Fenwick & West LLP

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Silicon Valley Center
801 California Street
Mountain View, CA 94041, United States
Phone: 650-988-8500
Fax: 650-938-5200
Practice Groups
Areas of Practice
  • Antitrust & Trade Regulation
  • Art, Entertainment, & Sports Law
  • Business Organizations
  • Commercial Law & Contracts
  • Communications & Media Law
  • Energy & Utilities
  • Intellectual Property
  • International Law & Trade
  • Labor & Employment Law
  • Litigation
  • Mergers & Acquisitions
  • Privacy
  • Science, Computers, & Tech
  • Securities Law
  • Taxation
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Other U.S. Locations
  • California
  • Washington
Other Countries
  • China
Number of Attorneys
100+ Attorneys

And the Winner is? Digital Platform Liability for Trademark Infringement

Much has been made of the question of liability for the operation or furnishing of digital platforms in the copyright context. Since the U.S. Supreme Court ruling that the provider of the Betamax recorder did not itself infringe…more

ACPA, Amazon, Consumer Confusion, Contributory Infringement, Copyright

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

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Could Offensive Trademarks Find Refuge in Common Law?

The 177-page tome the Trademark Trial and Appeal Board (TTAB) just issued in Blackhorse v. Pro-Football Inc. is remarkable for its length and its subject matter, cancellation of the controversial REDSKINS mark as disparaging to…more

Blackhorse v Pro-Football, Disparagement, Football, Good Faith, Laches

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Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Litigation Alert: Ninth Circuit Issues Key Ruling on Pleading of Loss Causation in Securities Class Actions

Loos v. Immersion Corp., et. al., Case No. 12-15100, ---F.3d--- (9th Cir. 2014) - On August 7, 2014, the Ninth Circuit issued a key opinion on the pleading of loss causation in securities class actions, ruling for the…more

Class Action, Internal Investigations, Loss Causation, Securities, Securities Litigation

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Digital Health Companies May Find a Faster Path to Market Under the FDA's Digital Health Plan

It looks like the FDA is moving forward—and swiftly—with the digital health plan articulated in FDA Commissioner Scott Gottlieb's June blog post, previously outlined in this post. Closely tracking the commissioner’s post, the…more

21st Century Cures Initiative, Digital Health, FDA, Federal Pilot Programs, Medical Devices

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Antitrust Is Alive and Well and Lurks in Unlikely Places

A recent story in the Bay Area legal newspaper The Recorder had this headline: “Former Bazaarvoice CEO Takes Stand to Explain Damning Email.” That is not the kind of media attention that any CEO likes to have or the way he or…more

Competition, Email, Enforcement, Hart-Scott-Rodino Act

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Ninth Circuit in Spokeo: Inaccurate Consumer Reports Support Standing in FCRA Cases

The U.S. Court of Appeals for the Ninth Circuit held that allegations that Spokeo Inc. published an inaccurate consumer report in violation of the Fair Credit Reporting Act established a concrete injury sufficient to confer…more

Article III, Background Checks, Class Action, Employee Liability Information, FCRA

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Gender Diversity Survey - 2016 Proxy Season Results

The Fenwick & West Gender Diversity Survey provides unique insight into women’s participation at the most senior levels of public technology and life sciences companies in the Silicon Valley 150 Index (SV 150) and the large…more

Board of Directors, CEOs, CFOs, Corporate Executives, Corporate Structures

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New Index Rules Likely to Significantly Impact Tech Companies with Multi-Class Capital Structures

In response to investor concerns regarding an increase in the number of technology companies that have been implementing multi-class capital structures, index providers S&P Dow Jones, FTSE Russell and MSCI have adopted or…more

Capital Structures, Common Stock, Investment, IPO, S&P

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Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Delaware Chancery Court Rejects Allegations Assailing Independence Of VC Directors In Dismissing Derivative Suit

A recent Delaware Chancery Court decision dismissing derivative fiduciary duty claims has significance for public companies with board members who are associated with venture capital firms…more

Cybersecurity, Data Protection, Data Security, DE Supreme Court, Derivative Suit

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Intellectual Property Bulletin - Summer 2016

Supreme Court Expands Discretion to Award Enhanced Damages for Patent Infringement and Eliminates the Federal Circuit’s ‘Seagate Test’ - In Halo Electronics, Inc. v. Pulse Electronics, Inc., the U.S. Supreme Court changed…more

35 U.S.C. § 284, Common Law Claims, Copyright, Defend Trade Secrets Act (DTSA), Dilution

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Quit Your Griping: The USPTO Is Doing Pretty Well These Days

The USPTO is getting it from all sides lately. It’s become too easy, some say, to get a patent—examiners are in the pockets of large corporations. Others argue that no, it’s at best a crap shoot, with the outcome depending on…more

USPTO

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Privacy Alert: The Privacy Shield, As It Stands Today

Following the invalidation of the US-EU Safe Harbor by the Court of Justice of the European Union in October last year (see From a Safe Harbor to a Privacy Shield), the U.S. Department of Commerce and the EU Commission have…more

Data Protection Authority, EU, EU-US Privacy Shield, International Data Transfers, Self-Certification

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Litigation Alert: FCC Issues Controversial TCPA Order Further Expanding Definition of Autodialer, Providing Limited Protections to App Developers

FCC Issues Controversial TCPA Order Further Expanding Definition of Autodialer, Providing Limited Protections to App Developers - On July 10, 2015, the Federal Communications Commission (“FCC”) issued a much-anticipated…more

ATDS, Auto-Dialed Calls, Declaratory Rulings, FCC, Mobile Apps

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Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

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What Petitioners and Patent Owners Need to Know About the Scope of IPR Estoppel

Judge Sue L. Robinson of the U.S. District Court for the District of Delaware recently identified a logical fallacy in the “statutory estoppel” jurisprudence with respect to 35 U.S.C. § 315(e)(1). According to the statute,…more

Appeals, Estoppel, Final Judgment, Inter Partes Review (IPR) Proceeding, Patent Invalidity

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Securities Litigation Alert: District Court Says Indirect Purchasers of Shares Can Bring Fraud Claims Against Private Company and its Officers

In a case with important implications for late-stage private companies, a federal magistrate judge ruled last week that investors in funds holding private company securities can bring fraud claims against the issuer of the…more

Common Law Claims, Corporate Issuers, Indirect Purchasers, Intermediaries, IPO

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Life Sciences Alert: Unanimous Supreme Court Decision in Ass'n for Mol. Pathology v. Myriad Genetics Inc.

Yesterday, a unanimous Supreme Court decision in Ass’n for Mol. Pathology v. Myriad Genetics, Inc., held that Myriad’s claims directed to “a naturally occurring segment of … [DNA]” are not patent eligible despite their…more

AMP v Myriad, Biotechnology, DNA, Human Genes, Myriad

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Executive Compensation and Corporate and Securities Alert: SEC Adopts NYSE and Nasdaq Rules Relating to Compensation Committees and Compensation Consultants

On January 11, 2013 the Securities and Exchange Commission ("SEC") approved the equity listing standards proposed by the NYSE and Nasdaq, as amended1 regarding compensation committee independence criteria and compensation…more

Compensation Committee, Dodd-Frank, Executive Compensation, Independence Rules, Listing Standards

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Ninth Circuit in Spokeo: Inaccurate Consumer Reports Support Standing in FCRA Cases

The U.S. Court of Appeals for the Ninth Circuit held that allegations that Spokeo Inc. published an inaccurate consumer report in violation of the Fair Credit Reporting Act established a concrete injury sufficient to confer…more

Article III, Background Checks, Class Action, Employee Liability Information, FCRA

See all updates »

The Ninth Circuit Writes the Script on Pleading and Proving Reverse Confusion Claims

The U.S. Court of Appeals for the Ninth Circuit clarified the requirements for pleading and establishing a trademark infringement claim under a “reverse confusion” theory in Marketquest Group v. BIC, Case No. 15-55755 (9th Cir…more

Corporate Counsel, Fair Use, Good Faith, Intellectual Property Protection, Likelihood of Confusion

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Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

See all updates »

Legal FAQ: Introduction to Patent Litigation

Who enforces a patent? When can a district court patent case be filed? What does the patent holder have to prove to win an infringement suit? Fenwick patent litigators Charlene Morrow and Dargaye Churnet cover these and other…more

Antitrust Violations, Appeals, Contributory Infringement, Damages, Direct Infringement

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California Legislature Acts to Outlaw Pre-Employment Mandatory Agreements to Arbitrate Labor Code Claims

In late August, the California Senate and Assembly passed AB 465, which, if signed by Governor Jerry Brown, will make pre-employment mandatory agreements to arbitrate Labor Code violations against California public policy…more

AFL-CIO, Arbitration, Class Action Arbitration Waivers, Federal Arbitration Act, Governor Brown

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Mergers and Acquisitions Alert: Lazard v. Qinetiq: Important Lessons for Structuring Earn-Outs

Overview - A recent Delaware Supreme Court case authored by Chief Justice Strine upholds the literal meaning of an earn-out provision that limited the buyer from taking action “intended to reduce or limit an earn-out…more

Corporate Counsel

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Litigation Alert: California Bans Non-Disparagement Clauses in Consumer Contracts

On September 9, 2014, Governor Jerry Brown signed into law AB 2365, popularly referred to as the “Yelp” bill. The new law, codified at California Civil Code section 1670.8, will prohibit the use of “non-disparagement” clauses in…more

Clickwrap Agreements, Corporate Counsel, New Legislation, Non-Disparagement Provisions, Online Reviews

See all updates »

Litigation Alert: Ninth Circuit Rules on Copyright Preemption of Right-of-Publicity Claims

Last week, in Maloney v. T3 Media, Inc., the U.S. Court of Appeals for the Ninth Circuit held that claims under state right-of-publicity law are preempted by the Copyright Act “when a likeness has been captured in a copyrighted…more

Anti-SLAPP, Class Action, Copyright, Corporate Counsel, First Amendment

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Lingering in Lexmark's wake, uncertainty about the limits of patent exhaustion

According to ten judges of the Federal Circuit, a patent owner’s right to sue for infringement in the United States is not exhausted by sales of products abroad or by sales subject to valid post-sale contractual restrictions on…more

Corporate Counsel, First Sale Doctrine, Foreign Sales, Lexmark, Patent Exhaustion

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A Startup Attorney’s Tips to Advance Private Company Diversity

One of the biggest contributors to a lack of corporate diversity is the size of a company. And the problems are often traceable to the company’s leanest, earliest days. One of my key messages to clients is that it’s never too…more

Corporate Executives, Corporate Structures, Diversity, Emerging Growth Companies, Life Sciences

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Securities Litigation Alert: District Court Says Indirect Purchasers of Shares Can Bring Fraud Claims Against Private Company and its Officers

In a case with important implications for late-stage private companies, a federal magistrate judge ruled last week that investors in funds holding private company securities can bring fraud claims against the issuer of the…more

Common Law Claims, Corporate Issuers, Indirect Purchasers, Intermediaries, IPO

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

See all updates »

Privacy Alert: California Passes Trio of New Online Privacy and Data Security Measures

In the last month, the California legislature passed and Governor Jerry Brown signed into law amendments to two of California’s signature privacy and data security laws and one new consumer privacy law aimed at enhancing privacy…more

CalOPPA, Cybersecurity, Data Protection, Internet, Privacy Laws

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Payer/Provider Digital Health Investments Increase in Q1 2017

Last September, we noted that payers and providers were expected to become increasingly active digital health strategic investors given their challenges to improve margins and outcomes…more

BCBS, Digital Health, Health Care Providers, Investment, Kaiser Permanente

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Intellectual Property Bulletin - Fall 2016

Mean Girls v. The Right of Publicity: Lessons Learned From the Lohan and Gravano Lawsuits - On September 1, 2016, a New York appellate court ended two closely watched right of publicity lawsuits brought by Lindsay Lohan…more

Abstract Ideas, Biotechnology, CLS Bank v Alice Corp, Confidential Information, Copyright

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Life Sciences Alert: Unanimous Supreme Court Decision in Ass'n for Mol. Pathology v. Myriad Genetics Inc.

Yesterday, a unanimous Supreme Court decision in Ass’n for Mol. Pathology v. Myriad Genetics, Inc., held that Myriad’s claims directed to “a naturally occurring segment of … [DNA]” are not patent eligible despite their…more

AMP v Myriad, Biotechnology, DNA, Human Genes, Myriad

See all updates »

Tax Alert: AM 2015-01—Does Previously Taxed Income “Tier up” to a Domestic Corporate Shareholder?

In a recent chief counsel memorandum (AM 2015-01), the IRS addressed a long uncertain tax question: when a US corporate shareholder includes an amount in income under subpart F, does the subpart F inclusion increase the…more

IRS, Shareholder Distributions, Shareholders, Subpart F, Tax-Free Transfers

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SEC Extends Key JOBS Act Benefit for All IPOs and Recently Public Companies

On June 29, 2017 the U.S. Securities and Exchange Commission announced that it would permit all companies registering for an initial public offering to take advantage of the confidential review process that was previously…more

Capital Raising, Crowdfunding, IPO, JOBS Act, SEC

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Litigation Alert: Ninth Circuit Rules on Copyright Preemption of Right-of-Publicity Claims

Last week, in Maloney v. T3 Media, Inc., the U.S. Court of Appeals for the Ninth Circuit held that claims under state right-of-publicity law are preempted by the Copyright Act “when a likeness has been captured in a copyrighted…more

Anti-SLAPP, Class Action, Copyright, Corporate Counsel, First Amendment

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Trademark Alert: Are You Ready For The New gTLDs? The Trademark Clearinghouse Opens March 26

The universe of generic top-level domains (gTLDs), currently limited to about a dozen gTLDs such as .com, .net, and .org, will likely explode later this year, as some of the more than 1000 potential new gTLDs are rolled out,…more

Brand, Cybersquatting, gTLD, Trademark Clearinghouse, Trademarks

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CEO Pay Ratio Rule – Start Preparing Now - Little Likelihood of Repeal or Delay of the CEO Pay Ratio Rule

Despite many predictions that the CEO pay ratio rule would be repealed, or at least delayed, there is no indication that any such relief will be provided to reporting companies. It appears, at least for now, that the CEO pay…more

CEOs, Corporate Counsel, Disclosure Requirements, Dodd-Frank, Executive Compensation

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[Event] The Most Significant Employment Law Developments of 2016 - Jan. 18th or 25th, Mountain View or San Francisco, CA

2016 brought several employment law developments that will undoubtedly affect your workplace. The Fenwick & West Employment Practices Group invites you to attend its annual complimentary briefing to learn more about the most…more

Arbitration, Class Action Arbitration Waivers, EEO-1, EEOC, Events

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Intellectual Property Bulletin - Spring 2014

Right of Publicity? First, Let Me Take a Selfie - “Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the…more

Domain Names, Endorsements, First Amendment, Free Speech, gTLD

See all updates »

Investment in eHealth: 2014, and what the future holds

Digital health, a category that was virtually nonexistent five years ago, has exploded in recent years and shows the potential to remake the way healthcare is delivered worldwide. Rock Health, the digital health incubator,…more

Digital Health, Emerging Technology Companies, Healthcare, Venture Funding

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Intellectual Property Bulletin - Summer 2017

Reducing Cybersecurity Risks to Autonomous Vehicles - The Department of Transportation is revising autonomous vehicle guidelines it issued in September 2016. Recent comments by Secretary Elaine Chao suggest that the new…more

Automotive Industry, Broadcasting, Connected Cars, Copyright Infringement, Cybersecurity

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

Litigation Alert: Federal Circuit Expands Liability for Divided Patent Infringement

On August 13, 2015, the Federal Circuit in Akamai Technologies, Inc. v. Limelight Networks, Inc. changed the law regarding liability for direct infringement of a method patent involving more than one actor (divided…more

Akamai Technologies, Covered Business Method Patents, Divided Infringement, En Banc Review, Limelight

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Intellectual Property Bulletin - Fall 2012

In This Issue: - Court Declines to Dish Out Preliminary Injunction in Commercial-Skipping Case Despite Likelihood of Infringement - Free and Open-Source Software Diligence in Mergers, Acquisitions, and…more

Copyright, Disclaimers, Fair Use, Infringement, Preemption

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Section 385 Proposed Regulations

On April 4, 2016, Treasury and the IRS proposed sweeping regulations under § 385 of the Code. Issued the same day as the anti-inversion temporary regulations, the proposed § 385 rules would go much farther than merely curtailing…more

Anti-Inversion Regulations, Corporate Taxes, Debt, Debt Securities, Equity

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Biosimilars: Supreme Court Grants Certiorari in Amgen v. Sandoz

On Friday, January 13, the Supreme Court granted certiorari in Amgen v. Sandoz (Nos. 15-1039 & 15-1195). The Supreme Court originally deferred its decision on the parties’ certiorari petitions in order to consider the Solicitor…more

Amgen, Biologics, Biosimilars, BPCIA, Certiorari

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Advanced Copyright Issues on the Internet

During recent years, the Internet has become the basic foundational infrastructure for the global movement of data of all kinds. With continued growth at a phenomenal rate, the Internet has moved from a quiet means of…more

ABC v Aereo, Cable Television Providers, Contributory Infringement, Copyright, Copyright Infringement

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Mergers and Acquisitions Alert: Lazard v. Qinetiq: Important Lessons for Structuring Earn-Outs

Overview - A recent Delaware Supreme Court case authored by Chief Justice Strine upholds the literal meaning of an earn-out provision that limited the buyer from taking action “intended to reduce or limit an earn-out…more

Corporate Counsel

See all updates »

Foreign Marks Vulnerable in US

“Cancellable? Unenforceable? Why?” This is likely to be the reaction of most foreign owners of U.S. trademark applications and registrations, and of many of their U.S. counsel, when challenged by claims that the owner lacked…more

Intent-to-Use, Registration, Trademark Act, Trademarks

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Silicon Valley Venture Capital Survey – Second Quarter 2017

This report analyzes the valuations and terms of venture financings for 208 companies headquartered in the Silicon Valley that raised capital in the second quarter of 2017. Overview of Results - Valuations Continue…more

Early Stage Companies, Entrepreneurs, Life Sciences, Popular, Silicon Valley

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Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

See all updates »

Litigation Alert: A Unanimous Supreme Court Reverses Federal Circuit Ruling on Damages in Samsung Electronics Co. v. Apple Inc.

On December 6, 2016, in a unanimous opinion written by Justice Sotomayor, the Supreme Court reversed the Federal Circuit’s affirmance of the damages award in Samsung Electronics Co. v. Apple Inc. The question before the Supreme…more

Apple v Samsung, Article of Manufacture, Calculation of Damages, Cell Phones, Component Parts Doctrine

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Martin Shkreli Convicted on Three of Eight Counts of Securities Fraud

On Friday, August 4, 2017, a federal court jury in Brooklyn, New York, found Martin Shkreli, former CEO of biopharmaceutical company Retrophin, guilty on three of eight counts of securities fraud. The verdict followed five days…more

Drug Pricing, Martin Shkreli, Pharmaceutical Industry, Prescription Drugs, SEC

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Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

See all updates »

Mergers & Acquisitions Alert: Controlling Stockholder Squeeze-Outs May Be Structured to Achieve Deferential “Business Judgment Rule” Under Delaware Law

In Kahn v. M&F Worldwide Corp. (Del. Mar. 14, 2014), the Delaware Supreme Court recently decided that a going private transaction sponsored by the controlling stockholder of a Delaware corporation may, under certain…more

Business Judgment Rule, Controlling Stockholders, MFW, Shareholder Litigation, Shareholders

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What Canadian Supreme Court's Landmark Decision Means for Tech Companies Big and Small

What should courts do when one country’s laws collide with a borderless Internet? Last week, the Supreme Court of Canada became the latest court to tackle the issue, upholding an order for Google to de-index globally from its…more

Canada, Counterfeit Goods Regulation, Google, Indexing, Internet

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Privacy and Information Security Alert: Federal Trade Commission Recommendations for Companies Providing Mobile Shopping Applications

On August 1, 2014, the Federal Trade Commission (FTC) released a report entitled What’s the Deal? An FTC Study on Mobile Shopping Apps (the FTC Report). The FTC Report is based on a study the FTC conducted (the FTC Study) to…more

Data Protection, FTC, Information Reports, Mobile Apps, Mobile Payments

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Intellectual Property Bulletin - Fall 2015

Judge Leval Illuminates Google Books Fair Use Issues - Second Circuit Affirms Summary Judgment for Defendant in Massive Copying Case - Based on the defense of fair use, the Second Circuit affirmed summary judgment for…more

Author's Guild v Google, Copyright, Fair Use, Google Books, Transformativeness

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Divided Infringement Challenges for Personalized Medicine

On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the Federal Circuit last month held in Akamai Tech. Inc. v. Limelight Networks Inc. that “direct infringement liability of a method claim under 35 U.S.C…more

Abstract Ideas, Direct Infringement, Divided Infringement, Limelight v Akamai, Patent Infringement

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Litigation Alert: Federal Circuit’s Ariosa Decision, Good Chance for Rehearing En Banc

In June of this year, the Federal Circuit panel in Ariosa Diagnostics, Inc. v. Sequenom, Inc. invalidated a patent on the grounds of patent-ineligible subject matter. 788 F.3d 1371 (Fed. Cir. 2015). While the case is one of many…more

Declaratory Rulings, DNA, En Banc Review, Life Sciences, Mootness

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The Ninth Circuit Holds That Accessing a Website After Receiving a Cease & Desist Letter Is a Violation of the Computer Fraud and Abuse Act

Last week, the Ninth Circuit limited the scope of the Computer Fraud and Abuse Act (CFAA) in affirming a grant of summary judgment against the defendant in Facebook, Inc. v. Power Ventures, Inc., et. al. and affirmed the rule…more

Cease and Desist, Computer Fraud and Abuse Act (CFAA), Email, Facebook, Summary Judgment

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Intellectual Property Bulletin - Winter 2015

Copyrighting Player-Generated Content in Video Games - Last year, consumers spent more than $21 billion on the video game industry. The Entertainment Software Association reports that almost 60% of Americans—roughly 200…more

Claim Construction, Clear Error Standard, Copyright, Costco, Entertainment Industry

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Securities Litigation and Enforcement Newsletter

SEC Enforcement Trends for 2016 - Welcome to the latest edition of Fenwick and West’s Securities Litigation and Enforcement Newsletter. In this newsletter, we look at SEC enforcement trends for 2016, starting with a recap…more

Accounting Fraud, Auditors, Confidentiality Agreements, Cooperation, Dodd-Frank

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Litigation Alert: Hurt Locker Decision Clarifies Differences in First Amendment Interests and Personal Interests Protected by the Right of Publicity

The Ninth Circuit affirmed the right of filmmakers and writers to use the story of Army Master Sgt. Jeffrey Sarver, an Army bomb disposal technician in Iraq, in the creation of the film The Hurt Locker. Sarver v. Chartier, 16…more

Anti-SLAPP, Authors, Dismissals, Film Industry, First Amendment

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Tax Alert: FTB Disallows California Qualified Small Business Stock Benefits

The California Franchise Tax Board (FTB) recently issued FTB Notice 2012-03, stating that the FTB will disallow the exclusion or deferral of gain under California's qualified small business stock (QSBS) statute for all tax years…more

Commerce Clause, Cutler v Franchise Tax Board, Franchise Tax Board, Gain Exclusion, Income Taxes

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Intellectual Property Bulletin - Spring 2014

Right of Publicity? First, Let Me Take a Selfie - “Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the…more

Domain Names, Endorsements, First Amendment, Free Speech, gTLD

See all updates »

Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

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The Self-Driving Turtle Wins the Race: Managing the Privacy and Security of Fast-Paced IoT Innovation

For today’s companies, navigating new paths to growth in the complex and evolving internet of things landscape requires innovative thinking and practical counsel. When it comes to a foolproof IoT roadmap, it is best to run a…more

Connected Cars, Connected Items, Cybersecurity, Innovation, Internet of Things

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Intellectual Property Bulletin - Summer 2017

Reducing Cybersecurity Risks to Autonomous Vehicles - The Department of Transportation is revising autonomous vehicle guidelines it issued in September 2016. Recent comments by Secretary Elaine Chao suggest that the new…more

Automotive Industry, Broadcasting, Connected Cars, Copyright Infringement, Cybersecurity

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New Patent Claim Construction Review Standard

In early 2015, the U.S. Supreme Court changed the standard of review for patent claim construction with its decision in Teva Pharmaceuticals USA v. Sandoz Inc., 135 S. Ct. 831 (2015) (Teva I). Previously, the U.S. Court of…more

Agency Deference, Claim Construction, Clear Error Standard, De Novo Standard of Review, Nautilus Inc. v. Biosig Instruments

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Trends in Legal Terms in Venture Financings in Israel - Full Year 2016

Background — We have analyzed the terms of venture financings for Israeli and Israeli-related technology companies that reported raising money during the year 2016. Our survey does not include financing rounds of less than US…more

Financing, Israel, Liquidation, Pay-To-Play, Reorganizations

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M&A Litigation Update: Delaware Chancery Court Delivers Devastating Blow to Disclosure Settlements

A new decision makes clear that parties should no longer expect the Delaware Court of Chancery to approve broad settlements of M&A class actions based on supplemental proxy disclosures. Chancellor Andre Bouchard issued a 42-page…more

Class Action, Corporate Counsel, Disclosure, Proxy Statements, Real Estate Market

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Article 29 Working Party Criticizes Privacy Shield

On April 13, 2016, the Article 29 Working Party, which is a group composed of representatives of the national data protection authorities in Europe (“WP29”), published its opinion (“Opinion”) on the EU–U.S. Privacy Shield. The…more

Article 29 Working Party (WP29), Binding Corporate Rules, EU, EU-US Privacy Shield, European Commission

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Intellectual Property Bulletin - Spring 2014

Right of Publicity? First, Let Me Take a Selfie - “Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the…more

Domain Names, Endorsements, First Amendment, Free Speech, gTLD

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Highmark and Octane Helped, But Legislation on Fee Shifting Still Necessary

There is a continued need for patent reform to address the asymmetrical costs that patent litigation imposes on defendants. Given the substantial costs imposed on U.S. technology companies by the number of suits brought by…more

Fee-Shifting, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

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Silicon Valley Venture Capital Survey – Second Quarter 2017

This report analyzes the valuations and terms of venture financings for 208 companies headquartered in the Silicon Valley that raised capital in the second quarter of 2017. Overview of Results - Valuations Continue…more

Early Stage Companies, Entrepreneurs, Life Sciences, Popular, Silicon Valley

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Litigation Alert: The Supreme Court’s Omnicare Decision Clarifies When an Opinion Stated in a Registration Statement Can Give Rise to Section 11 Liability

Overview - On March 24, 2015, the Supreme Court issued its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, a highly anticipated case concerning the circumstances under which…more

Omnicare v Laborers District Council, Registration Statement, SCOTUS, Statement of Facts, Statement of Opinion

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Legal Resource Guide for Startup Entrepreneurs

In this Guide: - Guide to Starting a Corporation - Venture Capital for High Technology Companies - Angel/Seed Financing Survey – 2012: Internet/Digital Media and Software Industries - Trends in…more

Entrepreneurs, Patents, Startups, Venture Capital

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Litigation Alert: Supreme Court Relaxes Standard for Fee Shifting in Patent Cases

In a pair of decisions issued yesterday, the United States Supreme Court unanimously lowered the threshold for obtaining attorneys’ fees in patent cases pursuant to 35 U.S.C. § 285 and increased the level of deference owed to a…more

Attorney's Fees, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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Supreme Court to Decide if Disparagement Provision in the Lanham Act is Invalid Under the First Amendment

On September 29, 2016, the Supreme Court agreed to review Lee v. Tam, better known as “THE SLANTS” case, to assess the constitutionality of the Trademark Office’s refusal to register disparaging marks under Section 2(a) of the…more

Certiorari, Constitutional Challenges, Disparagement, First Amendment, Free Speech

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Intellectual Property Bulletin - Summer 2016

Supreme Court Expands Discretion to Award Enhanced Damages for Patent Infringement and Eliminates the Federal Circuit’s ‘Seagate Test’ - In Halo Electronics, Inc. v. Pulse Electronics, Inc., the U.S. Supreme Court changed…more

35 U.S.C. § 284, Common Law Claims, Copyright, Defend Trade Secrets Act (DTSA), Dilution

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Purchasing Flowers Ends in Reforming Browsewrap Agreements

A California Court of Appeal has taken its first stance on the website design requirements necessary for an enforceable browsewrap agreement. On March 17, 2016 the Court of Appeal affirmed the California Superior Court of Los…more

Browsewrap Agreement, Clickwrap Agreements, Contract Formation, Internet Retailers, Terms of Use

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Copyright Alert: The European Union Exposes Websites to Copyright Liability for Linking to Infringing Material of Third Parties

The Court of Justice of the European Union ruled on September 8, 2016 that websites that merely link to infringing material (instead of copying it) can be liable for copyright infringement. If this decision, GS Media BV v…more

Copyright Infringement, EU, Hyperlink, Social Media, Websites

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Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

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Privacy Alert: New COPPA Rule Effective July 1, 2013

New amendments to the Children’s Online Privacy Protection Rule go into effect today, July 1, 2013. Amongst the significant changes introduced by the new Rule, the newly expanded definition of “personal information” and new…more

COPPA, Data Collection, Internet, New Regulations, Right to Privacy

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Biosimilars: Supreme Court Grants Certiorari in Amgen v. Sandoz

On Friday, January 13, the Supreme Court granted certiorari in Amgen v. Sandoz (Nos. 15-1039 & 15-1195). The Supreme Court originally deferred its decision on the parties’ certiorari petitions in order to consider the Solicitor…more

Amgen, Biologics, Biosimilars, BPCIA, Certiorari

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Fenwick Employment Brief - Summer 2017 Update

California Legislative and Agency Update - Read about the latest California cities to increase hourly minimum wages, newly expanded transgender protections, criminal background check limitations and other changes in…more

Breastfeeding, Day of Rest Laws, DFEH, DOL, Domestic Violence

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

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Intellectual Property Bulletin - Summer 2017

Reducing Cybersecurity Risks to Autonomous Vehicles - The Department of Transportation is revising autonomous vehicle guidelines it issued in September 2016. Recent comments by Secretary Elaine Chao suggest that the new…more

Automotive Industry, Broadcasting, Connected Cars, Copyright Infringement, Cybersecurity

See all updates »

Intellectual Property Bulletin - Summer 2017

Reducing Cybersecurity Risks to Autonomous Vehicles - The Department of Transportation is revising autonomous vehicle guidelines it issued in September 2016. Recent comments by Secretary Elaine Chao suggest that the new…more

Automotive Industry, Broadcasting, Connected Cars, Copyright Infringement, Cybersecurity

See all updates »

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

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Litigation Alert: The Supreme Court’s Omnicare Decision Clarifies When an Opinion Stated in a Registration Statement Can Give Rise to Section 11 Liability

Overview - On March 24, 2015, the Supreme Court issued its opinion in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, a highly anticipated case concerning the circumstances under which…more

Omnicare v Laborers District Council, Registration Statement, SCOTUS, Statement of Facts, Statement of Opinion

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

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Fenwick Privacy Bulletin - Summer 2017

In This Issue - Ransomware Advisory - The WannaCry ransomware attack that began on May 12 infected 230,000 computers in more than 150 countries within a few days. The scope of the attack was unprecedented—which is just one…more

Biometric Information, Biometric Information Privacy Act, China, Cyber Attacks, Cybersecurity

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

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Thwarting 'The Great Patent Revolt' in your Engineering Organizations

When a patent practitioner reads an article calling on engineers to stage a patent strike within their organizations, alarm is the natural reaction. For in-house counsel, such articles and sentiments (which I have found to be…more

Patent Applications, Patents

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Intellectual Property Bulletin - Summer 2016

Supreme Court Expands Discretion to Award Enhanced Damages for Patent Infringement and Eliminates the Federal Circuit’s ‘Seagate Test’ - In Halo Electronics, Inc. v. Pulse Electronics, Inc., the U.S. Supreme Court changed…more

35 U.S.C. § 284, Common Law Claims, Copyright, Defend Trade Secrets Act (DTSA), Dilution

See all updates »

Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

See all updates »

M&A Litigation Update: Delaware Chancery Court Delivers Devastating Blow to Disclosure Settlements

A new decision makes clear that parties should no longer expect the Delaware Court of Chancery to approve broad settlements of M&A class actions based on supplemental proxy disclosures. Chancellor Andre Bouchard issued a 42-page…more

Class Action, Corporate Counsel, Disclosure, Proxy Statements, Real Estate Market

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Securities Enforcement Alert: SEC Increases Scrutiny of “Unicorns” and Other Private Companies and Secondary Market Trading of Pre-IPO Shares - Urges Private Companies to Adopt Enhanced Controls Long Before IPO

In an unprecedented one-day blitz, the Chair of the Securities and Exchange Commission was joined by the SEC Enforcement Director in events in Silicon Valley and San Francisco on March 31 focused on one message: the SEC is…more

Enforcement Actions, Investor Protection, Privately Held Corporations, Rule 10b-5, SEC

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Corporate and Securities Alert: SEC Guidance on Using Social Media to Disclose Material Non-public Information

On April 2, 2013, the Securities and Exchange Commission issued noteworthy guidance on the use of social media to disclose material information in compliance with Regulation FD (Fair Disclosure)…more

Facebook, Investors, Netflix, Public Disclosure, Reed Hastings

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

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Another Look at U.S. Federal Income Tax Treatment of Contingent Earnout Payments

The sale of a company in an M&A transaction often involves consideration to the selling shareholders that is deferred and contingent on subsequent events in the life of the company, such as the post-acquisition performance of…more

Earn-Outs, EBITDA, Income Taxes, Valuation

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Class Action Defendants Win Home Court Advantage in Supreme Court Ruling on Specific Jurisdiction in Bristol-Myers Case

In a decisive 8-1 vote, the U.S. Supreme Court rejected a theory of specific jurisdiction that would allow a state court to assert specific jurisdiction over the claims of out-of-state plaintiffs whose claims were not directly…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Due Process, Forum Shopping, Fourteenth Amendment

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Executive Compensation Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This Client Alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former…more

Employee Stock Purchase Plans, Executive Compensation, Filing Deadlines, Incentive Stock Options, IRS

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Grand Jury Indicts Startup Founder Isaac Choi – Implications for Silicon Valley

On June 7, the U.S. Department of Justice arrested Isaac Choi, the founder and former chief executive of the Silicon Valley startup, WrkRiot, on wire fraud charges. A San Jose, California grand jury had indicted Choi under seal…more

Corporate Counsel, Criminal Prosecution, DOJ, Fraud, Indictments

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EEOC Conciliation Efforts Subject To Limited Judicial Review

In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are subject to judicial review, although such review is limited to ensure that…more

Coal Industry, Conciliation, Discrimination, EEOC, Hiring & Firing

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Antitrust Alert: New HSR Thresholds for 2016

The annual adjustment of the dollar thresholds for pre-acquisition filings under the Hart-Scott-Rodino Act will take effect the end of February. All transactions closing on or after the effective date will be governed by the new…more

Antitrust Provisions, DOJ, Filing Requirements, FTC, Hart-Scott-Rodino Act

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Client Alert: Brexit – What Silicon Valley Needs to Know

The vote of the UK Electorate to leave the EU has politicians, economists, lawyers and commentators from all sectors speculating on what will happen next and over exactly what period. While it is unlikely that there will be a…more

Contract Terms, Data Protection, EU, Force Majeure Clause, Foreign Investment

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Life Sciences Alert: Unanimous Supreme Court Decision in Ass'n for Mol. Pathology v. Myriad Genetics Inc.

Yesterday, a unanimous Supreme Court decision in Ass’n for Mol. Pathology v. Myriad Genetics, Inc., held that Myriad’s claims directed to “a naturally occurring segment of … [DNA]” are not patent eligible despite their…more

AMP v Myriad, Biotechnology, DNA, Human Genes, Myriad

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Legal Resource Guide for Startup Entrepreneurs

In this Guide: - Guide to Starting a Corporation - Venture Capital for High Technology Companies - Angel/Seed Financing Survey – 2012: Internet/Digital Media and Software Industries - Trends in…more

Entrepreneurs, Patents, Startups, Venture Capital

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Silicon Valley Venture Survey - Second Quarter 2015

Background - We analyzed the terms of 166 venture financings closed in the second quarter of 2015 by companies headquartered in Silicon Valley. - Overview of Fenwick & West Results - Valuation results continued to…more

Corporate Restructuring, Emerging Technology Companies, Silicon Valley, Software Developers, Venture Capital

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

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Securities Litigation Alert: GlaxoSmithKline and Five Executives Convicted of Bribery in China

On Friday, September 19, 2014, a Chinese court found pharmaceutical giant GlaxoSmithKline guilty of bribing doctors and hospitals in order to increase sales of the company’s products in China. Among other things, the company was…more

Bribery, China, Foreign Nationals, Foreign Official, GlaxoSmithKline

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Intellectual Property Bulletin - Spring 2017

It’s Dangerous to Go Alone! Take This. Intellectual Property Tips for the Esports Industry - With the annual Game Developers Conference spectacular in our rearview mirror, and the NBA’s partnership with Take-Two to…more

Architectural Copyrights, Commercial Use, Copyright Infringement, Digital Media, eSports

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The Top Seven Takeaways from the December, 2015 Federal Rules Amendments

Can rule changes streamline litigation to make discovery proportional to the case, improve case management, cut down foot-dragging in response to document requests, eliminate “over-preservation” of records and expedite…more

Case Management, Discovery, Document Requests, Electronically Stored Information, Federal Rules of Civil Procedure

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Litigation Alert: The FCC Enforcement Bureau Advises That Text Message Senders Must Comply With the Telephone Consumer Protection Act

On November 18, 2016, the Federal Communications Commission (FCC) Enforcement Bureau issued an Advisory declaring that autodialed text messages, also known as robotexts, must comply with the requirements set forth in the…more

Advisory Opinions, Auto-Dialed Calls, Corporate Counsel, Declaratory Judgments, Declaratory Rulings

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Article 29 Working Party Criticizes Privacy Shield

On April 13, 2016, the Article 29 Working Party, which is a group composed of representatives of the national data protection authorities in Europe (“WP29”), published its opinion (“Opinion”) on the EU–U.S. Privacy Shield. The…more

Article 29 Working Party (WP29), Binding Corporate Rules, EU, EU-US Privacy Shield, European Commission

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Supreme Court Redefines the Standard for Indefiniteness in Patent Cases

In Nautilus, Inc. v. Biosig Instruments, Inc., a unanimous Supreme Court reversed the Federal Circuit and redefined the standard for indefiniteness under Section 112, ¶ 2. No. 13-369, 572 U.S. ___ (2014) (“Slip Op.”). The Court…more

Claim Construction, Indefiniteness, Nautilus Inc. v. Biosig Instruments, Patent Infringement, Patent Litigation

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Deciding Which Inventions to Patent

In the early stages of development, inventors and their employers are often confused about what to patent. When faced with a dizzying array of new products and feature enhancements, it may be tempting to select the flashiest…more

Patent Applications, Patents

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Fenwick Employment Brief - Summer 2017 Update

California Legislative and Agency Update - Read about the latest California cities to increase hourly minimum wages, newly expanded transgender protections, criminal background check limitations and other changes in…more

Breastfeeding, Day of Rest Laws, DFEH, DOL, Domestic Violence

See all updates »

Life Sciences Financing Survey - First Half, 2013

In This Issue: - Summary - Analysis of Industry Data - Detailed Fenwick & West Results: Valuation - Detailed Fenwick & West Results: Financing Terms …more

Biotechnology, Financing, Life Sciences, Pharmaceutical Industry

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Supreme Court's Petrella Decision Eliminates the Laches Defense as an Absolute Bar to Copyright Claims

In the coming months, authors of copyrighted materials may begin resurrecting long buried works and asserting infringement claims against current users. The doctrine of laches — a plaintiff’s unreasonable delay in bringing suit…more

Copyright, Copyright Infringement, Infringement, Laches, Petrella v. MGM

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Examiner Citations of Smartgene, Cyberfone Drop After McRo Memo

After Alice, the USPTO's various guidance memoranda included references to non-precedential Federal Circuit decisions, particularly Smartgene, Cyberfone, and Planet Bingo, as examples of patent-ineligible subject matter. …more

Abstract Ideas, CLS Bank v Alice Corp, Patent Infringement, Patent Litigation, Patent-Eligible Subject Matter

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

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IRCA Does Not Preempt FEHA, But Limits Available Remedies

In Salas v. Sierra Chemical Co., the California Supreme Court addressed the issue of whether the federal Immigration Reform and Control Act (“IRCA”) preempts the application of the antidiscrimination provisions of California’s…more

Discrimination, FEHA, Immigrants, Immigration, IRCA

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Fenwick Employment Brief - June 2013: Alert: “Unpaid Interns” Held to be Employees Who Should Have Been Paid

As this FEB went to publication, a federal district court in New York issued an important — and very instructive — decision on the compensation of unpaid interns at for-profit companies. In Glatt v. Fox Searchlight Pictures, the…more

FLSA, Internships, Minimum Wage, Unpaid Interns, Wages

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Tax Alert: FTB Disallows California Qualified Small Business Stock Benefits

The California Franchise Tax Board (FTB) recently issued FTB Notice 2012-03, stating that the FTB will disallow the exclusion or deferral of gain under California's qualified small business stock (QSBS) statute for all tax years…more

Commerce Clause, Cutler v Franchise Tax Board, Franchise Tax Board, Gain Exclusion, Income Taxes

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Intellectual Property Bulletin - Summer 2015

28 U.S.C. § 1782: A Powerful Tool in Global Disputes - As the number and complexity of cross-border and multi-jurisdictional disputes increase, companies can use 28 U.S.C. § 1782 to obtain evidence from U.S.-based entities…more

28 U.S.C. § 1782, America Invents Act, Claim Construction, Copyright, Cross-Border

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Litigation Alert: A Unanimous Supreme Court Reverses Federal Circuit Ruling on Damages in Samsung Electronics Co. v. Apple Inc.

On December 6, 2016, in a unanimous opinion written by Justice Sotomayor, the Supreme Court reversed the Federal Circuit’s affirmance of the damages award in Samsung Electronics Co. v. Apple Inc. The question before the Supreme…more

Apple v Samsung, Article of Manufacture, Calculation of Damages, Cell Phones, Component Parts Doctrine

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Executive Compensation and Employee Benefits Alert: IRS Filing and Reporting Requirements for ISO Exercises and ESPP Stock Transfers

This alert is intended to remind you of certain year-end reporting requirements under Section 6039 of the Internal Revenue Code of 1986, as amended (the “Code”), with respect to stock issued to employees (or former employees)…more

Employee Benefits, Employee Stock Purchase Plans, Executive Compensation, Filing Requirements, IRS

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Will Namenda IR Withdrawal Force A Legal Switch on Product Hopping?

On September 15, 2014, New York Attorney General Eric Schneiderman filed an anti-trust lawsuit against the specialty pharmaceutical company Forest Laboratories and its new owner, Actavis. In the suit, Schneiderman alleges the…more

Actavis Inc., Generic Drugs, Pharmaceutical Industry, Prescription Drugs, Product Hopping

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Tax Alert: IRS Untangles Section 163(L) in Cross-Border Hybrid Financing Transaction

“In terrorem” or anti-abuse provisions often receive a lack of judicial and administrative interpretation. Section 163(l) of the Code, enacted in 1997, is no exception, so that even now certain fundamental questions relating to…more

Convertible Debt, Cross-Border, Internal Revenue Code (IRC), IRS, Subsidiaries

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Who Gives A Sheet About Graphene?

Graphene — a sheet of graphite that is one carbon atom thick — has been the subject of research efforts since the 1960s. With recent advances in synthesis methods, development of graphene-based inventions and the corresponding…more

Patents, Technology

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Litigation Alert: Ninth Circuit Adopts Broader Octane Fitness Standard for Attorneys’ Fees Awards under the Lanham Act

On October 24, 2016, the U.S. Court of Appeals for the Ninth Circuit after an en banc rehearing in Sunearth, Inc. v. Sun Earth Solar Power Co., LTD., adopted the Octane Fitness standard for determining whether a case is…more

Abuse of Discretion, Appeals, Attorney's Fees, Exceptional Case, Lanham Act

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Landmark Decision Limits the Authority of the International Trade Commission

The United States Court of Appeals for the Federal Circuit in Suprema, Inc., et al. v. International Trade Commission, Nos. 2012-1170, 2012-1026, -1124, Slip Op. December 13, 2013, issued a landmark decision limiting the…more

Imports, Indirect Infringement, Induced Infringement, ITC, Patent Infringement

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CEO Pay Ratio Rule – Start Preparing Now - Little Likelihood of Repeal or Delay of the CEO Pay Ratio Rule

Despite many predictions that the CEO pay ratio rule would be repealed, or at least delayed, there is no indication that any such relief will be provided to reporting companies. It appears, at least for now, that the CEO pay…more

CEOs, Corporate Counsel, Disclosure Requirements, Dodd-Frank, Executive Compensation

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Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

See all updates »

Intellectual Property Bulletin - Spring 2014

Right of Publicity? First, Let Me Take a Selfie - “Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the…more

Domain Names, Endorsements, First Amendment, Free Speech, gTLD

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Growth Equity: Who is in Control?

As I discussed in an earlier article, growth equity (or growth capital) resides on the continuum of private equity investing at the intersection of venture capital and control buyouts. Growth capital is designed to facilitate…more

Breach of Contract, Debt Financing, Injunctions, Minority Shareholders, Private Equity

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

See all updates »

[Event] The Most Significant Employment Law Developments of 2016 - Jan. 18th or 25th, Mountain View or San Francisco, CA

2016 brought several employment law developments that will undoubtedly affect your workplace. The Fenwick & West Employment Practices Group invites you to attend its annual complimentary briefing to learn more about the most…more

Arbitration, Class Action Arbitration Waivers, EEO-1, EEOC, Events

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Intellectual Property Bulletin - Winter 2016

European Union’s General Data Protection Regulation to Usher in Sweeping Changes Affecting Data Protection and Privacy Practices of European and U.S. Companies - In December 2015 the European Commission published a General…more

Attorney's Fees, Dismissals, Disparagement, EU, European Commission

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Federal Circuit: A Biosimilar Applicant Must Provide Notice of Intent to Market a Biosimilar Product, No Exceptions

On July 5, 2016, in Amgen v. Apotex (No. 2016-1308), the Federal Circuit again held that a biosimilar applicant must provide its biologic competitor with 180 days’ notice of intent to commercially market a biosimilar product…more

Amgen, Apotex, Biosimilars, BPCIA, FDA

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Litigation Alert: The Ninth Circuit Leaves Pirate Joe’s Saying “Shiver Me Timbers!”

Late last week, the U.S. Court of Appeals for the Ninth Circuit determined a court had jurisdiction to decide a trademark lawsuit filed by a U.S. grocery store against a Canadian reseller where the products at issue were only…more

Appeals, Canada, Comity, Dismissals, Extraterritoriality Rules

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Litigation Alert: Federal Circuit Split on Patent Eligible Subject Matter Analysis

Last week, the Federal Circuit, sitting en banc, issued a much-anticipated decision in CLS Bank Int'l, et al., v. Alice Corporation Pty, Ltd. involving the test for when computer-related inventions are unpatentable "abstract…more

CLS Bank, CLS Bank v Alice Corp, Patent-Eligible Subject Matter, Patents

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Intellectual Property Bulletin - Summer 2016

Supreme Court Expands Discretion to Award Enhanced Damages for Patent Infringement and Eliminates the Federal Circuit’s ‘Seagate Test’ - In Halo Electronics, Inc. v. Pulse Electronics, Inc., the U.S. Supreme Court changed…more

35 U.S.C. § 284, Common Law Claims, Copyright, Defend Trade Secrets Act (DTSA), Dilution

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Silicon Valley Venture Capital Survey – Second Quarter 2017

This report analyzes the valuations and terms of venture financings for 208 companies headquartered in the Silicon Valley that raised capital in the second quarter of 2017. Overview of Results - Valuations Continue…more

Early Stage Companies, Entrepreneurs, Life Sciences, Popular, Silicon Valley

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Ninth Circuit Confirms Willfulness is Required to Award Profits in Trademark Cases

The U.S. Court of Appeals for the Ninth Circuit reaffirmed its commitment to the rule that willfulness is a prerequisite for disgorgement of a trademark infringer’s profits in Stone Creek v. Omnia Italian Design, Case No…more

Disgorgement, Intellectual Property Protection, Lanham Act, Likelihood of Confusion, Popular

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U.S. Tax Developments Affecting Financial Institutions and Products

Recent months have seen significant IRS and judicial developments affecting financial institutions and market participants, including new FATCA changes and proposed regulations on dividend equivalent payments under section…more

Banks, Corporate Taxes, FATCA, FFI, IGAs

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New Index Rules Likely to Significantly Impact Tech Companies with Multi-Class Capital Structures

In response to investor concerns regarding an increase in the number of technology companies that have been implementing multi-class capital structures, index providers S&P Dow Jones, FTSE Russell and MSCI have adopted or…more

Capital Structures, Common Stock, Investment, IPO, S&P

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Key SCOTUS Decisions in Tech – First Half 2017

Despite being short one justice for much of the year, the U.S. Supreme Court handed down multiple significant decisions this past term that can unsettle long-standing legal understandings in multiple technology fields. These…more

Bristol-Myers Squibb Co v Superior Court of California - San Francisco County, Class Action, Class Certification, Disparagement, Extraterritoriality Rules

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Antitrust Alert: New HSR Thresholds for 2016

The annual adjustment of the dollar thresholds for pre-acquisition filings under the Hart-Scott-Rodino Act will take effect the end of February. All transactions closing on or after the effective date will be governed by the new…more

Antitrust Provisions, DOJ, Filing Requirements, FTC, Hart-Scott-Rodino Act

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Litigation Alert: Supreme Court Leaves Intact PTAB Authority to Institute and Regulate Inter Partes Review Proceedings

This week in Cuozzo Speed Technologies, LLC v. Lee, the United States Supreme Court decided two important questions related to the power of the Patent Trial and Appeal Board (PTAB) over inter partes review proceedings. First,…more

Administrative Procedure Act, America Invents Act, Appeals, Broadest Reasonable Interpretation Standard, Claim Construction

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Intellectual Property Bulletin - Spring 2014

Right of Publicity? First, Let Me Take a Selfie - “Oh, he wants to do a selfie,” President Barack Obama observed with amusement before gamely posing with Boston Red Sox designated hitter David Ortiz. Ortiz snapped the…more

Domain Names, Endorsements, First Amendment, Free Speech, gTLD

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Intellectual Property Bulletin - Winter 2017

A Smooth Patch in a Rough Road? Governmental Transition and Intellectual Property - Whenever a new Congress convenes, some IP issues come to the fore while others take a back seat. Transition to a new administration in the…more

Administrative Appointments, America Invents Act, Appeals, Article III, Barack Obama

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Fenwick Employment Brief - Summer 2017 Update

California Legislative and Agency Update - Read about the latest California cities to increase hourly minimum wages, newly expanded transgender protections, criminal background check limitations and other changes in…more

Breastfeeding, Day of Rest Laws, DFEH, DOL, Domestic Violence

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Litigation Alert: U.S. Supreme Court Raises the Stakes in Trademark Proceedings at the TTAB

This week, the Supreme Court issued an important ruling that will significantly impact the way parties handle trademark disputes in the United States. The opinion in B&B Hardware, Inv. v. Hargis Industries, Inc., 575 U.S. ____;…more

B&B Hardware v Hargis Industries, Issue Preclusion, Lanham Act, Legal History, Likelihood of Confusion

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Technology and Life Sciences IPO Survey - 2017 First Half

This report analyzes key aspects of initial public offerings (IPOs) for technology and life sciences companies that went public in the first half of 2017. Downloading the full report will provide you access to a number of tables…more

Capital Raising, IPO, Life Sciences, Pharmaceutical Industry, Stock Prices

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Legal FAQ: Section 337 Investigations Before the International Trade Commission

What types of intellectual property claims can be brought before the International Trade Commission? - The U.S. International Trade Commission (“ITC”) investigates claims of unfair competition under Section 337 of the…more

Copyright, ITC, Misappropriation, Patents, Section 337

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Corporate Alert: China’s New Tax Regulation on Indirect Disposals Complicates Certain Offshore M&A Deals

In 2009, China’s State Administration of Taxation (SAT) promulgated Circular 698 to empower PRC tax authorities to re-characterize transfers by non-PRC residents of shares in offshore companies that hold equity interests in…more

China, Equity Securities, Offshore Companies, PRC Taxation Administration, Tax Avoidance

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California Attorney General Issues Privacy Guidelines for Websites

In the wake of numerous high-profile breaches of user privacy and complaints about sites that track the online activity of users, California Attorney General Kamala Harris has released a 28-page set of recommendations for how…more

CalOPPA, Data Breach, Data Protection, Data-Sharing, Kamala Harris

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Intellectual Property Bulletin - Summer 2017

Reducing Cybersecurity Risks to Autonomous Vehicles - The Department of Transportation is revising autonomous vehicle guidelines it issued in September 2016. Recent comments by Secretary Elaine Chao suggest that the new…more

Automotive Industry, Broadcasting, Connected Cars, Copyright Infringement, Cybersecurity

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