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  • Sun, September 16, 2018 11:22 PM | Akriti Dayal

    Researchers have warned that many popular free mobile apps aimed at children are potentially violating a U.S. law designed to protect the privacy of young users.

    Some brushed off the findings, but a federal lawsuit filed Tuesday by New Mexico's top prosecutor is renewing focus on the public's growing concerns about whether information on online interests, browsing and buying habits are slipping into the hands of data brokers without their consent.

    And there's not much parents can do, experts say.

    There's no easy way even for a fairly savvy user to figure out whether an app is collecting personal data, said Serge Egelman, a member of the research team based at the International Computer Science Institute at the University of California, Berkeley.

    It took Egelman and his team modifying operating systems and creating special tools to analyze network traffic to examine how thousands of apps access sensitive data.

    "It's not reasonable to expect the average end user to develop those tools just to figure out whether an app is safe for their kids to use — or for themselves to use," Egelman said.

    The other problem lies with the current privacy framework that revolves around a notice and consent model. Experts say these policies are often ambiguous and written by lawyers whose goal is to protect the companies rather than users.

    New Mexico Attorney General Hector Balderas is taking aim in the lawsuit at Google, Twitter, their online ad businesses and mobile app maker Tiny Lab Productions, saying they're violating state and federal laws aimed at protecting the privacy of children by collecting information through the apps without consent.

    Balderas is concerned about the potential for exploitation, saying the apps can accurately track where children live, go to school and play.

    He's urging parents to pay closer attention to the apps their children use.

    Whether other states follow suit or new legislation is proposed, experts see New Mexico's lawsuit as an important step in the debate.

    Josh Golin, executive director of the Boston-based advocacy group Campaign for a Commercial Free Childhood, said the Berkeley researchers exposed "just how flagrantly and widespread" violations of the federal Children's Online Privacy Protection Act are. He said the research should have prompted the Federal Trade Commission to investigate.

    "If the states start stepping in where the FTC has failed, that's definitely a good sign," Golin said.

    Parents looking to avoid data-sapping apps shouldn't have to do anything, Golin said, because the law already calls for parents to be prompted for consent, otherwise nothing should be collected.

    The research showed that wasn't always happening.

    The researchers have established a database where parents and others can look up apps to see what information they collect and who they share it with. Another grant recently awarded by the National Science Foundation will ensure the project continues.

    Tiny Lab Productions said Thursday it's considering what changes could be made as Google this week removed the company's apps from its Google Play Store. One option is not asking users for a birth date and treating everyone as if they were under 13 and covered by the law, said CEO Jonas Abromaitis.

    He said the company takes privacy seriously and he hopes "this incident is all but a misunderstanding and it will be resolved with a satisfactory outcome for all related parties."

    Tech companies are under increasing scrutiny over their data practices, following a series of privacy scandals at Facebook and new data-privacy rules recently adopted by the European Union.

    Last year, the business news site Quartz found that Google was tracking Android users by collecting the addresses of nearby cellphone towers even if all location services were off. Google changed the practice and insisted it never recorded the data anyway.

    Christine Elgersma, senior editor of parent education at the nonprofit Common Sense Media, said "free apps are free for a reason," and what this usually means is that "in a way, we are the product."

    Critics have said the tracking of users stems from a drive to boost revenue through targeted advertising and it's through ads that apps can make money.

    For parents, Elgersma suggests paying for quality apps, so they're not paying with their child's personal data. She also said not all app developers are aware of all the laws and regulations and that some don't have privacy policies as they don't think it's necessary.

    Corynne McSherry, legal director for the Electronic Frontier Foundation, said there's no doubt parents are concerned about privacy for their children but that the web of apps, services and advertisers on the web is challenging.

    "We live in a world now where you can't really afford not to educate your children about smart technology practices," she said. "It's not just what you can do to intervene to protect them, but we need to be educating them about what's OK and what's dangerous online because that's our new reality."


  • Sun, September 16, 2018 11:20 PM | Akriti Dayal

    Facebook aims to take a "no language left behind" approach to moderating content posted on its social media platform.

    Facebook took another step to reduce hate speech on its global platform this week, announcing an expansion of its artificial intelligence translation tools.

    While the company’s platform content moderation policies—toward both hate speech and fake news—have come under scrutiny in the U.S., Facebook’s decisions on which posts come down can be even more complicated in non-English-speaking countries.

    If content moderators can’t read a post’s language, it’s hard (if not impossible) to spot hate speech. That issue was raised again last month after Menlo Park, California-based Facebook booted, for the first time, a senior government official off the platform for violence-inducing hate speech in Myanmar.

    “When we factor in the number of languages in use and the volume of content on those platforms, we are serving nearly 6 billion translations per day to our community. Using traditional methods, it could take years to professionally translate a single day’s content,” a Facebook blog post announcing the translation tool expansion said.

    The Menlo Park, California-based company said translating more content into more languages will help moderators detect hateful and policy-violating posts on the platform. Facebook said it has added 24 new languages, including Serbian, Punjabi and Cambodian, to its automatic translation services, with a total of 4,504 language direction translations now offered online.

    But many of these language translations are still at an early stage, the company said, and not of professional quality yet. Facebook noted that, for translation AI to properly translate every post, there needs to be an extensive data set of correct translations between the two languages involved.

    For many languages, there is no extensive translation data set, which makes it difficult to train tools quickly. To solve this issue, the company has increased its labeling of Facebook posts in needed languages, then had them automatically translated, to produce examples for the tools.

    Facebook also analyzed pages that have been manually translated by a user, for example, a business that offers the same information online in both English and Cambodian, to create data examples. If a language Facebook already translates into English is similar to one the company hasn’t translated yet, those similarities can be used to better understand a post’s meaning as well.

    On Tuesday, Facebook said it’s long-term goal was to have “no language left behind.”

    “That means improving the quality of translations in all languages, moving beyond just useful and toward highly accurate, fluent, and more human-sounding translations. In the longer term, it also means expanding our supported directions to cover all languages used on Facebook,” the company said.


  • Sun, September 16, 2018 11:13 PM | Akriti Dayal

    With big new infusions from Andreessen Horowitz and others, San Francisco-based Atrium and Toronto's Kira Systems are the latest New Law ventures to win VC's attention.

    Venture capital is taking notable interest in legal industry “disrupters” this month, with San Francisco-based Atrium announcing $65 million in new funding just days after Kira Systems trumpeted a $50 million minority investment.

    Atrium, which bills itself as a tech-powered platform providing flat-fee legal services to the startup community, is receiving investments from Silicon Valley heavyweight Andreessen Horowitz, along with General Catalyst, YC Continuity Fund, and Sound Ventures.

    Andreessen Horowitz partner Andrew Chen and Y Combinator CEO Michael Seibel will also be joining the company’s board of directors, and Marc Andreessen, himself valued at over $1 billion, will be a board observer.

    Chen wrote in a blog post Monday that the legal industry has lagged behind as technology continues to transform other businesses.

    “For law firms around the world, the customer experience, the business model, and the type of work they do have remained largely unchanged for decades, even while technology has transformed their clients and their industries,” he said. “The adoption of software has happened very slowly, and only in the most low-hanging areas.”

    The announcement came almost a year after Atrium launched publicly as both a new law firm and a software company, two separate entities under the same roof. Atrium LTS, the venture-backed software side, designs and deploys software for the law firm to use, while Atrium LLP, the law firm, offers flat-fee services to the startup community via two specific services: Atrium Counsel and Atrium Financing.

    Atrium also said that in its short history, the finance wing had already helped 250 clients raise a total of over $500 million in primary financings. On the technology side, the company revealed that it had acquired the artificial intelligence company Tetra, which offers a service that captures notes from telephone calls in order to build out its technology platform.

    The company was founded by Twitch founder and Silicon Valley serial entrepreneur Justin Kan, who serves as CEO, and former Orrick, Herrington & Sutcliffe partner Augie Rakow, who heads its legal operations. Atrium now has 110 employees.

    “The Atrium team has impressed us with their amazing progress since the start,” Chen added, pointing to the number of employees, a client list that includes startups Alto, Bird, MessageBird, and Sift Science, and the $500 million figure. “These strong early results convinced us of the company’s momentum, and proved there is a hunger for their services.”

    The company’s software platform uses machine learning to process documents and convert them into structured data and also focuses on the automation of repetitive tasks. The goal is to leave Atrium’s lawyers with more time to advise clients and provide services that can’t be automated more quickly.

    Chen also pointed to the pedigrees of Kan, whose live streaming gaming platform company Twitch was bought by Amazon for $970 million, and Rakow, who advised autonomous car technology company Cruise Automation in its $1 billion acquisition by General Motors.


  • Fri, September 14, 2018 9:14 AM | Akriti Dayal

    Six years ago, I wrote an article for called “Procurement Process Embraces Legal Services” and concluded that “procurement professionals have become much more active and influential within their corporate legal departments because the general counsel is under tremendous pressure to reduce costs in the economic downturn.” While chief legal officers still bear that weight, the conversation around law department management is a much richer one, as evidenced by the themes of innovation, value, client service, and transparency, which the Buying Legal Council’s 2018 Legal Procurement Conference showcased on September 5 and 6.

    Innovation and Transparency

    Software AG general counsel Dr. Benno Quade captivated the audience with his discussion of designing his own dashboard for tracking and evaluating legal spend. “Lawyers are born coders because we are taught to work with yes and no questions,” he advised.

    Despite the challenge of internally managing 400,000 lines of code, he noted, “Transparency is critical and data-driven discussions of invoices are far more productive.” At his company, legal is perceived as one of the organization’s most innovative groups. “Lawyers and procurement leaders should be interested in coding because it is part of the future of work,” he remarked.

    Client Service

    Justin Ergler, the director of alternative fee intelligence and analytics at GlaxoSmithKline (winner of the Buying Legal Council’s 2018 award for innovation), and Keith Maziarek, the director of pricing and legal project management at Katten Muchin Rosenman, offered an insightful presentation on empowering the relationship between legal departments and their outside counsel. “Law firms should present their new technology and describe how it benefits the client’s work,” the duo suggested in discussing the alignment of communication and transparency. “Law firms should also provide a value report to their clients,” they added.


    International legal pricing consultant Richard Burcher, the founder and managing director of Validatum, highlighted the inherent challenge of procurement. “There is a very real disconnect between price and value,” he said. “Understanding the pricing of risk is critical,” he added.

    The need for collaboration in harmonizing these factors was the focus of a panel discussion moderated by Rebekah Mintzer, an editor at ALM’s Corporate Counsel. “Legal services procurement should be part of a broader approach,” advised Marty Harlow, the procurement director for global legal services at GlaxoSmithKline. “Procurement is Switzerland; we focus on managing the process, providing decision-grade data, and staying in our lane,” he added. In terms of getting started, “court reporting and labor and employment outside counsel spend are the easiest areas in which to begin applying procurement to legal services,” noted Vandana Dhamija, the founder and CEO of Legal Operations Consulting.

    Despite the variety of ways to apply procurement, it is critical to focus on where the organization will realize the greatest benefit. “There are challenges to swinging for the fences in procurement,” said Alan Bryan, the senior associate general counsel for legal operations and outside counsel management at Walmart, who encouraged coordination and a balanced approach with the legal department.

    “I think it’s the reality that in-house counsel – working closely with procurement professionals – are quickly becoming the ‘lawyer as general contractor,’ assembling the right mix of legal service providers, outside counsel, and in-house resources to handle their legal needs efficiently and cost-effectively,” says Christopher Schultz, the general counsel of Level 2 Legal Solutions, a provider of managed review services and signature sponsor of the conference for the second consecutive year. “Law firms that are focused on offering to their clients defensible, repeatable processes with robust quality and cost-control built in are the firms of the future.”

    While the thesis of my six-year-old article remains as current today as it was in 2012, there has been a remarkable alignment of procurement and the provision of legal services that is fueling a robust conversation about innovation, value, client service, and transparency. In fact, “The conference was another illustration of the significant progress the BLC community is making in shifting from supplier-driven to buyer-centric in the legal services space,” concluded attendee, Jim Delkousis, the founder and CEO of Persuit, a software platform designed to streamline the procurement process for corporate legal and procurement teams and their law firms.

    About the Author

    Attorney and legal industry analyst Ari Kaplan presented “Beyond the Numbers: What Pricing Professionals Can Learn from a Decade of Legal Industry Benchmarking” at the 2018 North American Legal Procurement conference. He is an inaugural Fastcase 50 honoree, serves as the principal researcher for a variety of widely distributed market research reports, and has been the keynote speaker for events worldwide.


  • Fri, September 07, 2018 5:54 AM | Akriti Dayal

    Whatever direction we went with our IT, we wanted to make sure we would be following the absolute best practices from a security perspective. I needed to know that our data would be safe, secure, as well as fully backed up in case something went wrong.

    As a Managing Partner of Momkus McCluskey LLC — a full-service law firm serving Chicagoland and northern Illinois — one of my key initiatives this past year was to evaluate our firm’s IT, and identify where and how we could make improvements. I was both thrilled and a little apprehensive to tackle such an important aspect of our business, and dove in headfirst to identify our real needs and pain points, as well as evaluate the best solution to address them.

    From my experience working at the firm for over a decade, I was already aware of some software and operating system compatibility issues we experienced across the office. A big challenge was keeping all of our individual computers maintained, backed up, secure, and on the same patch and application versions. Each and every PC, as well as its array of software, had to be manually updated on a device-by-device basis, which isn’t easy to accomplish in a uniform manner when you’re dealing with a mix of device types and varying specifications.

    Because of this, we’d encounter problems when using basic applications, such as Microsoft Office or Outlook — not to mention the fact that we were using Exchange Server 2010, a version no longer supported by Microsoft. Sometimes an employee couldn’t access a file because their system was too outdated, so they’d have to email the file around to different computers just to open it. And when it came to adding new employees to our ecosystem, you can imagine it was not an easy process to provision and manage new users.

    Another problem that hindered our productivity was the inability to work remotely, which unfortunately made a lot of people feel more or less chained to their desks. Our VPN system had been set up and implemented years ago and caused too many problems to be usable. Working from home or anywhere other than the office was virtually impossible (no pun intended), and this really impeded our ability to work efficiently and effectively.

    Transitioning from Servers

    On top of these issues, I felt it was time to transition away from spending on traditional on-premise expenses like servers and a server room. For one thing, all of our physical servers had been purchased years ago and were all out of warranty. In this respect, I knew that moving to the cloud could be helpful, but with such an enormous market of services available, I wanted to make sure we did all the necessary research to pinpoint the right solution for our particular needs.

    Of course, cybersecurity was at the top of our list. As an all-encompassing firm handling everything from corporate work to litigation for everyone from local businesses to Fortune 500 corporations, it goes without saying that we handle a great deal of sensitive information on a daily basis. I wanted to ensure that, whatever direction we went with our IT, we would be following the absolute best practices from a security perspective. I needed to know that our data would be safe, secure, as well as fully backed up in case something went wrong.

    The Solution

    Luckily, we were working with a consultant who introduced us to a local Chicago-based software company called Nerdio, who we were told could provide a completely integrated, virtualized IT environment with all the components needed to run our business — servers, desktops, collaboration tools, security, backup, and more. Having been accustomed to piecing together our IT environment using different providers, services, and vendors, we were very much intrigued by the idea of having all of our IT seamlessly integrated and managed as a whole. After listening intently to our needs and devising a fully detailed migration plan and timeline, Nerdio made us feel comfortable and confident in transitioning all of our data and applications to a virtualized, private cloud infrastructure — and executed the entire migration within just two months.

    One of the biggest reassurances Nerdio provided us was enhanced cybersecurity for handling sensitive information. Because Nerdio’s technology works by completely virtualizing our IT environment, all of our critical information is stored and relayed from our private cloud server. Data is never stored on any individual piece of hardware, whether it’s an employee’s desktop, personal laptop, or mobile device, so we felt at more at ease knowing we were minimizing any possible vulnerabilities or exposure.

    In addition, Nerdio’s IT environment comes with pre-configured cybersecurity software and updates that are provided automatically and are designed to meet the very latest standards to combat both known and emerging threats. This includes enhanced security measures such as multi-factor authentication, which we have the flexibility to activate automatically any time any user accesses their desktop from outside the office. Because Nerdio builds cybersecurity best practices in at the foundational level, we never have to worry about the risk of our 25+ employees accidentally mishandling information, or having to hire an additional cybersecurity resource to oversee everything. And thankfully, we also don’t have to be responsible for manually updating our own security software.

    In fact, we no longer have to be responsible for manually updating anything anymore, because Nerdio takes care of all of that. Thanks to its seamless, automatic, and simple delivery of virtual desktops, Nerdio gives us a consistent user experience and compatibility across the board. This has completely removed the burden and headache of having to handle any IT matters from our staff, and has freed us all up to focus solely on our work. Nerdio migrated all the employees from the outdated Exchange server to Office 365, so that all users automatically receive all new features and security updates, including with the latest version of Exchange. We never have to pay to upgrade our licensing or for any labor to perform the upgrade, which you usually would in a traditional IT scenario.

    Remote Access

    Another benefit of virtualization is the easy and secure remote access to all our systems, applications, documents and data. Office 365 comes with unlimited archiving, so Nerdio migrated all of our users’ local PST files and made them accessible from anywhere, instead of just on local desktops. The ability to work from anywhere, anytime has created a profound uptick in productivity, and been a game-changer for our employees’ day-to-day workflow. And again, we never have to worry about unauthorized or risky use of any firm information or spend extra time training our employees, because Nerdio has built-in safeguards and safety nets that prevent careless human errors and mistakes from happening in the first place.

    In addition, the first thing that Nerdio did before we even agreed to make the move was to perform a comprehensive audit and assessment of our entire IT from their perspective. This was incredibly helpful, as I am not an IT expert and was glad to have professional oversight to aid with my internal assessment. In addition to the issues I mentioned, Nerdio uncovered a gaping hole in our backup protocol, which left us completely vulnerable if something had gone wrong.

    The data replicas were not occurring nearly frequently enough to keep pace with the firm’s needs. In addition, we had no off-site backup protocol and therefore no robust disaster recovery plan in place in case something happened to our physical hardware. Like many law firms, our company deals with such a grand amount of information being worked on at any given time that the idea of losing just an hour’s work would be devastating. We are now able to initiate fully comprehensive backups as often as we need, in fact, as frequently as every 15 minutes. Nerdio automatically backs up our entire IT and also replicates it to a secondary, geographically dispersed data center — so we’re covered no matter what happens.

    Beyond all of the night-and-day improvements to our technology and overall productivity, we were thoroughly impressed with the Nerdio team. They made us feel so comfortable with the migration process and have gone above and beyond the job description — they even came to our office to help us fix our WiFi hotspots, even though it’s not really within the scope of their responsibilities. They make themselves available to us 24/7/365, so we feel like we’re getting all the benefits and reassurance of an on-site IT staff without having to pay a premium for one.

    Perhaps the most profound impact that Nerdio has had on our business is in taking the burden of complexity and excessive cost out of the IT equation. The biggest relief that we don’t even have to think about our IT — not only do we have a solid foundation for our infrastructure, Nerdio’s team takes care of everything for us. In our business, time is quite literally money, and we’re glad we never have to worry anymore about sinking unnecessary time and worry into our IT.

    About the Author

    Jennifer Friedland is the managing partner at Momkus McCluskey LLC. She focuses her practice in commercial and business litigation and appellate practice.


  • Fri, September 07, 2018 5:49 AM | Akriti Dayal

    Two recent cases pitting law firms against one another indicate fierce competition among certain types of firms that invest heavily in marketing efforts—and they illustrate how that competition is playing out in a modern, digital age.

    A pair of recent lawsuits alleging that a law firm manipulated search engine results to steal a rival firm’s web traffic has shone a spotlight on a modern-day battleground for lawyers who generate most of their business from everyday consumers.

    In one of the cases, filed in Illinois federal court in late August, criminal defense and family law firm Motta & Motta alleged that another firm, Dolci & Weiland, used website tagging and headers to confuse search engine results in a way that directed prospective Motta clients to Dolci. Outside of the online search-related allegations, the Motta case also involves a less technological allegation of unfair competition—specifically that the Dolci & Weiland firm co-opted a Motta employee who then steered potential clients away from Motta and toward Dolci & Weiland.

    A second case, filed in June and resolved in late August, pitted New Jersey’s Helmer, Conley & Kasselman against Hark & Hark, which was hit with trademark infringement and unfair competition claims in New Jersey federal court.

    Helmer Conley—a firm with focuses on criminal defense, personal injury and family law, according to its website—alleged that the rival Hark firm used Google’s sponsored search feature, AdWords, to attract potential clients who used the search engine to find information on Helmer Conley. The AdWords program allows advertisers, in this case law firms, to pay Google so their website appears in a section of sponsored results when a consumer searches for particular keywords. The sponsored links then typically appear above search results that are not sponsored.

    Taken together, the two recent cases indicate fierce competition among certain types of firms that invest heavily in marketing efforts—and they illustrate how that competition is playing out in a modern age, in which people looking for a lawyer often turn first to Google to find one.

    “For a lot of these law firms, it’s adjusting to a completely different marketplace than they were used to previously,” said Micah Buchdahl of HTMLawyers, a lawyer and marketing expert who advises law firms on marketing efforts and the legal ethics issues related to those efforts. “If you’re a plaintiffs firm in an aggressive area, if you’re operating the same way today as you were, say, six or seven years ago, you’re probably going to go out of business.”

    The “aggressive” areas Buchdahl referred to typically involve consumer clients and focus on personal injury, medical malpractice, drunken driving and certain kinds of criminal cases. Firms that tend to be most active with online search marketing also tend to focus on those types of legal work, according to Buchdahl.

    “They’re usually consumer-driven practices in which you play aggressively in this space,” he said. “You’re not going to have these types of issues come up with law firms that work with businesses.”

    While the Illinois and New Jersey cases may be indicative of a modern-day form of competition between firms that market their services directly to consumers, Buchdahl also explained that many of the allegations in the cases related to sponsored search engine results may not actually cross the line into illegal behavior.

    It’s possible that a firm seeking to avail itself of AdWords-type marketing may tread on another firm’s web traffic without necessarily meaning to. That’s what Steven Angstreich of Weir & Partners, who represented Hark & Hark in the New Jersey case, said he believes prompted that suit.

    Helmer Conley alleged that some Google searches, including for “Helmer law office,” yielded links with a heading that read, “Helmer Conley Kasselman, Aggressive Criminal Defense,” but actually directed people to Hark & Hark’s New Jersey street address and telephone number.

    Just a couple months after it was brought, however, the case was resolved with a consent decree in which Hark & Hark agreed to avoid the practices Helmer Conley objected to. Angstreich said Hark & Hark never intended to mislead consumers and that there was no evidence Helmer Conley lost any business to Hark & Hark as a result of the search issues.

    “The issue really is a Google issue,” said Angstreich said, adding that unless a firm goes out and pays for all possibly relevant keywords, those keywords remain available in the marketplace for others to buy. “As soon as we found out about it and I got involved, we entered into a consent. … The search firm that we hired to do this got a lesson as well.”

    Lawyers involved in the Illinois case did not respond to requests for comment, nor did a lawyer who represented Helmer Conley in New Jersey.

    Beyond lawsuits from rivals, lawyers and firms engaged in this kind of online marketing may also run up against legal ethics rules—specifically, those that touch on honesty issues and attorney advertising, said Michael Frisch, a legal ethics expert and professor at Georgetown Law Center.

    “I do think that as lawyers are consulting more with marketing people … they’ll just get more and more creative in this way,” Frisch said. “What may emerge from this is an application of an honesty rule in addition to the technical advertising rules.”

    Buchdahl had a similar take on the potential legal ethics issues implicated by attempts to game search engine results. He said that as law firms grow increasingly sophisticated about online marketing, they could end up contracting with vendors that know a lot about search engine optimization (SEO), but not the full extent of a lawyer’s professional responsibility obligations when it comes to advertising.

    Ultimately, Buchdahl added, the buck stops with the law firm.

    “It’s always good to remind attorneys that in the end, they are responsible for the actions of their vendors,” he said. “If you hire an SEO vendor and they’re using illicit means to generate leads, in the end, you’re going to be responsible.”


  • Fri, September 07, 2018 5:26 AM | Akriti Dayal

    Fashion designers face multiple challenges, not the least of which are rapidly changing styles and the outright theft of design ideas. Many fashion houses, particularly startups, choose to protect their brands through the robust use of trademarks. If appropriate, such protective strategies can and should be complemented by the strategic use of patents. In light of two recent changes in the patent ecosystem, the case of patent protection has become even more compelling.


    What do fashion designers and famous clothing brands such as Jimmy Choo®, Christian Dior®, Louis Vuitton® and Crocs® have in common? In addition to having valuable trademarks to protect their brand, they also defend their signature, innovative clothing and accessories with patents.

    Patents are as old as the nation itself. The U. S. Constitution authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to authors and Inventors the exclusive right to their respective writings and discoveries.” This clause in Section 8 of Article 1 created the Patent Office and the Copyright Office of the Library of Congress. Unfortunately, the protection afforded by copyright law in the United States is generally not available for fashion and clothing designers. Under many circumstances, however, patent law can provide designers with protection that is not available through copyright.

    The U.S. Patent and Trademark Office (USPTO) issues two types of patents for clothing and accessories: design patents and utility patents. Design patents protect how something appears, including its shape, configuration or surface ornamentation. In many countries, this type of intellectual property is referred to as an industrial design registration. Utility patents protect the way an article is used and works; it includes processes and methods. Both design and utility patents may be obtained on the same article. Utility patents far outnumber design patents. Every year, the USPTO receives approximately 35,000 design patent applications compared to over a half million utility patent applications. There are approximately 826,000 issued design patents and over 10 million issued utility patents.

    Design Patents: The Rocket Docket Blasts Off

    A design patent lasts 15 years after it is issued, and it takes an average of 19 months for an application to go through the examination process. For an additional fee, the USPTO offers an expedited examination called the Rocket Docket, which can result in an issued patent in less than six months, cutting the usual wait time by over a year. While the program has been around for a few years, the latest revisions to procedures make the application process easier. Note, too, that when an item is introduced in the marketplace before a patent application is filed, the designer has one year to file a patent before losing rights. This is a much more lenient process than that of many countries, which require patent applications to be filed before any disclosure.

    Even with expedited examinations, however, there is still a significant lag time. Design patents typically cover items that last more than one season, such as footwear, handbags and eyewear, as well as packaging for cosmetics and fragrances. Additionally, design patents are often used for design elements that can be translated to multiple garments, such as distinctive top stitching, stud patterns and pocket styles.

    The U.S. recently became signers of the Hague Agreement Concerning the International Registration of Industrial Designs. The Hague Agreement is an international registration system that offers the possibility of obtaining protection by filing a single international application in a single language. This can be done either directly with the World Intellectual Property Organization (WIPO) or indirectly through the USPTO. While patents are territorial, the Hague Agreement enables the application process throughout the participating countries with a single set of documents. The applicant selects the appropriate countries and regions where the product will be manufactured, distributed or sold; each jurisdiction applies its own law and rules to the application, resulting in multiple registrations.

    Utility Patents

    The second type of patent available is a utility patent, which is the most familiar type of patent. Utility patents are useful for functional garments, such as maternity garments, undergarments that shape and uplift body parts, and infant clothing, as well as footwear and eyewear. Related areas for patenting are high-performance fabrics, such as deodorizing fabrics, waterproof and flame-resistant fabrics. Functional athletic attire, such as golf gloves and cleated shoes, is also protected by utility patents. The integration of technology into clothing, such as electronic sensors in shoes and heart rate monitors in shirts, is another area showing increased numbers of utility patents.

    The USPTO is a participant in the Patent Cooperation Treaty and the Paris Treaty, both of which permit U.S. utility patent applicants to use their U.S. patent application as a basis for applications throughout the world.

    Compared to design patents, utility patents are significantly harder to obtain, take longer to proceed through the examination process (on average 24 months) and last longer. Utility patents last 20 years after the date of filing; they require periodic payments to the USPTO in order to maintain the patents in force. Generally, the application for a utility patent has about a 10% chance of being initially accepted; most applications are rejected at least once. This rigorous process is considered to produce a higher quality, valid patent. About 75% of the applications overcome the first rejection and continue on to become patents. Accordingly, the application for a utility patent inevitably requires additional work by the patent attorney; the cost of overcoming the rejection must always be included in the prospective patent holder’s budget.

    Design vs. Utility Patents

    Savvy companies file many applications to protect their valuable intellectual property. For example, in one week in August 2018, NIKE® was granted 17 patents: six utility and 11 designs. Not surprisingly. many of these were for athletic shoes, but some were for athletic wear. One of the utility patents, Knitted Component with Adjustable Knitted Portion, protects a new weave for stretchable fabrics. Valentino s.p.A. received a design patent for men’s dress shoes, showing that designs are applicable to all types of shoes, not only athletic footwear.

    Louis Vuitton Malletier and Christian Dior Couture both received design patents recently. The Christian Dior Couture patent is for sunglasses and the Louis Vuitton Malletier patent is for a distinctive package.

    Both Hanes and Under Armour received utility patents for brassieres. These six examples were selected at random from a single issue of The Official Gazette for Patents, where the USPTO lists all the patents issued for that one week, and show the range of patents in the fashion industry.

    Upon closer examination, Louis Vuitton’s design patent for a package is an example of how patents can strengthen branding. While trade dress, such as packaging, is protected in the United States by trademark law, it must be in use for at least five years and achieve secondary meaning, such that consumers can recognize the source of goods. A design patent can become available to a brand in less than two years. SPANX® has design patents for how their products are displayed at retail and they include a utility patent and a design patent.


    Which type of patent is better for the clothing designer? As noted, the utility patent lasts longer, generally providing around 17 to 18 years of effective protection versus 15 years for a design patent. The utility patent costs more to obtain, takes longer to issue and requires periodic payments. Each type of patent protects different aspects of an article, so the answer lies in what is novel about the garment: its appearance or how it is used.

    When filing any type of patent, a designer must take into consideration not only the novelty of the garment but also how patent protection fits into his or her overall business and branding strategies. Ultimately, these activities should be fully integrated into business operations and the patent process.

    About the Author

    Patricia Werschulz is an intellectual property lawyer and a registered patent attorney at Werschulz Patent Law. Sandra Holtzman is chief marketing strategist at Marketing Cures, a marketing, communications, public relations, digital and market research company.


  • Fri, September 07, 2018 4:39 AM | Akriti Dayal

    The social media giant filed its own infringement lawsuit, accusing BlackBerry's enterprise products of infringing six of its patents.

    Facebook Inc. has upped the ante in its patent dispute with BlackBerry Ltd.

    On Tuesday the social media giant counterclaimed for declaratory judgment of non-infringement and invalidity of nine patents BlackBerry is asserting in the Central District of California. That same day, Facebook took the more aggressive step of filing a new, separate patent infringement suit, Facebook v. BlackBerry, in the Northern District.

    Facebook is asserting six patents that it has acquired from America Online, AT&T, BellSouth, HP and 3Com. They cover a grab bag of features: a messaging interface, wireless communication efficiency, GPS management, network security and other technology that BlackBerry allegedly incorporates into various enterprise software and service products.

    Facebook, for example, contends that BlackBerry’s BBM Enterprise messaging platform infringes Facebook’s 8,429,231 patent on switching between text-based messaging and voice communications. Another Facebook patent, No. 6,356,841, describes tracking multiple GPS-equipped remote entities while conserving battery power. BlackBerry Radar, which is used to track truck fleets, infringes, Facebook contends.

    Facebook is represented by the same Cooley team defending it before U.S. District Judge George Wu of the Central District of California. It includes partners Heidi Keefe, Michael Rhodes and Mark Weinstein. Quinn Emanuel Urquhart & Sullivan has been representing BlackBerry before Wu.

    Co-defendant Snap Inc. also counterclaimed for declaratory judgment on Tuesday, but has not filed a separate lawsuit.

    Facebook and Snap have sought to dismiss many of BlackBerry’s patent claims as ineligible. Wu declined last month with the exception of a few claims challenged by Snap. But he indicated he might be amenable to knocking out more claims following claim construction early next year.

    More recently the parties have been jousting over the local rules that will govern the case: Facebook and Snap wanted the Northern District Local Rules, which they believe would require BlackBerry to commit to its infringement theories earlier in the case. BlackBerry lobbied for Central District Judge Andrew Guilford’s patent rules, which allow a little more flexibility for amendments.

    Wu chose Guilford’s rules, but with the caveat that legal authority based on the Northern District rules would govern disputes over whether a party had demonstrated good cause to amend a contention.


  • Mon, September 03, 2018 5:20 AM | Akriti Dayal

    Facebook, Google, Microsoft and IBM are some of the tech giants behind an incipient effort to secure a federal privacy law in the United States following the European Union's General Data Protection Regulation.

    Big U.S. tech firms are launching a lobbying campaign to get Congress to enact a federal privacy law. Their motive? Stave off sweeping data privacy laws like the European Union’s General Data Protection Regulation or California’s own stateside attempt for internet privacy protections, The New York Times reported over the weekend.

    But who are some of the lobbyists behind tech’s push to get a federal privacy law? One group leading the effort is the Information Technology Industry Council (ITI), a trade group that is also a political action committee. The council is funded by Intel Corp., Honeywell, Microsoft, Inc., Hewlett Packard Enterprise and Texas Instruments Inc., according to the nonprofit, nonpartisan and independent Center for Responsive Politics, at

    ITI Council spokesman Jose Castaneda, when contacted by this publication on Tuesday, said the organization would not speak further on its lobbying efforts for a federal privacy law, but confirmed ITI’s participation in the legislative effort. Castaneda also said that no specific federal internet privacy legislation supported by the group had yet been introduced in Congress.

    There are several privacy legislation proposals floating around Washington, however, that may be introduced in Congress after it returns from recess, another lobbyist familiar with the matter said. Pressure is building for a federal law because of global trade concerns as other countries enact laws modeled after the GDPR, including most recently Brazil. A variety of companies beyond the tech industry also are increasingly worried about a patchwork of state laws in the United States, because of the internet of things.

    Of $840,000 spent by ITI on lobbying in 2018, consulting firm Mehlman Castagnetti Rosen & Thomas has received $80,000 in the first half of the year. This year, Mehlman Castagnetti lobbied for ITI on email privacy, the Electronic Communications Privacy Act reform bill H.R. 387; the tax cuts act; unspecified cybersecurity and privacy issues; NAFTA modernization; immigration and the Committee on Foreign Intelligence in the U.S. legislation, among others. The ITI also lists at least eight in-house lobbyists.

    ITI has been involved in tech legislative efforts since at least 1998, when it was represented by Mayer Brown. Mehlman Castagnetti appears to have become its adviser in 2016, records indicate. Last year, ITI spent $160,000 with Mehlman Castagnetti, out of a total lobbying expenditure of $1.63 million, on matters such as the Email Privacy Act; a bill to update the ECPA; the Modernizing Government Technology Act, and a proposed reauthorization of the law that governs foreign intelligence surveillance in the United States. ITI filed reports stating that it lobbied the White House, both houses of Congress, the National Institute of Standards and Technology and many other agencies.

    Facebook Inc., Alphabet Inc.’s Google, Microsoft and IBM also reportedly supported the effort to secure a federal privacy law. Facebook’s chief lobbyist in the United States is Joel Kaplan, former White House deputy chief of staff for policy for U.S. President George W. Bush. Karan Bhatia, a former partner at Wilmer Cutler Pickering Hale and Dorr, is head of policy for Google, arriving in June from General Electric. Google’s top Washington lobbyist is Susan Molinari, vice president of policy and public relations, and former Republican U.S. representative from Staten Island (1990-93) and former principal at Bracewell & Giuliani. Microsoft’s lobbyist is senior director of global government affairs John Galligan, Stephanie Peters (formerly a partner at Patton Boggs) is VP of Federal Government Affairs, as is Anne Gavin, and Matt Gelman is its general manager of congressional affairs.

    A blog post by IBM’s chief lobbyist, vice president for government and regulatory affairs Christopher Padilla, former under-secretary for international trade within the U.S. Department of Commerce, in May suggested federal privacy regulation strategy was being floated by IBM at least as early as this spring. IBM did not respond to requests for an interview with Padilla.

    Padilla wrote in the post titled “An American Approach to Data Privacy” on the company website, “IBM believes the United States should pursue a third way—one with a track record of success. Instead of government mandates, we believe a collaborative public-private approach, led by industry together with government, is the most feasible way to develop a framework of data privacy standards tailored to America’s needs.”

    Padilla compared IBM’s suggested approach to the 2013 Obama administration executive order calling on the National Institute of Standards and Technology to collaborate with government, industry and academic groups to develop cybersecurity standards after legislation failed in Congress amid increasing cyberattacks. Padilla said in May that IBM was “bringing over 100 of our top leaders from across the country” to meet with members of Congress for the tenth year,” and we will be encouraging members to embrace this collaborative, public-private approach.”

    Meanwhile, at Facebook, Kevin Martin, a Republican former chairman of the Federal Communications Commission, replaced Erin Egan this spring as the company’s head of U.S. public policy, as Egan focused on her role as chief privacy officer, according to Bloomberg LP news and other media. The move followed the tongue-lashing that CEO Mark Zuckerberg received at congressional hearings in April after the Cambridge Analytica data-sharing scandal broke.

    Also this spring, Bloomberg reported that Inc. left D.C. powerhouses Akin Gump Strauss Hauer & Feld LLP and Squire Patton Boggs,who previously were leading the lobbying efforts for the company. Updated information in August shows that Akin Gump received a $30,000 contract in the second quarter after an $80,000 contract was listed as terminated in the first quarter.The company brought on new lobbyists, Bloomberg said, hiring lawyer Paul Brathwaite of Federal Street Strategies LLC and Josh Holly, president and founder of Holly Strategies Inc., and a former principal at the Podesta Group. Senate records compiled by Open indicate that Amazon Inc., has paid Federal Street Strategies $20,000 and Holly Strategies $40,000 so far this year.

    As for the Information Technology Industry Council’s self-named PAC (ITI PAC), Andrew Halataei, senior vice president of government affairs, and vice president of government affairs lawyer Shannon Taylor, former congressional majority counsel, were contributors of multiple donations to the ITI PAC, records show. Attorney Lauren Van Wazer, head of global public policy at Akamai Technologies Inc., a content delivery distributor, LAO donated $500.

    The ITI PAC has received more than $58,000 and spent $40,000 this year as of July 31, of which $16,500 went to House Republicans and $10,000 to Democrats; and $4,000 went to Senate Republicans and $1,000 to Democrats, according to records compiled by the Center for Responsive Politics at

    Those opposed to an industry-authored federal privacy law are stepping up their efforts as well. Last year, nonprofit advocacy group Electronic Frontier Foundation, which supports internet privacy laws, spent $15,000 in 2017 with lawyer-lobbyist Michelle Richardson for reform of the Foreign Intelligence Surveillance Act. This year, Richardson was named director of the data privacy and data project at the Center for Democracy & Technology in Washington, D.C., a nonprofit advocacy group for internet privacy, earlier this month. The CDT also recently filed a brief in favor of restoring net neutrality in the Mozilla v. FCC case. Other groups that have lobbied for greater internet privacy protections in California include Consumers Union, according to public records.

    Policy counsel, attorney Joseph Jerome at CDT, founded more than 20 years ago, said, “ any federal privacy law that industry would support would preempt certain state laws, specifically the California Consumer Privacy Act. Preemption has always been the “deal” to be had, and the real fight is what a federal privacy law might contain. Industry players ultimately want certainty in law,” he said. His group also wants a federal privacy law, he said, but “we want laws that meaningfully protect individuals and don’t sacrifice privacy simply for some innovative use of information.”

    In a statement via email, attorney Ernesto Falcon, legislative counsel for the EFF in Washington, D.C., said of incipient efforts by the tech companies to get a federal privacy law, “The tech giants and large ISPs do not support privacy laws, period.” He continued: “We have seen it firsthand in California through their (Google, AT&T, Facebook and Comcast) efforts to kill EFF’s push to restore ISP privacy rules after Congress repealed them. We are seeing it now through their efforts to hamstring the recently enacted California Consumer Privacy Act by trying to exempt online advertising. They have been actively pushing back on Congress and the states from moving forward with consumer privacy protections at all points and we have seen no signs of a sincere reversal in that position despite public opinion weighing heavily in favor of rules.”

    Falcon said EFF also would support a federal privacy law that provided a floor of protections, but “what is happening in D.C., though, is efforts to pre-empt state enforcement in their entirety, both in lawmaking and enforcement. We strongly oppose that effort.”

    The California law is being criticized by big businesses in part for giving consumers the right to opt-out of sharing and to prohibit the sale of personal information. Tech companies fear that the California legislation could encourage states to enact their own data privacy laws.


  • Mon, September 03, 2018 5:15 AM | Akriti Dayal

    Some courts have allowed a workaround in which the court orders the opposing party to “consent” to the social media provider’s disclosure of social media content, followed by a “consensual” request sent to the social media provider.

    Every litigator knows that people often send unguarded messages through electronic mail that damage their position in litigation, making such messages a priority for discovery in civil litigation. People often post even more intimate information on their social media accounts.

    Dan Prywes, Morris Manning & Martin, Atlanta.

    Accordingly, social media postings are becoming a prime target in litigation.

    Lawyers can try to obtain the social media content of witnesses and opposing parties in two ways: “self-help” efforts or formal discovery procedures.


    No ethical rule precludes a lawyer from looking online at the publicly available social media profile or content of a witness or an opposing party. However, lawyers must be careful when seeking “private” social media content that the posting party has restricted to “friends” or others.

    A lawyer should not directly contact an opposing party to request access if that party is represented by counsel. There are a variety of views as to what a lawyer must do when contacting a witness or opposing party who is not represented by counsel to request access to private social media posts. The New York State Bar (which surveyed ethics opinions elsewhere) advises that the lawyer may request access to the restricted content, but must (a) use the lawyer’s full name and an accurate profile that does not mask the lawyer’s identity and (b) respond truthfully to inquiries about the nature of the lawyer’s interest. (See Some states’ bar authorities have required greater disclosures when counsel initially requests access to an unrepresented person’s restricted content.

    Lawyers may ask a “friend” of the posting party—who has been permitted access to restricted content—to share that content with the lawyer on a voluntary basis. However, one court has ruled that “coerced” assistance violates the federal Stored Communications Act.

    Lawyers should also not seek to obtain unauthorized access to a person’s restricted social media content through any sort of trickery. Such action could result in claims for invasion of privacy and/or misrepresentation. Courts have ruled that a person’s privacy interest is not extinguished because the person chose to share information with a limited number of persons in a restricted portion of a social media site.

    Statutory claims for unauthorized access might also be asserted under the federal Computer Fraud and Abuse Act or the SCA or one of many state statutes that prohibit the online impersonation of another person to obtain a benefit or defraud. (e.g., Ga. Code § 16-9-93(c).) Finally, lawyers should not ask their staff to engage in conduct that would ethically be forbidden to the attorney.

    Formal Discovery

    Many courts have ruled that social media providers (like Facebook) are barred by the federal SCA from responding to civil subpoenas for social media content. Some courts have allowed a workaround in which the court orders the opposing party to “consent” to the social media provider’s disclosure of social media content, followed by a “consensual” request sent to the social media provider. Otherwise, social media content is discoverable in civil litigation only from the persons who posted or received the information.

    Many individuals regard their restricted social media content as strictly private and are surprised to learn that there is no legal “privacy” privilege for such content. In some cases, individuals have deleted their restricted social media content to thwart discovery and have faced heavy sanctions for spoliation of evidence.

    While there is no privacy “privilege” for social media content, many courts are reluctant to permit broad “fishing expeditions” through all of a person’s restricted social media content and will limit or disallow broad discovery requests. A few courts have gone so far as to require a party seeking to discover social media content to make a threshold showing based on other information that there is social media content that undermines the responding party’s position in the litigation.

    Discovery is generally permitted of any social media content that directly sheds light on disputed facts in a lawsuit, subject to a protective order as needed. For example, if a plaintiff claims that she was injured because of a product defect, virtually anything the plaintiff posts on social media about the product or the defect should be discoverable.

    Courts are particularly cautious about allowing unfettered discovery of anything posted on social media that shows a party’s emotional state. Significant discovery of such material may be permitted where, for example, a plaintiff seeks damages for his or her emotional distress, or where emotional distress is pertinent to liability (as in a hostile work-environment discrimination claim). But even then, some courts will not permit discovery of social media content where the emotional distress claims involve only “garden variety” distress—namely where a plaintiff claims only hurt feelings or a sense of humiliation—and not more serious distress such as panic attacks or depression.

    Photographs posted on social media can provide powerful evidence, because a “picture is worth 1,000 words.” Courts have permitted discovery of photographs where the photographs reflect physical capabilities inconsistent with a plaintiff’s claimed injury or if they reveal the party’s emotional or mental condition in a case where that is relevant.

    Some courts have ordered a party’s attorney to screen the client’s social media content for relevance and privilege because of concern that the client will withhold content that he or she feels is private and personal.

    Once litigators obtain social media content, they must ensure that it can be authenticated for use at trial or in other proceedings. Authentication can be a challenge, since social media accounts can be falsified, hacked or created by an imposter. For these reasons, social media content is not self-authenticating, and some other evidence is needed for it to be admissible.

    However, authenticating evidence can be circumstantial, and courts have ruled that the proponent of the evidence need only submit enough evidence (such as distinctive format or language of the posted content) for a “reasonable jury” to find the content to be authentic. (See In the Interest of L.P., 324 Ga. App. 78 (2013).) Accordingly, lawyers should always take whatever discovery is necessary to prove the authenticity of any social media content that is useful, especially for the “bombshell” social media content that litigators all hope to find.

    About the Author

    Dan Prywes is a partner in Morris, Manning & Martin’s litigation practice.


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