Law Commons^™

Ignorance Over Innovation: Why Misunderstanding Standard Setting Organizations Will Hinder Technological Progress, Kristen Osenga

Law Faculty Publications

On January 17, 2017, the Federal Trade Commission (FTC) sued Qualcomm Inc. in federal district court, alleging antitrust violations in the company's licensing of semiconductor chips used in cell phones and more. The suit alleges, in part, that Qualcomm refuses to license its patents that cover innovations incorporated in technology standards (standard-essential patents, or SEPs), in contradiction of the company's promise to license this intellectual property on fair, reasonable, and nondiscriminatory (FRAND) terms. According to the FTC, Qualcomm's behavior reduces competitors' ability to participate in the market, raises prices paid by consumers for products incorporating the standardized technology, and at …

The Ftc’S Pae Study: Doing More Harm Than Good, Kristen Osenga

Law Faculty Publications

Recently, the Federal Trade Commission (FTC) released a report of its study of patent assertion entities (PAEs). The report was long anticipated and could have gone a long way to shining some light on patent licensing firms – who they are, how they operate, and so on. After all, patent licensing firms are misunderstood, partially because so much of their activity is not visible to the public. In theory, because the FTC has the power to obtain this invisible information, the study could have provided the data and insight needed to better understand these firms and improve the policy dialogue …

Why The Ftc Study On Paes Is Destined To Produce Incomplete And Inaccurate Results, Kristen Osenga

Law Faculty Publications

In the near future, the Federal Trade Commission is going to release the results of its study on patent assertion entities (PAEs). While it is very clear that we need additional information to understand the many complex business models that exist in the patent licensing world, the FTC’s study is unlikely to produce that information because of a few very critical flaws. What follows is an executive summary of my article, Sticks and Stones: How the FTC’s Name-Calling Misses the Complexity of Licensing-Based Business Models, published in the George Mason Law Review.

Regulating Healthcare Robots: Maximizing Opportunities While Minimizing Risks, Drew Simshaw, Nicolas Terry, Kris Hauser, M.L. Cummings

Richmond Journal of Law & Technology

Some of the most dynamic areas of robotics research and development today are healthcare applications. Robot-assisted surgery, robotic nurses, in-home rehabilitation, and eldercare robots' are all demonstrating rapidly iterating innovation. Rising healthcare labor costs and an aging population will increase demand for these human surrogates and enhancements. However, like many emerging technologies, robots are difficult to place within existing regulatory frameworks. For example, the federal Food, Drug, and Cosmetic Act (FD&C Act) seeks to ensure that medical devices (few of which are consumer devices) are safe, the HIPAA Privacy and Security Rules apply to data collected by health care providers …

Merger And Acquisition Due Diligence Part Ii- The Devil In The Details, James A. Sherer, Taylor M. Hoffman, Kevin M. Wallace, Eugenio E. Ortiz, Trevor J. Satnick

Richmond Journal of Law & Technology

Our prior scholarship examined the legal and technical challenges involved in modern Merger & Acquisition ("M&A") due diligence practices associated with transactions ("Deals"), given recent but steady advances in technology and related increases in sophistication seen in Deal participants-primarily the organizations or assets targeted (the "Targets") as part of the Deal, and the organizations that pursued and/or resulted from the Deal (the "Acquirers"). We then proposed a framework addressing five particular verticals of interest and concern: data privacy ("DP"), information security ("IS"), e-Discovery, information governance ("IG"), and the due diligence and record keeping associated with the Deal itself ("Deal Information") …

Beyond Technophobia: Lawyers’ Ethical And Legal Obligations To Monitor Evolving Technology And Security Risks, Timothy J. Toohey

Richmond Journal of Law & Technology

Lawyers and technology have an uneasy relationship. Although some lawyers are early adapters, others take pride in ignoring technology because they believe it is alien to the practice of law. As Jody R. Westby observed, lawyers confronted with technology and security issues tend to have their “eyes glaze over” and “want to call in their ‘IT guy’ and go back to work.” But this technophobic attitude may no longer just be harmless conservatism. In the world of growing security risks, ignorance of technology may lead to violations of lawyers’ fundamental ethical duties of competence and confidentiality.

Sticks And Stones: How The Ftc's Name-Calling Misses The Complexity Of Licensing-Based Business Models, Kristen Osenga

Law Faculty Publications

The purpose of this Essay is not to condemn the FTC study of PAEs. Instead, the FTC's study could be an incredibly important step in the right direction towards understanding the many complex business models that exist in the patent licensing world and how these firms affect innovation and competition.

Part I of this Essay describes the genesis of the FTC's interest in patent licensing firms and the details of the § 6(b) study. It also explores the un- derlying bases for the FTC's interest in this area, specifically the claims about how patent licensing firms impact innovation and competition. …

The Reasonable Information Security Program, Peter Sloan

Richmond Journal of Law & Technology

Our information inhabits a perilous world. Cyber theft, cyber extortion, mobile device loss, misappropriation of confidential business information, and unauthorized disclosures of protected information are real and present dangers for organizations of all sizes and across all industries.

The Tangled Web: A Case Against New Generic Top-Level Domains, Joseph P. Smith Iii

Richmond Journal of Law & Technology

If we had a reliable way to label our toys good and bad, it would be easy to regulate technology wisely. But we can rarely see far enough ahead to know which road leads to damnation.

An Expected Harm Approached To Compensating Consumers For Unauthorized Information Disclosures, Rachel Yoo

Richmond Journal of Law & Technology

On May 22, 2007, the Executive Office of the President of the United States issued a memorandum concerned with safeguarding personal information, which first defined the term “personally identifiable information” as follows:

[I]nformation which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.

A Vaccine Approach To The Reverse Payment Illness, Scott Bergeson

Richmond Journal of Law & Technology

Big Brand Name develops and files a patent for a drug that kills bacteria in an innovative way. The drug is groundbreaking and potentially marketable, so Big Brand Name incurs the enormous cost (estimated at $868 million) and time of drug discovery research and safety determinations of clinical trials to bring the drug to market. Small Generic Company wants to sell the same drug but must wait until Big Brand Name’s patent expires or, in the alternative, Small Generic Company can file an Abbreviated New Drug Application (“ANDA”) with the FDA and allege Big Brand Name’s patent is invalid or …

Current And Emerging Transportation Technology: Final Nails In The Coffin Of The Dying Right Of Privacy?, James D. Phillips, Katharine E. Kohm

Richmond Journal of Law & Technology

Transportation networks constitute “the circulatory system of our economy.” The distinct modes that constitute the American transportation system—air, rail, transit, highways, and waterways—impact the entire range of our daily activities. Just as the human body depends on its circulatory system for life and well being, the United States’ vitality would grind to a halting stop without a vibrant transportation system.

Better Late Than Never: How The Online Advertising Industry’S Response To Proposed Privacy Legislation Eliminates The Need For Regulation, Catherine Schmierer

Richmond Journal of Law & Technology

Although Julie Matlin liked the shoes she saw on Zappos.com, she ultimately left the site without purchasing them. However, it was not the last time she would see that pair of shoes. For the next several days, the shoes followed Ms. Matlin to numerous other websites. “It was as if Zappos had unleashed a persistent salesmen who wouldn’t take no for an answer.” Understandably, Ms. Matlin found this “online stalking” disturbing, but she was more troubled when ads for her online dieting service started following her as well. She stated, “They are still following me around, and it makes me …

Busting Blocks: Revisiting 47 U.S.C. § 230 To Address The Lack Of Effective Legal Recourse For Wrongful Inclusion In Spam Filters, Jonathan I. Ezor

Richmond Journal of Law & Technology

Consider a company that uses e-mail to conduct a majority of its business, including customer and vendor communication, marketing, and filing official documents. After conducting business in this manner for several years, one day the company discovers that its most recent e-mails were not delivered to recipients using a major Internet Service Provider (“ISP”) because the company was recently listed on an automated block list as a sender of unwanted bulk commercial e-mail (“spam”).

Corporate Privacy Trend: The “Value” Of Personally Identifiable Information (“Pii”) Equals The “Value” Of Financial Assets, John T. Soma, J. Zachary Courson, John Cadkin

Richmond Journal of Law & Technology

Corporate America’s increasing dependence on the electronic use of personally identifiable information (“PII”) necessitates a reexamination and expansion of the traditional conception of corporate assets. PII is now a commodity that companies trade and sell. As technological development increases, aspects of day-to-day business involving PII are performed electronically in a more cost effective and efficient manner. PII, which companies obtain at little cost, has quantifiable value that is rapidly reaching a level comparable to the value of traditional financial assets.

“Medical” Monitoring For Non-Medical Harms: Evaluating The Reasonable Necessity Of Measures To Avoid Identity Fraud After A Data Breach, James Graves

Richmond Journal of Law & Technology

In July 2005, “reformed” hacker Albert Gonzalez noticed an insecure wireless network at a Marshalls department store in Miami. After exploiting the vulnerability, Gonzalez and his accomplices installed programs that captured credit card numbers. They stored the credit card numbers on servers in Latvia and Ukraine, created ATM cards using some of the numbers, and used those cards to withdraw hundreds of thousands of dollars in cash. Fifteen months later, Marshalls’ parent company, TJX, announced that forty-five million of its customers’ credit card numbers had been exposed to the thieves.

Nonobviousness And The Federal Circuit: An Empirical Analysis Of Recent Case Law, Christopher A. Cotropia

Law Faculty Publications

This Article provides such an empirical study. The study examines all Federal Circuit cases over a four-year period considering the nonobviousness of a patent claim. Appeals from both patent infringement cases before district courts and pending patent applications and interferences before the United States Patent and Trademark Office (USPTO) are investigated. The study looks at the data in two levels of detail.

E-Commerce: Legal Issues Of The Online Retailer In Virginia, Jonathan D. Frieden, Sean Patrick Roche

Richmond Journal of Law & Technology

The popularity and growth of online retailing, now in its tenth year, has shattered experts’ expectations. “Online sales in the United States grew twenty-four percent last year, to about $90 billion, and online retailing now accounts for nearly five percent of all retail sales.”

Unleashing “Instant Messaging” From Regulatory Oversight, Fernando R. Laguarda

Richmond Journal of Law & Technology

America Online, Inc. (“AOL”) and Time Warner Inc. announced their intention to merge on January 10, 2000. At that time, there was a great deal of excitement about combining these two companies and harnessing the power of an increasingly broadband Internet. In addition to the Federal Trade Commission (“FTC”) and Federal Communications Commission (“FCC”), more than one thousand local communities conducted their own reviews of the merger. The FTC identified “open access” to the Time Warner Cable platform as an issue meriting specific relief.

“Do-Not-Call-List” Testimony: Before The Senate Committee On Commerce, Science, And Transportation, Lee Hammond

Richmond Journal of Law & Technology

My name is Lee Hammond and I am a member of AARP’s Board of Directors. On behalf of AARP and its thirty- ve million members, thank you for inviting us here this morning to discuss the importance of implementing and enforcing the Federal Trade Commission’s (FTC) national Do Not Call registry. AARP’s members have been among the millions of Americans who have taken the initiative to place their phone numbers into the Registry in an effort to reduce the amount of unwanted telemarketing calls. We share your indignation over recent court decisions to stymie this effort and we are here …

Plaintiff’S Brief — Mainstream Marketing Services, Inc., Tmg Marketing, Inc. And American Teleservices Association

Richmond Journal of Law & Technology

This case is a cautionary tale about what happens when federal agencies allow perceived political imperatives to override legal and constitutional concerns.

Plaintiff’S Reply Brief — Mainstream Marketing Services, Inc., Tmg Marketing, Inc. And American Teleservices Association

Richmond Journal of Law & Technology

The government’s assumption that commercial speech restrictions should be judged by the same standard as time, place or manner restrictions fails to accurately set forth the relevant burden of proof articulated in more recent commercial speech cases.

“Do-Not-Call-List” Testimony: Before The Senate Committee On Commerce, Science, And Transportation, James Guest

Richmond Journal of Law & Technology

Mr. Chairman, members of the Committee, thank you for the opportunity to be here with you today. My name is Jim Guest, and I am President of Consumers Union, the independent, non- profit publisher of Consumer Reports magazine and ConsumerReports.org, with over ve million subscribers.

Ad Rules Infinitum: The Need For Alternatives To State-Based Ethics Governing Legal Services Marketing, William E. Hornsby Jr.

University of Richmond Law Review

For most of the Twentieth Century, lawyer advertising was prohibited. Beginning with the Canons of Ethics ("Canons"), adopted by the American Bar Association (the "ABA" or "Association") in 1908, it was unethical for lawyers to advertise or engage in most forms of marketing. The 1977 United States Supreme Court decision of Bates v. State Bar of Arizona held that, under the First Amendment doctrine of commercial speech, states did not have the right to ban lawyer advertising. The decision, however, gave states the responsibility to regulate this activity. This began an experiment to balance consumer protection with the flow of …

Cyberian Signals, Steven A. Hetcher

University of Richmond Law Review

In Law and Social Norms, Eric Posner offers an original and important theory of the emergence of norms. According to Posner, norms are collections of signals. He develops his signaling account in a variety of contexts, including criminal law, family law, political participation, and racial discrimination. This article extends Posner's theory to cyberspace, a domain of social organization not touched on in Posner's book. In particular, I will test Posner's theory by examining how well it explains the emergence of Web site privacy norms. Part One will examine signaling theory. Part Two will explore privacy norms in some detail, and …

Market Power And The Ftc, John C. Hilke

Richmond Journal of Law & Technology

Although the DOJ/FTC Merger Guidelines provide a firm foundation for analyzing changes in prospective market power resulting from a proposed merger, the analysis does not focus on detecting or measuring market power that may already exist in the market. Further, antitrust enforcement is focused on anti-competitive mergers and unfair forms of competition. From an antitrust perspective, a firm that lawfully acquired market power does not commit an antitrust offense merely by exercising that power, unless it engages in unfair methods of competition to protect that power.

Consumer Privacy On The Internet, Andrew Shen

Richmond Journal of Law & Technology

If we do not bear the loss of this privacy then the prices would be passed along to consumers anyway. We're between a rock and a hard place there's nowhere that we can go. But I think we can be more optimistic than that and I think we can preserve privacy and I think we can further growth of electronic commerce. So let me begin with the consumer perspective. I would like to start with a trend that Mike has already done a good job of starting us out on, and that is the current popularity of personalization and customization. …

A World Wide Web Of Potential Franchise Law Violations, Michael J. Lockerby

Richmond Journal of Law & Technology

Franchising -- whereby independent entrepreneurs are licensed to provide goods and services of uniform quality (hopefully) under their licensor's trademarks -- has long been the predominant method of distributing goods and services in the U.S. Time will tell how many suppliers use the Internet to "cut out the middleman", and instead, sell goods and services directly to the ultimate consumer. While franchising so far appears to be safe from the Internet, the Internet may not be safe from franchising -- or, perhaps more accurately, from the world wide web of laws that govern franchising. The explosive growth of Internet commerce …

Who Leads At Halftime?: Three Conflicting Visions Of Internet Privacy Policy, Karl D. Belgum

Richmond Journal of Law & Technology

Concern about privacy on the Internet runs high, but the prescriptions for treatment vary widely. Privacy advocates seek different goals when formulating policy proposals. Some seek to protect individuals and society from the effects of loss of privacy, including the loss of human dignity. Others seek to encourage the development of online markets in personal information, so that consumers can profit from their own information, rather than giving it away. Still, others seek primarily to promote the growth of e-commerce, and see privacy fears as a threat to that goal. These goals are fundamentally inconsistent, and that inconsistency is obscured …

The Eastern District Of Virginia: A Working Solution For Civil Justice Reform, Heather Russell Koenig

University of Richmond Law Review

It has been referred to as "the fastest, fairest, federal court in the country," "the most efficient, professional federal court in the nation," the court "known for moving things along quickly" and where "cases zoom through the system faster than at any other federal court in the nation." Where is this court that is "so efficient that it could be used as a model for the rest of the country?" It is the United States District Court for the Eastern District of Virginia.