Technology Law Source

The passage of the Defend Trade Secrets Act creates important considerations for trade secret plaintiffs

While patent, trademark, and copyright cases have had a place in federal law and a home in federal court, trade secret law has been relegated to the jurisdiction of state courts. Until now. With the passage of the Defend Trade Secrets Act of 2016 (DTSA), which President Obama signed in to law on May 11, 2016, a plaintiff can pursue a trade secret claim in federal court. The DTSA amends the Economic Espionage Act, creating a federal cause of action for trade secret misappropriation. It is expected to provide uniformity to trade secret law, which should provide better predictability for litigants who seek to protect their trade secrets. It also opens the door to the federal courthouse for trade secret claims.

Despite the ability to sue in federal courts, it is not a sure bet that federal courts will experience a flood of trade secret claims. Certainly there are provisions of the DTSA that would appeal to plaintiffs, and litigants may benefit from the perceived sophistication of a federal court judge. But there are some key considerations that might cause plaintiffs to pause before filing a trade secret misappropriation action under the federal law. Continue Reading

Porter Wright announces the 2016 Technology Seminar Series

Porter Wright continues its tradition of providing cutting-edge information about how technology affects your business with the 2016 Technology Seminar Series, beginning  May 18.

This year’s sessions are:

May 18: Big Data, Data Analytics & the Law 2016: What Your Company Needs to Know About the Evolution of the Next Big Thing

“Big data” is one of today’s most prevalent buzzwords across virtually all industries worldwide. But who truly understands what big data is and how it’s used? How is information collected, stored and analyzed? How are businesses leveraging big data in the workplace and the marketplace? How should companies balance data-driven trend-spotting against  consumer protection?  What laws or ethical frameworks apply to the use of big data, and how can you be sure your company is complying with them? This seminar provides an introduction to big data analytics, to the legal and strategic issues that big data raises for business, and to the ways that companies can position themselves to handle these challenges.  It then zeros in on the use of big data in the modern workplace to illustrate how some of these issues play out in a context familiar to many companies.

Speakers: Dennis Hirsch, Professor of Law, Faculty Director of the Program on Data, Law, Ethics and Policy (DLEAP), The Ohio State University Moritz College of Law and Brian Hall, Porter Wright Morris & Arthur LLP Continue Reading

Recent executive action and anticipated impacts

Companies across industries – from tech to transportation – should be paying careful attention to Friday’s executive action signed by President Obama. Our colleagues at Antitrust Law Source, Jay Levine and Chris Yook, wrote an article discussing the order’s requirements and what we can expect as it is implemented. Check out the article: “Breaking: President Obama’s executive order requires all federal agencies to examine antitrust issues.”

In addition, Jay Levine was interviewed by Martha C. White for NBCnews.com for his thoughts on the subject.  As Jay notes, patent applications may see increased scrutiny – definitively something we will be watching as agencies implement this order. Check out the full story here.

Big data and what can be done with it

Our colleagues at AntirustLawSource.com recently shared parts one and two in a three part podcasting series; “Big data and what can be done with it.” Podcast host and editor, Jay Levine, talks with Phil Rist, executive vice president of Prosper Business Development, about challenges and opportunities for big data in 2016. From the internet of things providing more data available for tracking (Part 1), to using big data for key financial decisions (Part 2), we think you’ll find the discussion quite interesting.

Stay tuned for part 3.

 

Ch-ch-ch-changes – Fourth Circuit upholds FCC’s rules streamlining certain wireless telecommunications upgrades and expansions

Mobile wireless service is ubiquitous. Growth of domestic mobile data use is astronomical with growth rates expected to increase by as much as 20 times over the next five years.  4G LTE is lighting up our homes, schools, and workplaces. And 5G, we are told, is right around the corner. Growth requires infrastructure – new sites and modifications to existing facilities. Infrastructure requires permits, largely from local governments. But permit processes take time and local concerns can delay expansions. Now, however, the wireless telecommunications industry has a new tool to implement changes more quickly. And the Fourth Circuit has given the thumbs up to FCC regulations that foster these changes. See Montgomery County v. FCC, 2015 U.S. App. LEXIS 22070 (4th Cir. 2015).

This week, the United States Court of Appeals for the Fourth Circuit put the finishing touch on its decision upholding FCC regulations interpreting a 2012 law that cleared the way for a category of infrastructure expansion projects by eliminating discretionary reviews by state and local governments. The law, and the FCC’s interpretation of it, is a significant win for the wireless telecommunications industry in its efforts to streamline deployment of infrastructure, which can be slowed by state and local processes. On Feb. 16, 2016, the industry scored another victory when the court denied the petitioners’ motion seeking rehearing and rehearing en banc.

This is a big deal. Before the 2012 law, one of the most effective tools the wireless telecommunications industry could leverage for infrastructure expansions was the Telecommunications Act of 1996. Strong as that law is, it can present round-peg-square-hole challenges. After all, what mobile devices did you have in 1996? For those who had them, what did you do with your mobile devices besides make really expensive phone calls?
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PETA sues on behalf of selfie monkey

Remember the dispute of copyright ownership over a selfie taken by a macaque in 2011? I wrote about it earlier this year when the owner of the camera that was used to take this shot sued Blurb, Inc., for unauthorized use of copyright.

Well, the monkey has apparently spoken. On Sept. 22, PETA filed a lawsuit against the owner of the camera and Blurb on behalf of the monkey, who PETA says wants to be known as Naruto, to have the monkey declared the owner of the copyright in the photograph.

As the previous post reports, the U.S. Copyright Office has stated that a photograph taken by a monkey (or any non-human) is unprotected intellectual property that may be used without permission. But that is just policy. U.S. law does not specifically state that a non-human cannot own a copyright. The Copyright Act only defines a “copyright owner … [as] the owner of that particular right” (see 17 USC Section 101). PETA argues that, because Naruto took the photo, she owns the copyright.

This suit faces challenges, but brings up a number of interesting legal issues. Can a non-human be declared the owner of property? If the monkey owns the copyright of the image, how does the monkey give permission for others to use it? Is it just monkeys (and how did PETA find Naruto)? What about elephants that paint artwork? Can non-humans infringe copyright?

Another interesting issue is the requirement that a copyright must be registered to bring a lawsuit in the U.S. (I imagine Naruto would have some difficulty submitting the registration application); however, Naruto took the picture in Indonesia. A foreign copyright owner is exempt from registering a copyright in the U.S. prior to bringing a suit; therefore, PETA/Naruto should be able to bring the suit without having a U.S. registered copyright.

There are other issues, such as whether California is the correct jurisdiction to bring the lawsuit and whether PETA is the best representative to argue for Naruto, which may prevent the question of whether a monkey can own copyright from ever being decided — but it might get interesting!

OSHA Nano-Workplace Factsheet

OSHA’s factsheet for working safely nanomaterials in the workplace suggests including the following basics in worker training and instruction:

• Identification of nanomaterials the employer uses and the processes in which they are used;

• Results from any exposure assessments conducted at the work site;

• Identification of engineering and administrative controls and personal protective equipment (PPE) to reduce exposure to nanomaterials;

• The use and limitations of PPE; and

• Emergency measures to take in the event of a nanomaterial spill or release.

OSHA also recommends using its on-site consultation services for employers attempting to address potential exposure to nanomaterials in the workplace and states that “On-site consultation services are separate from enforcement and do not result in penalties or citations.”

https://www.osha.gov/Publications/OSHA_FS-3634.pdf

Reminder: EPA Comment Period Closing

Just a reminder that the extended comment period for EPA’s proposed rule regarding reporting and recordkeeping requirements for certain nanoscale materials closes August 5, 2015. Readers can find a copy of the proposed rule here: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2010-0572-0001

A tale of two remands (Part I) — how the Federal Circuit is implementing the new standard for appellate review of patent claim construction

Earlier this year, the Supreme Court finally resolved an issue that divided the U.S. Court of Appeals for the Federal Circuit (CAFC) for nearly 20 years. In Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, the Supreme Court unanimously held that a trial court’s underlying factual determinations with respect to extrinsic evidence used in patent claim constructions must be reviewed on appeal under the clearly erroneous standard rather than de novo.1

Before the Supreme Court’s decision in Teva, the CAFC reviewed patent claim constructions de novo, including any allegedly fact-based questions relating to the trial court’s claim construction. As a result, it was quite common for the CAFC to reverse a trial court’s claim construction well after the completion of a lengthy jury trial. The case would be remanded to the trial court (unless the CAFC determined that the error would not have affected the judgment), in some instances leading to an entirely new trial on the merits (and, perhaps, another appeal to the CAFC). After Teva, many hope that CAFC claim construction reversals will be less frequent, particularly when litigants are able to introduce extrinsic evidence such as expert witness testimony into the claim construction process.

The CAFC has now had an opportunity to reconsider on remand not only its decision in Teva, but also Lighting Ballast Control LLC v. Philips Electronics N.A. Corp. which the Supreme Court also remanded to the CAFC for reconsideration in light of Teva. Continue Reading

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