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Archive for the ‘eBusiness’ Category

Gerry Elman speaks at the 2018 National CIO Government Technology Conference

At the National CIO Government Technology Conference held on Oct. 25, 2018 at the Pyramid Club in Philadelphia. Gerry Elman and Austin Morris of Morris Risk Management co-presented the lunch keynote on 'Cyber Security and Cyber Risk Management'. Josh Waterston also was an active participant in the event.

The CIO Government Technology Conference brought together leading CIOs, CISOs, and government IT executives from across the U.S. to confront and overcome current industry issues, cybersecurity, and cloud computing. The goal of the CIO Government Technology Conference was to create an environment where public and private sector executives could explore IT challenges and identify strategies to address short, medium and long term goals. And as a last-minute addition to the agenda, Betty Duroseau introduced an international panel which discussed sustainable development in Haiti, including implementation of the Internet of Things.

Download Gerry’s presentation on Mitigating Legal Risk from Cyber and Privacy Infractions using the form below.

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Happy New Year 2018

As 2017 winds down, we at Elman Technology Law wish you a very Merry Christmas and a New Year full of health, happiness, and success. 2017 was full of noteworthy events, and we thought we’d highlight a few items that especially affect our clients. For decades we’ve had the privilege of offering calendars with images from historic patents. We regret that our supplier has discontinued them for 2018. To our friends who have, through the years, accorded them an honored place on their walls, we share your pain.

Photo credit: "The Slants" performing at a 1st Amendment Society concert, by Grundick, via Flickr

Photo credit: “The Slants” performing at a 1st Amendment Society concert, by Grundick, via Flickr

What’s In a Name?

The past six months have seen two landmark trademark decisions, both on the unconstitutionality of longstanding legal restrictions. In Matal v. Tam , a unanimous Supreme Court struck down a ban on the registration of “disparaging” trademarks. The case involved an Asian-American rock band named “The Slants” that was refused a registration because the term was a racial slur. The Supreme Court held that the Lanham Act provision at issue violated the First Amendment’s protection of free speech. Then, in December, the Court of Appeals for the Federal Circuit’s In re: Erik Brunetti decision opened the door for the word “Fuct” to become a registered trademark – despite the sound of the word being a vulgar term. It will be an interesting 2018 at the trademark office…

December 31 Deadline to Appoint a DMCA agent

Most of us are familiar with the Digital Millennium Copyright Act. The DMCA gained some notoriety in the fight against online piracy. It’s been an important tool to prevent unauthorized content from spreading across online platforms (Facebook, Twitter, Instagram, etc.). Websites and other “service providers” provide contact information for their DMCA agents, so that the author or owner of a creative work can send a DMCA take-down request to that person. The Copyright Office has recently moved to a new system, and requires that any service provider that previously designated an agent must submit an updated designation to the Copyright office by December 31. Our firm can handle this for you, and is also available to act as your designated agent, with a quick turnaround to meet this imminent deadline.

Can Tribes and State Universities Use Sovereign Immunity to Avoid Patent Invalidation?

Our firm’s recent e-mail newsletter described the efforts of a drug company to prevent its patents from being challenged at the Patent Trial and Appeal Board (PTAB) Allergan had transferred certain patents to St. Regis Mohawk Tribe and licensed them back, hoping to take advantage of the tribe’s sovereign immunity to block the inter-partes patent review process. That case is still unfolding in the courts and in Congress, but a recent court decision doesn’t bode well for patent owners who would blindly follow this path.

In a refreshing case of common-sense prevailing over convoluted legal maneuvers, efforts by the University of Minnesota (“UM”) to prevent PTAB inter-partes review, by claiming sovereign immunity, have failed. On December 19, an expanded PTAB panel, including the Chief Administrative Patent Judge, denied UM’s motion to dismiss a company’s request for inter-partes review of the patents. Though acknowledging that state universities are generally immune from inter-partes review, as arms of the state, the PTAB concluded that UM had waived its sovereign immunity under the Eleventh Amendment by filing an action in federal court alleging infringement of the patents at issue. This apparently was a bridge too far for the judges, since UM was obviously trying to have its cake and eat it too.

IoT Becomes the New Thread Stitching IP Together

In 2017, the Internet of Things came into its own. Everyday folks (not just techies or Intellectual Property lawyers) started talking about smart IoT devices: thermostats, lightbulbs, door locks and even smart clothing. On November 29th, I gave a webinar on Federal Guidelines for Security on the Internet of Things. To download a copy of my slideshow, see below.

This fall, I was privileged to be a speaker and mentor at the annual conference for the Industrial Fabrics Association International (“IFAI”) in New Orleans. I was impressed by the many innovations in smart fabrics that are just beginning to unfold. These IoT inventions will need multiple layers of IP protection, through patent, trademark, trade secret, and licensing efforts (and even copyright, after the Supreme Court’s 2017 decision that certain features of cheerleading uniforms can be protected by copyright). At the IFAI Expo I met Ben Carson, an entrepreneur who’s about to launch a social media and podcasting platform called IoClothes.  E-mail me for further information.

On a Personal Note

2017 brought some challenges for friends and family, but I’m pleased to share that we’re still doing well. Lois was very understanding as I traveled to different locales to speak and learn. I hope that you and yours are thriving.

Best wishes for health, happiness, and prosperity in 2018.

-Gerry

Elman Technology Law, P.C. is a boutique law firm in Media, Pennsylvania. We enable small to medium size businesses to effectively secure and manage their intellectual property portfolios for maximum business benefit – protecting, enforcing, and monetizing their rights. Our intellectual property services include patents, trademarks, copyrights, trade secrets and licensing. Our cyberlaw services include Internet business law and cybersecurity.


On November 29, 2017, Gerry gave a webinar on "Federal Guidelines for Security on the Internet of Things". IoT presents multiple opportunities and challenges in today's hyper-connected society. What will the future bring?

To download this presentation, please complete the form below to provide or update your contact information. Then you'll see a link immediately below, which you can click on to download a digital copy of the presentation in PDF format. We'll add you to our mailing list to share information about events and other news which we think would be of interest.

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Educating the Community and Ourselves – June 2017

Elman Technology Law attorneys continue to speak and write about various topics.  Recently, two of our attorneys (Gerry Elman and Josh Waterston) have been speaking about cybersecurity, the Internet of Things, and more.  Josh Waterston authored an article in the Delaware County Bar Association’s quarterly publication (Delco Re:View) on a law prohibiting the banning of negative online reviews in standard business contracts.

In addition, we strive to stay ahead of the curve, in keeping with our slogan: “Strategic Lawyering. Cultivating Innovation.”®  Below is a sample of our firm’s recent activities.

June 22, 2017  Gerry gave the Keynote Breakfast Speech on Privacy and Security for the Internet of Things and then participated in a panel discussing Government Cybersecurity Issues and Cyber Threat at the CIO Government Technology Conference in Philadelphia.  Download his presentation here.

June 14, 2017 Gerry Elman spoke at the Digital Transformation & Security Roundtable on legal aspects of cybersecurity, at a Lunch and Learn sponsored by Wrklodz (IPR International), 401 N. Broad Street, Philadelphia.

June 14, 2017 Gerry also attended the Smart City Summit and Expo of the LoRa Alliance at the Franklin Institute in Philadelphia.  LoRaWAN is the wide-area wireless technology being rolled out by Comcast business unit machineQ to facilitate applications for the Internet of Things.

June 9-10, 2017  Gerry participated in the Comcast/machineQ Smart City Hackathon in Center City Philadelphia, helping to build an Internet of Things solution for “smarter,” more responsive city infrastructure. This included hands-on experience with the long range wireless technology being rolled out by Comcast subsidiary machineQ. Along with others on Team 12, he proposed a system for logging potholes in streets.

Elman Technology Law attorneys Gerry J. Elman and Joshua D. WaterstonJune 9, 2017  Josh Waterston and Gerry Elman hosted a panel discussion at the Delaware County Bar Association’s annual Bench-Bar Conference.   They discussed Cyber Threat Management with attorney Craig Huffman and Judges Scanlon and Bradley of the Delaware County Court of Common Pleas.  Location: Skytop Lodge in the Poconos.

June 1, 2017  Gerry Elman spoke at the Pennsylvania Intellectual Property Forum on current litigation questioning the constitutionality of the power to invalidate patent claims that has been delegated to the Patent Trial and Appeal Board.  (NEWSFLASH: On June 12, the Supreme Court agreed to hear the requested appeal.)  He also discussed recent Supreme Court decisions on where patent infringement suits can take place, and exhaustion of the patent owner’s right to prevent resale of the product. Location: Media, PA

Coming up:

September 26-28, 2017  Join Gerry Elman at IFAI Expo, the gala trade show of the Industrial Fabrics Association International.  This year’s location: the Morial Conference Center in New Orleans.  Gerry will speak on intellectual property and cybersecurity issues regarding Smart Fabrics, and will be scheduling a series of one-on-one Mentor Meetings as well. There will also be a Hackathon developing applications for smart fabrics.


Will your underwear become a node on the Internet of Things?

Click here to read about our latest activities with the Internet of Things, including the use of novel materials and fiber structures such as Smart Fabrics.

Gerry’s keynote presentation to the 2017 CIO Government Technology Conference

Download Gerry’s presentation on Privacy and Security for the Internet of Things

On June 22, 2017, Gerry gave the keynote speech to the CIO Government Technology Conference in Philadelphia, speaking abut "Privacy and Security for the Internet of Things." IoT presents multiple opportunities and challenges in today's hyper-connected society. What will the future bring?

To download this presentation, please complete the form below to provide or update your contact information. Then you'll see a link immediately below, which you can click on to download a digital copy of the presentation in PDF format. We'll add you to our mailing list to share information about events and other news which we think would be of interest.

* Full Name:

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Company Name:

Company Website:

* Street Address:

* City:

* State/Province:

* ZIP/Postal Code:

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Phone:

Please check all options that apply:

To send a message, please use the following box. Keep in mind that no attorney-client relationship is created through this communication, and this communication is not confidential. For a confidential consultation, please call us at (610) 892-9942.


Also see further info about Gerry’s presentation at the IFAI Expo in New Orleans, September 26-28, 2017, and sign up for a one-on-one Mentor Meeting.

“The Glacier is Too Cold” – Protecting Your Right to Complain

Photo credit: <a href="https://pixabay.com/en/girl-quieter-silence-emotions-1076998/">Pixabay.com</a>

Photo credit: Pixabay.com

Can a business prevent an unreasonable customer from posting a negative (and unfair) online review to Yelp, Facebook, Amazon, or other online platform? For example, a reviewer wrote, “Do Not Camp Anywhere Near Here – You Will Freeze” when posting a one-star TripAdvisor review of the Columbia Ice Field in Canada.* Yes, that’s right – the reviewer was upset that the ice field was too cold. You just can’t please some people…

A client recently asked me to include a non-disparagement clause in his customer agreement. He was concerned that a customer might violate the agreement but threaten to post a negative online review if his company didn’t refund their money or otherwise accede to the customer’s demands. A negative (and false) online review seen by enough potential customers could seriously damage his business. How should I reply?

My gut reaction was to say no. Period, the end. First, it’s not great business to censor your customers. Second, it was likely unenforceable as a practical matter, even if it was legally proper. Third… something tugged at my memory. That something was the Consumer Review Fairness Act of 2016.

On December 14, 2016, President Obama signed into law the Consumer Review Fairness Act of 2016 (“CRFA”). In a rare moment of bipartisanship, a bitterly divided Congress joined together to tackle the issue of negative online reviews. The issue was that businesses had started to use non-disparagement or “gag” provisions to prevent customers from posting negative online reviews, even if those reviews were accurate. These are two examples cited by the House Committee on Energy and Commerce:

  • Online retailer KlearGear demanded that a customer remove a negative online review from ripoffreport.com or face a penalty of $3,500 for violating the retailer’s gag clause. After being threatened by a collection agency, the customer sued and was awarded $306,750 in damages.
  • Roca Labs sold a dietary supplement with the creative name of “Gastric Bypass NO Surgery” priced at $480 for a three-to-four month supply. The FTC alleged that, “Unfortunately for consumers, Defendants are simply selling common, dietary fibers with exaggerated claims at a grossly inflated cost. Their weight-loss claims lack any scientific basis, and are often flat out false.” Worse, Roca Labs included a “gag” clause barring customers from writing any negative reviews about the product, with a penalty of having to pay the “full price” of $1,580. Essentially, customers would be fined $1,100 for writing negative – even if truthful – reviews about the product.

To guard against such abuses, Congress passed the CRFA. The act addresses terms in a “form contract” (a standardized contract that doesn’t give the customer a meaningful opportunity to negotiate the terms) and prohibits the following:

  • Imposing a fee or penalty against a party that writes a negative review
  • Requiring a party to assign his or her intellectual property rights in a review back to the seller. Some creative companies used such provisions to obtain an automatic assignment of the copyright for the negative review, and then used the Digital Millennium Copyright Act to demand that social media platforms take down the negative reviews. It was very creative and very sneaky, and the practice is now very illegal.

There are important exceptions. Companies can still remove content from their own websites if such content is irrelevant to the goods or services provided, is harassing/abusive, is clearly false or misleading, or contains the personal information or likeness of another person. Companies can protect their trade secrets and other confidential information, and can put restrictions on the creation of photos or video of their products by the company’s employees or contractors. Perhaps most importantly, the CRFA does not apply to employer-employee or independent contractor contracts, which often include non-disparagement clauses.

Violations of the CRFA are considered deceptive trade practices, and the FTC and state attorneys general therefore have jurisdiction over those who violate the CRFA. Remedies can include restraining orders and heavy fines.

The good news is that the CRFA is a significant step in protecting consumers’ rights to complain – even if that complaint is unreasonable. The bad news is that companies can still find creative ways to “inspire” their customers. Remember Roca Labs? The company is still very much in business, and they promise a “100% money back guarantee” for customers who provide “inspiring” video and photographic testimonials about their weight loss experience – but only if “Don approves you to be a valuable inspiring member.”** So don’t start trusting every review you read just because of the CRFA. If a client asks whether they can ban negative reviews, the answer is a resounding no – but they can still reward customers for posting positive reviews (though appropriate disclosures would be required).

My client appreciated my advice, and I included provisions in the contract which should lead to satisfied customers who don’t feel the need to post negative reviews online. Feel free to call me with any questions. You can now post any (truthful) review that you want about this article. Enjoy, and please be kind…

Josh Waterston, Esq.
Elman Technology Law, P.C.

* TripAdvisor review accessed on June 14, 2017 at https://www.tripadvisor.com/ShowUserReviews-g154918-d3337446-r304539771-Columbia_Ice_Field-Jasper_Jasper_National_Park_Alberta.html#CHECK_RATES_CONT.

** Roca Labs website accessed on June 15, 2017 at https://rocalabs.com/about/how-much-does-roca-labs-cost/cashback/

2018 Martindale-Hubbell® Peer Review Rating of AV Preeminent® Gerry Elman has received a 2018 Martindale-Hubbell® Peer Review Rating of AV Preeminent®
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