Technology Law Source

Supreme Court to consider international patent exhaustion

Four years after fully embracing international copyright exhaustion in Kirtsaeng v. John Wiley & Sons, Inc., the U.S. Supreme Court has finally taken up the issue of patent exhaustion. In Impression Products, Inc. v. Lexmark International Inc., the Court has been asked to answer two questions:

  1. Whether a sale that transfers title to the patented item while specifying post-sale restrictions on the article’s use or resale avoids application of the patent exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy.
  2. Whether, in light of [the] Court’s holding in Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351, 1363 (2013), that the common law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article—authorized by the U.S. patentee—that takes place outside of the United States exhausts the U.S. patent rights in that article.

This post looks at the second of these questions. Continue Reading

Why HIPAA compliance matters: How a “small” breach can yield a large fine

The new year continues as the old ended, with HIPAA enforcement actions. On Jan. 11, 2017, MAPFRE Life Insurance Company of Puerto Rico (MAPFRE Life) entered into a Resolution Agreement with the United States Department of Health and Human Services, Office for Civil Rights (HHS) in which MAPFRE Life agreed to pay approximately $2.2 million and enter into a corrective action plan (CAP) with a duration of three years in exchange for a release of HHS’ claims related to certain HIPAA violations by MAPFRE Life.

A cursory reading suggests that the $2.2 million payment imposed on MAPFRE Life was the result of a breach of approximately 2,200 records, which would put the payment amount far in excess of other fines issued by HHS for breaches of similar size. Continue Reading

Are you a criminal because you share your Netflix password?

The United States Court of Appeals for the 9th Circuit continues to decide high profile cases that interpret the key provisions of the Computer Fraud and Abuse Act (CFAA). This post summarizes two July decisions from the court—one that sent the internet into a frenzy, and one that somewhat assuaged those fears.

Overview of the CFAA

The CFAA’s deceptively-simple statutory scheme and language have proved difficult to apply in practice some 30 years after it was enacted. The CFAA creates criminal and civil liability for whoever “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). “The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly.” Musacchio v. United States, 136 S. Ct. 709, 713 (2016). The CFAA provides a private right of action for “[a]ny person who suffers damage or loss by reason of a violation of this section.” 18 U.S.C. § 1030(g). Continue Reading

FAA’s comprehensive new small UAS rules are here. How can they help your business?

On June 21, the Federal Aviation Administration (FAA) released long-awaited new rules for commercial, non-hobbyist small unmanned aircraft (sUAS) operations. The FAA’s press release about the new rules in part 107 of the FAA regulations is available here. FAA’s three-page fact sheet about the new regulations can be found at this link, and a 53-page advisory circular, which provides additional guidance, can be found here. The fact sheet and advisory circular are helpful resources, but by no means exhaustive, as the complete rules and commentary from the FAA fill 624 pages.

These final rules govern the commercial use of small (less than 55- pound) UAS. Many of our clients, who are understandably excited about the prospects of integrating drones into their businesses under a more defined regulatory regime, should become familiar with these detailed regulations before taking to the sky. That is also true for clients who may currently be operating sUAS pursuant to a Section 333 Waiver that they obtained from FAA before these new rules were finalized. The new rules address how those Section 333 Waivers apply under the new regulatory regime, and also how to obtain waivers from many of the new operational requirements.

Continue Reading

What is the immunity notice required to take full advantage of the Defending Trade Secrets Act?

We’ve previously posted about the Defending Trade Secrets Act allowing plaintiffs to pursue a trade secret claim in federal court. Our colleagues at Employer Law Report recently reported on how employers can take advantage of this Act. An important piece of the Act includes immunity from criminal and civil liability for employees who disclose their employer’s trade secrets. Read the post, “Employers wanting to take full advantage of the Defending Trade Secrets Act should consider including immunity notice in all new and updated confidentiality agreements.”

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.

 

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