Gene Quinn

🔎 Quick highlights from the draft of the American Privacy Rights Act (APRA) ➡ Covered data is now defined as "information that identifies or is linked or reasonably linkable, alone or in combination with other information, to an individual or a device that identifies or is linked or reasonably linkable to 1 or more individuals." ➡ APRA covers data that can be derived or inferred. Currently, only California and Oregon address this. ➡ APRA uses "Individuals" instead of "Consumers" (which most state privacy laws use Consumers). The devil is in the definition 👿 ➡ APRA's applicability extends beyond the business-to-consumer context and includes nonprofit organizations. ➡ Exemptions are provided for government entities and their service providers, small businesses with less than USD40 million in rolling three-year average gross revenue that handle the data of fewer than 200,000 individuals or do not broker data, and publicly available information. ➡ Employee information exempt to the extent it is provided for publicly available "business contact information" that is made available on a website or online service to all members of the public, including the name, position or title, business telephone number, business email address, or address of the employee. #privacy #APRA #dataprotection #individuals #employees #organizations #smallbusinesses #governmententities #publicinformation

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When AI is trained with unlicensed copyrighted material, the question of infringement versus fair use remains unresolved. Many copyright holders assert that this use violates their rights, and are litigating to address the issue. In light of this, is it premature to require AI companies to disclose which copyrighted works are used to train their generative AI systems? #ai #trainingdata

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The USPTO has made artificial intelligence (AI) databases available to Examiners for use in prior art searching. But what happens when Examiners use external AI websites to search for prior art? Director Jason Eisenberg and Technical Specialist Hannah Hughes Ph.D. explore whether the USPTO's rules and policies can protect an invention's inadvertent outing during prior art searching in their recent article, "Does the United States Patent Office Protect Unpublished Applications When Searching the Internet and Artificial Intelligence Databases for Prior Art?" https://gag.gl/gy6sNA #USPTO #AI #Patent

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American Privacy Rights Acts - A surprise development Few important highlights of the Act: - The American Privacy Rights Act (APRA) represents a significant development in the U.S. federal privacy landscape, surprising many with its emergence amidst prior stagnation. - Spearheaded by key figures in Congress, including Chairpersons Cathy McMorris Rodgers and Maria Cantwell, the bill enjoys bipartisan and bicameral support, enhancing its potential for enactment. - Its broad applicability extends to both commercial entities and nonprofits, with exceptions carved out for small businesses meeting specific revenue and consumer data criteria. - Noteworthy provisions include the introduction of a private right of action, empowering individuals to enforce certain aspects of the law, a departure from previous federal privacy bills. - The APRA aims to streamline privacy regulation by preempting state laws, providing a unified national standard enforced primarily by the Federal Trade Commission (FTC) and state attorneys general. - Data minimization principles underpin the bill, requiring entities to justify the collection, processing, and retention of personal data, with stringent consent mechanisms ensuring individual control over their information. - Extensive categories of sensitive data, encompassing health, financial, biometric, and other personal information, are subject to heightened protection and affirmative consent requirements. - Special obligations target entities based on their size and nature of operations, such as large data holders, high-impact social media companies, and data brokers, imposing additional compliance measures. - Executive responsibility and operational governance requirements mandate the appointment of designated privacy and security officers within covered entities, fostering a culture of accountability and compliance, with annual certifications reinforcing organizational commitment to privacy.

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Should intellectual property practitioners have a Hippocratic Oath? Should there be an equivalent of a standard of care for IP? Yes, and yes. In Intellectual Property (IP), especially patents, the conversation of quality and portfolio strength often centers around ensuring patents are valid, enforceable, and commercially valuable. Yet, despite the many tools and strategies available, a significant portion of patents provide little to no real market value. Why? IP with no value starts with a "bad idea" problem. The value of intellectual property (IP) is tied directly to the commercial relevance or economic potential of the underlying asset (e.g., a product, technology, or service) or the activity it enables (e.g., manufacturing processes, software applications, or business methods). If the underlying asset or activity generates significant revenue, provides a competitive edge, or enhances operational efficiency, the associated IP increases in value as a function of the asset or activity. If the idea has no commercial value, the IP instrument protecting it has zero value. I am not aware of a single professional who enters into IP who is not committed to generating a superior outcome for their employer or client. If they exist, please grab them, shake them by their shoulders, and let them know there is a better way. Any Hippocratic Oath for IP would include: 1. a commitment to innovation 2. a commitment to understanding the nature of the innovation AND an assessment of the ECONOMIC value of the innovation 3. personally owning the responsibility for the identification, curation, and appropriate protection of the innovation With patents, quality is mute without an accurate claim directed to the core economic value of the underlying asset. For me, the claim chart is my Weapon of Mass Accountability. If I do not know the tech or cannot assess the economic value of the innovation I am working on, I have failed point 2. If I cannot chart an asset, I have failed on point 3. If I fail on either of 2 or 3, I have failed in living up to point 1. In a way, this is the starting point for my "standard of care." What goes into your Hippocratic Oath of IP? What informs your standard of care? #intellectualproperty #innovationmanagement

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Great summary by Tangibly Inc's Chris Buntel of the recent ALIFAX v. ALCOR Scientific decision. Some snippets: 📌 The Federal Circuit said that “Alifax not only failed to describe the alleged signal acquisition trade secret with sufficient detail but also failed to identify its proper scope.” 📌 Alifax alleged that the signal acquisition trade secret is “how to acquire photometric signals from a blood sample.”…. But this definition only provides a high-level summary of the purpose of the alleged trade secret without describing it in detail.” 📌 The trade secret owner’s “burden is to describe the trade secret in sufficient detail to show that each element of a trade secret are met”, which Alifax did not do. The Alifax case is but the latest in a series of court holdings requiring trade secret owners to be increasingly specific about what their misappropriated trade secret actually is. 

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Listen in to this podcast with our Tradespace CEO Alec Sorensen to see how we can help you with context-enabled decision making for your IP strategies. Exciting content!

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Many software inventions are about user interaction flows. It's good patent drafting practice to focus on method claims for these. They typically have less "clutter" than apparatus claims, and make it easy for the examiner to understand the gist of the invention. Are you on team "method claim" or team "apparatus claim"? #patentingAI #softwarepatent #UX #UI #AI #IP

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Our early testing of our new discovery tool is crazy good. I’m confident in saying that the quality, depth of requests, and comprehensiveness is better than any lawyer can put together. It’s especially impressive because it recognizes the disputed elements of claims and hones its requests in around those. So this isn’t GPT where you ask it for 10 requests that may cover everything, including things not in dispute. This tool hones in on what’s actually IMPORTANT and IN DISPUTE between the parties and drafts Admissions, Doc Requests, and Interrogatories in one finished document ready for serving.

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The USPTO has released a crucial update on #patent #subjectmattereligibility, focusing on artificial intelligence (#AI) inventions. This guidance, effective July 17, 2024, aims to provide clarity and consistency in evaluating AI-related patent applications under 35 U.S.C. § 101. Key takeaways for in-house patent counsel: 1. Enhanced Clarity: The guidance offers additional insights on applying subject matter eligibility criteria to AI inventions, building on previous guidelines. 2. New Examples: Three new examples demonstrate the application of the guidance across various technologies, helping practitioners navigate complex AI patent scenarios. 3. Federal Circuit Alignment: The update incorporates discussions of relevant Federal Circuit decisions on subject matter eligibility. 4. Public Feedback Opportunity: The USPTO is accepting comments on the guidance and examples until September 16, 2024. 5. Broader AI Initiative: This update is part of a larger USPTO effort addressing AI's impact on intellectual property, including recent inventorship guidance for AI-assisted inventions. For in-house counsel, this guidance presents an opportunity to refine AI patent strategies, potentially increasing the likelihood of securing protection for AI innovations. It's crucial to review the full guidance and examples available on the USPTO's AI-related resources webpage. #PatentLaw #ArtificialIntelligence #IPStrategy Thoughts on how this might impact your AI patent portfolio? Let's discuss in the comments! Citations: [1] https://lnkd.in/eUbkGXvG

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Will generative AI create "legal savants"? While AI might streamline research and draft contracts, the nuanced decision-making and human empathy of trial lawyers remain irreplaceable. The future of litigation may blend AI efficiency with the strategic insights only experienced attorneys provide. Exciting times ahead! 🚀 #LegalTech #Litigation #AITrust #LegalInnovation

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On August 31, the California legislature closed for the 2024 session. Here's what happened with the privacy and AI-related bills we've been tracking: Five of the six privacy-related bills passed the legislature: 1️⃣ Opt-Out Preference Signals (AB 3048) – Among other provisions, the bill prohibits a business from developing or maintaining a browser that does not include a setting that enables a consumer to send an opt-out preference signal to businesses with which the consumer interacts. 2️⃣ Kid's Privacy (AB 1949) – Amends the CCPA to provide that a business cannot collect, sell, or share the personal information of a child ages 13 to 17 without the child’s consent or, for children below 13, without a parent or guardian’s consent. 3️⃣ Neural Data / Personal Information & AI systems (SB 1223 & AB 1008) – Amend the CCPA to add neural data as an element of sensitive PI. Also amend the CCPA’s definition of PI to specify that PI can exist in various formats, including “artificial intelligence systems that are capable of outputting personal information.” 4️⃣ Recognition of Prior Opt-Outs in M&A Deals / Kid's Privacy (AB 1824) – Amends the CCPA to require acquiring businesses to honor prior opt-out requests. The bill also contains the kid’s privacy provisions in AB 1949. Four of the seven AI-related bills passed the legislature: 1️⃣ Safe and Secure Innovation for Frontier Artificial Intelligence Act (SB 1047) – The bill regulates the largest artificial intelligence models. It has been the subject of extensive controversy and is a potential candidate for a governor’s veto. 2️⃣ Generative AI Training Data Transparency (AB 2013) - Provides that developers of generative artificial intelligence systems or services must, prior to making their systems or services publicly available to Californians, post on their website documentation regarding the data used to train the system or service. 3️⃣ Definition of AI (AB 2885) - Amends California law to define artificial intelligence as “an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.” 4️⃣ California AI Transparency Act (SB 942) – Creates transparency obligations for persons that create, code, or otherwise produce generative artificial intelligence systems that have over one million monthly visitors or users and are publicly accessible within California’s geographic boundaries. 5️⃣ The three AI-related bills that did not pass the legislature were AB 2930 (algorithmic discrimination), AB 3211 (provenance, authenticity and watermarking standards), and AB 1791 (digital content provenance for social media platforms). All of the passed bills now head to the governor for consideration. Article co-authored by Owen Davis and Fred Sager.

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Earlier today, the California Privacy Protection Agency Board voted to advance the new draft CCPA regulations to formal rulemaking. We thought it might be helpful to provide a series of short high-level summary webinars on the new rulemaking topics, starting with automated decisionmaking technology (ADMT). If you missed the Board meeting, the draft ADMT rules were a source of many comments and concerns, including their impact on artificial intelligence. There can be no doubt that the ADMT regulations will generate many proposed revisions. https://lnkd.in/guW-BJPc

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On April 17, Colorado Governor Jared Polis signed HB 1058 into law, which means it is time to update our chart comparing the various definitions of sensitive data in consumer data privacy laws. Here's some more context: 1️⃣ HB 1058 amends the Colorado Privacy Act to add biological data (and through it neural data) as a category of sensitive data in the Colorado Privacy Act. 2️⃣ The true impact of the amendment is debatable as the definition of biological data states that the data must be "used or intended to be used, singly or in combination with other personal data, for identification purposes." 3️⃣ Colorado is the first state to add biological/neural data to its state privacy law. This continues the trend over the last two legislative sessions of state lawmakers expanding the types of data covered as sensitive data. Given the constant expansion, at some point it may be easier to define what is not sensitive data rather than what is. 4️⃣ California is also considering a bill to add neural data to the CCPA's definition of sensitive personal information. 5️⃣ Colorado isn't done. The legislature is still considering two other bills to amend the Colorado Privacy Act, dealing with the treatment of biometric data and minor's data. 6️⃣ Here's a link to the Colorado bill for those interested: https://lnkd.in/gE7KPyY9

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False and misleading references in an online profile could give rise to a claim for trademark infringement. Portkey Technologies is a software and technology company that operates blockchain, NFT, and Web3 projects. Anand Venkateswaran (AV) worked as an independent contractor for Portkey from 2017 to 2022. While working at Portkey, AV was directed to use the alias “TWOBADOUR” when communicating with the public. AV was also instructed to assist in the operation of METAPURSE, a fund utilized for the acquisition of Web3-related investments. AV left Portkey in 2022. Since leaving Portkey, AV lists his work there, including use of the TWOBADOUR alias and involvement with METAPURSE, on his Twitter and LinkedIn bios. Further, Portkey claims that AV continues to publicly and privately associated himself with those projects. Portkey filed suit in October 2023, alleging that AV's references are false and misleading and constitute unfair competition/reverse passing off, false advertising, and trademark infringement and violations of related state laws. Portkey also sought a declaratory judgment that its unregistered TWOBADOUR and METAPURSE marks are valid trademarks owned by it. AV moved to dismiss the complaint for failure to state a claim. As to the trademark infringement claim, AV argued that it failed because there is no likelihood of confusion from reference to former positions, that the alleged statements were not used in commerce, and that the statements constitute fair use. The court pointed out that AV sometimes noted a past affiliation with TWOBADOUR and METAPURSE, but other times did not, and that abbreviating "Former" as "Fmr" could lead to confusion. Further, the court conducted a likelihood of confusion analysis, and concluded that Portkey had sufficiently alleged a likelihood of confusion. The court also found that the terms were used in commerce, since AV allegedly used them in public communications which also highlighted his business ventures and promoted his role in a competitive industry. And the court explained that it was inappropriate to determine descriptive fair use on a motion to dismiss. The court dismissed the unfair competition/reverse passing off, false advertising and state deceptive trade practices act claims, finding that there was no allegation that Portkey suffered any kind of injury as a result of the complained of conduct. The state trademark infringement and dilution claims were not dismissed, for many of the same reasons the federal trademark infringement claim was not dismissed. I have not read the complaint in this case, but is there something more going on here? Are these claims worth the investment in time and money? #IntellectualProperty #IP #trademarks #trademarkinfringement #BusinessLaw #LegalInsights #OffitKurman

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Anyone else find it kinda odd how the USPTO's YouTube video channel omits the PTAB's existence and role in invalidating issued patents in this description? "The USPTO is the federal agency for granting U.S. patents and registering trademarks. The USPTO advises the president of the United States, the secretary of commerce, and U.S. government agencies on intellectual property (IP) policy, protection, and enforcement; and promotes stronger and more effective IP protection around the world. It also provides training, education, and capacity building programs designed to foster respect for IP and encourage the development of strong IP enforcement regimes by U.S. trading partners. Through such protection IP, American industry has flourished. New products have been invented, new uses for old ones discovered, and employment opportunities created for millions of Americans. The strength and vitality of the U.S. economy depends directly on effective mechanisms that protect new ideas and investments in innovation and creativity. The continued demand for patents and trademarks underscores the ingenuity of American inventors and entrepreneurs." Also seems a bit informal to not capitalize President of the United States and Secretary of Commerce. https://lnkd.in/gTt4RrDJ USPTO, #patent, #PTAB, #commerce, #inventor, #invention, #trademark

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