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High-Tech Law & Litigation Blog

AI is Here, Is Your Company Ready? (Hint: No)
First published by The National Law Journal

In this article, Danny Tobey discusses the importance of companies and their legal counsel preparing for the impact of AI. From questioning “What Happens to Tort Law” to discussing how AI could challenge professional judgment and create new privacy issues, the message is clear: Companies and their legal teams should be thinking about the changes AI will bring and how to manage associated risks as AI continues to evolve.

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  • 30
  • November
  • 2017

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IP Implementers Beware: Assistant Attorney General Delrahim Stakes Out New Balance in Intersection of Innovation and Antitrust Policy

In the few short weeks since his Senate confirmation in late September, new DOJ Antitrust Division boss Makan Delrahim has wasted no time staking out the Division’s position regarding certain key areas of antitrust enforcement and regulation. One of those areas is innovation policy and, specifically, the intersection of antitrust law and intellectual property in the context of standard-setting organizations (“SSOs”) and policies regarding the licensing of standard-essential patents (“SEPs”). Assistant Attorney General Delrahim’s comments on this subject are especially interesting given that he is the first registered patent lawyer to helm the DOJ Antitrust Division. In a speech at the University of Southern California’s Gould School of Law earlier this month, Assistant Attorney General Delrahim made clear his belief that the application of competition policy and enforcement has been too heavy-handed in the SSO and SEP arena and that the scale has been tipped for too long in favor of implementers.

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  • 21
  • November
  • 2017

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Suggestion and Innuendo Held Insufficient To Create Federal Jurisdiction in Qualcomm Patent Licensing Litigation

Qualcomm scored a victory in one of the many battles in its war with Apple and others surrounding licensing practices for baseband processors. In July, Apple — which is suing Qualcomm for allegedly overcharging for licenses to use its chip patents and withholding over a billion dollars in royalties — amended a pending complaint to add claims relating to an additional nine patents-in-suit. In August, Qualcomm moved to dismiss the additional claims relating to those nine patents on the grounds that the court lacked declaratory judgment jurisdiction to hear the claims. This month, the Southern District of California dismissed the additional claims, agreeing with Qualcomm that jurisdiction did not exist.

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  • 16
  • November
  • 2017

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Businesses Increasingly Subjected to Class Action Lawsuits Alleging Violations of Illinois Biometric Information Privacy Act

Biometrics — measurements of a person’s physical being, such as fingerprints, retinal or iris scans, or facial recognition — are being increasingly used in commercial settings. For example, many employers are using biometric timekeeping systems, allowing employees to clock in and out with a fingerprint.

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  • 14
  • November
  • 2017

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Trumping Up CFIUS? Proposed Legislation Expands CFIUS Reviews To Include a Wide Variety of Technology Transactions

Section 721 of the Defense Production Act of 1950 (the “DPA”) authorizes the President of the United States and the Committee on Foreign Investment in the United States (the “Committee” or “CFIUS”) to take such action to protect the national security with regard to any transaction in which a foreign person could obtain control of a U.S. business (a “Covered Transaction”). Practitioners generally believe that CFIUS has and wields broad and effective authority to protect the national security of the United States. However, Senator John Cornyn (R-Texas) and key figures within the Administration apparently do not share that view, as on November 8, 2017, Senator Cornyn and a bipartisan group of co-sponsors introduced the Foreign Investment Risk Review Modernization Act of 2017 to amend the DPA (the “Amendment”). If enacted, the Amendment will significantly expand the authority of CFIUS by broadening the types of transactions that CFIUS is able to review and lengthening the list of factors that CFIUS is to take into account when assessing the impact of a transaction on the national security of the United States.

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  • 26
  • October
  • 2017

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The FTC Issues Clarifications on the Children’s Online Privacy Protection Rule and Voice Recordings

On October 23, 2017, the Federal Trade Commission released a new policy enforcement statement regarding the Children’s Online Privacy Protection Rule (“COPPA”), a rule designed to “strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13.” The FTC’s new policy statement clarifies that the Commission will not require online providers and websites to acquire parental consent for the recording of a child’s voice for the purpose of replacing written words — such as for a command or a search done using a home voice control system. For example, the FTC will not enforce if a home voice control system records a child’s voice when they ask a question or give a request. This clarification is not without limit, as we explain here.

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  • 18
  • October
  • 2017

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The Chips Continue to Fall Against Qualcomm: Taiwanese Competition Authority Announces $773 Million Fine for Anticompetitive Licensing Practices

Add Taiwan to the growing list of parties looking to chip away at Qualcomm Inc. (“Qualcomm”) for its allegedly unfair licensing practices. Last week, the country’s competition authority, the Taiwan Fair Trade Commission (“TFTC”), issued a statement that it is seeking fines of TWD 23,400,000,000 (roughly $773 million U.S. dollars) from Qualcomm, partly based on its so-called “no license, no chips” policy about which we have previously written. In an English translation of the statement, the TFTC said Qualcomm had abused its monopolies in baseband chip markets of cellular standards such as CDMA, WCDMA, and LTE, including refusing to license its standard essential patents to competitors, and refusing to allow mobile phone manufacturers to purchase its chips without signing a licensing agreement with the company. These allegations mirror those leveled by the FTC in its January complaint against Qualcomm and the onslaught of civil cases that have followed.

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Something for Everyone: Businesses Across All Industries Can Learn from FTC's "Stick with Security" Guidance on Data Security Best Practices

As a dynamic follow-up to its “Start with Security” guide, the Federal Trade Commission (“FTC”) debuted in July its “Stick with Security” initiative to provide continued guidance to businesses on sound security practices. The initiative has kicked off with a series of Friday blog posts, each emphasizing a security best practice drawn from the FTC’s closed investigations, its law enforcement actions, and questions it has received from businesses. In the first blog post, published July 21, 2017, the FTC revealed some of the themes that resulted in the FTC not taking law enforcement action.

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Uber Settles with the FTC, Tying Itself to the Agency For Up To 20 Years

On August 15, 2017, three years after it faced backlash from the media, Uber has settled with the Federal Trade Commission (FTC) over allegations that despite its representations, the company failed to secure customer data and failed to monitor employee access to that data, thus engaging in unfair or deceptive acts or practices affecting commerce in violation of the Federal Trade Commission Act, 15 U.S.C. § 45(a). We cannot explain why it took three years for the decision to be issued. Regardless, the decision is a reminder that parties must accurately describe their security programs, must take reasonable and appropriate steps to protect personal information, and must test the efficacy of their privacy programs.

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The House Passed the First-Ever Autonomous Vehicles Bill, “SELF DRIVE Act” — Cruising Down the Road to the Senate

On September 6, 2017, the House took a major step toward enacting what could become the first-ever federal law to regulate autonomous vehicles. The Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act or the “SELF DRIVE Act” (H.R. 3388), introduced earlier by the House on July 25, 2017, and approved unanimously by the House Energy and Commerce Committee on July 27, 2017, was passed by voice vote immediately after the lawmakers came back from their summer recess. This fast-tracking shows that this bill is uncontroversial and bipartisan, which bodes well for autonomous vehicles and automakers and tech companies.

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  • 07
  • September
  • 2017

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European Court of Justice Says the General Court Cannot Take Shortcuts in 18-Year-Old Antitrust Case

On September 6, 2017, the European Court of Justice (“ECJ”) reversed a 2014 General Court decision upholding the European Commission’s €1.06 billion judgment against chip maker Intel. But the ECJ reversed the General Court, concluding that it failed to take into account some of the argument put forth by Intel. The ECJ effectively held that the General Court had taken an inappropriate shortcut and has ordered the General Court to reconsider Intel’s As-Efficient competitor (“AEC”) arguments. While the ECJ was concerned that all arguments were not addressed, none of the European institutions involved in this matter appear to be concerned about a process that is now about to leave its adolescence, going into its eighteenth year. One wonders about the efficacy of an antitrust process that requires eighteen years to adjudicate.

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  • 30
  • August
  • 2017

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Qualcomm and Apple Further Their Dispute About Whether Certain Patents Are, In Fact, Disputed

A series of motions in the ongoing battle between tech blue chips Qualcomm and Apple about whether the Southern District of California (or any federal court) has jurisdiction to hear additional patents-in-suit in Apple’s amended complaint raises the question of exactly what actions a patent holder must undertake to create an actual case or controversy for a patent-law declaratory judgment action.

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  • 10
  • August
  • 2017

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Public Fora in for a Change? Social Media and Data Analytics Are Changing Constitutional Free Speech Law, and Businesses May Feel the Effects

In June, the U.S. Supreme Court invalidated a North Carolina law barring registered sex offenders from accessing social media websites on the grounds that the law violated the First Amendment. Packingham v. North Carolina, 137 S. Ct. 1730, 1738 (2017). In so holding, the Court recognized the importance of social media as a tool for public expression. Writing for the majority, Justice Kennedy observed that social media websites “provide perhaps the most powerful mechanisms available to a private citizens to make his or her voice heard”—“allow[ing] a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’” Id. at 1737 (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)).

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Congress Supports the Deployment of Autonomous Vehicles ("AVs") — First-Ever Federal Laws Being Developed

The House Energy and Commerce Committee, on July 27, 2017, approved seven committee bills including H.R. 3388, Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act or the “SELF DRIVE Act” by a unanimous vote of 54-0. https://energycommerce.house.gov/news-center/press-releases/54-0 According to the Committee, this legislation will prioritize consumer safety, reduce traffic-related fatalities, and clarify federal and state government roles around emerging automated vehicle technologies. This will be the first-ever legislation to be voted by the House that concerns AVs.

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Contributors

Jason A. Levine

Jason A. Levine Partner

Jennifer C. Chen

Jennifer C. Chen Partner

Devika Kornbacher

Devika Kornbacher Partner

Danny Tobey

Danny Tobey Partner

William R. Vigdor

William R. Vigdor Partner

Marc A. Fuller

Marc A. Fuller Counsel

John Andren

John Andren Associate

Thomas W. Bohnett

Thomas W. Bohnett Associate

Megan Coker

Megan Coker Associate

Caroline Colpoys

Caroline Colpoys

Trey Hebert

Trey Hebert Associate

Keeney, Jeremy C.

Jeremy C. Keeney Associate

Howard Lithaw Lim Associate

Kimberly R. McCoy

Kimberly R. McCoy Senior Associate

Elizabeth Krabill McIntyre

Elizabeth Krabill McIntyre Senior Associate

David C. Smith

David C. Smith Senior Associate

Janice Ta

Janice Ta Senior Associate

Margaret D. Terwey

Margaret Dunlay Terwey Associate

Ryan B. Will

Ryan Will Associate

Siho (Scott) Yoo

Siho (Scott) Yoo Associate