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Archive for the ‘Intellectual Property’ Category

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.

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

Photo credit: <a href="http://foter.com/re/4be122">Foter.com</a>

Photo credit: Foter.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/

Will your underwear talk to the internet?

Will your underwear become a node on the Internet of Things? Gerry Elman attended the Greater Philadelphia Smart Fabrics Conference at Drexel University’s Center for Functional Fabrics on May 9, 2017.  He enjoyed learning more about the Smart Belly Band for pregnant moms, developed in the Shima Seiki Haute Technology Lab at Drexel’s ExCITe Center.

Gerry continues to hone his cutting-edge expertise on the implications of intellectual property and cybersecurity law for this burgeoning field of technological development.

Drexel's Smart Belly Band shown at Chemical Heritage Foundation Museum

Drexel’s Smart Belly Band shown at Chemical Heritage Foundation Museum







As a speaker and mentor at the Advanced Textiles Conference of IFAI Expo in New Orleans this September, he will be sharing that expertise with entrepreneurs shaping the future.

Interested in Smart Cities?

On June 9-10, 2017, Gerry will participate 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 includes hands-on experience with the long range wireless technology being rolled out by Comcast subsidiary machineQ.

If you’re envisioning developments in this field, make plans to join him at one of these events. Or send a note via the Contact Us form on this page.

Also keep in mind that Gerry co-hosts the TriState.IoT Meetup, which draws participants from Pennsylvania, Delaware and New Jersey.  In-person meetings are typically in the vicinity of Radnor and Paoli, PA, and some are webinars.  For ongoing updates on their doings, join the Meetup for free.

Privacy & Security for the Internet of Things

On December 8, 2016, Gerry Elman gave a presentation on Privacy and Security for the Internet of Things.  As new products and services are designed, innovators will need to build-in security from the outset and consider the privacy implications of the data derived from them.  Gerry shared the very latest information on the subject (including some major developments from just days prior) as well as best practices for businesses and consumers.

To download the slideshow, please complete the form below, and then click on the link that appears.

We would love to see you at our next meeting.  To be informed of TriState.IoT events, join the online TriState.IoT group.

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

Smart devices are rapidly changing our privacy and security. Download this slideshow presentation by Gerry Elman to learn more about how the "Internet of Things" affects businesses and individuals. He recommends best practices to follow and risks to guard against.

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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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.

Similar drawings, copyright infringement? Art Seidel showed a jury the answer was NO.

I’m breaking my arm patting myself on the back … at least for being quick on the draw.

I was able to come up with an additional answer to the following question, moments after it was posted on Avvo.com:

Q: Can I use mythological creatures on a card game?: Are mythological creatures, such as chimeras, wyverns, cerberus, mermaids, spirits, dragons, etc. of public domain? What I mean with this is, may I use this concepts on a card game without facing any possible sues for trademark or copyright infringements based on the character concepts?

Considering the artwork won’t be exact copies of any existing card game or illustration made before. Just the concept like: dragon.

A couple of other lawyers had already responded within minutes, but brownie points were available for a third answer if provided immediately.  I recalled an excellent article about a successful copyright infringement defense that I’d read years ago in The Philadelphia Lawyer.  And I recalled that Art’s firm had posted the article on the Web.  So I immediately found the link to it and posted:

A: Gerry’s answer: This was a good question, and attorneys Jacobson and Michelen provided some good answers.

From a copyright standpoint, you want to minimize the likelihood that you’d be creating a “derivative work.”

See this article by attorney Art Seidel http://www.drinkerbiddle.com/Templates/media/files/publications/2001/a-case-of-variations-on-a-theme.pdf

It tells the story of how he successfully defended a claim that a particular artist had created a “derivative work” depicting cardinal birds from a copyrighted work that the artist had previously sold to the Franklin Mint.

If you haven’t already read Art’s story, now’s a good time to enjoy it.  What a brilliant litigator he was!


2016 Martindale-Hubbell® Peer Review Rating of AV Preeminent® Gerry Elman has received a 2016 Martindale-Hubbell® Peer Review Rating of AV Preeminent®
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