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The Economic Espionage Act

In April 2012, the Second Circuit in United States v. Aleynikov reversed the defendant’s conviction under the Economic Espionage Act (EEA) holding that the misappropriated trade secrets were not sufficiently related to a product produced for or placed in interstate or foreign commerce, as required under Section 1832(a). The defendant, a former employee at Goldman Sachs, was responsible for developing computer programs used in the bank’s high-frequency trading (HFT) system.




M&A and Government Immunity

The Supreme Court’s decision in FTC v. Phoebe Putney Health System Inc., 133 S. Ct. 1003 (2013) put a limitation on the state immunity under which local governments across the country have relied upon for decades to shield their activities from federal antitrust scrutiny. This decision will open the door to challenging numerous government transactions including the transactions consummated before the Phoebe Putney decision. Until Phoebe Putney, the Supreme Court




RAND Obligations and Injunctive Relief

Entities that are parts of technology standard-setting organizations are typically required to promise, in some fashion, to license patents essential to any resultant standard on reasonable and nondiscriminatory terms. Once the standard has been promulgated, the standard essential patents (“SEP”s) may be asserted in litigation and the patent holder is expected to live up to reasonable and non-discriminatory (“RAND”) terms. A thorny issue for courts and litigants in the context




The White House on ITC Section 337

On June 4, 2013, the International Trade Commission (ITC) issued its Notice of Final Determination in the ’794 Investigation finding that Apple had violated Section 337 with respect to one of Samsung’s patents. Based on this determination, the Commission issued both a limited exclusion order and cease and desist order barring Apple from importing its iPhone 4, iPhone 3GS, iPad 3G, iPad 3 and iPad 2 models for sale in




Employee Access vs. Misappropriation of Trade Secrets

The Michigan District Court in Dana Limited v. American Axle and Manufacturing Holdings, Inc., 1:10-cv-00450 (W.D. Mich. Aug. 19, 2013) addressed an important aspect of a trade secret misappropriation claims, holding that the mere fact that a former employee had access to a valid trade secret does not necessarily mean that he or she misappropriated the trade secret just, by the act of accepting employment at a competing company. In May




IP License Agreements Under the AIA

Over the past few years, there has been an ongoing subject matter jurisdiction battle between state courts and federal circuit courts. This jurisdiction battle is especially prevalent in cases where a complaint asserts a non-patent cause of action with an underlying patent issue, such as disputes over intellectual property licensing or malpractice claims. In most patent cases the “arising under” analysis for the Federal Circuit jurisdiction is fairly straight forward because a




Do Business Method Patents Hurt or Help?

Do Business Method Patents Hurt or Help? A Financial Industry Perspective, 14 VA. J.L. & TECH. 147 (2009). Abstract The State Street Bank decision of 1998 affirmed U.S. business method patents. Along with the subsequent downpour of patent filings came a shower of commentary from the legal and business communities alike. The literature has generally been thoughtful and well-reasoned, or at least well-meaning. But as practitioners in the fields, we




The Lanham Act and Jim Brown

On July 31, 2013, the Ninth Circuit affirmed dismissal of the Lanham Act claims brought by Jim Brown, a former NFL star, against video game developer Electronic Arts, Inc. (EA). The court concluded that the Rogers balancing test was the appropriate standard to evaluate defendant EA’s use of Brown’s likeness in video games, and since the use of his likeness was artistically relevant to games, it is protected by the




The Federal Circuit Rules on Apple v. ITC

On August 7, 2013, the Federal Circuit affirmed-in-part the lower court’s decision in Apple Inc. v. ITC (2012-1338) finding no Section 337 violation in Certain Mobile Devices, and Related Software Thereof (Inv. No. 337-TA-750). The Federal Circuit ruled that Apple’s U.S. Patent No. 7,663,607, which related to a touch panel with a transparent capacitive sensing medium that can detect multiple touches at once, was invalid for anticipation and obviousness, and




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