Platform 2.0

Recent changes in the Terms of Use for Application Programming Interfaces (“APIs”) highlight the ways law and technology can work together to promote business innovation. While in the past web platforms have been relatively care free about how their data is used through APIs, such platforms have recently taken up a significant interest in controlling how the data is subsequently used. These policy changes, firmly within the discretion of such platforms, are a sign of things to come for web and mobile services.

Facebook, through its platform offering, ushered in a wave of website application innovation. For large web and mobile technology ventures, it is no longer enough to focus just on user adoption—developer adoption of a platform has become just as important. No amount of users can substitute for a cadre of independent developers. The most successful companies, such as Twitter and Facebook, now prioritize their API users the same way first generation web companies catered to unique website visitors. By supplying a platform for third-party developers to build upon, companies can harness outside creativity to drive growth on their platforms. API adoption has led to follow-on innovation and, in many cases, development of critical features that redefine the underlying platform.

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California Privacy Legislation: Wins and Losses

During September 2012, the California legislature voted in favor of three laws recognizing new privacy rights resulting from technological advancements and the ubiquity of Internet activity in the lives of Americans. California Governor Jerry Brown took two steps forward in the name of privacy by signing two of the laws, but took one step back by vetoing the third.

Social Media Information Off-limits For Employers and Postsecondary Educational Institutions

On September 27, 2012, Governor Brown signed two laws effectuating new protections for personal social media account information and passwords, thus making California the third state (joining Maryland and Illinois) to enact a social media privacy law—something even Congress is considering implementing on a federal level. The first law, Senate Bill 1349, institutes new privacy protections for students at California’s postsecondary educational institutions, and the second law, Assembly Bill 1844, institutes similar protections for employees or applicants for employment. Both laws take effect January 1, 2013. The laws have been hailed by privacy proponents, like the ACLU, as an affirmation of existing privacy rights brought into the online context. But, not all discussion of the new laws has been as positive. Some legal experts critique the laws for being too vague in their language and thus problematically overbroad in their eventual application.

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Patents, Progress, and Prognostication: A Recent AIA-Mandated Study Scans a Hazy Horizon

Last year’s passage of the Leahy-Smith America Invents Act (AIA) promised significant changes to the Patent Act, but the effect of those changes remains to be seen – largely because the most sweeping revisions have not yet taken effect.  Though the AIA was signed on September 16, 2011, there have been few changes in the patent process.  Fees have been raised, a reserve fund has been created, and much research has begun.  However, many revisions are still inchoate, and require a bureaucratic process of meetings, reports, and recommendations.

In January of this year, the United States Patent and Trademark Office (“PTO”) released two AIA-mandated reports.  The first report is titled “International Patent Protections for Small Businesses,” and it analyzes the value of foreign patents for startups.  Though hardly a sliver of the coming overhaul of the Patent Act, the report is an interesting study in one element of the AIA’s perceived role in stimulating a still-flagging economy. Continue reading

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Drafting Health Sciences Process Claims after Prometheus

The Supreme Court’s decision in Mayo v. Prometheus (2012) raised the 35 USC §101 bar on patentable process claims in the health sciences.  Prometheus’ patented processes adjusted the dosage of thiopurine, based on the concentration of drug metabolites in a patient’s blood.  The Supreme Court found that these metabolite-efficacy relationships embodied laws of nature: “the relationships between concentrations of certain metabolites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm” are “laws of nature.”  Moreover, the additional steps of “administering” the drug and “determining” the metabolite levels did not make the claims patentable.  The Court noted that doctors already “administered” thiopurine drugs to treat patients with autoimmune diseases, and methods for “determining” metabolite levels were “well known in the art.”  Therefore, these two additional steps were “purely conventional or obvious pre-solution activity” and they were not sufficient to make the entire processes patentable.

While Prometheus may have narrowed the scope of §101, it also left clues for how to successfully draft patentable health sciences process claims.  These clues are: (1) root the process in a physical transformation; and (2) frame a robust inventive concept. Continue reading

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Golan v. Holder and the URAA’s Impact on the Public Domain

Peter and the Wolf, a symphony written by Sergei Prokofiev in 1936, recently received national attention through the Supreme Court decision of Golan v. Holder.  Golan, decided on January 18th, 2012, upheld the constitutionality of Section 514 of the Uruguay Round Agreements Act (“URAA”)—a provision that brought the United States into better compliance with international copyright conventions.  Section 514 removes certain foreign works, like Peter and the Wolf (a popular orchestral piece for young children), from the public domain.  In other words, Section 514 “restores” copyright entitlements to the owners of these works for a specified amount of time.

The controversy of this Section arises for people like Lawrence Golan who previously enjoyed free access to these works without having to seek permission from copyright holders.  Others, like the Electronic Frontier Foundation, see even larger issues between private and public interests at stake with the upholding of URAA.  Accordingly, the petitioners challenged the constitutionality of the Section both under the Constitution’s Copyright and Patent Clause (Art. I, § 8, cl. 8 ) and under the First Amendment of the Constitution.  Although the Court ultimately upheld the constitutionality of Section 514, the majority and dissent opinions bring some interesting tensions to the foreground.

Legal Background

The International Context

The Berne Convention, which originally went into effect in 1886, is an agreement that governs the copyright relations between its member nations.  More specifically, the Berne Convention grants nationals of member nations copyright protection in other member nations for a minimum of the author’s lifespan plus fifty years, unless the copyright term has expired in the nation of origin or the nation in question. Continue reading

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Recent Developments in Trade Secret Law

With New Jersey’s recent adoption of a variation of the Uniform Trade Secret Act (“UTSA”), all but four states (Massachusetts, New York, North Carolina and Texas) have implemented some form of the UTSA. However, courts in some of the states adopting versions of the UTSA are still drawing the limits of their statutory liability for misappropriation of trade secrets. Most recently, courts in California and Virginia have handed down key decisions clarifying statutory application.

New Jersey Joins the Ranks of the UTSA

On January 9, 2012, Governor Chris Christie signed into law the New Jersey Trade Secrets Act (S-2456/A921), which covers issues of trade secret misappropriation previously dealt with under common law. The statute aligns closely with the UTSA but differs in some significant ways. First, the statute specifically incorporates the protections of the common law stating that application of the statute shall not “be construed to deny, abrogate or impair any common law . . . right, remedy or prohibition.” One interpretation of the statute predicts that application of this section of the statute will protect proprietary and/or confidential information that does not meet the statutory requirements of trade secret, but was none the less protected under common law. Continue reading

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Post Grant Review as a Tool for Challenging Pharmaceutical Patents

Under the recently passed Leahy-Smith America Invents Act (“AIA”), generic drug manufacturers will be able to use post grant review (“PGR”) to effectively invalidate or constrain pharmaceutical patents. The efficiency of PGR and the lower burden of proof for the PGR process in comparison to patent litigation makes PGR an attractive new tool for generic drug manufacturers.  Furthermore, generic drug manufacturers can effectively avoid estoppel under a counterclaim exception for PGR.  The primary constraint on PGR, with respect to pharmaceutical litigation, is that patents must be challenged under PGR within nine months of their issuance.  At that early stage, it could be uncertain if a particular pharmaceutical patent is valuable and worth challenging, as the compounds and treatment methods described in the patent may only be in the early stages of clinical trials.

The Post Grant Review Process

PGR is a process where a third party can challenge patent claims within nine months of their issuance using evidence on a broad range of grounds, such as subject matter, novelty, nonobviousness, enablement and written description. 35 USC § 321(b),(c). Continue reading

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President Obama’s Privacy Bill of Rights: Encouraging a Collaborative Process for Digital Privacy Reform

On February 23, 2012 President Obama’s administration (“the Administration”) released an important new report entitled “Consumer Data Privacy In A Networked World: A Framework For Protecting Privacy And Promoting Innovation In The Global Digital Economy.” President Obama situates the new report as a mechanism that encourages the further development of online enterprises by protecting, enlightening, and enabling consumers’ privacy choices. “For businesses to succeed online,” President Obama asserts, “consumers must feel secure.”

The report announced the Administration’s new four-element online privacy framework, which is designed to augment already existing privacy protection laws. The first, and perhaps most critical, element of the new framework is a Consumer Privacy Bill of Rights (“CPBR”). The framework also consists of a multistakeholder process “to specify how the principles in the [CPBR] apply in particular business contexts, recommendations for effective enforcement, and a commitment to increase interoperability with international privacy protections.”

This post includes a dissection of each of the four elements of the Administration’s new framework, followed by a discussion of initial reactions to the framework.

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United States v. Jones Decided?

On January 23, 2012, the United States Supreme Court handed down its decision on United States v. Jones, No. 10-1259, 2012 BL 14420 (U.S. Jan. 23, 2012), regarding the warrantless use of a GPS tracking device by law enforcement to track the actions of a suspected criminal. This author previously covered the D.C. Circuit’s decision and the oral arguments heard by the Supreme Court last November. After oral argument, this author predicted that the Court would find that GPS tracking without a warrant violates the Fourth Amendment. While the Court found that in this case the Government had violated Jones’s Fourth Amendment rights, the ambiguous majority opinion and concurrences have left the public questioning the implications of the decision beyond the facts of this case.


The Opinion: Justice Scalia 

Delivering the opinion of the court, Scalia holds that the law enforcement’s placement of a GPS device on a vehicle and then using that device to track the vehicle’s movements constituted a “search.” Id. at *3. Notably, Scalia — joined by Chief Justice Roberts and Justices Kennedy and Thomas as well as Justice Sotomayor in part through her concurrence — found that by using the GPS tracking device, the Government had “physically occupied private property for the purpose of obtaining information” such that the “physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at *4. Scalia’s majority focuses its analysis on the jurisprudence of common-law trespass and takes an originalism approach to the Fourth Amendment — focusing on what the authors of the Amendment intended to protect against. Id. Continue reading

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When The Net Went Dark: SOPA, PROTECT IP and the Birth of an Internet Movement

On October 26, 2011, House Representative Lamar Smith (R-TX) introduced H.R. 3261, the Stop Online Piracy Act (SOPA). The bill was the House’s version of Senate Bill S.968, also known as the PROTECT IP Act, which was introduced on May 12, 2011 by Senator Patrick Leahy (D-VT). The stated purpose behind both bills was to provide increased protection for U.S. copyright owners against foreign websites that broadcast infringing content. Both bills were supported in large part by the recording and motion picture associations, but received harsh criticism from dozens of digital rights advocacy groups, technology companies, and media commentators. This criticism eventually lead to a worldwide day of protest on the Internet, with sites such as Wikipedia and Reddit shut-down operations and called upon users to contact their representatives to voice their opposition towards the bills. After receiving an unprecedented amount of calls and emails from their constituents, numerous supporters of the bills dropped their endorsements. As a result, both bills have subsequently been permanently stalled. The blackout campaign and the ensuing activist effort by Internet users may represent a key turning point in debates of the future of copyright legislation and reform. Commentators have noted that the very strong showing of public support suggests that while copyright law “was historically seen a technical system of rules” whose reach “only influenc[ed] the content industry,” the permeation of technology into the everyday lives of citizens has thrust the issue to the forefront of public consciousness.

Background Analysis of the Acts

Overview of the PROTECT IP Act (“PIPA”)

Following an earlier stalled attempt at passing similar legislation, on May 12, 2011, Senator Leahy introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (the PROTECT IP Act or “PIPA”).

The Act contained language that would authorize the Attorney General to initiate a civil forfeiture proceeding against a nondomestic domain name that is used in the U.S. and is associated with an Internet website “dedicated to infringing activities.” Continue reading

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