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That least-read contract — the Terms of Use (ToU) — can be an effective (albeit the last) weapon in the arsenal of a company trying to protect unpatented software technology while providing on-line services. In particular, a Software as a Service (SaaS) company may need to rely on its user license agreement or ToU to protect against theft of its technology by competitors posing as customers. Importantly, as discussed below, the ToU can support injunctive relief just as is available for patent infringement. Furthermore, even where individual components of the SaaS product are otherwise publicly available, or known in the art, a ToU contract protecting the proprietary combination of such components in the product as a whole will be enforced. See, Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S. Ct. 1096 (1978) (enforcing contractual obligations freely undertaken at arm’s length to continue to pay royalties on unpatented publicly available product).
By J. Alexander Lawrence
Since the advent of the Internet, the music industry has been in a pitched battle to combat online piracy. Initially, the industry focused on shutting down services that offered peer-to-peer or other similar platforms, such as Napster, Aimster and Grokster. For a time, the industry also focused on filing claims against individual infringers to dissuade others from engaging similar conduct. In recent years, the industry seems to have shifted focus toward Internet Service Providers.
The DTSA’s Jurisdictional Nexus, Three Years In
By Conor Tucker
The Defend Trade Secrets Act (DTSA) requires pleading a connection between a trade secret, a product or service, and interstate commerce. But failure to prove such a connection divests the district court of subject matter jurisdiction. This article summarizes the first three years of cases discussing the jurisdictional element and explores implications.
By Jeffrey S. Ginsberg
SCOTUS Confirms that Secret Sales Continue to Qualify as Prior Art Under the AIA
New York District Judge Extends Estoppel Under §315(e) to Grounds Not Raised in Petition for Inter Partes Review
11th Circuit Weighs in on Intersection of Lanham Act and FDCA Protein Powder Labeling Requirements
By Kyle-Beth Hilfer
A battle between two dietary supplement manufacturers has revived interested in the intersection between the Lanham Act and federal labeling regulations. The issue: can an advertiser challenge a competitor’s product label for false advertising under the Lanham Act if it complies with applicable federal regulations?
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