Wednesday, January 9, 2013


As we start the New Year, I offer some personal predictions and questions to ponder in the areas of intellectual property, social media, and privacy law. Not as exciting as what will happen in Season 3 of Downton Abbey, but I do expect lots of surprises and interesting developments in the months ahead.

1. Trade Secret Litigation

On December 28, President Obama signed into law the Theft of Trade Secrets Clarification Act of 2012. This new law expands the scope and protection of trade secrets to cover products or services “intended for use” in interstate or foreign commerce. The number of trade secret cases and related litigation is likely to increase as a result.

2. Patent Applications Overwhelm Patent office

The America Invents Act (AIA) will result in an unprecedented number of patent applications, including a large number of provisional applications that are filed to take advantage of the change from first to invent to first to file. Stay tuned to find out if the United States Patent and Trademark Office can handle the demand.

3. Patent Trolls Punished

Defendants in patent cases will take advantage of new administrative procedures made available under the AIA to challenge patents outside of the courts. Hope to see more targeted legislation forthcoming to put a damper on non-practicing entities or so-called  "Patent Trolls".

4. We Should Find Out if Human Genes and Abstract Ideas are Patentable

The United States Supreme Court will answer the question of whether human genes are patentable. It will also clarify when a computer implemented “abstract idea” is eligible for patent protection.

5. New Federal Privacy and Security Laws

Will cyber-attacks or significant data breaches cause major damage and disruption resulting in new federal legislation or other government actions to prevent such activity?

6. gTLD’s Become Popular 

Forget the dot.coms. E-commerce will look a lot different as the new generic top level domains (gTLDs) come into use and bring with them new enforcement challenges for owners of brand names. It remains to be seen whether consumers will like and use them.

7. Pinterest Remains Pink

Pinterest's user base (currently around 80% female) will remain relatively testosterone-free. It won’t stop others, like Gray Plant Mooty client Thrill On, from finding cool ways to adapt the Pinterest idea for people who were born with a Y chromosome.

8. States Enact Privacy Laws

Mores states will follow the lead of California (and six others) to enact laws such as those prohibiting employers from requesting (or requiring) that employees or applicants provide log-in information for Facebook or other personal social media accounts.

9. Right of Publicity

A person may have the right to prevent others from commercially using their identity, voice, name or likeness without permission. More attention will be given to the Right of Publicity and how it might be violated on social media sites. One example is “twitter jacking,” a practice where people create twitter accounts posing as celebrities. Facebook users discovered to their surprise that when they “liked” certain products or services their profile pictures were used to promote those goods to their friends. A class-action suit was filed against Facebook that resulted in a settlement of $20 million. We will likely see more cases this year invoking the Right of Publicity.

10. The World Does Not End   While the newest claim by my close Mayan friends is that the world will now end on December 31 2013, I predict that the world will not end and we will still be here discussing most of the above issues for years to come—and looking forward to Season 4 of Downton Abbey.

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