IP Advisor - October 2008

Around the world, the entertainment industry remains vexed by the challenge of combating illegal downloading and file-sharing. Members of the recording industry and various special  interest groups have approached this problem in a number of ways, including by lobbying for tougher infringement penalties, launching public service campaigns, and using local police and court systems to find and prosecute alleged infringers. The industry has also attempted to secure aid and cooperation of Internet service providers (ISPs), both to help identify and apprehend infringers and to implement safeguards that would make potentially infringing behavior more difficult. Pro-privacy groups, for their part, rebuff attempts to monitor or make public the online  activity of individual users. And the quest to strike a proper balance between combating piracy and protecting privacy remains challenging.

The Role of ISPs in Detecting Infringement

In order to pursue remedies against illegal downloaders, the individuals doing the allegedly infringing act must first be identified. Often Internet users, particularly those engaging in activities that may be considered illegal, are only identifiable by a fake username or by their Internet Protocol (“IP”) address, which is essentially a string of numbers that distinguishes the virtual location of a particular computer. All Internet users have an IP address when they are online, since no data can be received without one. Most ISPs maintain a pool of dynamic IP addresses which are allocated to users as needed, rather than provide to each user a never-changing static IP address. Therefore, although it is easy to look up the registered owner of an IP address, the actual identity of the user is often obscured because the IP address will simply be registered to the ISP. This makes it extremely difficult for a copyright holder to figure out the identity of a suspected infringer without the help of the ISP.

Strategies for Uncovering Infringers Can Raise Privacy Concerns

Industry groups approach this problem in different ways in different countries. In the United States the industry has relied in large part on a strategy of mass litigation, filing thousands of civil suits against suspected infringers.

In Europe, recording industry representatives have also been using litigation to identify potential infringers through ISP subscriber information. There, too, they have encountered resistance from ISPs and some courts have not been hospitable to their strategies. In the 2005 case Foundation v. UPC Nederland, a Dutch court ruled against the Dutch counterpart of the RIAA, BREIN, and ordered ISPs not to divulge subscriber information because of the way the industry group had collected the IP addresses. BREIN had employed the U.S. firm MediaSentry, which is also used by the RIAA in the United States, to identify possible infringers. The Dutch court ruled that, due to stringent privacy laws in force in Europe, using an overseas party to collect the data made the collection unlawful, and the fruits of the investigation could not be used to obtain subscriber information from ISPs.

In 2006, using different collection tactics, BREIN was able to obtain subscriber information from an ISP. However the requirements for data collection in the Netherlands are strict: ISPs can only be ordered to provide personal data if it is plausible that an unlawful act occurred and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act.

As the UPC Nederland case illustrates, civil suits have been less successful in Europe than in the United States. Consequently, the recording industry is more focused on trying to force ISP cooperation through governmental pressure and new legislation. Recording industry representatives have engaged in significant lobbying to require ISPs to provide information about their users and/or to install filtering technology.

Germany exemplifies this attempt to overcome judicial protection of privacy rights through legislative means. In March 2008 the German Federal Constitutional Court ruled that an ISP could only give out IP address subscription information in a serious criminal investigation, and determined that copyright violation was not a serious enough offense to qualify. Just one month later the German Parliament approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. Although this measure removes privacy safeguards for some suspected infringers, it is not the win the German recording industry had hoped for. In return for curtailing IP address privacy protection, the fine for each copyright violation was significantly reduced. Under the new law the maximum fine is 100 euros per violation, about one-tenth of the previous penalty.

The new German law is an attempt to facilitate a fair compromise. Not all other European countries are approaching the issue as fairly. A number of nations are considering a three strikes system that would result in cutting off Internet access for users who illegally download or file-share protected material. France and Britain are both seriously considering this option.

A recent draft of the French three strikes proposal, backed by President Nicolas Sarkozy, calls for a “graduated response.”  Through ISP monitoring, users will receive e-mail and registered letter notifications that material was illegally downloaded by the IP address allocated to their accounts. Finally they could be subject to a one-year broadband service suspension. All ISPs would be required to comply with the suspension plan, so a chastised user could not simply switch providers to escape penalty. The plan creates a “High Authority” to oversee the notification process and possible broadband termination. This Authority would be able to obtain one year’s worth of Internet-use records based just on accusations of suspected infringement. The ultimate penalty, discontinuation of service and being placed on a banned user list, would be administered without a trial.

The British have not yet drafted a three strikes policy and are instead leaning towards voluntary deals between ISPs and the recording industry. British ISPs have reluctantly agreed to cooperate, perhaps because of the British government’s stated willingness to step in if a voluntary system cannot be quickly agreed upon. In the first British deal, recently reached, between an ISP and the recording industry, Virgin Media will begin sending warning letters to users. The agreement with the British Phonographic Industry (BPI) requires only notification to alleged infringers; Virgin Media does not yet have any plans to disconnect users.

In response to these three strikes proposals, the European Parliament recently voted to condemn policies that might result in termination of Internet access. In a close vote in April 2008, the Parliament passed a resolution admonishing laws that would require ISPs to disconnect their users and would keep individuals from acquiring broadband access. The resolution is non-binding, however, and despite the censure, adoption of three-strikes policy seems increasingly likely.

Critics of both three strikes laws and RIAA litigation tactics assert that such campaigns can easily target the wrong person. The person named on the account may not be the infringer. A friend or family member could be using the computer for the problematic activity, not the subscriber. With the prevalence of wireless access, it is also possible for a stranger to piggyback off the connection or to mimic another’s IP address.

Not all European countries have been so quick to make ISP subscriber records accessible. In addition to the Dutch requirements described earlier, Spain also protects Internet users. In 2004, the Spanish Data Protection Agency (AEPD) determined that IP addresses are considered “personal data” and are protected under the country’s Data Protection Act. In the civil context the Spanish Supreme Court recently considered an argument in Productores de Música de España v. Telefónica de España SAU  that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons. The court sought input from the European Court of Justice, which determined that an EU member state is not required to obligate ISPs to provide personal data information in civil copyright cases (although it may do so). In a recent criminal case the Spanish Supreme Court allowed the collection of IP addresses and a subsequent court order to obtain subscriber information. In May the AEPD announced its intention to draft regulations that would govern obtaining IP subscriber information. In the P2P sphere the agency stated that access to subscriber information must come “in a way that is compatible with the fundamental right to data protection.”

In Italy, too, recent events provide privacy protection for Internet users. One is not criminally liable in Italy for file sharing copyrighted material, as long as it is not done for commercial gain. One can be civilly liable, however, and Italian courts can order ISPs to provide personal data associated with IP addresses. So when a court issued such an order in 2007 to Peppermint Jam Records, a German record company that had employed a third party to collect IP addresses of suspected infringers, it sparked a controversy not about the legality of the order, but about what sort of data collection might violate data protection laws. In February 2008, the Italian Data Protection Authority settled the issue by decreeing that one could not systematically monitor P2P activities for the purpose of detecting copyright infringers and suing them.

Conclusion

The entertainment industry is dealing with challenging times. Technology has dramatically altered the ways in which consumers access music, movies and other entertainment. Just as technology has and will likely continue to alter the distribution means for entertainment, it has and will likely continue to provide new means for users to access entertainment media by unauthorized methods. As the entertainment industry and consumers pursue their respective interests, legislators and policymakers continue to struggle to develop solutions that strike a proper balance between protecting commercial property interests and protecting individual privacy rights and freedoms. With the huge stakes at issue, it seems unlikely that these issues will be resolved definitively any time soon.

Offering speedy trials before IP-savvy judges and the powerful remedy of an exclusion order to stop infringing goods at the border, the U.S. International Trade Commission (ITC) has become an increasingly popular forum for enforcing IP rights. The Supreme Court’s eBay decision reducing the availability of injunctive relief in federal district court patent cases has also contributed to the rise of the ITC. Acting similarly to a district court, the ITC most often hears claims of patent or trademark infringement but can also address unfair competition due to infringement of registered copyrights, misappropriation of trade secrets or trade dress, passing off, false advertising, or antitrust violations.

The ITC’s new prominence demands attention to developments at the agency. Here are the top 10 to date this year.

1. The ITC Is More Popular Than Ever

The ITC has already instituted over 40 new IP cases this year, a record number. (Goodwin Procter has been involved in five ITC cases over the past year and two trials.)  By comparison, the ITC instituted about 25 cases in 2004 and 2005, and 30 to 35 cases in 2006 and 2007. The ITC’s fast-growing docket shows that IP rights holders are increasingly choosing to enforce their rights in the ITC due to its unique advantages.

2. The ITC Names a Fifth Judge and Plans to Add a Sixth Judge

For many years, the ITC had four judges, but to handle its burgeoning docket the ITC named a fifth administrative law judge, Robert K. Rogers, and plans to add a sixth judge in December. Like retired Judge Terrill, Judge Rogers comes to the ITC from the Federal Energy Regulatory Commission (FERC). The ITC must hire new judges from those at other federal agencies, such as the Environmental Protection Agency and FERC, so they generally do not have IP-related experience upon arrival at the ITC. New ITC judges quickly acquire such experience, however. Since being appointed in July, Judge Rogers has presided over two trials.

3. The ITC Names Judge Luckern As Chief Judge

The ITC named Judge Luckern as Chief Administrative Law Judge after many years without one. Judge Luckern has served as ITC judge for over 20 years and is the only current judge who came from a background in IP law. As Chief Judge, Judge Luckern will preside over all motions made during the time between institution of a case and its assignment to a judge, and will provide leadership in handling the caseload in a thorough yet expeditious manner. Judge Luckern is known for his dedication to his work at the ITC, exhibiting a strong work ethic and expecting the same of others.

4. Commission Gives Itself More Time to Reach Final Determinations

Partly to address its increased caseload, the ITC issued new rules. The higher workload has put more pressure on the ITC in reaching final determinations. In the ITC, the judge issues an initial determination which is then often reviewed, in whole or in part, by the Commission before it issues a final determination. Previously, a target date for the final determination was typically set 15 months from institution of the case, and the judge had to issue his initial determination three months before the target date. Under the new rules, a target date is likely to be set 16 months after institution, and the judge will need to issue his initial determination four months before that date. This gives the Commission another month to conduct its review, which may allow for higher quality opinions and help the ITC to preserve its historically high success rate on appeal. While the new rules lengthen the time to a final ruling by a month, they keep the typical time from institution to an initial ruling at 12 months and should not affect the time from filing to trial.

5. ITC Imposes Page Limits on Petitions for Review and Gives Parties a Little More Time 

Parties seeking Commission review of a judge’s adverse ruling in an initial determination, and parties opposing such review, need to act very quickly. Given the complexity of many ITC cases, they would often file voluminous briefs which the Commission would need to consider swiftly. New rules slightly ease the burdens on the parties and the Commission. The period to petition for review has been increased from 10 days to 12 days, and the time  for response has been increased from five business days to eight days. The Commission has also imposed page limits of 100 pages for petitions and responses, and has required a summary of up to 10 pages for those in excess of 50 pages. These changes bring a bit more sanity to the petitioning process, which is the first stage during the four-month period for Commission review. If the Commission decides to review aspects of the initial determination, the Commission typically sets a schedule for briefing on the merits before rendering its final determination.

6. New Rules Require Claim Charts for Each Asserted Independent Patent Claim

Unlike district court complaints for patent infringement which can be mere notice pleadings, ITC complaints are significant undertakings that require front-loading case preparation. In district court cases, claims charts are typically not provided until months into discovery, in response to interrogatories or as required by local rules. The ITC used to require complaints to include a claim chart for an exemplary claim of each asserted patent. Under the new rules, complaints must now include claim charts for each independent claim asserted for infringement. The Commission believes that this will better define the issues at an early stage, promoting early case resolution, but this new rule will require patentees to do more pre-filing work, perhaps substantially more in cases where many independent claims across multiple patents are asserted.

7. Federal Circuit Applies Safe Harbor and Takes Expansive View of Jurisdiction in ITC Proceedings

In Amgen v. ITC, the Federal Circuit set forth two significant holdings defining the scope  of ITC cases. The first holding related to 35 U.S.C. § 271(e)(1), which provides a “safe harbor” exempting from infringement all uses of patented inventions which are reasonably related to development and submission of information for federal regulatory approval of medical products. This “safe harbor” had long been applied in district courts, and in Amgen the court held that it also applies in ITC cases. The Federal Circuit’s other significant holding made clear that the ITC’s jurisdiction is broader than the ITC had appreciated. Reversing the ITC, the court held that the ITC has jurisdiction when infringing acts are reasonably likely to occur, whether or not any sale of the infringing product has occurred. The net result is that, although only activities exempt under § 271(e)(1) may have occurred, the ITC can hear a case where federal approval of the medical product is reasonably likely to occur and issue relief.

8. Federal Circuit Clarifies Availability of Appeal from Exclusion Orders

In Yingbin-Nature (Guangdong) Wood Industry v. ITC, the Federal Circuit clarified when an appeal from an exclusion order is moot. The ITC had issued a general exclusion order against goods which infringed five claims of the ’836 patent, two claims of the ’292 patent, and two claims of the ’779 patent. The infringers appealed on all claims except three claims of the ’836 patent. The court held that the appeal was not moot as to the ’779 patent, since it would expire later than the other patents. By contrast, the court found that the appeal was moot as to the appealed claims of the ’836 and ’292 patents. Even if the infringers won on those claims, they could not import the products that had been at issue in the ITC since those products infringed three unappealed claims. The true nature of any injury was the potential collateral estoppel effect of the order on future determinations of whether re-designed products infringe the appealed claims, but the court held that there would be no preclusive effect and thus the appeal was moot as to those claims. This ruling means that infringers may have limited ability to narrow the scope of an exclusion order on appeal, and conversely means that the ITC’s conclusions may not have as much force in future proceedings as prevailing patent owners may have hoped. It is already well-established that rulings about patent rights in ITC cases do not have preclusive effect in district court.

9. No Stay for Reexamination Where It Would Effectively End the Case

In Inv. No. 337-TA-605, just as trial was scheduled to begin, an ITC judge granted a stay based on reexaminations that had been filed by a party which was not involved in the ITC case. The reexaminations were at an early stage and likely would not end until after the patents had expired. The Commission reversed the judge’s order and denied the stay. (Goodwin Procter was counsel to the patent owner in opposing the stay.)  The Commission based its analysis on five factors:  (1) the state of discovery and the hearing date; (2) whether a stay would simplify the issues and hearing of the case; (3) the undue prejudice or clear tactical disadvantage to any party; (4) the stage of the PTO proceedings; and (5) the efficient use of Commission resources. The Commission found that factors (2) and (5) favored a stay, but held them outweighed by the other factors. In particular, the Commission emphasized that the patent owner would effectively lose the ability to obtain relief in the ITC if a stay were granted because the patents would likely expire before the reexaminations concluded. This ruling confirms the viability of pursuing an ITC case based on patents nearing the end of their terms.

10. Commission Provides Guidance on the Floor for a Domestic Industry

A unique aspect of ITC cases is the requirement that an IP owner must prove a “domestic industry.” This entails meeting a technical prong, which requires activities in the United States relating to the asserted IP rights, and an economic prong, which requires that the activities meet a threshold of economic significance. The bar for satisfying the economic prong has become relatively low, and has recently led individuals and small non-practicing entities to file ITC cases. In Inv. No. 337-TA-586, the Commission held that an individual patent owner failed to meet the economic prong. The evidence offered was five prototypes made at a total expense of roughly $10,000, unproven “sweat equity” (expenditure of non-monetary resources), and two licenses reached with parties named in the ITC case after the complaint had been filed. While the Commission took into account that the patent owner was an individual, it held these activities insufficient. This ruling indicates that individual patent owners and non-practicing entities seeking the leverage of an exclusion order from the ITC, in the wake of the Supreme Court’s eBay decision, may be unable to prove a domestic industry in some circumstances.

The United States Patent and Trademark Office (PTO) claims it is awash in applications awaiting examination due to an increasing wave of continuation application filings, and that this backlog is impeding its ability to provide quality examination. The PTO has attempted to curb all continuation filings through legislative proposals and changes to its rules of examination. The legislative proposals, however, have stalled, and the PTO’s proposed rule changes were recently struck down by a federal district court as exceeding the PTO’s statutory authority. The PTO can best eliminate the backlog internally by providing incentives to both examiners and applicants to more rapidly dispose of original applications, which will have the effect of reducing the number of the specific type of continuation filings that are causing the backlog, namely, Requests for Continued Examination (“RCE” applications). To provide the appropriate incentives to examiners, the PTO should consider overhauling the examination production system, which has not been changed since 1976.

RCE Filings Are the Only Continuations Being Filed at an Appreciably Greater Rate

The PTO claims that the primary cause of its current backlog is an increase in continuation applications. PTO data, however, reveal that not all types of continuations are an equal part of the reason for the backlog. Continuation applications include:  (i) “straight” continuations to file new claims (e.g., to seek protection for a different embodiment or broader claims); (ii) divisional applications filed to pursue different claims subjected to restriction; (iii) continuation-in-part (CIP) applications filed to add new subject matter; and (iv) continuations filed to pursue the same subject matter. Formerly called “file wrapper continuations,” and now referred to as RCEs, it is this final group that has contributed to the rise in continuation filings since 1995. The chart below reveals that it is only the RCE applications that have increased appreciably since 1998 (the percentage of divisional and CIP applications are about the same today, or lower, than they were in 1980).

Why Are More RCE Applications Being Filed?

More RCE applications are being filed because:  (i) changes in the patent laws in the mid-90s resulted in a sea change in the way applicants prosecute patent applications; and (ii) the PTO examiner production system (how examiners account for their time and are evaluated) encourages RCE application filings. While there is surprisingly little written material on the examination production system, much of the material that exists unfortunately is not accurate, and incorrectly states that an applicant can somehow “wear” an examiner down by repeated re-filings because examiners only receive a final disposal “credit” for an allowance or abandonment, but not for continued rejection of a claim.

The change in patent practice resulted in part from the passage of the Uruguay Round Agreements Act (sometimes referred to as GATT or TRIPS) that revised the patent term from 17 years from the date of issue to 20 years from the date of filing for applications filed after June 8, 1995. At around this time, the perceived delay at the Board of Appeals was about four to five years. Many applicants therefore filed continuation applications, attempting to convince the examiner to allow the claims, rather than appeal and risk losing valuable patent term. A less time-consuming appeals process would contribute towards reducing the applicants’ incentive to file RCEs. The PTO began a pilot program in 2005 to ease the appeals process, but this program is not yet finalized. See New Pre-Appeal Brief Conference Pilot Program, 1296 Off. Gaz. Pat. Office 67 (July 12, 2005). The PTO also recently passed rules to make appeals more efficient, (Rules of Practice Before the Board of Patent Appeals and Interferences in Ex Parte Appeals, 73 Fed. Reg. 32938 (Jun. 10, 2008)), but these rules actually make it more expensive and burdensome on applicants, although they appear to streamline the process for the PTO.

Examiners also have an incentive to encourage applicants to file RCEs. Imagine obtaining about 25 hours worth of credit for about 30 minutes of work. This is essentially what happens when an applicant files an RCE, and an examiner quickly issues a first office action on the merits (“FAOM”). Examiners have this incentive because of the archaic manner in which they are evaluated using a quota or “count” based system that allocates credits to the examiner depending on the particular action taken. This system has not been modified since 1976. See Office of Inspector General, U.S. Dept. of Commerce, “USPTO Should Reassess How Examiner Goals, Performance Appraisal Plans, and The Award System Stimulate and Reward Examiner Production,” Final Inspection Report No. IPE-15722 (Sept. 2004) (hereinafter, “Inspector General’s Final Report”). In essence, an examiner is allocated two counts per disposal of a patent application, and depending on the grade level (seniority or skill level), area of expertise (complexity of technology examined), and other factors, each examiner has a certain period of time to complete a disposal.

If we assume that an examiner has 25 hours per disposal, the examiner must complete the examination of that application, from first action to disposal, in 25 hours. This would be consistent with a GS-9 examiner processing applications in class 435, chemistry, molecular biology and microbiology. See Inspector General’s Final Report at p. 7 (the Inspector General found that about 95% of the art units processed applications in less time than their allotted goals established in 1976, i.e., the examiners achieved greater than 100% production, and that patent quality is improving). The examiner only obtains a “count” for two types of examination activities: (i) the FAOM; and (ii) a disposal, where the FAOM in an originally filed application typically is the most time consuming. The FAOM is the first count, and a disposal is the second.

The Manual of Patent Examining Procedure lists the various actions that count as a disposal, and for which an examiner receives a disposal count, namely:  (i) Allowance; (ii) Abandonment; (iii) RCE; (iv) Examiner’s Answer (sending the application to the Board of Appeals); (v) International Preliminary Examination Report (a FAOM in a PCT application); (vi) SIR disposal (only after a FAOM); and (vii) Interference. Examiners encourage the repeated re-filing of patent applications since they receive a disposal count for each RCE filed, and then another count preparing the FAOM, which takes very little effort if no amendments are made to the claims and no new evidence is presented. So the repeated filing of an RCE allows an examiner to obtain about 25 hours worth of credit for about 30 minutes of work.

It is this credit, or count-allocation system that provides examiners with an incentive to “encourage” applicants to file RCEs. Moreover, as the number of RCE filings increases, the number of originally filed applications receiving FAOMs decreases. Increased RCE filings thereby contribute to an increase in the backlog at the PTO because fewer originally filed applications are being examined.

Any proposed solution that attempts to eliminate the backlog therefore should focus on reducing the filing of RCE applications, and in particular, altering the incentives of both the examiner and the applicant.

Any Solution Should Consider Replacing the Count-Based Evaluation System with an Hours-Based System

The PTO should consider following the advice of the Inspector General’s Final Inspection Report and re-evaluate the examiner production system. Any reform should establish examiner production goals that encourage early disposition of originally filed patent applications. This will dramatically reduce the backlog at the patent office.

One possible measure to encourage early disposition of originally filed applications is to replace the count-based system with an hours-based system. The PTO possesses reams of data on examining activities and can easily assess how many hours (or fraction thereof) each examination activity should take, depending again on the examiner’s pay grade, or seniority, and the complexity of the technology.

Using the same hypothetical described above, the PTO could easily translate the 25 hour per disposal figure into an hours-based system. Each action taken by an examiner would be accorded a certain number of hours (or fraction thereof), and consequently, examiners would be given credit for second action non-final rejections, final rejections, restriction requirements, interviews, consideration of an IDS, etc. The time allotted for each action also may depend on the type of application and the number of claims examined and not subjected to restriction.

In addition, examiners should be incentivized to discuss the merits of the application with applicants at a very early stage in the examination process. For example, an examiner could be allotted adequate time to conduct an interview before a second action on the merits of an originally filed application (or divisional or CIP or “straight” continuation), say 3.0 hours, but only 1 hour for interviews after a final rejection or upon filing an RCE. This would provide both applicants and examiners with an incentive to discuss the case early, assess whether meaningful patent protection is possible, and then determine whether to appeal, pursue narrower claims to allowance and file a continuation to pursue broader claims, or abandon the application. The PTO also should permit additional bonuses above the 110% production, up to and including 150% production.

The PTO also should consider policies that encourage applicants to dispose of applications early in the process. One policy is described above – make the appeals process less onerous and less likely to result in a loss of patent term. At the same time, the PTO could charge applicants additional fees for filing RCE applications, for filing amendments after final, and for filing multiple continuations. These fees would encourage applicants to dispose of originally filed applications early in the process. Creating the incentives to dispose of originally filed applications early in the process will help streamline the examination process, will reduce pendency, and will reduce the backlog.

Conclusion

The proposal mentioned here is merely one of many that could help the PTO reduce its backlog, and is intended to serve as a departure point from the legislative and rule-making mindset that pervades the PTO today. The current count-based system is out-dated and requires reassessment. Moving to a more merit-based hour-centric system, with additional bonuses above 110% production would be a move in the right direction.

Publications

Raivo A. Karmas published, respectively, “Anatomy of an Issued Patent” and “Obtaining a Patent” in the July/August and May/June issues of Cereal Foods World. These articles constitute parts three and four of the publication’s six-part series on patent law. Part one was “The Interplay Between Patents and Other Forms of Intellectual Property,” and part two was “Introduction to the United States Patent System.”

Thomas J. Scott, Jr. and Eleanor M. Hynes published “Reducing Your Risk as a Licensor or Licensee in Patent and Technology Licensing – The Important Terms” in the June/July 2008 issue of The Licensing Journal, Vol. 28, No. 6.

Jacqueline Klosek edited and Nicole Beliveau, Lindsay Bleier, Nidhi Kumar, Young Lee and James Shreve contributed to the “Year in Review: Information Services, Technology and Data Protection Committee” published in the summer 2008 edition of The International Lawyer, Vol. 42 No. 2, p. 621.

Frederick H. Rein published “Aventis v. Lupin: Obviousness of Purified Stereoisomers in View of Mixtures Thereof” in the 2008 issue of the Journal of Generic Medicines, 5, 219-228.

Jacqueline Klosek and Nidhi Kumar published “Offer Products and Services to Children Carefully: Know the Legal Issues and Manage the Risks” in the June 30, 2008 issue of the New York Law Journal.

Jacqueline Klosek and Dale Fulton published “Are You in Compliance with COPPA? Recent State Actions Raise the Stakes” in the June 2008 issue of Privacy Advisor.

Steven T. Schreiner and Eleanor M. Hynes published “Is There a Future in Obtaining and Leveraging Derivatives Patents?” in the April 2008 issue of The Banking Law Journal.

Jacqueline Klosek was interviewed for “A CPO Wishlist for EU Privacy Reform,” written by Jay Cline and published at www.privacyassociation.org.

Upcoming Conferences

Chief Intellectual Property Officer Conference
Date: October 15, 2008
Location: Hilton Times Square, New York, NY
This conference, organized by IncreMentalAdvantage and sponsored by Goodwin Procter, brings together IP professionals to discuss best practices for managing intellectual property in terms of deriving shareholder value and in terms of using IP as a strategic weapon. Ira Levy will be speaking on the “Role of IP in Your Litigation Strategy” panel.

New York State Bar Association: Intellectual Property Law Section Fall 2008 Meeting
Dates: October 16 - 19, 2008
Location: The Otesaga, Cooperstown, NY
This conference, hosted by the NY State Bar Association and sponsored by Goodwin Procter, brings together lawyers specializing in intellectual property. The theme of this year’s conference is “The World Series of IP Law: How Current Intellectual Property Laws are Changing the Way Corporate & Outside Counsel Play the Game.”

Intellectual Property Essentials for Business Decision Makers
Date: October 17, 2008
Location: Suffolk University Law School, Boston, MA
Brian Fairchild is serving on the faculty and speaking at this conference, which will explain, in laymen’s terms, the difference between trademarks, trade secrets, copyrights and patents, and how these differences play out in corporate America in an increasingly global world.