Free for a Fee

Eric’s introduction: patent and copyright reform get a lot of attention, and they have overshadowed proposals to create a new federal trade secret civil cause of action that have been floating around in Congress for a few years. I’ve previously called the federal trade secret initiative “the most significant IP policy proposal you aren’t paying attention to.”

These proposals are favored by a small number of trade secret owners and ignored by virtually everyone else, even though a new federal trade secret law would be a dramatic change in US intellectual property law and have potentially radical implications for the Silicon Valley. Unless a coordinated opposition emerges, these proposals are destined to pass eventually. Fortunately, last year, Profs. David Levine (Elon) and Sharon Sandeen (Hamline) sent a letter to Congress on behalf of many law professors opposing the latest proposal. That letter–perhaps the first real opposition that Congress heard–successfully slowed the trade secret bill down a bit, just long enough to keep it from passing that session. The current Congressional session is preoccupied with patent reform and maybe copyright reform, so we haven’t heard much about a resurrected trade secret bill. Nevertheless, the bills will be coming back, and they will remain inevitable unless they face opposition.

Thus, I asked David Levine if he could prepare a bibliography of the literature opposing a federal trade secret law. My main goal was to get all of the opposition material into a single document, so that we could realize just how many smart people are opposed–and perhaps coordinate our efforts better. Many thanks to David for doing this.

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by David S. Levine

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Given the collective bias of the witness panel, it is hardly surprising that on the issue of the PATENT Act there was a clear, positive consensus in the witness panel. But there is no such consensus within the industry and those voices were brought to the table by Sens. Dick Durbin (D-IL) and Chris Coons (D-DE), two of the sponsors of the STRONG Patents Act that has been debated in Senate committee as recently as March. Durbin, who pointed out that “this panel is divided between people who love the bill and people who really love the bill,” read part of a strongly worded letter submitted by the National Venture Capital Association who is worried that the PATENT Act, as worded currently, could hurt investment.

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There was a lot of action on this in the last Congress. There is a group of law professors that have expressed some opposition to the proposal to add a civil remedy, in spite of widespread support among industry stakeholders. There was some controversy around some seizure provisions that were suggested in one version of the legislation. And I think those discussions will usefully inform what will be done in this Congress. But I believe there is a great deal of support for making that basic change to allow companies to have another—not a displacement, not preemptive of state law but an additional place to go to get the benefit of nationwide service of process and other special advantages of being in federal court.

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With respect to intellectual property it is the House Judiciary Committee that will set the agenda for any potential legislative reform over the next two years, with the Subcommittee on Courts, Intellectual Property, and the Internet leading the way. Republican membership below, Democrats to follow later:

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The content in this post was found at http://www.ipwatchdog.com/2015/01/12/114th-congress-republicans-house-ip-subcommittee/id=53501/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Given that the Supreme Court almost never overrules its own prior decisions, then Justice Rehnquist tried to explain in Diehr that both Gottschalk v. Benson and Parker v. Flook remained good law, despite the fact that the holding in Diehr clearly set patent eligibility for software on a new path different and distinct from the path chosen by the Court in Benson and Flook… In historical terms, the next factual inquiry that presented itself was whether a computer implemented method that transformed data into a readable waveform that could be quickly interpreted was patent eligible. Ultimately, it was wrestling with this scenario that led to the end of the Freeman-Walter-Abele test.

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KNOWLES: “We are seeing a strong anti-innovation sentiment in the U.S. not just on the issue of obviousness but also on patent eligibility. We’re seeing a rewriting of patent law through judicial decisions which have draconian effect on the industry that judges have not given full consideration of the larger impact of. And I might go even further to say that judges are not sufficiently trained or authorized to overhaul the patent system through the judiciary. The judiciary is taking over the job of Congress. I think that’s what we are seeing.”

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Federal legislators introduced bills this year to create a civil cause of action for private litigants in federal court for trade secret misappropriation.

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The content in this post was found at http://www.tradesecretslaw.com/2014/08/articles/trade-secrets/push-for-federal-trade-secret-legislation-gaining-momentum/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TradingSecrets+%28Trading+Secrets%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Companies could be slapped with thousands of dollars in fines for trying to punish a consumer for writing a negative online review under a new Yelper-friendly law enacted in California.

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The content in this post was found at http://blogs.wsj.com/law/2014/09/12/new-california-law-bans-companies-from-punishing-negative-online-reviewers/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29 and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

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The content in this post was found at http://arstechnica.com/tech-policy/2014/09/us-law-would-safeguard-free-speech-rights-to-criticize-business-online/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

[Two brief introductory notes: (1) the trade secret bills have been dormant in Congress pending the November elections, but don’t rule out the possibility of them roaring back immediately thereafter, and (2) I have uploaded an expanded version of this post, with extensive citations, to SSRN, so you might prefer reading that version.]

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The content in this post was found at http://blog.ericgoldman.org/archives/2014/10/congress-is-considering-a-new-federal-trade-secret-law-why-forbes-cross-post.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.