SCOTUS Issues Long-Awaited TCPA Ruling Narrowing The Definition Of An Autodialer

By Leila Javanshir and David Rice on April 9, 2021 Posted in Supreme Court, Telephone Consumer Protection Act

On April 1, the Supreme Court issued its highly anticipated ruling in Facebook v. Duguid, which limited what qualifies as an automatic telephone dialing system (ATDS) under the federal Telephone Consumer Protection Act (TCPA). The Court unanimously held that Facebook’s method of sending security texts to users did not meet the TCPA’s definition of an ATDS.

The Court’s decision, based on a strict reading of the TCPA text, substantially narrows the definition of an ATDS that was adopted by the Ninth Circuit. This should reduce the litigation risk for many businesses that engage in text marketing campaigns. It does not, however, mean a texting free-for-all, as there are still important restrictions and considerations regarding text marketing without consent.

Google v. Oracle and the Future of Copyright in APIs

By Brian Esler and David O'Neill (CEO, APImetrics) on April 6, 2021 Posted in Copyright, Copyright Litigation

The Supreme Court has now come out with its decision in the long-running Google v. Oracle case. To take a deeper dive, we’ve invited David O’Neill, CEO of APIMetrics to help us analyze the true impact of the decision.

First, some background: Oracle owns the copyright in Java SE, a computer program that uses the Java computer programming language, which is used by millions of computer programmers around the world. Google developed the Android platform specifically for smartphones. To make that platform more easily usable by programmers already familiar with Java, Google copied roughly 11,500 lines of code from the Java SE program that are part of a tool called the Application Programming Interface (API). In 2010, Oracle sued Google for copying Oracle’s APIs.

And what are APIs? An API is a standard package of computer code that lets one program interface with another program or hardware. It is essentially a documented definition on how you do a thing…think of it like a recipe. The API could be a recipe for a particular dish—let’s say it’s French fries. Programmers use APIs to call up that particular recipe—a dozen kitchens could take a potato, cut it into strips and fry it, and end up with a dozen different end products. The “magic” for want of a better word isn’t in the concept behind cutting a potato up and frying it; it’s how you cut it, how you treat it after cutting, what you fry it in and for how long, and how you season and present it. So if you want saltier fries, you use one API; if you want crisper fries, you use a different API. But the API is only making it easier to add fries to the plate by instructing the chef what you want; it is not a restaurant by itself.

USPTO Addresses Gender Inequality in the Patent Bar

By Julie Reed on March 23, 2021 Posted in Patents

The USPTO has recently received criticism about the lack of gender equality in the patent bar, which is composed of people who have passed the USPTO registration exam.

To take the patent bar, one does not have to be an attorney, but one has to have some level of technical education and training. To qualify, exam applicants have to have a bachelor’s degree in science, engineering, or computer science (Category A); a combination of some other type of degree and additional training (Category B); or practical experience like passing the Fundamentals of Engineering test (Category C).

The critics of the current qualification criteria note that while bachelor’s degrees qualify people to take the exam, master’s degrees in those same subjects do not, and many of the degrees that are in Category B that require additional training should qualify the recipient to take the exam. Some believe that many of the degrees in Category B tend to have more women recipients. They additionally cite that the majority of people with master’s degrees in the subjects in Category A, but whose bachelor’s degrees are different, are also women. Continue Reading

Virginia Becomes the Second State to Adopt a Comprehensive Privacy Law

By Leila Javanshir on March 9, 2021 Posted in Data Privacy

On March 2, 2021, Virginia passed the Consumer Data Protection Act (CDPA). The CDPA imposes obligations on businesses handling the Personal Data of Virginia consumers and goes into effect on January 1, 2023. Virginia follows in the footsteps of California, which implemented the California Consumer Privacy Act (CCPA) in January of 2020.

Who Does CDPA Apply To

The CDPA applies to entities that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that either: (1) control or process the Personal Data of at least 100,000 consumers during a calendar year; or (2) control or process the Personal Data of at least 25,000 consumers and derive at least 50% of their gross revenue from the sale of Personal Data. Continue Reading

Stimulus Legislation Brings Substantial Changes to Trademark and Copyright Law

By Brian Esler on February 16, 2021 Posted in Copyright, Trademarks

Congress tucked major trademark and copyright legislation into the almost 6,000 page COVID-relief stimulus package it passed in the waning days of 2020. Overall, these changes will make it easier for rightsholders to pursue infringement claims going forward.

On the trademark front, the stimulus bill contained the “Trademark Modernization Act of 2020.” The TMA formalizes the ability of third parties to submit relevant evidence regarding the registrability of a proposed trademark to the PTO via a Letter of Protest, and establishes an ex parte process for expunging trademark registrations when the mark is not actually used with the recited goods or services any time following the third-year anniversary of registration. The TMA now allows the Patent and Trademark Office to shorten the time for responding to an office action to as little as 60 days. The TMA also reaffirms that a “rebuttable presumption of irreparable harm” arises once trademark infringement is otherwise shown, which will make it easier for marks holders to obtain preliminary and permanent injunctions. This changes the prevailing law in the Ninth Circuit, and resolves a growing circuit split on whether that presumption remained good law after the Supreme Court’s Ebay decision (discussed previously here). Continue Reading