Archive for November, 2010

• On October 22, 2010 the European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO) publicized their projected union to create a joint patent classification system, aligned with the global standards of the World Intellectual Property Organization (WIPO). Although the new system is said to be largely based on the EPO, it seeks to combine the best practices of each office. The numerous benefits of this combined system include: a reduction in the unnecessary duplication of work, increased efficiency, and reduced cost and time, while simultaneously enhancing patent examination.  Unavoidable pitfalls of a unified system include potential delays in patent examination while waiting on the other country to examine the patents and conflicting laws. This imminent deal between the two offices follows the union last year of the USPTO, EPO and the Japan Patent Office (JPO) under the Patent Cooperation Treaty, allowing access to work product on applications.
• The landmark case Filartiga v. Pena-Irala, which invoked the use of the Alien Tort Statute (ATS) for violations of international law, led to the initiation of the use of ATS for class actions based on human rights violations in foreign countries. The introduction of the ATS against Multinational Corporations (MNCs) was implemented in the 1990s.  However, the widespread use of the ATS against MNCs may be in jeopardy following the recent seminal ruling by the 2nd Circuit in Kiobel v. Royal Dutch Petroleum. The court, relying on the law of nations and international law, held that ATS does not apply to claims against corporations. This decision is in line with a recent decision of the 9th Circuit holding that corporations cannot be sued under the Torture Victim Protection Act (TVPA).  Supporters of the 2nd Circuit decision, advocate a more limited interpretation of the ATS. In addition, the ruling does not bar filing suits against individual corporate representatives,but the extent of liability will clearly result in a fraction of what previous MNCs faced. Whether this decision will be upheld by the Supreme Court is widely awaited. Despite the foregoing, the likelihood plaintiffs will file suit against a crporation in circuit courts permitting corporate liability is high.
• Zipcar Inc., based in Cambridge, Massachusetts, was recently awarded approval to merge with London-based Streetcar Ltd, following an investigation by a United Kingdom antitrust regulator. The anticipated merger spurred fear of anti-competitive practices in among the English market place. However, watchdog groups concluded that there remains potential for new companies, expansion looks promising, and future market growth is projected. Zipcar believes the merger will reduce vehicle ownership and congestion. Prior to the merge, Zipcar was the second largest car sharing company in the UK, having established its presence in the foreign market in 2007. In light of its presence in the U.K., Canada, and the U.S., Zipcar has an estimated membership of 400,000 and owns roughly 7,000 vehicles.
• China now boasts the world’s second-largest economy, headed by the United States, surpassing Japan. The surge of international commerce with China is very favorable for firms who currently engage in cross-border transactions. With private capital markets prospering in cities like Shanghai, public markets and IPOs remaining competitive in Hong Kong and the U.S. stock market, the country is attractive on a global basis. In comparison with the rest of the world, the negligible effect the recession posed on China has resulted in an influx of foreign law firms to the prosperous country. The downside for these firms is they face competition from indigenous firms that are permitted to practice law in court and render opinions, which remains exclusive to native firms.
• The UK Bribery Act, set to come into force next year, is anticipated to particularly increase the work load for lawyers in the United States. Public companies in the U.S. are being pinpointed as those to be the most effected by this new UK law. Included in this, are all companies carrying out business in the United Kingdom, even if incorporated in the U.S. It has been branded the world’s most severe anti-corruption legislation. The regulatory framework is projected to have a multi- jurisdictional reach. Distinctly, the UK Bribery Act imposes strict liability on companies that fail to put measures in place to guard against bribery. Conversely, the U.S framework is based on elements such as the intent and awareness of the senior executives before the legislation comes into play. Sanctions of the new act include unlimited fines and a jail sentence with a maximum of ten years.
• Finally, United States Judge Jonathan Lipmann and the Supreme Court Judge of New South Wales, Australia recently signed a memorandum of understanding to create greater harmonization and interpretation of each other’s statutes. Moreover, Judge Lipmann affirmed that this agreement is believed to be a stepping stone for international cooperation around the world. This agreement seeks to act as a catalyst to initiate similar arrangements between the top courts of various other foreign countries.

^{Compiled and summarized by Muireann O’Keeffe.}

Cloud Computing, defined as “a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction[,]”is becoming increasingly popular among businesses. There are recent U.S. cases that have had direct, substantive implications for cloud users, including some that have dealt with personal jurisdiction, privacy rights, e-discovery, and copyright infringement. For a brief look at the newest case on the cloud computing horizon, Google v. The United States, click here.

Bradford Muller contributed to this post.

• Blackberry received some positive market growth following the demonstration of their new product, The Playbook, in Los Angeles last week. Research in Motion (RIM), a Canadian company, witnessed a growth of 6.2 percent in share price, shortly after the launch. The Playbook has received criticism from Apple for its size, measuring well over two inches smaller than the iPad. Countering this argument, RIM relied on the products attributes, including its alliance with Adobe Flash Player, which will provide enhanced video content for the new product, and remains unique to the Playbook. Significantly, RIM is channeling its efforts to provide an improved mobile device that can offer a professional experience. Notwithstanding this positive stock increase, RIM’ overall share price has fallen almost twenty three percent this year to date.
•  After ten years of service the popular entertainment file sharing company, Limewire is forced to cease business. The U.S. Federal District Court in Manhattan, ruled against the company following a lawsuit filed by the music industry. Shortly thereafter, the news was published on its official website and user downloading and file sharing was brought to a halt. Prior to this trial, Judge Kimba M. Wood ruled with thirteen music companies that claimed that Limewire had infringed upon their copyrights and engaged in unfair competition. Limewire, which was founded by Mark Gorton in 2000, is to find out the extent of damages as a result of the illegal downloading, file distribution and sharing service in the New Year. Limewire is determined to continue providing music to its users collaborating with copyright holders and bridging the gap between technology innovations and infringement.
•  This weekend the British government announced that Scotch Whisky, is to receive greater brand protection in China, to address the vast amount of imitations on the internationally known product. This announcement purports to make production of Scotch Whisky exclusive to Scotland. Furthermore, this move will seek to increase sales, and put an end to the three-year battle between the Scotch Whisky Association and China. Presently, with over two hundred counterfeit versions, the need to protect the brand has become more imperative than ever. The agreement will be signed in Beijing this coming week.
•  In pharmaceutical news, British based company GlaxoSmithKline PLC is to pay up to $750 million, pursuant to an investigation which established that GSK had knowingly produced impure, mislabeled, and incorrect drug dosages’ which were sold to consumers after production in its factory in Cidra, Puerto Rico. The violations of current Good Manufacturing Practices (cGMP) came to light following an inspection by the companies Quality Assurance manager.  Among the violations, include a contaminated air and water system, which led to cross contamination. However, the unrelated closure of the plant in 2009 was based on a decline in the local market for pharmaceutical products.
•  Covered bonds scheme, widespread in Europe, may provide a method for financing mortgages in the United States. Essentially, covered bonds are debt securities, which are backed by cash flows, typically mortgages. Notably, the key difference between these covered bonds and a securitized mortgage bond are the assets, which remain on the issuer’s consolidated balance sheet. The object of these covered bonds is to reduce the likelihood the issuer will underwrite risky loans. While there is no established current practice for covered bonds in the United States, the covered bonds business is estimated at $3 trillion in Europe. This past July, the House Financial Service Committee passed the bill, which narrowly missed inclusion in the Dodd-Frank Reform Act.
• Quiznos is projected to open 15 franchise stores in Kuwait. The store disclosed that it is working in collaboration with Foodco, Inc., taking advantage of Foodco’s familiarity with the target market, from consumer trends to cultural preferences.  The U.S. based company plans to adapt the sandwich shop to appeal to local tastes and needs. Furthermore, the chain intends to further extend this international expansion to Europe, the Middle East, Central and South America and Southeast Asia over the next few years.
• In pursuit of geographic expansion, ad agencies see a niche in African markets for advertising growth and as a prime market to begin global expansion after India, China and Latin America. Telecom companies, financial service firms and the makers of consumer products are among those influencing this surge of advertising growth in Africa. However, with Africa’s (although slightly improved) corruption, poverty, and language barriers in the mix, this expansion does not come without risk
• Unconventional terrorist threats stimulate a shift in Britain’s defense budget.  England is to adjust its security budget in response to the latest spell of terrorist internet threats to the country.  An estimated $1 trillion is spent worldwide on cyber crime a year. England’s preparation for the upcoming 2012 Olympic Games, to be staged in London, is certainly a driving force in the government’s proactive approach to this new type of threat and budgetary change.
• Finally, a look back in time to see the story behind; Sony, IBM, Gucci, DuPont, and others.

^{Compiled and summarized by Muireann O’Keeffe.}