Predicting Patent Policy Under the Trump Administration

The America Invents Act (“AIA”), signed into law by President Obama on September 16, 2011, was the biggest legislative overhaul to the United States patent system since the Patent Act of 1952. Among other changes, the AIA moved the U.S. to a first-inventor-to-file patent system, created a variety of new post-grant validity proceedings, and eliminated “best-mode” as a litigation defense. The AIA received broad bi-partisan support in both Congressional chambers over the objections of the National Small Business Administration, which argued that the first-to-file provisions would favor “large incumbent corporations.”1 Since its enactment, the AIA has already significantly changed the patent landscape for stakeholders and practitioners alike. For example, inter partes review proceedings have exploded in popularity and have drastically affected litigation strategy, arguably making it much more difficult for patent owners to enforce their patents.

More recently, several patent “reform” bills were introduced in the 113th (2013–2014) and 114th (2015–2016) Congress, which proposed, among other things, amendments to the AIA post-grant review system, changes to litigation pleading requirements, and restrictions on patent venue. While some of the proposals could be said to strengthen patent rights, overall, the basic tenor of these bills was to further increase hurdles for patent owners. President Obama even stressed the importance of further patent reform in his 2014 State of the Union Address and announced a variety of executive actions aimed at reducing litigation abuse.2

Had Hillary Clinton been elected president, she likely would have continued to advocate many of the same patent reform policies as the Obama Administration. A portion of her campaign webpage outlined her positions on curbing abusive patent litigation.3

But Secretary Clinton was not elected president. And, unlike Ms. Clinton and President Obama, President Donald Trump has given almost no indication about his position on issues of patent policy. The anecdotal consensus, however, seems to be that the Trump administration will be more pro-patent than the low bar set by the Obama Administration, which was likely to have been followed by President Clinton. This consensus is based, in part, on Vice-President Mike Pence’s past pro-patent positions as Indiana Governor and on the House Judiciary Committee, as well as the pro-patent stance of many conservative think tanks with ties to the Trump transition team and key Republican members of Congress.

This article provides informed speculation on the Trump Administration’s potential positions on patent policy, especially as it contrasts with what patent practitioners were expecting from Ms. Clinton.

Contrasting Hillary Clinton’s IP Positions

Like President Obama, Hillary Clinton is a patent reform advocate. She supported the AIA and advocated additional targeted rule changes to curb continued “costly and abusive litigation.”For example, she was an advocate of venue reform, requiring specificity in infringement complaints and demand letters, and increased transparency in patent ownership.5 She also supported legislation that would allow the PTO to retain the fees it collects from patent applicants, ending the practice of fee diversion that strains the PTO’s ability to act competently and expeditiously on patent applications.6

Traditional Conservative Policies

It is difficult to pinpoint a single conservative policy on patent issues. On the one hand, patents are property, and conservatives traditionally favor strong personal property rights. On the other hand, tort reform is also an important conservative policy, and much of the current patent “reform” discussion relates to curbing “abusive” litigation tactics. However, the 2016 Republican Platform promulgated at its Presidential Convention focused on the former. It specifically enumerated that patents are “private property” protected by the Fifth Amendment, stressed that “[p]rotecting intellectual property is a national security concern,” noted that “the worst offenses against intellectual property rights come from abroad, especially China,” and “call[ed] for strong action . . . to enforce intellectual property laws against infringers, whether foreign or domestic.”7

President Trump’s Influences

President Trump has at least some experience with intellectual property. Much of his personal wealth is tied to the value of his various trademarks and the value of his own likeness, which he licenses and commercializes. A search of the PTO trademark database yields more than 100 different live U.S. trademarks owned by Donald Trump or his companies. 

Although Trump does not seem to have any direct experience with patents, his campaign was built upon protectionist ideas, suggesting that he would strongly support injunctive relief and large awards against imported goods found to infringe U.S. patents owned by U.S.-based companies.8 Indeed, many of his campaign positions mirror the reason why intellectual property enforcement at the International Trade Commission was created: “to keep foreign pirates out of American markets.”9 Trump’s campaign website lends credence to the idea that he may seek to strengthen the ITC’s power.  In the context of trade secrets, he highlighted the need to “[u]se every lawful presidential power to remedy trade disputes if China does not stop its illegal activities, including its theft of American trade secrets,” and cited as a “key issue” that, “according to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”10

Perhaps Trump’s only specific public stance directly affecting specific patent rights concerns his outspoken objection to the Trans-Pacific Partnership (“TPP”) trade agreement.11 The TPP is a 12-nation trade agreement negotiated by the Obama Administration, which includes several pro-patent positions.12 For example, Article 18:37 arguably expands current patent subject-matter eligibility beyond that outlined in Alice and its progeny.13 However, it seems unlikely that Trump’s opposition to the TPP has anything to do with its pro-patent stance, but rather that it is based on his anti-free trade positions.

Some of Trump’s family members have more direct experience with patent rights. For example, Trump’s eldest son and Executive Vice President of The Trump Organization, Donald J. Trump, Jr., has significant experience with patents and patent litigation. In 2011, Trump Jr. partnered with MacroSolve, a company (now known as Drone Aviation Corp.) that engaged in an aggressive enforcement campaign of a single software patent.14 Trump Jr. wrote an editorial in The Daily Caller in 2012 in defense of “genuine” patent enforcement, in which he distinguished “trolls” who “hoard software patents with the sole intention of leveraging them for a quick payday” from companies who enforced “innovative” technology.15 According to Trump Jr., “[n]ot every company that brings suit for software patent infringement is an exploiter. Some are genuine tech innovators with a real historical and financial investment in their ideas.” MacroSolve filed 66 lawsuits between March 2011 and September 2013, mostly in sets of 5-10 lawsuits at a time.16 Most of MacroSolve’s lawsuits settled or were dismissed quickly. 

Trump has also cited the achievements of his late uncle, John G. Trump, an MIT professor, inventor, scientist, and entrepreneur with 23 U.S. Patents to his credit.17

Mike Pence and Selected Cabinet Members and Advisors

President Trump’s patent policies may also be shaped by his Vice-President, cabinet, and advisors.

Vice President Mike Pence 

Pence served on the House Judiciary Committee for 10 of his 12 years in Congress and was previously a member of the Subcommittee on Courts, the Internet, and Intellectual Property. In connection with the ultimately-unsuccessful Patent Reform Act of 2007, he introduced an amendment to eliminate best mode as the basis for a post-grant challenge.18 During later debate on the AIA, he emphasized his personal role in pushing for elimination of best mode as a litigation defense, and stressed that, while he was satisfied with the compromise, he would rather eliminate the requirement altogether.19 Pence stated that the “best mode requirement of American law imposes extraordinary and unnecessary costs on inventors."20 He also advocated for the PTO to be able to “retain the fees it collects to fund its operations."21

In July 2016, as Indiana Governor, Pence signed an Executive Order establishing the Indiana Economic Development Corporation as the entity responsible for coordinating all efforts on behalf of the State of Indiana to accelerate innovation and entrepreneurship. The Order specifically recognized that increased innovation promotes vibrant communities, economic growth, higher wages, and job creation.22

It seems, then, that the Vice-President is generally pro-patent and believes himself to understand some of the details of patent policy, including the concerns of small inventors. The views of three other members of the Trump transition team seem to be even more staunchly pro-patent.23

Ken Blackwell 

Ken Blackwell has been tapped as domestic advisor to Trump’s transition team. He has consistently argued against patent reform and in favor of stronger patent rights. In 2014, he authored “The Conservative Case Against Patent Reform,” criticizing the then “new Republican majority” for the “mind-boggling” decision to prioritize patent reform.24 According to Blackwell, “Patent reform is another example of crony capitalism” and “[t]he protection of property rights is one of the most fundamental conservative principles and we cannot surrender them to deal with a supposed litigation crisis that does not exist.”25 He continued his assault on patent reform in 2015 (particularly Rep. Goodlatte’s Innovation Act, discussed below), calling it “horrible policy” and “horrible politics for the GOP.”26 And, he lauded leading conservative groups such as the Club for Growth, the American Conservative Union, Heritage Action, and Eagle Forum for criticizing patent reform legislation.27

Wilbur Ross

As Trump’s nominee to head the Commerce Department, Wilbur Ross will have authority over the U.S. Patent and Trademark Office.28 In an editorial in the Washington Post, Ross, along with Peter Navarro, senior policy advisor to the Trump campaign, argued that Trump would “crack[] down on currency manipulation, intellectual property theft and other mercantilist cheating.”29 Moreover, in an interview with CNBC, he argued for a “zero tolerance” policy on intellectual property theft.30

Stephen Bannon

Stephen Bannon has been hired as Trump’s chief strategist. He is a founding member of Breitbart News, which has published several articles advocating for a stronger patent system. For example, Breitbart published an article by Daniel Schneider, executive director of the American Conservative Union, opining that “maintaining a strong economy and a strong patent system are directly related to our ability to provide a robust national defense and military strength.”31 Breitbart also published an article by James Edwards, patent policy advisory to Eagle Forum (see below), stating that inter partes review (IPR) proceedings are a “killing field for patents” and are set up with an “antiproperty-right” bias.32

Patent Bills from the 114th Congress; Changes in the 115th Congress

The 114th Congress introduced a number of patent-related bills, none of which passed a Chamber.33 At a high-level, the provisions of two representative bills from the 114th Congress are set out as follows:

 

Issue

Innovation Act (H.R. 9)

STRONG Patents Act (S. 632)

Financial Incentives

Loser pays with potential to go after shell entity’s owners and investors for attorneys’ fees.

N/A

Post-grant proceedings

N/A

Eliminate broadest-reasonable interpretation claim construction standard;

Ease patent owner amendment standards;

Heighten petitioner’s burden of proof; and

Mandate different PTAB panels for institution and final decision.

Transparency

Plaintiff to disclose all licenses, investors, and parent entities.

N/A

Divided Infringement

N/A

For contributory infringement, “it shall not be a requirement that the steps of the patented process be practiced by a single entity.”

Heightened pleading requirements

Requires identification of asserted claims, accused products, and licensing commitments (e.g., RAND).

Eliminate Form 18 (which has now already been done).

Discovery limitations

Limitations on discovery pre-claim construction.

N/A

Other provisions

Automatic customer stay; and

Curb abusive demand letters.

Curb abusive demand letters.

 

The Innovation Act was originally introduced in the 113th Congress as H.R. 3309. It passed the House by a bi-partisan vote, but died in the Senate. A tally of the votes for and against that bill is shown in the Figure below:

The Republicans continue to hold a majority in both the House and the Senate. The House Judiciary Committee in the 115th Session of Congress will continue to be chaired by Rep. Bob Goodlatte (R-VA) with Rep. John Conyers (D-MI) as ranking member. Goodlatte was the sponsor of the pro-reform Innovation Act, outlined above, which previously passed the House.  In addition, Rep. Darrell Issa (R-CA) is expected to continue chairing the Subcommittee on Courts, Intellectual Property, and the Internet, while Rep. Jerry Nadler (D-NY) is expected to continue as the subcommittee’s ranking member.34 Reps. Issa and Nadler were co-sponsors of the Innovation Act.  Rep. Issa has been a very outspoken advocate of further patent reform, at times using the term “plaintiff” and “troll” interchangeably, and openly criticizing the current practice at the International Trade Commission of allowing non-practicing entities to rely on activities of domestic licensees to satisfy the domestic industry requirement.35

The Senate Judiciary Committee will continue to be chaired by Sen. Chuck Grassley (R-IA) and Sen. Pat Leahy (D-VT) will remain ranking member. Sen. Leahy was a co-sponsor of the Patent Act, a Senate bill (S. 1137) proposing pro-defendant changes somewhat similar to those in the Innovation Act.  

All members of Congress listed above voted for the AIA. 

Of the co-sponsors for patent bills introduced in the 114th Congress, five have left Congress (Mike Honda was a co-sponsor of two bills); note, none of the members who left was the main sponsor of any patent legislative bill. Four of the twenty-eight sponsors of the Innovation Act, H.R. 9, are no longer in Congress. One of the six co-sponsors of the STRONG Patents Act, S. 632, is no longer in Congress. 

In sum, if Trump exerts no influence on Congress, it seems likely that neither the “pro-reform” House bill nor the “pro-patent” Senate bill will go anywhere soon. However, if he chooses—consistent with the above discussion of his and his team’s patent views—to push the latter one, there may be room for bi-partisan compromise to get it passed.

 

Conservative Think Tanks on Patent Policy; Summary of Positions

Heritage Foundation

Politico has written that the “Heritage Foundation has emerged as one of the most influential forces shaping President Donald Trump’s transition team.”36 Historically, the Heritage Foundation has taken mostly pro-patent positions. The Foundation believes in a balanced approach to patent litigation reform that does not “water down patent rights” and empowers Judges to employ sanctions and bond requirements to deter abusive litigants of all types.37 The Foundation has cautioned against sweeping patent reform that would further weaken the patent system, such as the Innovation Act and the Patent Act. The Foundation released this statement about the Innovation Act:

Patent rights are delicate and complicated, but the strength of the American patent is a critical component of economic growth.  Rushed reforms, especially in the aftermath of a massive overhaul, are likely to produce unintended consequences like the weakening of patent rights. The House should give the system time to adjust to the 2011 reforms before moving forward on another set of transformational reforms.  Heritage Action opposes H.R. 9. The bill should not come to the floor.38

American Conservative Union

Like the Heritage Foundation, the American Conservative Union (“ACU”) is opposed to sweeping patent-weakening reform, as set out in the Innovation Act and the PATENT Act. Dan Schneider, the Executive Director of the ACU, has co-authored an article with Maureen Ohlhausen, Republican Commissioner at the Federal Trade Commission, criticizing a “movement . . . to weaken intellectual property rights” or “abolish patents altogether.”39 According to Schneider and Ohlhausen, America “became the world’s superpower due to its unsurpassed economic growth-fueled in no small part by strong intellectual property rights.” Ohlausen has separately commented at an ACU-sponsored conference that China is “trying to drive down input costs, IP is an input cost, so they’re trying to lower that . . .” 

The ACU has warned Congress that it would start scoring members on how they voted on the Innovation Act.40 Instead of the Innovation Act, the ACU has endorsed less sweeping, more focused legislation, such as the TROL Act, which previously made it through the House Energy and Commerce Committee and addresses the matter of abusive demand letter practices.

Connecting the Dots and Predicting Trump’s Patent Policy

Whereas the Obama Administration and the Clinton campaign were clearly in favor of continued patent reform, including the proposals set out in the Innovation Act, Trump’s personal and professional ties suggest a pro-patent stance: many key advisors are on the record as staunch patent supporters; Trump’s son has experience monetizing patents; his uncle was awarded nearly two-dozen patents; leading conservative think tanks have come out in favor of stronger patent rights; and Trump himself seems to understand the value of intellectual property (at least in the context of branding). Couple these ties with his frequently-espoused protectionist views and there is reason to believe that the patent reform tides may be turning.  

To the extent that there is any patent reform during Trump’s presidency, we expect that it will be along the lines of the above-discussed generally pro-patent Senate bill—although perhaps with pre-claim construction limitations on discovery, venue-reform provisions, and/or limitations on demand letters added from the House bill to get it passed.41

Most likely, however, we won’t see any legislative changes to the patent laws in the near term. Congress is now pre-occupied with other more “pressing” issues—hearings on Trump’s cabinet appointees and a forthcoming Supreme Court justice nominee, as well as reported attempts to repeal and replace the Affordable Care Act. Given the direction that patent reform may have taken had Hillary Clinton been elected president, inaction and gridlock may still be welcome relief for some patent owners.

 

[1] National Small Business Association, Senate Approves Harmful Patent Reform Bill (Mar. 8, 2011), available at https://www.nsba.biz/content/3821.shtml.

[2] The White House, Fact Sheet – Executive Actions: Answering the President’s Call to Strengthen Our Patent System and Foster Innovation (Feb. 20, 2014), available at https://www.whitehouse.gov/the-press-office/2014/02/20/fact-sheet-executive-actions-answering-president-s-call-strengthen-our-p.

[3] Hillary Clinton’s Initiative on Technology & Innovation (June 27, 2016), available at https://www.hillaryclinton.com/briefing/factsheets/2016/06/27/hillary-clintons-initiative-on-technology-innovation/.

[4] Hillary Clinton’s Initiative on Technology & Innovation (June 27, 2016), available at https://www.hillaryclinton.com/briefing/factsheets/2016/06/27/hillary-clintons-initiative-on-technology-innovation/.

[5] Id.

[6] Id.

[7] Republican Platform 2016, available at https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234.pdf.

[8] Trump has accused China of “massive theft of intellectual property,” which also suggests a willingness to strengthen U.S. patent rights and trade secret protection.  See, e.g., Trump Says U.S.-China Relationship Must Improve (Dec. 8, 2016), available at http://www.reuters.com/article/us-usa-trump-china-idUSKBN13Y085.

[9] Colleen Chien, Patent Holdup, the ITC, and the Public Interest, 98 CORNELL L. REV. 1 (2012); see also, e.g., Mark Modak-Truran, Section 337 and GATT and the Akzo Controversy: A Pre- and Post-Omnibus Trade and Competitive Act Analysis, 9 NW. J. Int’l L. & Bus. 38 (1988–89) (“Section 337 . . . protects intellectual property rights from international pirating . . . .”).

[10] Trade Policies on Donald J. Trump Campaign Website, available at https://www.donaldjtrump.com/policies/trade.

[11] Ana Swanson, Trump Just Announced He’d Abandon The TPP On Day One. This Is What Happens Next., the Wash. Post: Wonkblog (Nov. 22, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/22/trump-just-announced-hed-abandon-the-tpp-on-day-one-this-is-what-happens-next/?utm_term=.89b7ceb8e2b7.

[12] The TPP is comprised of the following countries: Australia, Canada, Japan, Malaysia, Mexico, Peru, United States, Vietnam, Chile, Brunei, Singapore, and New Zealand.  Japan is the only country so far to ratify the treaty.

[13] Article 18:37 of the TPP, entitled Patentable Subject Matter, states in relevant part: 

1. Subject to paragraphs 3 and 4, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application.

2. Subject to paragraphs 3 and 4 and consistent with paragraph 1, each Party confirms that patents are available for inventions claimed as at least one of the following: new uses of a known product, new methods of using a known product, or new processes of using a known product. A Party may limit those new processes to those that do not claim the use of the product as such.

[14] Trump’s pick for National Security Advisor, Michael Flynn, sat on the Drone board, at least as of the time that he was selected by Trump. See Press Release, Drone Aviation Corp., Lieutenant General Michael T. Flynn Appointed Vice Chairman of Drone Aviation (May 4, 2016), available at http://ir.droneaviationcorp.com/press-releases/detail/291/lieutenant-general-michael-t-flynn-appointed-vice-chairman.

[15] Donald J. Trump, Jr., Defending Innovation in America, The Daily Caller (May 1, 2012), http://dailycaller.com/2012/05/01/defending-innovation-in-america/.

[16] Source: Docket Navigator.

[17] See, e.g., Amy Davidson, Donald Trump’s Nuclear Uncle, The New Yorker (Apr. 8, 2016), http://www.newyorker.com/news/amy-davidson/donald-trumps-nuclear-uncle.

[18] 153 Cong. Rec. H10,303 (daily ed. Sept. 7, 2007), available at https://www.congress.gov/amendment/110th-congress/house-amendment/793/text.  Pence had previously introduced an amendment to the Patent Reform Act to eliminate best mode as a litigation defense.

[19] Cong. Rec. E1174 (June 23, 2011), available at https://www.uspto.gov/sites/default/files/aia_implementation/20110623-pence_rmrks_eE1174.pdf.

[20] Id.

[21] Id.

[22] Exec. Order No. 16-03, State of Indiana, Indiana Register (Oct. 5, 2016), available at http://www.in.gov/legislative/iac/20161005-IR-GOV160451EOA.xml.pdf.

[23] The other members of the Trump transition team (1) do not have a role likely to shape patent policy, and/or (2) to the authors’ knowledge, have not clearly articulated their stance on patent policy.

[24] Ken Blackwell, The Conservative Case Against Patent Reform, The Daily Caller (Dec. 4, 2014), http://dailycaller.com/2014/12/04/the-conservative-case-against-patent-reform/.

[25] Id.

[26]  Ken Blackwell, Patent Politics Going Bad For GOP, The Hill (July 23, 2015), http://thehill.com/blogs/congress-blog/politics/248859-patent-politics-going-bad-for-gop.

[27] Id.

[28] At the time of this article, there are unconfirmed reports that current USPTO director Michelle Lee will remain in her position, at least temporarily.

[29] Wilbur Ross and Peter Navarro, How Trump Would Stimulate the U.S. Economy, the Wash. Post (Sept. 23, 2016), https://www.washingtonpost.com/opinions/how-trump-would-stimulate-the-us-economy/2016/09/23/b889458e-80ef-11e6-b002-307601806392_story.html?utm_term=.61db89ab7ee9.

[30] Wilbur Ross and Peter Navarro, We Need a Tough Negotiator Like Trump to Fix US Trade Policy, CNBC (July 29, 2016), http://www.cnbc.com/2016/07/29/we-need-a-tough-negotiator-like-trump-to-fix-us-trade-policy-commentary.html.

[31] Dan Schneider, Protect America By Preserving Patent System, Breitbart (Sept. 4, 2015), http://www.breitbart.com/big-government/2015/09/04/protect-america-by-preserving-patent-system/.

[32] James Edwards, Time to Restore Patent Property Rights, Breitbart (Dec. 20, 2015), http://www.breitbart.com/big-government/2015/12/30/time-restore-patent-property-rights/.

[33] The STRONG Patents Act was introduced by Senator Coons in the 114th Congress on March 3, 2015.  It never came to a vote.  Other proposed legislation from the 114th Congress includes the Patent Act (S. 1137), the Senate version of the Innovation Act, which proposed similar changes, as well as more targeted bills such as the VENUE Act (S. 2733), Trade Protection not Troll Protection Act (H.R. 4829), the TROL Act (H.R. 2405), and the Demand Letter Transparency Act of 2015 (H.R. 1896).  Only the STRONG Patents Act can reasonably be viewed as strengthening patent rights.

[34] One Republican member of the subcommittee has left Congress, leaving it currently composed of 13 Republicans and 12 Democrats.

[35] See opening testimony starting at approximately 18:25, available at https://judiciary.house.gov/hearing/international-trade-commission-patent-litigation/.

[36] The Heritage Foundation is also closely linked to Ken Blackwell, who has been an outspoken critic of further patent reform.  See, e.g., Katie Glueck, Trump’s Shadow Transition Team, Politico (Nov. 22, 2016), http://www.politico.com/story/2016/11/trump-transition-heritage-foundation-231722.

[37] John Malcolm and Andrew Kloster, A Balanced Approach to Patent Reform: Addressing the Patent-Troll Problem without Stifling Innovation, The Heritage Foundation (Jan. 2014), http://www.heritage.org/research/reports/2014/01/a-balanced-approach-to-patent-reform-addressing-the-patent-troll-problem-without-stifling-innovation.

[38] Press Release, Heritage Action For America, Heritage Action Opposes House Patent Bill (H.R. 9) (July 20, 2015), available at http://heritageaction.com/press-releases/heritage-action-opposes-house-patent-bill-h-r-9/.

[39] Maureen K. Ohlhausen and Dan Schneider, Intellectual Property and the National Security Issue, The Am. Conservative Union (Dec. 2, 2015), http://conservative.org/intellectual-property-and-the-national-security-issue/.

[40] Josh Peterson, ACU Panel Warns Weak Patent Law Could Harm National Security, The Am. Conservative Union (Sept. 16, 2015), http://conservative.org/acu-panel-warns-weak-patent-law-could-harm-national-security/.

[41] At the time of this article, the Supreme Court has agreed to hear a case, TC Heartland LLC v. Kraft Foods Group Brands LLC, which could moot the need for previously-proposed venue legislation.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.