What 70% of Americans Don’t Understand About Intellectual Property; Stites & Harbison, October 26, 2023

Mandy Wilson Decker, Stites & Harbison; What 70% of Americans Don’t Understand About Intellectual Property

"The United States Intellectual Property Alliance (USIPA) recently published the results of its US Intellectual Property Awareness & Attitudes Survey. Among its findings, the survey results revealed that 70% of Americans are unable to distinguish between mechanisms – patents, trademarks, copyrights, and trade secrets – for protecting Intellectual Property (IP).

Given these results, it's worth exploring the principal mechanisms for protecting IP, which each possess some distinctive features."

Introduction to Intellectual Property; West Virginia Libraries (WVU) , Tuesday, August 29, 2023

West Virginia Libraries (WVU) ; Introduction to Intellectual Property

"Curious about Trademarks, Copyrights, Patents, & Trade Secrets? Join us for an overview of intellectual property.

 Intellectual Property by Marian Armour-Gemmen"

Crocs and rival footwear maker Joybees clash over trade secrets in US court; Reuters, July 7, 2023

  Mike Scarcella, Reuters; Crocs and rival footwear maker Joybees clash over trade secrets in US court

"Footwear makers Crocs (CROX.O) and rival Joybees have filed competing claims against each other in U.S. court in Colorado, as the companies clash over corporate trade secrets, intellectual property and competition in the market for casual shoes.

Crocs sued Joybees in federal court on Thursday, expanding on a separate lawsuit that the Colorado-based company filed in 2021. The new complaint, accusing Joybees and its chief executive of unfair competition, came a day after Joybees filed claims in the same court against Crocs."

Twitter is threatening to sue Meta over Threads; Semafor, July 6, 2023

 Max Tani, Semarfor; Twitter is threatening to sue Meta over Threads

"Twitter is threatening legal action against Meta over its new text-based “Twitter killer” platform, accusing the social media giant of poaching former employees to create a “copycat” application.

On Wednesday, Instagram parent company Meta introduced Threads, a text-based companion to Instagram that resembles Twitter and other text-based social platforms. Just hours later, a lawyer for Twitter, Alex Spiro, sent a letter to Meta CEO Mark Zuckerberg accusing the company of engaging in “systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

“Twitter intends to strictly enforce its intellectual property rights, and demands that Meta take immediate steps to stop using any Twitter trade secrets or other highly confidential information,” Spiro wrote in a letter obtained exclusively by Semafor. “Twitter reserves all rights, including, but not limited to, the right to seek both civil remedies and injunctive relief without further notice to prevent any further retention, disclosure, or use of its intellectual property by Meta.”

Spiro accused Meta of hiring dozens of former Twitter employees who “had and continue to have access to Twitter’s trade secrets and other highly confidential information.”

Why Your Face Should Be a Trade Secret; University of Virginia School of Law, March 23, 2023

Mary Wood, University of Virginia School of Law; Why Your Face Should Be a Trade Secret

"Facial recognition technology is used to unlock phones, unlock doors of luxury homes and lock up criminals. It’s so powerful and rife with the potential to be misused that regulators should treat faces like trade secrets, says Professor Elizabeth A. Rowe on the season finale of “Common Law,” a podcast of the University of Virginia School of Law.

Rowe, one of the world’s leading experts on trade secrets and intellectual property, talks with hosts Dean Risa Goluboff and Professor Danielle Citron about her paper “Regulating Facial Recognition Technology in the Private Sector,” published recently in the Stanford Technology Law Review.

Rowe details not only how private corporations and governments are using facial recognition technology, but offers a glimpse at more extreme cases."

10 things to know about copyright and software; Lexology, June 20, 2023

Gowling WLG - Matt Hervey , Lexology; 10 things to know about copyright and software

"8. Other people can copy what your software does …

You can enforce your copyright against someone copying your code, not copying what your software does. Copyright protection only applies to "expression" not ideas and principles. Under UK and EU law, if someone has lawful access to your software (e.g. someone you have licensed to use it) they are entitled to study and test the way it functions to figure out (and copy) the ideas and principles underlying the software. In fact, any contractual provision to the contrary is null and void.

9. … so consider patent protection

Unlike copyright, patents grant you a 20-year monopoly over what your software does: you can stop other people doing the same thing and it does not matter whether they copied you or came up with the same idea independently. Getting patents for software is not straightforward and needs specialist advice on what is possible. You may also want to check if other people have patents covering what you want to do. Our Patents team can advise you on any challenges you face in a number of jurisdictions.

10. … and trade secrets 

Where patent protection is not possible or desirable, keeping the code and workings of your software secret may be the best option. Restrict access to source code (and AI-related assets such as training data, hyperparameters, models and outputs) with password protection, firewalls, access logs, etc. Use APIs to restrict third-party access to source or compiled code and considering restricting the throughput of access to your API (the performance of AI models can be partially reverse engineered quickly given unrestricted access to inputs and outputs).

Put in place training, policies and contractual terms with employees, contractors and collaborators for the protection, use and potential disclosure of trade secrets. Bake this into you IP strategy and procedures to benefit from the enforcement options for trade secrets and confidential information. Having good procedures helps to protect both your own secrets and third-party secrets entrusted to you … and to stop employees and contractors bringing unwanted third-party secrets into your business."

Keeping Your Trade Secrets a Secret: Three Common Myths about Trade Secret Protection that could put your Business's Trade Secrets at Risk; Lexology, April 10, 2023

Kane Russell Coleman Logan PC - Richard Hathaway, Lexology; Keeping Your Trade Secrets a Secret: Three Common Myths about Trade Secret Protection that could put your Business's Trade Secrets at Risk

"This blog post will address three common myths many business leaders have about protecting their trade secrets. 

Myth Number One: All Confidential Information is a Trade Secret.

Not all of your business's confidential information qualifies for trade secret protection. It's essential to understand the distinction between confidential information and trade secrets. While all trade secrets contain confidential information, not all confidential information qualifies as a trade secret. If you graphed these concepts as a Venn diagram, your business's trade secrets would be the smaller circle inside the more prominent "confidential information" circle. 

Under most Uniform Trade Secret Acts adopted by individual states and the federal Defense of Trade Secrets Act, to be considered a trade secret, the business information must:

• Have economic value derived from not being generally known or easily discoverable; and
• Be subject to reasonable efforts to maintain its secrecy. 

Common examples of legally recognized trade secrets include proprietary formulas, manufacturing processes, pricing lists, and customer lists. However, general business information, employee data, or other information your business keeps from prying eyes may only meet the criteria for trade secret protection if it has a competitive economic use for your business. Knowing the difference between these essential concepts is critical to understanding where your business should focus its limited resources to protect its trade secrets."

Generative AI Has an Intellectual Property Problem; Harvard Business Review, April 7, 2023

Gil Appel, Juliana Neelbauer, and David A. Schweidel, Harvard Business Review; Generative AI Has an Intellectual Property Problem

"This isn’t the first time technology and copyright law have crashed into each other. Google successfully defended itself against a lawsuit by arguing that transformative use allowed for the scraping of text from books to create its search engine, and for the time being, this decision remains precedential.

But there are other, non-technological cases that could shape how the products of generative AI are treated. A case before the U.S. Supreme Court against the Andy Warhol Foundation — brought by photographer Lynn Goldsmith, who had licensed an image of the late musician, Prince— could refine U.S. copyright law on the issue of when a piece of art is sufficiently different from its source material to become unequivocally “transformative,” and whether a court can consider the meaning of the derivative work when it evaluates that transformation. If the court finds that the Warhol piece is not a fair use, it could mean trouble for AI-generated works.

All this uncertainty presents a slew of challenges for companies that use generative AI. There are risks regarding infringement — direct or unintentional — in contracts that are silent on generative AI usage by their vendors and customers. If a business user is aware that training data might include unlicensed works or that an AI can generate unauthorized derivative works not covered by fair use, a business could be on the hook for willful infringement, which can include damages up to $150,000 for each instance of knowing use. There’s also the risk of accidentally sharing confidential trade secrets or business information by inputting data into generative AI tools."

NASA unveils new spacesuit specially tailored for lunar wear; The Business Standard, March 18, 2023

 Reuters via The Business Standard; NASA unveils new spacesuit specially tailored for lunar wear

"The precise look of the suits, however, remained a closely guarded trade secret. Those on display came with an outer layer that was charcoal grey with dashes of orange and blue and Axiom's logo on the chest - intended to obscure Axiom's proprietary outer fabric design."

The Daring Ruse That Exposed China’s Campaign to Steal American Secrets; The New York Times Magazine, March 7, 2023

 Yudhijit Bhattacharjee, The New York Times Magazine ; The Daring Ruse That Exposed China’s Campaign to Steal American Secrets

"Although China publicly denies engaging in economic espionage, Chinese officials will indirectly acknowledge behind closed doors that the theft of intellectual property from overseas is state policy. James Lewis, a former diplomat now at the Center for Strategic and International Studies in Washington, recalls participating in a meeting in 2014 or so at which Chinese and American government representatives, including an officer from the People’s Liberation Army, discussed the subject. “An assistant secretary from the U.S. Department of Defense was explaining: Look, spying is OK — we spy, you spy, everybody spies, but it’s for political and military purposes,” Lewis recounted for me. “It’s for national security. What we object to is your economic espionage. And a senior P.L.A. colonel said: Well, wait. We don’t draw the line between national security and economic espionage the way you do. Anything that builds our economy is good for our national security.” The U.S. government’s response increasingly appears to be a mirror image of the Chinese perspective: In the view of U.S. officials, the threat posed to America’s economic interests by Chinese espionage is a threat to American national security.'

Like China’s economy, the spying carried out on its behalf is directed by the Chinese state. The Ministry of State Security, or M.S.S., which is responsible for gathering foreign intelligence, is tasked with collecting information in technologies that the Chinese government wants to build up. The current focus, according to U.S. counterintelligence experts, aligns with the “Made in China 2025” initiative announced in 2015. This industrial plan seeks to make China the world’s top manufacturer in 10 areas, including robotics, artificial intelligence, new synthetic materials and aerospace. In the words of one former U.S. national security official, the plan is a “road map for theft.”"

Industrial espionage: How China sneaks out America's technology secrets; BBC, January 16, 2023

 Nicholas Yong , BBC News; Industrial espionage: How China sneaks out America's technology secrets

"It is part of a broader struggle as China strives to gain technological knowhow to power its economy and its challenge to the geopolitical order, while the US does its best to prevent a serious competitor to American power from emerging.

The theft of trade secrets is attractive because it allows countries to "leapfrog up global value chains relatively quickly - and without the costs, both in terms of time and money, of relying completely on indigenous capabilities", Nick Marro of the Economist Intelligence Unit told the BBC.

Last July FBI director Christopher Wray told a gathering of business leaders and academics in London that China aimed to "ransack" the intellectual property of Western companies so it can speed up its own industrial development and eventually dominate key industries. 

He warned that it was snooping on companies everywhere "from big cities to small towns - from Fortune 100s to start-ups, folks that focus on everything from aviation, to AI, to pharma"."

Bay Area vegan company sues founder for allegedly stealing trade secrets; SFGate, February 24, 2023

Susana Guerrero, SFGate ; Bay Area vegan company sues founder for allegedly stealing trade secrets

"“Instead of facilitating an orderly transition, following her termination as CEO, Schinner hatched a plot to steal the Company’s property, trade secrets, and confidential information so that she could create a competing company,” Miyoko’s Creamery wrote in the lawsuit."

Failures are valuable IP: Protect your startup’s negative trade secrets; TechCrunch via JDSupra, January 23, 2023

Eugene Y. Mar, Thomas J. Pardini, TechCrunch via JDSupra; Failures are valuable IP: Protect your startup’s negative trade secrets

"Technology companies and start-ups are familiar with protecting inventions with patents, and protecting their secret formulas, source code, and algorithms as trade secrets. But tech companies may not be aware of another powerful form of IP protection in California known as “negative trade secrets,” which are intended to protect a company’s secret know-how gained from extensive research investment about what does not work."

2022 Trade Secrets Webinar Series: Takeaways & Recordings; Seyfarth Shaw LLP via JDSupra, December 29, 2022

Seyfarth Shaw LLP via JDSupra; 2022 Trade Secrets Webinar Series: Takeaways & Recordings

"Throughout 2022, our dedicated Trade Secrets, Computer Fraud & Non-Compete practice group hosted a series of CLE webinars that addressed significant trade secret and restrictive covenant issues facing companies today. This year’s series included:

1. 2021 Trade Secrets & Non-Competes Year in Review
2. Protecting Trade Secrets and Enforcing Restrictive Covenants Internationally
3. Employee Mobility & Its Effects on Trade Secrets and Non-Competes
4. Anatomy of a Restrictive Covenant
5. How and Why Texas Is Different When It Comes to Trade Secrets and Non-Competes
6. How Multijurisdictional Businesses Should Approach Non-Competes
7. Protecting Confidential Information and Client Relationships in the Financial Services Industry
8. Overview of Non-Compete Legislation and Enforcement Issues from 2022

As a conclusion to our 2022 webinar series, we compiled a list of key takeaway points for each program. For those who missed any of the programs in this year’s series, recordings of all of our past webinars are available on the blog, or you may click on the link for each webinar below to view the recording."

US farmers win right to repair John Deere equipment; BBC News, January 9, 2022

Monica Miller, BBC News; US farmers win right to repair John Deere equipment

"Consumer groups have for years been calling on companies to allow their customers to be able to fix everything from smartphones to tractors.

The American Farm Bureau Federation (AFBF) and Deere & Co. signed a memorandum of understanding (MOU) on Sunday.

"It addresses a long-running issue for farmers and ranchers when it comes to accessing tools, information and resources, while protecting John Deere's intellectual property rights and ensuring equipment safety," AFBF President Zippy Duvall said.

Under the agreement, equipment owners and independent technicians will not be allowed to "divulge trade secrets" or "override safety features or emissions controls or to adjust Agricultural Equipment power levels.""

Congress Passes The Protecting American Intellectual Property Act of 2022; JD Supra, December 28, 2022

Corey Bauer, Houston Harbaugh, P.C.; Congress Passes The Protecting American Intellectual Property Act of 2022

"In furtherance of the U.S. Government’s effort to protect American intellectual property, the House of Representatives passed the Protecting American Intellectual Property Act on December 22, 2022. This quickly followed the Senate’s passing of the Act on December 20, 2022. The Act now goes to President Biden’s desk to be entered into law or vetoed. See Text of the Enrolled Bill here.

The Protecting American Intellectual Property Act requires that the President periodically report “a list of foreign individuals and entities that have knowingly engaged in, benefited from, or assisted in the significant theft of U.S. trade secrets that materially contributed to a significant threat to U.S. national security, foreign policy, or economic health.”[1] The first report will be six (6) months after the Act is entered into law, with an annual report every year thereafter. The report shall also list foreign individuals who are chief executive officers or board members of any foreign entity engaging in the theft identified by any report."

Pizza dough trade secrets case pits Schwan's against Conagra; AgWeek, December 8, 2021

Jeff Beach, Ag Week; Pizza dough trade secrets case pits Schwan's against Conagra

"Court documents state that “Schwan’s alleges that from the time Cai accepted the job at Conagra until he was escorted from Schwan’s property, he accessed files containing Schwan’s confidential and proprietary information and trade secrets on several projects related to grain, pizza crust, and encapsulated sugar, among other projects.” 

Schwan’s also says Cai took devices and notebooks with research information. 

Nine days after Schwan’s fired him, Cai filed two United States patent applications: “Method of Making Frozen Dough and Products Made Using the Method” and “Microwaveable Frozen Breads and Method of Making the Same.” He also filed for a patent in China on the first patent.

Beginning from his hiring in 2003, Cai had signed agreements saying his Schwan’s work would be confidential and could not use that information to help another company or use it to get another job. It also specified that any patents from his work at Schwan’s would belong to the company."

Pfizer Says Employee Stole Files With Covid Vaccine Secrets; Bloomberg Law, November 24, 2021

Kyle Jahner, Bloomberg Law; Pfizer Says Employee Stole Files With Covid Vaccine Secrets 

"Pfizer Inc. is alleging a “soon-to-be-former employee” misappropriated thousands of files, including documents with trade secrets related to its Covid-19 vaccine, in a California federal court lawsuit.

Chun Xiao (Sherry) Li allegedly uploaded more than 12,000 files including “scores” of documents with confidential information to a Google Drive account, Pfizer alleged in a complaint filed Tuesday in the U.S. District Court for the Southern District of California. The documents are said to pertain to a broad range of topics, including analysis of vaccine studies, operational goals, and development plans for new drugs...

“Pfizer takes the safeguarding of sensitive and confidential information very seriously. Protecting that information is critical to scientific innovation, ultimately enabling us to deliver breakthroughs for patients,” a company spokesman said.

Trade secrets present a thorny issue for the debate around waiving Covid-related IP rights. Disclosure of trade secrets could aid overseas manufacturers in producing copycat versions of vaccines created by Pfizer, which has spoken out against an international waiver on intellectual property protections on Covid-19 treatments and vaccines."

How to protect algorithms as intellectual property; CSO, July 13, 2020

Stacy Collett, CSO; How to protect algorithms as intellectual property

Algorithms can now be considered trade secrets or even patent-worthy. Prevent them from being stolen by taking these security steps.

"Intellectual property theft has become a top concern of global enterprises. As of February 2020, the FBI had about 1,000 investigations involving China alone for attempted theft of US-based technology spanning just about every industry. It’s not just nation-states who look to steal IP; competitors, employees and partners are often culprits, too.

Security teams routinely take steps to protect intellectual property like software, engineering designs, and marketing plans. But how do you protect IP when it's an algorithm and not a document or database? Proprietary analytics are becoming an important differentiator as companies implement digital transformation projects. Luckily, laws are changing to include algorithms among the IP that can be legally protected."

Senators introduce Protecting American Intellectual Property Act; IT Pro, June 12, 2020

Sarah Brennan,

IT Pro

; Senators introduce Protecting American Intellectual Property Act

"U.S. Senators Chris Van Hollen (D-MD) and Ben Sasse (R-NE) proposed bipartisan legislation mandating strong economic penalties on firms and individuals involved in stealing American intellectual property. In an interview with Reuters, Van Hollen said the Protecting American Intellectual Property Act is a “direct approach” to battling China’s use of illicit methods for obtaining technological advances made in the U.S."