Fenwick & West LLP

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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Litigation Alert: Supreme Court Revives 'Divided Infringement' Defense to Inducement

Limelight Networks, Inc. v. Akamai Technologies, Inc., No. 12-786, Slip Op. (June 2, 2014) - The United States Supreme Court has revived “divided infringement” as a defense to claims for inducement of patent infringement…more

Akamai Technologies, Infringement, Limelight, Limelight Networks, Patent Infringement

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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: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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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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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California’s Eraser Law: What IP Attorneys and Owners Need to Know

Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a bigger problem: When he was 17, he was not as wise as he is now at the ripe…more

COPPA, DMCA, Dormant Commerce Clause, Facebook, Minor Eraser Law

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Executive Compensation and Corporate and Securities Alert: UPDATED-NYSE and Nasdaq Propose Rules Relating to Compensation Committees and Compensation Consultants

This summary has been updated to reflect the amendment to the Nasdaq Proposed Rules now referenced in the third paragraph of the Overview below. Overview - On June 20, 2012, the Securities and Exchange Commission…more

Compensation Committee, Compliance, Dodd-Frank, Executive Compensation, Nasdaq

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SEC Announces $30 Million Whistleblower Award to Non-U.S. Resident

On Monday, September 22, 2014, the SEC announced that it expected to award between $30 and $35 million to a non-U.S. whistleblower who provided the SEC with information about “an ongoing fraud that would have been very difficult…more

Chief Compliance Officers, Dodd-Frank, FCPA, Foreign Nationals, Fraud

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Litigation Alert: Supreme Court’s Lexmark Decision Creates Uniform Federal False Advertising Standing Requirement

On March 25, the Supreme Court issued its opinion in Lexmark International v. Static Control Components, ruling that Static Control may proceed with its false advertising counterclaim under Section 43(a) of the Lanham Act…more

False Advertising, Lanham Act, Lexmark, Lexmark v Static Control Components, SCOTUS

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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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Electronic Signature (eSignature) Court Decision — a rare one

In an odd electronic signature (eSignature) context, on December 30, 2014 a California appellate court reversed a trial court’s upholding of a settlement agreement based on a typewritten name in an email string. See J.B.B…more

E-Signatures, Email, Settlement Agreements

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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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How to Correctly Apply the Alice Examination Guidance

In my previous post, I provided an explanation of Abstract Ideas under Alice, emphasizing that to be an ineligible abstract idea, a claim must recite a fundamental building block of human ingenuity. How then does an examiner…more

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

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SEC Announces $30 Million Whistleblower Award to Non-U.S. Resident

On Monday, September 22, 2014, the SEC announced that it expected to award between $30 and $35 million to a non-U.S. whistleblower who provided the SEC with information about “an ongoing fraud that would have been very difficult…more

Chief Compliance Officers, Dodd-Frank, FCPA, Foreign Nationals, Fraud

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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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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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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Legal FAQ: Introduction to Patent Litigation

1. Who enforces a patent? The U.S. Patent and Trademark Office grants a patent. Contrary to popular belief, a patent does not give its holder the right to practice the invention, but the right to preclude others from…more

ITC, Patent Infringement, Patent Litigation, Patents, USPTO

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Fenwick Employment Brief - July 2013: DOMA and Prop 8 Rulings Clear the Way for Same-Sex Marriages in California and Require Changes in Employee Benefits

In U.S. v. Windsor, the court struck down a portion of the federal Defense of Marriage Act (“DOMA”) as unconstitutional. DOMA, for purposes of federal tax and benefits laws, defined marriage as only between “one man and one…more

DOMA, Employee Benefits, FMLA, Healthcare, Hollingsworth v Perry

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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

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FCC Changes to the Telephone Consumer Protection Act Take Effect October 16

Effective October 16, 2013, there will be significant changes to the Federal Communications Commission’s (“FCC”) rules implementing the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227. Of particular…more

FCC, Robocalling, Spam, TCPA, Telemarketing

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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

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Riddle Me This: The Federal Circuit Provides a Measure of Clarity to the Enigmatic Biosimilar Approval Pathway

In Amgen Inc. v. Sandoz Inc. (No. 2015-1499), a fractured panel of the Federal Circuit Court of Appeals recently decided two issues of first impression relating to the Biologics Price Competition and Innovation Act of 2009…more

aBLA, Amgen, Biosimilars, BPCIA, Commercial Marketing

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Litigation Alert: A Good-Faith Belief of Patent Invalidity Is Not a Defense to Inducement of Infringement

Six justices of the Supreme Court agree that an accused indirect infringer’s good faith belief in invalidity of a patent “will not negate the scienter required under §271(b).” Commil USA, LLC v. Cisco Sys., Inc., No. 13-896,…more

Cisco, Cisco v CommilUSA, Good Faith, Induced Infringement, Patent Infringement

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Of Broken Leases and ‘Broken Windows’

On Dec. 3, 2014, the Division of Enforcement of the U.S. Securities and Exchange Commission brought an enforcement action against two former top executives of Assisted Living Concepts LLC, a large provider of senior living…more

Assisted Living Facility, Breach of Contract, Broken Windows, C-Suite Executives, Commercial Leases

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Intellectual Property Alert: Supreme Court Rules Against Broadly Claimed Software Patents, But Offers No Clear Test for Abstract Ideas

In a unanimous decision, the Supreme Court held that patent claims directed to abstract ideas do not become patent eligible by the “mere recitation” of generic computer elements. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, No…more

Alice Corporation, CLS Bank, CLS Bank v Alice Corp, Mayo v. Prometheus, Patent Litigation

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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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Jawbone and Oscar Lead Record Breaking Month for Digital Health Financings

Two blockbuster deals drove digital health financings to record levels in April. The month saw a total of nearly $790 million in deal flow, with the ten largest financing transactions of the month matching the first quarter…more

Corporate Financing, Digital Health, Equity Financing, Healthcare, Popular

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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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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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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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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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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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New Amendments Clarify California Paid Sick Leave

This month, the California Legislature enacted AB 304, an urgency measure that became effective on July 13 and provides much needed clarity on various aspects of California’s mandatory paid sick leave law (Healthy Workplaces,…more

Accrual Method, Earned Sick Time, Paid Sick Leave Act, PTO, Recordkeeping Requirements

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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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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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Litigation Alert: Ninth Circuit Assesses Use of Player Likenesses in Video Games

On Wednesday, July 31, 2013, the Ninth Circuit issued two opinions assessing the parameters of use of individual player likenesses in video games in two highly watched cases..…more

Electronic Arts, Endorsements, First Amendment, Lanham Act, NCAA

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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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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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Advanced Copyright Issues on the Internet

In This Publication: - I. Introduction - II. Rights Implicated By Transmission And Use Of Works On The Internet - III. Application Of Copyright Rights To Specific Acts On The Internet - IV…more

Copyright, Corporate Counsel, Cross-Border Transactions, Internet

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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

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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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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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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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Litigation Alert: California Supreme Court Announces Sea-Change in Rules Governing Use of Parol Evidence to Show Fraud in Contract Interpretation

Background - On January 14, 2013, the California Supreme Court issued a unanimous decision clarifying – and ultimately rewriting – the applicable legal standard for introduction of parol evidence to show that a contract is…more

Bank of America v Pendergrass, Extrinsic Evidence, Fraud Exception, Parol Evidence, Riverisland

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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 - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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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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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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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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SEC Announces $30 Million Whistleblower Award to Non-U.S. Resident

On Monday, September 22, 2014, the SEC announced that it expected to award between $30 and $35 million to a non-U.S. whistleblower who provided the SEC with information about “an ongoing fraud that would have been very difficult…more

Chief Compliance Officers, Dodd-Frank, FCPA, Foreign Nationals, Fraud

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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

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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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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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Securities Litigation Alert: The Supreme Court’s Halliburton Decision: Reliance Can Still Be Presumed In Securities Class Actions, But Defendants May Now Rebut The Presumption At An Earlier Stage

In a highly anticipated decision issued June 23, 2014, the Supreme Court in Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317 (June 23, 2014), declined an invitation to overrule the “fraud-on-the-market” presumption — a…more

Basic v Levinson, Class Certification, Fraud, Fraud-on-the-Market, Halliburton

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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 Statutes, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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

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

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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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Intellectual Property Bulletin - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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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Litigation Alert: Even Spider-Man Can't Defeat Ban on Post-Patent Expiration Royalties

Fifty years ago, in Brulotte v. Thys Co., the U.S. Supreme Court held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” 379 U.S. 29, 32 (1964). On June 22,…more

Brulotte, Contract Term, IP License, Kimble v Marvel Enterprises, Patent Royalties

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New Amendments Clarify California Paid Sick Leave

This month, the California Legislature enacted AB 304, an urgency measure that became effective on July 13 and provides much needed clarity on various aspects of California’s mandatory paid sick leave law (Healthy Workplaces,…more

Accrual Method, Earned Sick Time, Paid Sick Leave Act, PTO, Recordkeeping Requirements

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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

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

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Litigation Alert: SCOTUS Grants Certiorari to Review Ninth Circuit’s Spokeo Decision Granting Standing To Enforce Statutory Rights in the Absence of Monetary Harm

In an important move that may clarify standing in a variety of consumer cases, the U.S. Supreme Court on April 27, 2015 granted review in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 323 (U.S…more

Article III, Certiorari, Class Action, FCRA, Federal Jurisdiction

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Federal Circuit Creates New (non-Alice) Hurdle for Software Patents

In the wake of last year’s Supreme Court decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), dozens of courts have declared scores of patents to be invalid as not satisfying the requirements of §101 of…more

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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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Litigation Alert: California Superior Court Finds Use of Likeness of Former Panamanian Dictator Manuel Noriega in Video Game Transformative

Manuel Noriega v. Activision Blizzard, Inc., No. BC 551747 (Cal Super. Ct. filed October 27, 2014) - In recent years, federal and state courts have wrestled with how to assess right of publicity claims in the video game…more

Copyright, First Amendment, Manuel Noriega, Right of Publicity, Transformativeness

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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 Statutes, Highmark v. Allcare, Octane Fitness v. ICON, Patent Infringement, Patent Litigation

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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

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

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SEC Announces $30 Million Whistleblower Award to Non-U.S. Resident

On Monday, September 22, 2014, the SEC announced that it expected to award between $30 and $35 million to a non-U.S. whistleblower who provided the SEC with information about “an ongoing fraud that would have been very difficult…more

Chief Compliance Officers, Dodd-Frank, FCPA, Foreign Nationals, Fraud

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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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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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Hacked Class Can Sue Pre Injury

Last week, a three-judge panel of the 7th U.S. Circuit Court of Appeals held in Remijas v. Neiman Marcus Group LLC that individuals whose debit and credit card numbers were stolen by cyberthieves who had hacked into Neiman…more

Article III, Clapper v. Amnesty International, Class Action, Credit Monitoring, Cyber Attacks

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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

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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 2014

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, FTC, Hart-Scott-Rodino Act, Mergers

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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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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 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 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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Litigation Alert: SCOTUS Grants Certiorari to Review Ninth Circuit’s Spokeo Decision Granting Standing To Enforce Statutory Rights in the Absence of Monetary Harm

In an important move that may clarify standing in a variety of consumer cases, the U.S. Supreme Court on April 27, 2015 granted review in Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 323 (U.S…more

Article III, Certiorari, Class Action, FCRA, Federal Jurisdiction

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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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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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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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Employer’s Motive, Not Confirmed Knowledge Of Accommodation Need, Is Basis Of Religious Accommodation Violation

Federal anti-discrimination laws (“Title VII”) prohibit an employer from refusing to hire a candidate to avoid accommodating a suspected, but unconfirmed religious practice, according to a recent United States Supreme Court…more

Abercrombie & Fitch, Disparate Treatment, Dress Codes, EEOC, EEOC v Abercrombie

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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

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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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Versata: What's Technological and The New Rule Against Improvements

What Is a "technological invention"? The other part of the CBM definition at issue in Versata is the exclusion of a technological invention from the scope of CBM review. Correctly, the Court noted that the USPTO's circular…more

CLS Bank v Alice Corp, Covered Business Method Patents, Financial Products, Inventions, Patents

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Litigation Alert: Supreme Court Revives 'Divided Infringement' Defense to Inducement

Limelight Networks, Inc. v. Akamai Technologies, Inc., No. 12-786, Slip Op. (June 2, 2014) - The United States Supreme Court has revived “divided infringement” as a defense to claims for inducement of patent infringement…more

Akamai Technologies, Infringement, Limelight, Limelight Networks, Patent Infringement

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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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Patent Strategies in the Digital Health Care Space

You are founding a startup with a great new idea to revolutionize a key health care segment, but you know the digital health space is packed with potential competitors. Your technology and first-mover advantage create barriers…more

Digital Health, Patents

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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, Prescription Drugs, Product Hopping

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Acquisitive Reorganizations Under 367(b) (Updated)

This outline discusses, in plain English, the regulatory provisions called into play under IRC § 367(b) on acquisitive mergers and other non-divisive corporate reorganizations. A Section 367(b) acquisitive reorganization…more

Acquisitions, Foreign Corporations, Foreign Subsidiaries, Internal Revenue Code, IRC Section 367(b)

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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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Intellectual Property Bulletin - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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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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Executive Compensation Alert: SEC Issues Final CEO Pay Ratio Rule

On August 5, 2015, the Securities and Exchange Commission (the “SEC”) voted 3-2 to adopt the final “pay ratio” disclosure rule. This long-awaited, controversial rule is issued pursuant to Section 953(b) of the Dodd-Frank Wall…more

CEOs, Disclosure Requirements, Executive Compensation, Median Employee, Pay Ratio

See All Updates »

Intellectual Property Bulletin - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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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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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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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 - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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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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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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Technology and Life Sciences IPO Survey - 2015, First Half

Survey Introduction and Background - This report has been developed as a resource for our clients and friends interested in understanding recent IPO activity of technology and life sciences companies. This information…more

Emerging Technology Companies, Initial Public Offerings, Life Sciences, Raw Data Metrics, Technology

See All Updates »

Intellectual Property Bulletin - Spring 2015

California’s Eraser Law: What IP Attorneys and Owners Need to Know - Hector recently graduated from UC Berkeley and is anxious about his upcoming job interview. He is about to enter the adult world. But he has also got a…more

Abstract Ideas, Attorney's Fees, Bad Faith, Claim Construction, COPPA

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Important June deadline for ALL owners of at least 10% of a foreign enterprise

As you may be aware, May 29, 2015 was the deadline for certain filings on Form BE-10 required by the U.S Bureau of Economic Analysis. The filings must be made by any U.S. person that had a “foreign affiliate” in 2014, which…more

Bureau of Economic Analysis, Filing Requirements, Foreign Affiliates, Foreign Corporations, Foreign Investment

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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

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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Intellectual Property Bulletin - Winter 2014

The America Invents Act (AIA) came into law back in September 2011, but it was not until last March that its provisions were completely phased in. The changes last year included not only the switch from a “first-to-invent” to a…more

America Invents Act, Beastie Boys, CLS Bank v Alice Corp, Copyright, Covered Business Method Patents

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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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Publicity rights vs. the First Amendment

The right of publicity continues to emerge as a significant intellectual property right of which businesses must be aware—not only in the context of advertising and marketing, but in the context of a company’s product itself…more

Advertising, First Amendment, Right of Publicity, Transformativeness

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Technology and Life Sciences IPO Survey - 2015, First Half

Survey Introduction and Background - This report has been developed as a resource for our clients and friends interested in understanding recent IPO activity of technology and life sciences companies. This information…more

Emerging Technology Companies, Initial Public Offerings, Life Sciences, Raw Data Metrics, Technology

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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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The Basics of Copyright Law: Just Enough Copyright for People Who Are Not Attorneys or Intellectual Property Experts

You have been helping a client set up her consulting business for failing bookstores (Speak Volumes Recovery Group), and she mentions that she has developed a PowerPoint presentation and hand-outs for use in their seminars. “Do…more

Authorship, Copyright, Copyright Infringement, Fair Use

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Contact

Silicon Valley Center 801 California Street
Mountain View, CA 94041, United States

  • 650-988-8500
  • 650-938-5200

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
See more
Locations
Other U.S. Locations
  • California
  • Washington
Other Countries
  • China
Number of Attorneys

100+ Attorneys

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