The City of New York Will Settle Both Cases That Were Brought Against Them


Mayor de Blasio has agreed to withdraw the city’s Appeal from the Federal District Court  decision rendered by Judge Scheindlin. The city asked the U.S. Court of Appeals for the Second Circuit to return the case on appeal back to the Federal District Court in New York.

Once the N.Y. Federal Appeals Court returns the case back to the N.Y. Federal District Court, Judge Torres will implement the agreement reached by the sets of Plaintiffs who filed the original two suits against the City of New York.

In the lower court decision decided by Judge Scheindlin, she “ordered the appointment of a monitor to develop, in consultation with the parties, widespread reforms of the department’s policies, training, supervision, monitoring and discipline regarding stop-and-frisk” and that process will go forward as part of the agreement.

New York Times Resources:

Previous Blog Postings on Charlotte Law Library News:

~Jane Fraytet~

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Oakland Football Cheerleader Filed a Class-Action Suit Against the Oakland Raiders

cheerleaders Lacy T. filed a lawsuit as a class action suit on behalf of all present and former Oakland Raider cheerleaders who have worked for the football team since 2010. Ms. T claims that the owners of the Oakland Raiders violated both California and Federal wage laws, as the Raider cheerleaders were paid $1,250 per season, which amounted to $125 per home game and an average of $5.00 per hour worked.  The federal minimum wage is $8.00.

Oakland Raider cheerleaders are required to work approximately 9 hours per day on game days and attend 2 or 3 three-hour rehearsals per week and make approximately 10 unpaid appearances per year at charitable events.

The Oakland cheerleaders also have many out-of-pocket expenses each year that they are not reimbursed for, which can amount to as much as $650.00. The cheerleaders have to pay their own travel expenses to appearances, pay for Raider-approved hair stylists, yoga mats and false eyelashes.

In order for this lawsuit to move forward, a hearing must be held in the Superior Court in Alameda County in California on whether the lawsuit can be certified as a class action.  The hearing should take place within the next 3-5 months.

~Jane Fraytet~


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New York Stop-and-Frisk Case: Part Deux


A panel of Judges for the Second Circuit Court of Appeals in New York who  had recently removed Judge Shira Scheindlin from the City’s stop-and-frisk case, have now issued a lengthy explanation of how they had made “no findings of misconduct, actual bias or actual partiality” by  judge Scheindlin.

The New York Times newspaper has written two articles in two days summarizing the actions taken by the U.S. Court of Appeals for the Second Circuit. The first article explained how the Federal Court had softened its tone from the Order which removed Judge Scheindlin from the stop-and-frisk case.

The second article which was written by N.Y. Times Editorial Board said that the Court’s new Opinion appears less highhanded than the first but still claims that the panel had no choice but to disqualify Judge Scheindlin for comments she made in court and in press interviews.

Judge Scheindlin recently filed a Motion saying that she had…“felt ambushed, and petitioned the court for the opportunity to defend herself”.

This week’s ruling denied that motion and also backed away from some of the serious charges that were implied in the earlier ruling. And by finding no actual misconduct by the judge, the appeals court seemed to signal to the city that there are no grounds to vacate Judge Scheindlin’s decisions”.

The Times concluded that the fate of the stop-and-frisk program will be left up to the City’s incoming mayor, Bill de Blasio, who has pledged to reform the program. The newspaper stated that it “believes the full court should review and reverse the three-judge panel’s ruling”.

~Jane Fraytet~

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Federal District Judge Rules That Stop and Frisk Methods Used by New York Police Violated Citizen’s Constitution Rights


In David Floyd, et al., v. City of New York 08-CV-1034 (SAS) U.S. District Judge Shira Scheindlin ruled that the standards used by the City police have violated the rights of thousands of New Yorkers. The plaintiffs in this combined case are David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht, individually and on behalf of a class of similarly situated, plaintiffs (a total of 12 class members were certified) to sue the City of New York.

Judge Scheindlin in her opening remarks of the Floyd case summarized the case as being a situation concerning the tension between liberty and public safety in the use of a proactive tool called “stop and frisk.” Current procedures that have been used by the city police were found to be a form of racial profiling and thus violated the Fourth and Fourteenth Amendments of the U.S. Constitution.


The Floyd case was a suit brought by residents of New York against the New York Police Department (NYPD) for having violated their civil rights. The parties in the Floyd case challenged certain aspects of NYPD’s “stop and frisk” practices in connection with stops made on suspicion of trespass outside of certain privately-owned buildings in the Bronx. Residents moved for preliminary injunction, seeking an order requiring NYPD to create and implement new policies, training programs, and monitoring and supervisory procedures specifically addressing the issue of unconstitutional trespass stops outside buildings.

In Judge Scheindlin’s decision, which was decided on August 12, 2013, she found that the City of New York was liable for violating the Fourth and Fourteenth Amendment rights of the plaintiffs because of the way that the NYPD had conducted stops and frisks over the past decade. In a similar case, the Lion v. City of New York that Judge Scheindlin decided in January 2013, Scheindlin found that the plaintiffs there could be certified as a class of people representing those who had been stopped outside buildings participating in Trespass Affidavit Program (“TAP”) in the Bronx.  Accordingly, they were entitled to preliminary injunctive relief based on violations of their 14th Amendment rights.

Scheindlin, in her August 16, 2013 opinion, combined the Floyd case and the Ligon case together because the remedies recommended in both cases were the same and both should be reviewed together.

Because of the Constitutional violations found in both the Floyd and Ligon cases, Judge Scheindlin is requiring that the NYPD reform the city’s practices and policies related to their stop and frisk program to conform to the requirements of the United States Constitution.

Judge Scheindlin stated in her opinion that she would be appointing Peter L. Zimroth to be an independent Monitor and to oversee the reform process of the police department and to make sure that the police were in compliance with the constitution. Judge Scheindlin outlined the four steps that would need to be followed by Zimroth, the federal Monitor, and the NYPD in order to achieve the prescribed reforms that Scheindlin believes the NYPD needs to make:

The Outline for Reform:

First, the NYPD should revise its policies and training regarding stop and frisk to adhere to constitutional standards as well as New York state law.

Second, the NYPD should revise its policies and training regarding racial profiling to make clear that targeting “the right people” for stops is a form of racial profiling and violates the Constitution.

Third, if necessary, change the use of “performance goals” which the police department may have been using to increase the number of “stop and frisks” required by the City Police every year.

Fourth, where legitimate uncertainty exists regarding the most efficient means of reform, and where parties may have differing views, it may be feasible for the Monitor to test the alternatives by applying them in different precincts and studying the results.

In closing, it should be noted that on August 16, 2013 – four days after Judge Scheindlin’s opinion was issued in the Floyd v. City of New York  case – the City of New York filed its Notice of Appeal in the United States District Court of the Southern District of New York saying that they were filing their appeal with the U.S. Court of Appeals for the Second Circuit, from ECF Document 372 the remedial opinion and order, dated August 12, 2013 and ECF Document 373 opinion and order, dated August 12, 2013.

By the time the Appeal for the Floyd case has been decided there will most likely be a new Mayor in New York and it will be the their responsibility to follow Judge Scheindlin’s recommendations on the city “stop and frisk” practices or deal with the recommendations of the U. S. Court of Appeals for the Second Circuit.

~Jane Fraytet~

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