Web Sites' CDA '230 Immunity: An Ever-Expanding Universe?
December 19, 2006
The federal Communications Decency Act of 1996 ('CDA') immunizes Web site operators and other interactive computer service providers from liability for third parties' tortious acts. Pub Law No. 104-104 (Feb. 8, 1996) 110 Statutes at Large 56 '509, codified at 47 U.S.C. '230. 47 U.S.C. '230 shields providers and users of interactive computer services from responsibility for third-party content.
Fried Frank Set to Open Office in Hong Kong
December 12, 2006
Four years ago, it was the law firm merger everybody was talking about. Then it didn't happen. <br>Now the firm is turning its attention to Asia. It is set to announce today the opening of a Hong Kong office. Six partners recruited from British firm Simmons & Simmons, led by China region managing partner Huen Wong, will launch the office for Fried Frank. Another three from Simmons & Simmons, including China corporate head Stephen Mok, will come aboard early next year.
Alternative Routes To U.S. Markets Impact Reporting Requirements For Chinese Companies
November 30, 2006
According to the U.S. Securities and Exchange Commission's Web site, there are currently 144 domestic Chinese companies registered with the Commission. This number is deceiving, however, since more and more Chinese companies are entering the U.S. through business combinations with U.S. domestic listed companies or through off-shore holding companies, utilizing the wholly-owned foreign enterprise (WOFE) structure. While the end result is the same ' a listing on a U.S. exchange ' the decision to 'domesticate' in the United States or remain a 'foreign private issuer' can have significant ramifications for the company's ongoing regulatory compliance obligations. Foreign private issuers continue to enjoy certain levels of relief from the U.S. compliance regime by virtue of the fact that they are also required to comply with their local, or 'home country', reporting requirements.
China's World Trade Compliance
November 30, 2006
Board of Editors member, Prof. Usha Haley, spoke at the U.S.-China Economic and Security Review Commission Hearing on China's World Trade Compliance. In Part One, she addressed subsidies, their forms and complications. In Part Two, she covers how profitable and available those subsidies are and how profitable companies are that serve the China market.
IP News
November 30, 2006
Highlights of the latest intellectual property news from around the country.
Skating the Thin Ice of the Written Description Requirement
November 30, 2006
In recent years, cases such as <i>Enzo Biochem, Inc. v. Gen-Probe, Inc.</i>, 323 F.3d 956 (Fed. Cir. 2002) ('<i>Enzo</i>') and <i>University of Rochester v. G.D. Searle and Co., Inc.</i>, 375 F.3d 1303 (Fed. Cir. 2004) ('<i>Rochester</i>') have fueled an ongoing debate over whether the first paragraph of 35 U.S.C. §112 includes a written description requirement, separate and distinct from enablement and best mode. According to Judge Randall Ray Rader, <i>Univ. of Cal. v. Eli Lilly & Co.</i>, 119 F.3d 1559 (Fed. Cir. 1997) ('<i>Eli Lilly</i>') brought the written description requirement squarely to light. <i>Rochester</i>, 375 F.3d at 1307 (Circuit Judge Rader dissenting). This 'new' requirement creates 'enormous confusion,' not only for the courts, but also for patent drafters. <i>Id.</i> Because the requirement is in flux, patent practitioners should avoid overlooking the requirement or taking it too lightly.
Nontraditional Trademarks: The Flavor of the Month
November 30, 2006
Recently, in a case of first impression, the Trademark Trial and Appeal Board refused to grant trademark protection to the flavor of an antidepressant tablet on the grounds that the flavor was functional and incapable of serving as a mark. <i>In re N.V. Organon</i>, 79 USPQ2d 1639 (TTAB 2006). The decision is a departure from the trend of extending protection to nontraditional trademarks. Although the Board left the door open to the possibility of registering flavor as a trademark, it made clear that future applicants will face significant challenges in registering such marks, including: 1) proving that a flavor has acquired secondary meaning; 2) overcoming the difficulties inherent in protecting a flavor due to the subjective nature of taste; and 3) proving that a flavor functions as a source indicator despite the fact that consumers are not exposed to a product's flavor prior to purchase.
Is Software a Section 271(f) 'Component' of a Patented Invention?
November 30, 2006
On Oct. 27, 2006, the Supreme Court granted certiorari in <i>Microsoft Corp. v. AT&T Corp.</i> (No. 05-1056), preparing to elucidate the contours of patent infringement under 35 U.S.C. §271(f) as applied to the exportation of software code. This case marks the first time in the 22 years since Congress enacted the provision that the Court will venture into this area. The outcome may have significant ramifications for the software industry because §271(f) was widely assumed to apply only to the tangible components of a physical machine. If §271(f) applies equally to software, then software companies will need to rethink their exposure to liability when exporting software abroad. Liability under §271(f) may extend beyond the initial act of exporting and further include downstream activities, such as copying and installing that are done entirely outside of the United States.
Case Briefs
November 30, 2006
Highlights of the latest insurance cases from around the country.
