Intellectual Property & Technology: Updates

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  • Volitional Conduct Required for Direct Copyright Infringement Claim: Fifth Circuit Published on March 29, 2017 Legal update: archive

    In BWP Media USA, Inc. v. T&S Software Associates, Inc., the US Court of Appeals for the Fifth Circuit held that volitional conduct is required to establish a direct copyright infringement claim.

  • Virginia Amends Data Breach Statute Published on March 28, 2017 Legal update: archive

    Virginia has amended its data breach notification statute to require employers and payroll service providers to notify the Virginia Attorney General if they discover or are notified of unauthorized access to certain payroll data containing a taxpayer identification number and income tax withholding information.

  • Business-only E-mail Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company Email for Section 7 Activity: NLRB Published on March 27, 2017 Legal update: archive

    In Purple Communications, the National Labor Relations Board (NLRB) overruled the core holding in Guard Publishing (Register-Guard) and held that employees who are provided access to employer email systems for work have a statutory right under the National Labor Relations Act (NLRA) to use those systems to communicate about union matters and the terms and conditions of employment during nonworking time. The NLRB adopted a presumption that email rules banning nonwork use of email violate the NLRA unless an employer demonstrates that special circumstances make the ban necessary to maintain production or discipline.

  • US Supreme Court Clarifies Section 101 Standard for Copyrighting Design Features Published on March 24, 2017 Legal update: archive

    In Star Athletica, L.L.C. v. Varsity Brands, Inc., the US Supreme Court held that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature can be perceived as a two- or three-dimensional work of art separate from the useful article, and would qualify as a protectable pictorial, graphic, or sculptural work if it were imagined separately from the useful article into which it is incorporated.

  • Internet Streaming Service Not Compulsory-License-Eligible Cable Provider: Ninth Circuit Published on March 22, 2017 Legal update: archive

    In Fox Television Stations, Inc. v. Aereokiller LLC, the US Court of Appeals for the Ninth Circuit held that internet-based retransmission services are not cable systems eligible for compulsory licenses under Section 111 of the Copyright Act.

  • Panduit Factors May Render Apportionment Unnecessary: Federal Circuit Published on March 17, 2017 Legal update: archive

    In Mentor Graphics Corp. v. EVE-USA, Inc., the US Court of Appeals for the Federal Circuit held that apportionment of lost profit damages was unnecessary after the Panduit factors are met, a patent owner does not need to seek a preliminary injunction to assert willful infringement, and claim preclusion does not bar claims that arise after resolution of a previous litigation.

  • Copyright Royalty Board Proposes Changes to Compulsory License Royalty Fee Claims Rules Published on March 17, 2017 Legal update: archive

    The Copyright Royalty Board is soliciting public comments on proposed changes to the regulations governing compulsory license royalty fee claims filing.

  • Home Depot Agrees to Settle Banks' Data Breach Claims for $25 Million Published on March 10, 2017 Legal update: archive

    In In re: The Home Depot, Inc., Customer Data Security Breach Litigation, Home Depot, Inc. agreed to pay $25 million to settle claims brought by numerous banks and credit unions for negligence, negligence per se, and violations of various unfair and deceptive trade practices statutes. These financial institutions had to reimburse customers and cancel and reissue compromised payment cards as a result of a data breach Home Depot experienced between April 2014 and September 2014. Home Depot also agreed to implement certain data security measures to reduce the risk of a future data breach.

  • Rule 68 Offers of Judgment Are Legal Nullities: Second Circuit Published on March 09, 2017 Legal update: archive

    In Geismann v. ZocDoc, Inc., the US Court of Appeals for the Second Circuit held an unaccepted Rule 68 offer of judgment is a legal nullity, regardless of that offer's terms.

  • What's Market License Agreements for the Month of February 2017 Published on March 07, 2017 Legal update: archive

    A list of license agreement summaries recently published by Practical Law What's Market. Practical Law What's Market provides a continuously updated database of license agreements that allows you to analyze and compare terms, including type of licensed IP, license grants and payment provisions, across multiple agreements. Practical Law What's Market also contains links to the underlying public documents.

  • FTC Releases Guidance on How Businesses Can Respond to and Stop Phishing Scams Published on March 06, 2017 Legal update: archive

    The FTC has released video and print guidance for businesses on how to respond to and prevent phishing scams.

  • Facebook Agrees to Settle Class Action For Scanning Social Media Messages Published on March 03, 2017 Legal update: archive

    Facebook has agreed to settle claims arising out of a class action alleging that the company violated the Electronic Communications Privacy Act of 1986 (ECPA) and California's Invasion of Privacy Act by utilizing data from private messages on its social media website without their senders' consent. Facebook agreed to make changes to its message processing practices and to provide more notification to users.

  • Judicial Review of Arbitration Award is “Very Limited”: Federal Circuit Published on March 03, 2017 Legal update: archive

    In Bayer CropScience AG v. Dow Agrosciences LLC, the US Court of Appeals for the Federal Circuit issued a non-precedential opinion holding that ordinary, or even serious, legal or factual error is not a ground for disturbing an arbitral award on patent infringement and contract claims.

  • FCC Blocks Data Security Regulation for Internet Service Providers Published on March 02, 2017 Legal update: archive

    The Federal Communications Commission (FCC) has issued an interim partial stay of a 2016 regulation which would have required internet service providers to take reasonable data security measures to protect consumer personal information.

  • US Copyright Office Proposes New Rule Concerning Disruption of Copyright Office Electronic Systems Published on March 02, 2017 Legal update: archive

    The US Copyright Office is seeking public comments on a proposed rule to amend its regulations concerning delays in the receipt of material caused by the disruption of postal or other transportation or communication services. As proposed, the rule would, among other things, specify how the Copyright Office assigns effective dates of receipt when a specific submission is lost in the absence of a declaration of disruption.

  • NYDFS Published Final Cybersecurity Rules Published on February 23, 2017 Legal update: archive

    The New York State Department of Financial Services has published final cybersecurity regulations for banks, insurers, and other financial services institutions subject to its jurisdiction.

  • Article 29 Working Party publishes Privacy Shield complaint documentation Published on February 23, 2017 Legal update: archive

    The Article 29 Working Party has published Privacy Shield complaint documentation and rules of procedure relating to its complaint body.

  • The Extra-Territorial Reach of PIPEDA: T. (A.) v. Published on February 22, 2017 Legal update: archive

    On January 30, 2017, the Federal Court of Canada released its milestone decision on the importance of the right of privacy in relation to personal information in online court and tribunal decisions and the extra-territorial reach of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA), in T. (A.) v., 2017 CarswellNat 184 (F.C.). This Update summarizes this recent decision and highlights important privacy law developments relating to the online publication of personal information and the international scope of PIPEDA.

  • Supreme Court Holds Supplying Single Component Insufficient For Section 271(f)(1) Liability Published on February 22, 2017 Legal update: archive

    In Life Technologies Corp. v. Promega Corp., the US Supreme Court held that supplying a single component of a multicomponent invention is not an infringing act under 35 U.S.C. § 271(f)(1) because a single component is not sufficient to qualify as "a substantial portion" of a multicomponent invention under the statute.

  • In $5.5 Million HIPAA Settlement, HHS Cites Faulty Security Audit Controls Published on February 21, 2017 Legal update: archive

    The Department of Health and Human Services (HHS) announced a $5.5 million settlement with a public health care system, and covered entity under the Health Insurance Portability and Accountability Act (HIPAA), to address potential HIPAA violations involving the disclosure of individuals' protected health information.

  • Prior Litigation Subjects Foreign Non-Practicing Entity to Personal Jurisdiction: Federal Circuit Published on February 17, 2017 Legal update: archive

    In Xilinx, Inc. v. Papst Licensing GmbH & Co., the US Court of Appeals for the Federal Circuit held that a foreign non-practicing entity's history of patent litigation in California can be considered to satisfy the fair play and substantial justice prong for specific personal jurisdiction.

  • Article 29 Working Party approves Google's G-Suite apps and Google Cloud Platform model clauses Published on February 10, 2017 Legal update: archive

    The Article 29 Working Party has confirmed that Google's model contractual clauses for cross-border transfers of personal data for European business customers of G-Suite (formerly, Google Apps) and Google Cloud Platform meet the requirements of the EU's Data Protection Directive (95/46/EC).

  • Trump Regulatory Freeze Stalls New USPTO Trademark Use Rule Published on February 10, 2017 Legal update: archive

    President Trump's January 20, 2017 regulatory freeze has delayed the implementation of the US Patent and Trademark Office (USPTO) rule amending its examination requirements for affidavits or declarations of use in commerce, continued use, or excusable nonuse filed under Section 8 or Section 71 of the Trademark Act. The revision, originally slated for implementation on February 17, 2017, is now scheduled to take effect on March 21, 2017.

  • FTC Sues Shire ViroPharma Inc. for Interfering with FDA Approval of Generic Competitors Published on February 09, 2017 Legal update: archive

    On February 7, 2017, the Federal Trade Commission (FTC) filed antitrust charges against Shire ViroPharma Inc. alleging anticompetitive tactics aimed at delaying entry of generic drug competition for its antibiotic Vancocin HCl. The complaint alleges that ViroPharma misused government processes by engaging in repetitive and baseless filings to the US Food and Drug Administration (FDA) to block approval of generic competitors and maintain its monopoly.

  • US Copyright Office Seeks Public Comment on Interim Rule Implementing FOIA Improvement Act Published on February 09, 2017 Legal update: archive

    In an interim rule, the US Copyright Office amended the regulations covering its Freedom of Information Act (FOIA) practices and procedures to implement the FOIA Improvement Act of 2016 and provide clear guidance on filing FOIA requests with the office. The Copyright Office is requesting public comment on the interim rule.

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