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."

Managing Intellectual Property in a Crisis (Part 2); JDSupra, April 1, 2020

Joseph Falcon, III, JDSupra; Managing Intellectual Property in a Crisis (Part 2)


"(Note: This is the second of a three-part series stressing the importance of intellectual property protection in difficult economic times. You can read Part 1 here, and watch for Part 3 tomorrow.)

Maintaining intellectual property first requires identification of intellectual property your business already possesses. Intellectual property rights are classified into various categories, each protectable by different legal instruments such as patent, copyright, trademark and trade secret...

These items for patents, copyrights or trademarks are general, but each business likely will have specific questions on how they can apply to each business."

Business viewpoint: Prioritizing intellectual property protection in growing companies; Tulsa World, March 15, 2020

Terry L. Watt, Tulsa World; Business viewpoint: Prioritizing intellectual property protection in growing companies

"Growth-phase companies, including startups, are often cash limited and must make difficult decisions when prioritizing expenditures.

Money spent to obtain legal advice may be at the expense of other concerns such as product development and marketing.

Although consultation with an intellectual property attorney can be an important early step, it is often postponed in favor of more pressing needs. However, ignoring intellectual property matters can result in missteps that can have long-term negative consequences."

A former Uber executive was ordered to pay Google $179 million. Then he filed for bankruptcy.; The Washington Post, March 4, 2020

Reed Albergotti , The Washington Post; A former Uber executive was ordered to pay Google $179 million. Then he filed for bankruptcy.

Anthony Levandowski was accused of stealing trade secrets on self-driving technology

"Anthony Levandowski, who once ran Uber’s self-driving car unit, was ordered Wednesday to pay $179 million to rival Google, prompting the software engineer to file for bankruptcy protection.

The enormous award, which was approved by a Superior Court judge in San Francisco and was confidential but disclosed in a Securities and Exchange Commission filing, casts new light on one of Silicon Valley’s most heated dramas. It is also another blow to Levandowski, once a rising star in the tech industry who now faces criminal charges for allegedly possessing trade secrets that belong to Google."

 

The Fragile Nature of Trade Secrets: Clues from the Courts on How to Keep Them; IP Watchdog, March 1, 2020

Peter J. Toren, IP Watchdog; The Fragile Nature of Trade Secrets: Clues from the Courts on How to Keep Them

"Trade secrets have become an increasingly valuable asset to many companies, but compared to other types of intellectual property, including patents, copyrights and trademarks, they are extremely “fragile,” and require that an owner undertake as many steps as possible to protect their information and be vigilant about the need to protect such information to the fullest extent possible. The failure to do so may lead to a court’s finding in a misappropriation case that the information in question is not protectable as a trade secret. As described below, it is very easy for trade secrets to lose protection under a variety of circumstances, even where the owner has taken what it believes are “reasonable measures” as required for trade secret protection under 18 U.S.C. § 1839(3)(A. In short, authorities in this area teach that the more steps a party undertakes to protect its trade secrets, the more likely that a court will find those steps to constitute “reasonable measures.”"

Feds to US Firms: Watch Out for Employees Trying to Steal Trade Secrets for China; PC Mag, February 26, 2020

Michael Kan, PC Mag; Feds to US Firms: Watch Out for Employees Trying to Steal Trade Secrets for China

"“It’s not a spy versus spy game anymore,” said William Evanina, Director of the National Counterintelligence and Security Center, during the panel. “This is the businessman, the engineer, the scientist, the student, the professor.”...

To stop the intellectual property theft, the feds are urging US companies to protect against insider threats, which can be spurred on both by foreign governments and domestic rivals, they noted. But the answer isn’t to profile employees or stop hiring staffers from certain countries, [John] Demers[US Assistant Attorney General for National Security] said. He suggests companies develop internal systems that can track when employees are accessing sensitive company files, which can help pinpoint when a IP theft might be occurring. For example, if a soon-to-be ex-staffer is suddenly accessing a huge trove of a confidential documents, the system should immediately flag the download to company administrators."

What Happens to Trade Secrets in a World Where Professor X & Mind Reading Are Real?; Escapist Magazine, February 2, 2020

Adam Adler, Escapist Magazine; What Happens to Trade Secrets in a World Where Professor X & Mind Reading Are Real?

"When it comes to trade secrets, though, the law is straightforward — at least in theory: Secrecy is good. The more mechanisms one uses to protect their trade secret, the harder it will be for one’s adversary to challenge the legitimacy of the trade secret protections."

U.S.-China Feud Ensnares Obscure UN Intellectual Property Agency; Bloomberg, February 16, 2020

Nick Wadhams, Bloomberg; U.S.-China Feud Ensnares Obscure UN Intellectual Property Agency

"“The race for WIPO leadership has become the moment the U.S. woke up to the fact China is eating our lunch in the multilateral system and that great-power competition will be fought out in many theaters, including UN agencies,” said Daniel Runde, the director of the Project on Prosperity and Development at the Center for Strategic and International Studies. “WIPO may seem obscure, but it’s a standard-maker and holds hundreds of billions of our trade secrets in its digital vaults.”"

Trade Secrets: What You Need to Know; The National Law Review, December 12, 2019

Michael J. Kasdan, Kevin M. Smith, Benjamin Daniels,The National Law Review; Trade Secrets: What You Need to Know

"Coca-Cola’s secret formula. McDonalds’ special sauce. Google’s search algorithm. Bumble’s dating software. This proprietary information is vital to these companies’ survival, and among their most valuable corporate assets.  Each is protected as a trade secret.  While patent law offers strong protections for proprietary inventions, obtaining a patent requires establishing that the invention is novel, non-obvious, and patent-eligible. It also requires disclosure of the invention itself in the patent application. And while patents last for twenty years, they do not last forever.  By contrast, trade secrecy provides another avenue to protecting a company’s IP that allows the inventions to be kept secret and potentially protected forever.

In the last few years, businesses, governments, and law enforcement agencies have increased their focus on trade secrets as an effective way of protecting a company’s “secret sauce.” This trend accelerated with the passage of the federal Defend Trade Secrets Act of 2016 (“DTSA”), and trade secret litigation has moved toward the forefront of intellectual property law. As described in recent press, such as Trade Secrets Litigation: The No-Longer-Forgotten Part of the Tech IP Arsenal (Corporate Counsel, Warren, Z., July 28, 2017), “[t]hese days, many of the big IP litigation battles involving companies like Facebook…, Uber … and Epic … have nothing to do with patents, trademarks or copyrights at all. Instead, it's all about the perhaps forgotten part of IP: trade secrets…With massive jury rewards and the DTSA encouraging federal litigation, trade secrets litigation is seeing a surge in the tech industry.” This reporting is consistent with reported industry data. According to a 2016 Report by Willamette Management Associates, the number of federal trade secret cases increased by 14 percent for each year from 2001 to 2012. According to a 2018 Lex Machina Report, this increased even more dramatically with the passage of the DTSA. 2016 saw 860 U.S. trade secret cases filed, but this rose to 1,134 cases filed in 2017. Through the first half of 2018, 581 trade secret cases had been filed, putting the number of trade secret cases filed in 2018 on pace to slightly exceed 2017."

Scientists With Links to China May Be Stealing Biomedical Research, U.S. Says; The New York Times, November 4, 2019

Gina Kolata, The New York Times; Scientists With Links to China May Be Stealing Biomedical Research, U.S. Says

""The investigations have fanned fears that China is exploiting the relative openness of the American scientific system to engage in wholesale economic espionage. At the same time, the scale of the dragnet has sent a tremor through the ranks of biomedical researchers, some of whom say ethnic Chinese scientists are being unfairly targeted for scrutiny as Washington’s geopolitical competition with Beijing intensifies...

The alleged theft involves not military secrets, but scientific ideas, designs, devices, data and methods that may lead to profitable new treatments or diagnostic tools.

Some researchers under investigation have obtained patents in China on work funded by the United States government and owned by American institutions, the N.I.H. said. Others are suspected of setting up labs in China that secretly duplicated American research, according to government officials and university administrators...

The real question, [Dr. Michael Lauer, deputy director for extramural research at the National Institutes of Health in Bethesda, Md] added, is how to preserve the open exchange of scientific ideas in the face of growing security concerns. At M.D. Anderson, administrators are tightening controls to make data less freely available."

A face-scanning algorithm increasingly decides whether you deserve the job; The Washington Post, October 22, 2019

Drew Harwell, The Washington Post; A face-scanning algorithm increasingly decides whether you deserve the job 

HireVue claims it uses artificial intelligence to decide who’s best for a job. Outside experts call it ‘profoundly disturbing.’

"“It’s a profoundly disturbing development that we have proprietary technology that claims to differentiate between a productive worker and a worker who isn’t fit, based on their facial movements, their tone of voice, their mannerisms,” said Meredith Whittaker, a co-founder of the AI Now Institute, a research center in New York...

Loren Larsen, HireVue’s chief technology officer, said that such criticism is uninformed and that “most AI researchers have a limited understanding” of the psychology behind how workers think and behave...

“People are rejected all the time based on how they look, their shoes, how they tucked in their shirts and how ‘hot’ they are,” he told The Washington Post. “Algorithms eliminate most of that in a way that hasn’t been possible before.”...

HireVue’s growth, however, is running into some regulatory snags. In August, Illinois Gov. J.B. Pritzker (D) signed a first-in-the-nation law that will force employers to tell job applicants how their AI-hiring system works and get their consent before running them through the test. The measure, which HireVue said it supports, will take effect Jan. 1."

People Are Looking At Your LinkedIn Profile. They Might Be Chinese Spies; NPR, September 19, 2019

Ryan Lucas, NPR; People Are Looking At Your LinkedIn Profile. They Might Be Chinese Spies

"Demers took over leadership of the National Security Division in February 2018 after being confirmed by the Senate. Since taking the helm, he has spent a considerable amount of time on China and what he calls its prolific espionage efforts against the United States.

They're vast in scale, he said, and they span the spectrum from traditional espionage targeting government secrets to economic espionage going after intellectual property and American trade secrets...

It's a play that has also been used to target folks in the business world and academia, where China is hungry for cutting-edge technology and trade secrets. For years, the Chinese intelligence services have hacked into U.S. companies and made off with intellectual property.

Now, U.S. officials say China's spies are increasingly turning to what is known as "nontraditional collectors" — students, researchers and business insiders — to scoop up secrets."

US hammers Huawei with 23 indictments for alleged trade secret theft, fraud; CNet, January 29, 2019

Abrar Al-Heeti, CNet; US hammers Huawei with 23 indictments for alleged trade secret theft, fraud

"The US Department of Justice on Monday charged Huawei with theft of trade secrets, wire fraud and obstruction of justice.

A 10-count indictment alleges that China's Huawei stole trade secrets from US carrier T-Mobile beginning in 2012. Huawei also allegedly offered bonuses to employees who stole confidential information from companies. In addition, a 13-count indictment charged four defendants, including Huawei and Chief Financial Officer Meng Wanzhou, with financial fraud. The indicted defendants also include affiliates Huawei USA and Skycom.

"The charges unsealed today clearly allege that Huawei intentionally conspired to steal the intellectual property of an American company in an attempt to undermine the free and fair global marketplace," said FBI Director Christopher Wray in a statement. "To the detriment of American ingenuity, Huawei continually disregarded the laws of the United States in the hopes of gaining an unfair economic advantage.""

Gift Guide For The Intellectual Property Geek; Above The Law, December 13, 2018

Krista L. Cox, Above The Law; Gift Guide For The Intellectual Property Geek

"Still looking for a holiday gift for the IP geek who loves all things copyright, patent, and trademark?Try one of these gift ideas below, some of which were the subject of litigation (including in other countries)."

Why Trump tariffs on China not stopping theft of trade secrets; USA TODAY, November 28, 2018

Michael Collins, USA TODAY; Why Trump tariffs on China not stopping theft of trade secrets

[Kip Currier: Interesting to see a flurry of articles in wide-ranging media about IP--particularly IP theft--placed front and center by the U.S. at the G20 Summit in Argentina (see here and here).

Yesterday I listened to a free webinar, "Modernizing NAFTA into a 21st Century Trade Agreement: The New USMCA & IP", from the ABA IP Law Section on IP-related aspects of the U.S., Mexico, Canada Agreement (USCMA); what was previously informally referred to as NAFTA 2.0.

Ms. Kira Alvarez, Esq., provided an excellent overview of trade agreements like NAFTA and insightful comparative analysis of key IP-focused sections of the TRIPS agreement, Trans-Pacific Partnership (which Donald Trump, fulfilling his campaign promise, opted the U.S. out of as one of the first acts of his presidency in January 2017), and the USCMA. Time will tell if the beefed-up protections for Trade Secrets in the USMCA are successful in curbing IP theft.]

"The theft of U.S. intellectual property, mostly by the Chinese, costs the U.S. an estimated $225 billion to $600 billion a year and represents “an assault the likes of which the world has never seen,” analyst Richard Ellings said.

“You can’t find a company that hasn’t been assaulted, and half of them don’t even know it,” said Ellings, executive director of the Commission on the Theft of American Intellectual Property.

President Donald Trump cited China’s theft of intellectual property as one of his reasons for slapping $200 billion in tariffs on Chinese imports earlier this year. Tariffs, intellectual property theft and the forced transfer of intellectual property will be among the topics of discussion when Trump and Chinese President Xi Jinping meet over dinner Saturday during the G-20 summit in Argentina, White House officials said. 

"The rest of the world knows full well about the issues of IP theft and forced transfers of technology," Trump's top economic adviser Larry Kudlow said. "This idea that other countries are not with us is just not true. It's time for a change in their behavior.""

Intellectual Property to Take Center Stage as Trump and Xi Meet; The New York Times, November 28, 2018

Alan Rappeport, The New York Times;

Intellectual Property to Take Center Stage as Trump and Xi Meet

"When President Trump and President Xi Jinping of China sit down to talk trade this week at the Group of 20 summit meeting, their negotiations are likely to be framed by a highly charged topic: the White House’s insistence that China routinely steals American technology and intellectual property."

Navy Official: Concerns About Intellectual Property Rights Becoming More 'Acute'; National Defense, NDIA's Business & Technology Magazine, November 29, 2018

Connie Lee, National Defense, NDIA's Business & Technology Magazine;

Navy Official: Concerns About Intellectual Property Rights Becoming More 'Acute'

"Capt. Samuel Pennington, major program manager for surface training systems, said the fear of losing data rights can sometimes make companies reluctant to work with the government.
“We get feedback sometimes where they’re not willing to bid on a contract where we have full data rights,” he said. “Industry [is] not going to do that because they have their secret sauce and they don’t want to release it.”
Pennington said having IP rights would allow the Defense Department to more easily modernize and sustain equipment.
“Our initiative is to get as much data rights, or buy a new product that has open architecture to the point where [the] data rights that we do have are sufficient, where we can recompete that down the road,” he said. This would prevent the Navy from relying on the original manufacturer for future work on the system, he noted.
The issue is also being discussed on Capitol Hill, Merritt added. The fiscal year 2018 National Defense Authorization Act requires the Pentagon to develop policy on the acquisition or licensing of intellectual property. Additionally, the NDAA requires the department to negotiate a price for technical data rights of major weapon systems."

NDAs Are Out of Control. Here’s What Needs to Change; Harvard Business Review, January 30, 2018

Orly Lobel, Harvard Business Review; NDAs Are Out of Control. Here’s What Needs to Change

[Kip Currier: Came across this article about Nondisclosure Agreements (NDAs) while updating a Trade Secrets lecture for this week. The author raises a number of thought-provoking ethical and policy issues to consider. Good information for people in all sectors to think about when faced with signing an NDA and/or managing NDAs.]

"Nondisclosure agreements, or NDAs, which are increasingly common in employment contracts, suppress employee speech and chill creativity. The current revelations surfacing years of harassment in major organizations are merely the tip of the iceberg.

New data shows that over one-third of the U.S. workforce is bound by an NDA. These contracts have grown not only in number but also in breadth. They not only appear in settlements after a victim of sexual harassment has raised her voice but also are now routinely included in standard employment contracts upon hiring. At the outset, NDAs attempt to impose several obligations upon a new employee. They demand silence, often broadly worded to protect against speaking up against corporate culture or saying anything that would portray the company and its executives in a negative light. NDAs also attempt to expand the definitions of secrecy to cover more information than the traditional bounds of trade secret law, in effect preventing an employee from leaving their employer and continuing to work in the same field."

Trade Secret Thief Hid Files In Digital Photo Of Sunset; Intellectual Property Watch, August 2, 2018

Intellectual Property Watch; Trade Secret Thief Hid Files In Digital Photo Of Sunset

"The criminal complaint alleges that on or about July 5, Zheng, an engineer employed by General Electric, used an elaborate and sophisticated means to remove electronic files containing GE’s trade secrets involving its turbine technologies. Specifically, Zheng is alleged to have used steganography to hide data files belonging to GE into an innocuous looking digital picture of a sunset, and then to have e-mailed the digital picture, which contained the stolen GE data files, to Zheng’s e-mail account."

10 Effective Ways To Protect Your Intellectual Property; Forbes Technology Council, July 23, 2018

Forbes Technology Council; 10 Effective Ways To Protect Your Intellectual Property

"As your new invention comes to light, your initial thought may be to let the world know. While shouting your success from the rooftops is appealing, before you do, you need to consider how best to protect what you have worked so hard to develop.

Patents and copyrights can offer you some security, but don’t always mean that your design is completely protected, as copies can certainly emerge. There are, however, a number of other options available to you, each with their own strengths.

Below, 10 members of Forbes Technology Council weigh in on some less-common, yet still effective, ways to protect your intellectual property. Here’s what they recommend:"