The original patent bargain, which was between an inventor and society, gave inventors a limited monopoly in exchange for disclosing inventions that promote the progress of science and useful arts. While this bargain spurred groundbreaking innovation for hundreds of years, today many question whether the pact is unraveling because of limits on injunctions, litigation cost shifting, post grant IPR and PTAB challenges, and a debilitating lack of clarity about what is even eligible for patent protection. Looking ahead, there are even more difficult issues on the horizon, such as how the original bargain applies when a human creates AI technology that then creates its own inventions. Our panel of creators and protectors of intellectual output will discuss and debate the best way to secure the future of the bargain.

In an uncertain patent environment, trade secret protection is gaining momentum. It’s confidential, unlimited in time, low cost, and immediately effective. However, the recent lawsuit between Waymo and Uber and the growing litigation in the domestic energy industry highlighted some drawbacks. Specifically, that the level of protection granted to trade secrets can be weak as compared to patents, that other companies may be able to reverse engineer the secret, and that there is a growing risk of employees changing jobs and taking trade secret knowledge with them. This experienced panel will discuss the analysis that must be undertaken, and the strategic choices companies must make, to best protect their intellectual output.

With the current uncertainty in the US around patent eligibility and other controversial issues, many are looking to Congress for a legislative solution. This session brings government and industry together to discuss proposals for creating more certainty in the system, and thoughts on how to pass meaningful patent legislation in the current political environment.

According to a recent study by the Yale School of Management, only ten percent of US patent holders are women, even though women in the US earn half of the doctoral degrees in science and engineering and more than half of new PhD’s. The study also concluded that the patent disparity between men and women dips when a woman has a “rare name,” such that gender is not easily discernible. Other studies, including a 2019 USPTO study, cited progress, but ultimately acknowledged that there is still much work to be done. Our esteemed group of speakers will discuss ways to level the playing field to spur more innovation, and stronger economic growth globally.

Patents are undeniably valuable, but they are also expensive. With limited budgets, what are the best strategies for getting the most bang for the buck? How does the strategy change as a company grows? What tools, such as data analytics and AI, can be used to make more informed, more strategic and more cost-effective decisions? And when does it make sense to sell (or buy) patents? This panel brings business and legal teams together to discuss the best ways to balance innovation management and cost management in an increasingly competitive environment.

Client needs, growth plans, and the desire to increase accuracy and efficiency are driving patent law firms to invest heavily in technology. A similar dynamic is playing out at intellectual property offices across the globe. Examples in a recent WIPO study include: The USPTO is using machine learning in several areas including the analysis of patent prosecution histories, and the Canadian IP Office is using IBM Watson to engage with clients through social media. Come engage with our industry experts about the latest and greatest in patent LegalTech.

Published on January 7, 2019, the new subject matter eligibility guidance was the first step taken by PTO Director Andrei Iancu to increase clarity and consistency in how Section 101 is applied. The broad consensus is that the initial changes were positive, as evidenced by the response of the U.S. Chamber International IP Index (which moved the US back into a tie for 2nd place from being tied at 12th place in 2018). But there is still much work to be done. A diverse group of panelists will discuss the impact of the guidance, court rulings interpreting the guidance, whether the goal of clarity and consistency has ultimately been met, and, if not, what more needs to be done.

While there are numerous legal and business issues associated with the emergence of IoT-enabled technology, the issues around interoperability and data security loom particularly large. Join a diverse panel as they discuss standards organizations, SEPs, FRAND licensing, litigation concerns caused by the convergence of technologies, legislative proposals, data security, and other issues that must be addressed before IoT can realize its full potential in the Fourth Industrial Revolution.

Join your colleagues for a review of the most noteworthy patent and trade secret cases of the past year!

A trademark identifies and distinguishes the source of the goods of one party from those of others. But will this source identifying function still be relevant in a world where AI can remove humans from much of the product selection and purchasing process? When making everyday purchases for us, will Alexa, Google Assistant, or Cortana look to identify specific brands? Or will they just look to accurately and efficiently match its owners’ needs with any products that fulfill those needs? This future state could essentially limit the effectiveness of the brand as an identifier, and would require us to rethink many of the classic principles of trademark law (for example, likelihood of “consumer” confusion). Some principles would simply no longer apply, while others would have to be reinterpreted to reflect the new paradigm. We will explore this issue in depth, as we look to understand the changes that will be necessary to prepare for the near future.

Fake news, customer complaints, employee gaffes, CEO missteps, ill-advised social activism, and detrimental videos, just to name a few, can critically (and quickly) damage a brand. On the flip side, a savvy, well-trained team can create trust and goodwill for a brand, even when things go awry. This experienced panel of brand creators and protectors will provide tangible strategies for avoiding social media disasters, and insights into how to best manage a crisis, if and when one occurs.

Lawyers are not necessarily known for being the earliest adopters of new technology. Indeed, in a 2017 Altman Weil report titled “Law Firms in Transition,” a question was asked about the use of AI: 7.5% of respondents said that they were already using AI tools, 28.8% were researching options, 37.8% were familiar with AI but have not yet taken any steps, and 25.9% of responding law firms were not familiar with “what’s going on in this area.” While these numbers are likely better today, there is still an opportunity for trademark lawyers to lead in this area, as trademark practice involves many repetitive and time-consuming tasks. Come and learn how innovative trademark lawyers are already leading the way in using AI and other cutting-edge technology to reduce errors, increase productivity and positively impact the firm’s bottom line.

Warren Buffet once said: “It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.” Applying this truism to data security, and the profound damage that a data breach could have on a brand’s reputation, leaves many asking what we should be doing differently. The answer is, quite a bit actually. Our data security experts will address issues from the most basic policies and controls to the more complex strategic cyber security postures. They will also provide roadmaps for creating and maintaining sound data security practices for small companies, large companies, governments, and law firms of all sizes.

In the past, instances of infringement or unfair competition would almost always result in the sending of a quintessential, strongly worded, cease and desist letter. In the age of social media, however, when your C&D can be posted and heavily criticized on multiple social media platforms, many companies and their lawyers have opted to take a different approach. Perhaps a toned-down version of a classic C&D is a good fit. Or maybe a touch of humor would work best. Velcro famously opted to have singing lawyers verbally deliver a C&D, while Anheuser-Busch hired an actor dressed as a town crier to read a C&D aloud (both of which generated positive press). In some cases, a simple phone call is best. There is also the option of taking no action at all in cases that involve a minor or sporadic unauthorized use of a mark. Don’t miss this opportunity to engage with your peers and learn how to master this new form of art!

Walmart and IBM are putting lettuce on the blockchain to track it globally through its supply chain; De Beers, with Tracr, is putting diamonds on the blockchain as part of a mine-to-customer traceability solution; Maersk together with IBM, using Hyperledger blockchain technology, are teaming up to track freight and replace paperwork with tamper-resistant digital records; and LVMH, owner of the Louis Vuitton label, is preparing to launch a blockchain for proving the authenticity of high-priced goods. It’s high time that Blockchain’s promise of decentralization, transparency and immutability now be put to work on counterfeit goods (a problem that, according to PwC costs consumers $600 billion per year). The EU and China are also moving aggressively on this issue, so it’s imperative that the KnowIt Community come together to add its voice to the debate, and provide its thoughts on the best way to build the anti-counterfeiting infrastructure of the future.

3-D printing or additive manufacturing is the process of making three dimensional solid objects from a digital file. The extraordinary thing about 3D printing is that it can be used to create just about anything. It simply requires the digital file and the right material. When this technology is used to replicate a product that is trademark, copyright, patent, or design right protected, then it is likely that an infringing good is produced. This panel will focus on the toy industry, as it will likely be hit hard by this technology, in large part because it can be made from cost effective, and readily available, material. Our dynamic group of speakers will discuss the threat posed to the toy and collectible industry, particularly toys from movies and television, and will discuss ways to address this challenge head on.

Human influencers have partnered with every brand from Amazon to MeUndies. When they do, the Federal Trade Commission’s Endorsement Guides dictate how they disclose the partnership, usually with hashtags like #ad or #sponsored. More recently, however, there is a trend toward using fictional CGI influencers. And followers are often not aware that these influencers are not human. Lil Miquela and Shudu, for example, are popular CGI influencers that only recently revealed that they are not human. This trend raises a lot of unanswered questions: Should their creators be required to disclose that they are not human? Do they use the same disclosure requirements as human influencers? Are there ethical issues with realistic digital characters promoting an unattainable representation of beauty? Should there be a new category of disclosure statements, such as #RealPerson? Our panelists will walk us through the provocative legal and ethical issues created by these new brand ambassadors.

Join your colleagues for a review of the most noteworthy trademark and unfair competition cases of the past year!

AI training, which is a fundamental part of any AI project, has been in the news of late. For example, a Google AI was trained to speak more like a human by being fed human-created novels. A Sony/Flow Machines AI was trained to create music by being fed human-created songs. And an IBM AI was trained to recognize faces by being fed human-created photographs taken from Flickr. Even assuming that AI tools need to be trained this way for now (until it can emulate the more top down reasoning that more closely resembles the way that humans approach problems), there are still questions about what is, and what is not, fair. Should companies that use copyrighted material to train AI be required to ask permission first, and/or to compensate the underlying creators? Or is the AI training activity a fair use? If it’s not fair use, how do parties that want to “consume” creative works in this fashion go about seeking consent from hundreds or even millions of creators? What about larger societal issues? Some have called for changes in law and policy to promote social equity in the AI age, such as universal basic income and “robot taxes.” These are all questions that still need to be answered. Don’t miss this fascinating discussion about copyright’s place in the Fourth Industrial Revolution.

A battle is raging in the EU about the proposed new Copyright Directive. The two most controversial elements are Article 11, which gives news publishers the right to be paid for the use of their content online, and Article 13, which would require online platforms to create “filters” to keep infringing works from being uploaded. This panel will not only discuss the details of the final version of the Directive, but it will also debate the question of whether the EU got it right, particularly with respect to the requirements placed on search and social platforms. Join this session to ask, and help answer, these critical questions.

Augmented Reality (AR) is often confused with Virtual Reality (VR), but they truly are distinct. While VR fully immerses users in a virtual world, AR puts digital elements into a user’s real world. As between the two, many believe that AR is likely to have more real-life applications, in large part because AR can be deployed on smartphones or tablets and used in the “real” world. As with most new technologies, however, IP issues will loom large. Is the originality requirement met when a work is created within an AR platform? If so, is it the programmer or the end user who owns the copyright? How would infringements ever be identified if the works are stored in the AR equipment software? This panel will explore the potential applications of this exciting technology, and discuss whether the existing IP framework is flexible enough to accommodate the future of AR.

While this is not the first time that IP practitioners and judges had to wrestle with the concept of authorship, the AI use case is likely to present the most difficult challenge yet. Can AI generated works be protected by copyright? If so, who is the author? The majority of experts today take the position that only humans can be authors under copyright law, and would consider a work authorless or in public domain if there was insufficient involvement of a human creator. Several questions remain, however. First, as a community of creators and protectors, how can we help define when a human has contributed enough (either as a programmer or a user) to be an author of a work. Second, are there, and should there be, other ways to protect such innovations, such as sui generis or considering AI generated outputs as “works made for hire” by an “employed” AI. Third, would any of the above change if, in the future, a truly self-aware, autonomous AI submitted a copyright work for registration? Our experts will examine all of these questions and more.

Warner/Chappell Music asserted, but later had to relinquish, its copyright claim on “Happy Birthday.” Getty Images’ lawyers sent photographer Carol Highsmith a letter demanding payment for her use of her own public domain images. A YouTube campaign commercial that was incorporated into a Jay Leno segment (without permission) was later taken down by NBC. James Rhodes put a video of himself playing Bach on Facebook, and Sony Music claimed that portions of that performance belonged to Sony. And most recently, criminals are making unfounded claims on YouTube, and then demanding Bitcoin in order to remove the strikes so as not to lose content. Regardless of whether these examples involve true copyfraud, human/bot mistakes, or blatant criminal activity as illustrated in the last example above, blockchain technology, with its immutable database that can track dates of registration, provenance, and contact information, can help. Join us as we learn about what Sony, IBM, ASCAP (and societies from the UK and France), and artists like Armando Christian Perez, aka "Pitbull, among others, are doing to attack this problem.

The ongoing battle between Oracle and Google is back in the news. After losing the latest court battle in the Federal Circuit Court of Appeals, Google has filed a petition for certiorari before the Supreme Court, and is asking the Supreme Court to opine on both its fair use defense and its original copyrightability defense. In that regard, the passage of time could be a significant factor. Just think of where technology was in 2010 when this litigation started, or even where it was in May of 2014 when the Federal Circuit rejected Google’s copyrightability argument. It also bears noting that in 2015, the US Justice Department conceded that Google had asserted important arguments about the tension between encouraging innovation and exercising monopoly power via licensing demands rooted in open-source code. Join us as we examine the opposing views presented in this case, and debate the various outcomes with an eye toward the future.

A recent case in the fashion world has created a significant amount of anxiety for copyright litigators. The case involved Ipek Irgit, who began selling a swimsuit she called a Kiini in 2013. The new swimsuit was a huge hit and, given the popularity of the suit, Irgit registered the copyright on it. Shortly thereafter, she filed her first copyright case against Victoria’s Secret, accusing the company of copyright infringement for a similar bikini. She later also sued Neiman Marcus, PilyQ, Bloomingdales, Lord & Taylor, Macy’s and others. The problem is that, by all accounts, Irgit did not create the Kiini. It appears that the bikini was created by a street artist in Brazil, and that Irgit copied it. This case exposes a potential blind-spot for copyright litigators and begs the question of how a defendant could look to identify these types of false claims. Can technology (such as blockchain) be brought to bear on this issue? If not, what else should a defendant do? Join this panel of seasoned litigators as they discuss this and other similar copyright litigation pitfalls, and provide recommendations about what can and should be done.

The U.S. District Court for the Southern District of New York recently held that websites that embedded certain tweets, containing unauthorized uploads of plaintiff’s copyrighted photo, violated the plaintiff’s exclusive display right of the image. In reaching this conclusion, the Court rejected the Ninth Circuit’s “server test,” as set forth in Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). Specifically, in the Perfect 10 case, the court held that a content provider infringes on a copyright only if they host the copyrighted material on their servers. In Goldman v. Breitbart News Network, No. 17-CV-3144 (KBF) (S.D.N.Y. Feb. 15, 2018), however, the Court was not swayed by the defendants’ argument that the location of the copyrighted image was material to determining whether the defendants infringed. Instead, Judge Forrester drew a distinction between providers who require users to click to access the material and those who do not. The U.S. Court of Appeals for the Second Circuit denied a petition to review the case, and avoided answering this question, for now. But with a potential circuit split hanging in the balance, this session will be a valuable opportunity to get ahead of this issue.

Nearly five years after Cariou, and almost two and a half years after Google Books, the Second Circuit issued another important decision on fair use. And this decision is raising eyebrows, in large part because the Second Circuit emphasized the market effect factor (stating that it was “undoubtedly the single most important element of fair use”), and downplayed the transformative use factor that was so prominent in other recent cases. Some commentators see this decision as restoring a degree of balance to the Second Circuit’s fair use jurisprudence, which is potentially supported by the subsequent December 2018 decision in Capitol Records LLC v. ReDigi, Inc. Others, however, argue that decision just presented facts that were different from prior cases such as Google Books. One commentator suggested a third view, namely that the courts may simply consider fair use issues concerning aggregation services differently than other more traditional copyright cases. Join us we attempt to read the tea leaves with respect to the Second Circuit and fair use.

Join your colleagues for a review of the most noteworthy copyright cases of the past year!

Machine learning and AI are being used more often on the front lines of the cybersecurity battle. They can, among other things, help identify threats more efficiently, and also significantly improve response times. But the “bad guys” also benefit from machine learning and AI. For example, machine learning can produce attack scripts at a speed and level of complexity that humans can’t match. AI can also help hackers avoid security detection, for example by using AI to speed up malware, causing it to constantly change its code, and therefore allowing them to bypass many security controls. This expert panel will explore the best, and the worst, cybersecurity use cases for ML and AI, and discuss the preventative measures that can be taken to avoid giving the hackers the upper hand in the data security wars.

There is already a dire need for more cybersecurity professionals, and things are expected to get even worse. According to data published in late 2018 on CyberSeek (a free online resource from the U.S. Department of Commerce’s National Institute of Standards and Technology, Burning Glass and CompTIA), across all occupations in the US, there are currently 5.8 employed workers for every job opening. But within the cybersecurity field, the ratio of existing cybersecurity workers to the number of cybersecurity job openings is 2-to-3, meaning more openings than qualified candidates. The shortage is further exacerbated by the fact that women and minorities are generally not well represented in cybersecurity. Estimates of women in the industry vary from 14% to 20%, but either way there is broad agreement that these numbers need to be higher. The KnowIt community will discuss ways to overcome legacy challenges, and to create win-win strategies that will ultimately fill vacant positions, bring more firepower to the fight against hackers, and significantly increase the numbers of talented women and minorities in this field.

There is a titanic battle taking shape between system defenders and hackers. And some industry veterans are fearful that system defenders are jumping on board the AI/ML bandwagon without paying enough attention to risks, such as relying on a single master algorithm or using algorithms with “explainability” issues that make it hard to assess what’s driving anomalies. Others worry more about the tendency to go it alone. According to Jason Matheny, Director of Intelligence Advanced Research Projects Activity at the Office of the Director of National Intelligence (DNI), the advantage boils down to which side has the most training data, and that the arms race could be won by the “good guys” if we worked together. For example, if the large technology companies pooled all the data it had on cyberattacks, would we have solved the problem because that data set would be greater than that of any attacker? Or is the solution something else entirely? Join us as we explore areas of consensus, and ways to work more closely together to counter the threat of malicious cyber attacks in the future.

Team collaboration apps have become a preferred means of internal (and in some cases even external) collaboration. But these apps represent a new challenge for security teams. Are these new tools inadvertently increasing the likelihood of a cyber attack by opening up new channels that hackers can leverage to infiltrate an organization or steal data? Does internal end-to-end encryption reduce the risks enough, particularly when coupled with control of the encryption keys? Even with end-to-end encryption and control of the keys, is the risk of cloud-based storage simply too high when the data in question is subject to compliance regulations like GDPR and HIPAA? This panel will discuss all of these questions and more so that your organization can continue to safely reap the benefits of cloud-based collaboration!

Protecting data in an Internet of Things environment will be extremely difficult. The essence of IoT is about making connections, and using those “connected” things to gather information, send information, or both. But all of this data collection and sharing creates new opportunities for information to be compromised. An example being, a Deloitte article raised a question about a garage door opener that could also deactivate a home alarm upon entry, such that the entire alarm system could potentially be deactivated when only the garage door opener is compromised. Equally as troubling, in 2017, the US FDA issued a statement warning that certain implantable cardiac devices, which connected wirelessly to the internet, could potentially be accessed by malicious hackers. Connection is the whole point of IoT, but we need to make sure the connections do not allow malicious actors to gain entry into IoT ecosystems, access customer information, or penetrate manufacturers’ back-end systems to launch malicious attacks. Our experts will discuss in detail what needs to be done to build the IoT infrastructure safely, so as to protect the integrity of IoT innovations and ecosystems.

The California Consumer Privacy Act (CCPA) was enacted in June 2018, and takes effect in January 2020. The Act requires companies doing business in California to improve transparency in how they collect, use and share data. The law is not a copy of the EU’s GDPR legislation, but there are similarities (particularly in the way they both define “personal information” and information “processing”). Privacy laws are also starting to appear around the US, with Vermont, New Jersey, Washington State and others considering legislation. And, while Congress has not actually proposed federal privacy legislation, those reading the tea leaves are starting to whisper that it’s only a matter of time. While there are strong views on both sides of this debate (and already a battle brewing over whether the CCPA would be preempted by a federal law), a recent committee hearing on this topic seemed to suggest that there is at least an acknowledgement by many that technology has outpaced the law, and that one federal privacy law could potentially be better than the collection of 50 different state laws. Join our panel, and help identify the best path forward, as we look to create the American approach to data privacy.

The focus on privacy issues is a growing global phenomenon. China, for example, introduced an information security specification in May of 2018 (and updated it in February 2019), which borrows quite a bit from the GDPR in terms of substance. It’s a nonbinding National Standard, but some have noted that authorities are referring to it when enforcing more generally worded provisions found in mandatory Chinese laws. In India, the Supreme Court in 2017 affirmed that privacy is a fundamental right, based on the rights of life and liberty in the Constitution. And in 2018, India introduced a draft data protection bill that borrows heavily from a number of the concepts in the GDPR. Under the Consumer Data Right (CDR) in Australia, citizens will be able to “own” their personal data through more open access to banking information, energy details, phone and internet business. They will also have more control regarding the use of their data and who can access it. However, for companies that do business globally, one of the most concerning issues is not about how to comply with these new laws in isolation, but rather how to manage the complexity of this patchwork of global privacy standards. Join a spirited debate, led by professionals from the US and abroad, about the various approaches to privacy around the world, and best practices for managing global privacy obligations properly and efficiently.

According to a 2018 survey conducted by Gartner, 22% of organizations worldwide are using employee movement data and/or computer usage as a means of evaluating performance. Several large corporate players have also submitted patents for technology that can further monitor employee movement and listen in while employees work. The goal of this technology is to determine opportunities to further improve upon employee performance, such as maximizing their time spent on value-add activities, and ensuring they deliver a positive customer experience. What right to privacy (if any) does an employee have in connection with all of these initiatives? Who has the right to access the data that is collected through these monitoring devices, and what controls are in place to prevent a security breach? Our panel will dive into these challenging questions to identify areas of consensus, and to debate areas of disagreement.

Join your colleagues for a review of the most noteworthy data security and privacy cases of the past year!