For our weekly SoCal IP Institute meeting on Monday, March 7, 2016, we will discuss the following cases:

CBS Broadcasting, Inc. et al. v. FilmOn.com, Inc., Docket No. 14-3123-cv (2d. Cir. Feb. 16, 2016) (available here).  FilmOn provides an online streaming service that rebroadcasts, via the internet, broadcast television.  FilmOn offered content from a number of U.S. broadcasters on its site.  Many of these broadcasters sued in the Southern District of New York to stop the streaming service and FilmOn eventually agreed to a consent judgment.  However, around the same time that the FilmOn suits were moving forward, a Second Circuit decision in a case known as “Aereo” temporarily made re-broadcast of a recorded broadcast, at least one directed by an individual user, seemingly, legal. So, FilmOn restarted internet broadcasts in this slightly-different form in the Second Circuit, and the broadcasters sued in California and in the D.C. district court to stop the service from going nationwide.

Subsequently, the Supreme Court ruled in Aereo that the service provided, and that was substantially similar to FilmOn’s service, violated the broadcaster’s copyrights and was unlicensed.  As a result, Aereo shut down its service.  FilmOn waited an additional 9 days and until CBS brought contempt proceedings, before it shut down its similar service.  The Southern District of New York heard contempt arguments related to the consent judgment and attorney’s fees requests.  Both were granted by the district court and are on appeal, here to the Second Circuit.

At the Second Circuit, the court found that the district court did not abuse its discretion in entering $90,000 in contempt and, in addition, attorney’s fees of approximately $115,000.

UltimatePointer, L.L.C. v. Nintendo Co., Ltd. et al., Docket No. 2015-1297 (Fed. Cir. March 1, 2016) (available here).  UltimatePointer appealed from a final judgment in favor of Nintendo after the district court granted summary judgment (1) that Nintendo did not infringe claims 1, 3, 5, 6, and 12 of UltimatePointer’s U.S. Patent 8,049,729 and (2) that claims 1, 3, 5, and 6 of the ’729 patent are invalid as indefinite. The Federal Circuit, on appeal, affirmed the judgment of noninfringement and but reversed the determination of indefiniteness.