Posts in Business

While many patent litigators have no plans to litigate in bankruptcy court, it is a possibility if the infringer of a client’s patent files for bankruptcy. The United States Bankruptcy Court for the Eastern District of Wisconsin recently conducted a Markman hearing. How did that happen?  After being sued for patent infringement in district court, the alleged infringer sought refuge in the bankruptcy court, staying the district court litigation. The plaintiff then filed a claim in the defendant’s bankruptcy case, which ultimately triggered the bankruptcy court’s jurisdiction. While rare, other bankruptcy courts have conducted claim construction proceedings. As discussed herein, the bankruptcy court ultimately granted a joint request for vacatur, prompting us to revisit the doctrine of vacatur.

CEOs, general counsels, and other senior leaders in a corporation often take a hands-off approach to IP strategy and execution, heavily delegating these functions to in-house IP counsel and related team members. This isn’t surprising given the esoteric nature of many IP matters and the extraordinary demands on senior leaders coming from all corners. The trust placed in corporate IP departments may be substantial, carrying with it largely unfettered discretion to set the IP agenda. Unfortunately, those outside the IP field may feel ill-equipped to verify that such trust is well placed. The worst-case result may be misaligned IP and business strategies, enormous spend, and missed opportunities.

Have you ever shopped for something dangerous? Back in the 1950s, my mother wanted to buy a pressure cooker to make dinner faster (and use cheaper cuts of meat). That wasn’t an easy decision, because the early models had a reputation for occasionally exploding (there was no Consumer Product Safety Commission then). My father, a self-taught steam engineer, was skeptical that a kitchen appliance could safely contain double the normal atmospheric pressure. But Mom did her homework, researching what the problems were (usually a single pressure valve prone to clogging) and finding cookers with redundant pressure relief systems. It worked for years, and no one went to the hospital. Companies shopping to buy other companies, or to acquire a license to their technology, also entertain risk. That’s because in the process of interviewing potential targets they can become exposed to highly valuable trade secrets. If any particular transaction doesn’t go forward, but the shopper implements similar technology, the disappointed seller may file a lawsuit claiming misappropriation.

Large banks have a reputation for being slow to change. However, in the past decade, the financial services industry has seen the wholesale adoption and implementation of new technology as firms realize that consumers and businesses are increasingly demanding a strong digital experience. In 2007, Bank of America was one of the first financial institutions to offer a mobile banking application and since then, the rest of the industry has followed suit. Now, consumers could not go without their banking apps ­– imagine going to the bank to deposit a check.

The intersection of intellectual property (IP) and antitrust law is again a hot debate after a recent speech by the U.S. Department of Justice Antitrust Division’s (“DOJ” or “Division”) Economics Director of Enforcement, Jeffrey Wilder, titled Leveling the Playing Field in the Standards Ecosystem: Principles for a Balanced Antitrust Enforcement Approach to Standards-Essential Patents. Before we dive in on the key takeaways from the speech, and our thoughts on potential ramifications, it bears briefly mentioning how we got here.

Just as we thought Facebook’s six-hour outage could be the biggest cybersecurity news in October, hackers were able to expose more than 100GB of data from Twitch. The livestreaming platform – purchased by Amazon for $970m in 2014 – is understood to still be trying to figure out how it happened. While this investigation unfolds, security experts are already warning of the potentially serious consequences for the business.

On June 7, 2021, the U.S. Food and Drug Administration (FDA) gave the green light to Aducanumab, a drug developed by Biogen to treat early stage Alzheimer’s, despite the controversies surrounding its efficacy. Biogen stock price increased 38.3% on the day, adding $16.5 billion to the company’s market value. The news rippled across the pharmaceutical industry and lifted stock prices of most Alzheimer’s drug developers. As an example, Eli Lilly stock price jumped 10.2% on June 7, or a hike of $18.6 billion in market cap, because the company also has a similar drug candidate. Subsequently, as the controversies over the Aducanumab approval deepened, Biogen had lost $7 billion in market value by September 9. With all of these multi-billion-dollar numbers, one can’t help but wonder: how much is an Alzheimer’s drug worth? This article tries to assess the market value of an Alzheimer’s drug. It first estimates the implied values of Alzheimer’s drugs by looking into stock market reactions to major events associated with Biogen’s Aducanumab and Eli Lilly’s Donanemab. As a sanity check to the values derived from the stock market, a discounted cash flow (DCF) analysis is conducted to evaluate whether the stock market valuations are rational.

Asserting that diversity has made significant strides within today’s legal profession would, unfortunately, not be a winning case. And while it’s a hot topic today, the true importance of diversity, equity and inclusion seems to be overlooked. The fact of the matter is, embracing diversity is just good business. The practice of law is advanced by a diverse team. With diversity comes quality legal innovation. We need to manage conscious and unconscious bias to be open to people from all demographics, ethnicities, genders, orientations, educations, perspectives and backgrounds. Instead of a homogenous group of professionals with a singular approach, with a diverse team you gain the benefit of differential skillsets, outlooks, approaches and ways of processing that make a team stronger, bringing varied insights to cultures, systems, procedures and policies.

There’s hardly any area in entrepreneurship today that deals with innovation more than intellectual property rights protection – in fact, cutting edge technology and inventions are at the core of the IP industry. However, this doesn’t necessarily mean that the real-life practices, processes and management in the industry are as technologically advanced –it’s actually quite the contrary, or, at least, has been until recently.

In this article, we’re going back to basics and discussing why our smartphones work everywhere, doing things closer to science fiction of the 1960s or 70s than anyone would have believed, as well as the role that Standard Essential Patents (SEPs) play in making this happen. We are going to examine inherent conflict between innovators and inventors that create new products and services, patent their inventions, and the implementors that leverage and deploy those inventions. Most of all, we’re going to discuss the process that converts these inventions and patents into money. A lot of money. Millions, tens of millions, and sometimes even billions of dollars. Why? Because your smartphone would be a paperweight without these innovations and patents. And soon vehicles, home appliances, production lines, meters, healthcare devices and many more industries will follow.

Millions of content creators hoping to establish a cash machine on platforms like TikTok, YouTube and Instagram are learning that it takes more than lively moves and thousands of followers to be taken seriously. They are also discovering that not all creators are created equal, even when they are the source. Content on TikTok and other social media platforms is theoretically copyrightable. In practice, however, the IP rights of social media creators today are less clear. Work generated by lesser known creators, especially if they are young and Black, is being stolen with little apparent recourse.

As the way we live and work has increasingly moved into virtual environments (I like to call it a legal metaverse), the boundaries between physical, digital, and biological worlds become blurrier by the day. Sensors lie within devices installed across every aspect of our home, office and mobile environments, connected from the edge of each of your devices to networks that are both local and cloud-based (with many in a foggy place between the two). The ensuing data traffic requires massive computing power for transfer, storage, analysis, and response. The migration to automated cloud computing power has further accelerated the deployment of containers across the public, private and hybrid cloud ecosystems for the transfer, storage, analysis, and response layers. Kubernetes and Docker have emerged as ubiquitous technologies to build, deploy and manage containerized applications using automation, and investors have noticed. Understanding the key legal issues will enable more successful client relationships for both vendors and customers, and inevitably growth and value creation.

In the IP field, and countless others, online or virtual meetings have become ingrained in professional life, an enabler of remote working in the age of COVID-19 and beyond. Conference platforms such as Zoom, Microsoft Teams, Cisco WebEx, Google Meet, GoToMeeting, Slack, and BlueJeans are now essential tools for collaboration within and between enterprises. It doesn’t matter if you’re a tech enthusiast, straggler, or somewhere in the middle. You’ve had to adopt the technology or be left behind. Although united as users, we don’t uniformly leverage the functionality available on conference platforms. Notably, some of us diverge in our use, or non-use, of webcams during online meetings.

History is often defined by its most important technology, giving us eras such as the Bronze Age and the Industrial Revolution. Given their importance, the modern era may go down as the Semiconductor Age. But unless the United States begins making needed investments in this and other key technologies, the future may wind up being the Age of China. It is hard to overstate the importance of semiconductors. The most sophisticated of these computer chips help to control computers, airplanes, and even modern weapons systems. Less sophisticated versions are still critical components of our daily lives and power automobiles, TVs and home appliances. From an economic and national security standpoint, controlling our supply of semiconductors should be essential. Yet, U.S. companies have spent decades outsourcing and consolidating the manufacturing of this essential technology to other countries.         

You may remember 2014 as the year when we all discovered a plague of noncompete agreements threatening our economy. No? Let me help you. In June that year, the New York Times published an expose of sorts relating the story of a 19-year-old summer camp counselor who couldn’t get hired by a certain camp because the year before she signed a contract with another camp that blocked her from working for any nearby competitor. Noncompete contracts, the article suggested, had previously been reserved for high level corporate executives, and suddenly (and “increasingly”) they were being foisted on rank and file employees engaged in event planning, investment management, and even yoga instruction. A follow-on piece in the Times confirmed the emerging crisis by revealing that the Jimmy John’s fast food chain had forced noncompete clauses on all its sandwich makers (acknowledging, however, that there was no evidence that the company had ever tried to enforce the contracts).