Intellectual Property and Technology NewsPERSPECTIVES • ANALYSIS • VISIONARY IDEAS

The states look at autonomous vehicles

Alice uncertainty: curiouser and curiouser

ITC update

Supreme Court Corner

The government in your cloud

ISSUE 42 / Q2 2019 / ATTORNEY ADVERTISING

IPT NEWS

2

IPT NEWS

Frank RyanPartnerGlobal Co-Chair and US Co-Chair, Intellectual Property and Technology

Ann K. FordPartnerGlobal Co-Head, Sectors, US Co-Chair, Intellectual Property and Technology

Current news on key technologies

Editor’s Column

Matt GruenbergPartnerIntellectual Property and Technology

Businesses across the globe are struggling to keep up with the pace of technology and the laws governing that technology. From startups to fast-growing and middle-market businesses to mature global enterprises, our clients are companies that develop or create technology, are enabled by technology, or operate with a business model fundamentally based on technology.

In this issue, we focus on legal developments around some of these important technologies: autonomous vehicles, company data storage in the cloud, and the continuing uncertainty surrounding patent-eligible subject matter. We also are pleased to announce the arrival of several new partners to strengthen our offering even more. Among them is Andrew Serwin, one of the pre-eminent privacy and security practitioners in the world, who will serve as co-chair of our Data Protection, Privacy and Security group.

Finally, please don’t forget to check out our Data Protection Laws of the World resource, at dlapiperdataprotection.com.

At DLA Piper, guiding you through these fast-changing times and the ever-changing laws is our business. We are here to help. Please reach out to us to learn more.

frank.ryan@dlapiper.com ann.ford@dlapiper.com

As we enter the dog days of summer, we can reflect on the first half of the year and plan for success for the coming months. We also welcome new colleagues to IPT on both coasts. Andrew Serwin, a leader in privacy and data security law, joins us in Southern California, Peter Karanjia joins us in Washington, DC, where he will chair the firm’s Administrative Law Appellate practice, and Edward McAndrew joins us in Wilmington and Washington, DC, where he will focus on matters involving cybersecurity, privacy and technology.

This issue continues our tradition of highlighting current topics of significance in intellectual property and technology law. In this issue, we examine subject matter eligibility in patent prosecution in light of diverging authorities and recent significant developments, recognize Gina Reif Illardi, the

firm’s National Advertising Co-Chair, for her recent achievements, explain current regulations that govern autonomous vehicles, provide an ITC Section 337 update, summarize US Supreme Court cases involving intellectual property and technology, illuminate how cloud computing and privacy rights are intersecting, and provide a snapshot from our reception at the IAPP Summit that was held in Washington, DC in May.

Please enjoy this edition of IPT News and the remainder of the summer season.

matthew.gruenberg@dlapiper.com

3

WWW.DLAPIPER.COM/IP_GLOBAL

3

WWW.DLAPIPER.COM/IP_GLOBAL

Leading cyber lawyer joins DLA Piper on the West Coast

Andrew Serwin, one of the world’s preeminent privacy and security practitioners, has joined DLA Piper as a partner in Southern California with the Data Protection, Privacy and Security team. Andrew brings significant privacy, security, crisis management and national security experiences to the global group.

Andrew advises Fortune 500 and emerging companies on matters in a host of privacy and cybersecurity issues including those related to the Electronic Communications Privacy Act, Federal Trade Commission requirements, behavioral advertising and crisis management, among others. He has served as lead counsel in a number of FTC matters, matters before the Office of Civil Rights, and state consumer protection and privacy litigation based on alleged misuse of personal information, including class actions and enforcement matters brought by state attorneys general.

Andrew received his J.D. from the University of San Diego School of Law and his B.A. from the University of California San Diego.

Learn more about Andrew Serwin at: www.dlapiper.com/en/us/people/s/serwin-andrew

Telecom appellate lawyer Peter Karanjia joins DLA Piper in Washington, DC

As Chair of the Administrative Law Appellate practice, Peter focuses on appellate, regulatory, and complex civil litigation, with a particular emphasis on the telecommunications, technology and media sectors.

Earlier in his career, Peter served as Deputy General Counsel of the Federal Communications Commission and as Special Counsel to New York Solicitor General Barbara Underwood. He is recognized by several publications, including Law360, Chambers and The New York Times, for his high-stakes work in civil litigation matters.

Peter received his LL.M. from Harvard Law School and his M.A. and B.A. in Law from Oxford University.

Learn more about Peter Karanjia at: www.dlapiper.com/en/us/people/k/karanjia-peter

The USPTO, Federal Circuit and Congress each have taken recent steps to resolve uncertainty on subject matter eligibility under 35 U.S.C. § 101.

Alice uncertainty: curiouser and curiouser By Carrie Williamson and Saori Kaji

5

WWW.DLAPIPER.COM/IP_GLOBALWWW.DLAPIPER.COM/IP_GLOBAL

5

“The Federal Circuit recently declined to follow USPTO guidance, instead following its own precedent to invalidate patent claims. In light of this tension, support has been growing for a legislative solution.”

The USPTO has published guidance to provide more consistency during patent prosecution in assessing subject matter eligibility, but its effectiveness depends on whether the courts uphold patents issued in view of the guidance. The Federal Circuit recently declined to follow USPTO guidance, instead following its own precedent to invalidate patent claims. In light of this tension, support has been growing for a legislative solution, which may arrive soon.

Significantly, on May 22, 2019, Senators Thom Tillis (R-NC) and Chris Coons (D-DE) and Representatives Doug Collins (R-GA), Hank Johnson (D-GA) and Steve Stivers (R-OH) released a draft bill that would reform Section 101.

USPTO GUIDANCE In response to Alice and Mayo, the USPTO released subject matter eligibility guidance under Section 101 in 2014; it has been revised several times.

In January 2019, the USPTO released further revised guidelines to ensure application of the two-step Alice/Mayo test in “a manner that produces reasonably consistent and predictable results.”1 The revised guidance clarified in two ways the first step of the Alice/Mayo test to determine whether a patent claim is directed to a judicial exception (laws of nature, natural phenomena, and abstract ideas).2 First, the revised guidance provides groupings of abstract ideas — “mathematical concepts, certain methods of organizing human activity, and mental processes” — and clarifies that except in rare circumstances, claims falling outside these groupings should not be treated as reciting abstract ideas.3 Second, the revised guidance clarified that a claim reciting a judicial exception is not “directed to” the exception if the exception “is integrated into a practical application of the judicial exception.”4 Only when a claim recites a judicial exception and fails to integrate the exception into a practical application is the claim considered “directed to” a judicial exception, thereby triggering further analysis via the second step of the Alice/Mayo test, the inventive concept.

THE FEDERAL CIRCUIT’S TREATMENT OF USPTO GUIDANCE

In Cleveland Clinic Foundation v. True Health Diagnostics LLC,5 the Federal Circuit rejected USPTO guidance in favor of its own precedent, stating, “While we greatly respect the PTO’s expertise on all matters relating to patentability, including patent eligibility, we are not bound by its guidance,” noting “the need for consistent application of our case law.” Id. at *6. The court found plaintiffs’ claim was “strikingly similar” to a claim considered in a prior Federal Circuit case where the court found the claim at issue patent ineligible. The court declined to follow the PTO example and instead followed its precedent.

Although non-precedential, the holding suggests a patent may be found ineligible by courts even if the patent was issued as the result of the PTO’s published guidance on subject matter eligibility. Given the tension between the PTO’s guidance and the Federal Circuit’s precedent, there may be greater urgency for a legislative resolution.

6

IPT NEWS

Draft bill revising Section 101 SECTION 100(k) The term “useful” means any invention or discovery

that provides specific and practical utility in any field of technology through human intervention.

SECTION 101(a) Whoever invents or discovers any useful process,

machine, manufacture, or composition of matter, or any useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

(b) Eligibility under this section shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation.

Revision to Section 112ADDITIONAL LEGISLATIVE PROVISIONS:• The provisions of section 101 shall be construed in

favor of eligibility.

• No implicit or other judicially created exceptions to subject matter eligibility, including “abstract ideas,” “laws of nature,” or “natural phenomena,” shall be used to determine patent eligibility under section 101, and all cases establishing or interpreting those exceptions to eligibility are hereby abrogated.

• The eligibility of a claimed invention under section 101 shall be determined without regard to: the manner in which the claimed invention was made; whether individual limitations of a claim are well known, conventional or routine; the state of the art at the time of the invention; or any other considerations relating to sections 102, 103, or 112 of this title.

PROPOSED LEGISLATIVE ACTION REGARDING 35 U.S.C. § 101 The proposed reform is viewed as strongly pro-patentee, wiping away all judicially created exceptions to subject matter eligibility and abrogating all cases establishing or interpreting those exceptions.

The Senate Judiciary Committee’s Subcommittee on Intellectual Property held hearings with 45 scheduled witnesses on June 4, 5 and 11 to discuss this proposed reform. During his June 4 testimony, Former Federal Circuit Chief Judge Paul Michel noted the “present, intolerable chaos” in the law of patent eligibility and urged adoption of legislation “generally modeled” on the draft bill, including the elimination of the judicially created exceptions.6 In contrast,

Professor Mark Lemley from Stanford Law School testified that a more conservative approach that did not “eliminate two hundred years of legal doctrine” might provide more success in addressing problems in patent eligibility in life sciences while protecting against patent abuse in other areas.7

Should this draft become law, there would likely be significant uncertainty as to how challenges to patent eligibility would be decided, and challenges may focus on the new definition of the term “useful.” That is, the bill may fail to offer certainty, at least in the short term, regarding patent eligibility and may propel us further into wonderland.

Carrie Williamson is a partner in the Patent Litigation practice and based in Silicon Valley. She tries cases in district courts and the ITC. Reach her at carrie.williamson@dlapiper.com.

Saori Kaji, an associate in the Patent Litigation practice and based in Silicon Valley, represents clients in technical litigation matters in both district courts and the ITC. Reach her at saori.kaji@dlapiper.com.

1 The U.S. Patent & Trademark Office 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019).

2 Id. at 50, 54-55.

3 Id. at 53.

4 Id. at 50, 53.

5 2019 WL 1452697 (Fed. Cir. Apr. 1, 2019) (Panel of Circuit Judges Lourie, Moore and Wallach).

6 https://www.judiciary.senate.gov/imo/media/doc/Michel Testimony.pdf

7 https://www.judiciary.senate.gov/imo/media/doc/Lemley Testimony.pdf

7

WWW.DLAPIPER.COM/IP_GLOBALWWW.DLAPIPER.COM/IP_GLOBAL

Gina Reif Ilardi hailed as a New York Trailblazer

National Advertising Co-Chair Gina Reif Ilardi was recently named to the New York Law Journal’s inaugural list of New York Trailblazers. The journal highlighted her high-profile deals in marketing and advertising, bringing together famous brands and entertainers, and hailed her ability to “redefine entertainment in a golden age of content.”

Gina’s clients include motion picture and television studios, major brands, prominent website operators, cable, broadcast and out-of-home networks and advertising and marketing agencies.

Find out more about Gina Reif Ilardi at: www.dlapiper.com/en/us/people/i/ilardi-gina

IPT NEWS

88

US regulation of autonomous vehicles remains nascent and dispersed. This fragmented environment means that states have emerged as important laboratories of democracy. Since 2011, when Nevada became the first state to authorize the operation of autonomous vehicles, more than 30 states have enacted legislation or issued executive orders relating to autonomous vehicles. These states are experimenting with a wide range of approaches, some cautious and others more ambitious.

The states look at autonomous vehiclesBy Chung Wei

WWW.DLAPIPER.COM/IP_GLOBAL

9

The states look at autonomous vehiclesBy Chung Wei On the cautious end are statutes

and executive orders merely authorizing further study. One example is a recent Minnesota executive order which measuredly establishes an advisory council “to study, assess, and prepare for the opportunities and challenges associated with the widespread adoption of connected and automated vehicles and other intelligent and emerging transportation technologies.” More substantive laws may eventually follow.

Other states have gone further, allowing testing of autonomous vehicles. New York allows testing, but only under the direct supervision

of the New York State Police. This approach is perceived by some to be heavy-handed; for now, notably, relatively little testing is being done in New York, despite the strategic importance of that market.

Florida is among the states that have a lighter touch. Its legislature has expressly declared its intent to encourage autonomous technology and, in Florida, autonomous vehicles may be freely deployed, not just for testing purposes, but for any purpose. No special permits, licenses or approvals are needed. Florida has even gone so far as to eliminate the requirement that a human operator be present in the vehicle, as long as there is a remote operator. Pending legislation may soon remove even that requirement. Unsurprisingly, Florida is now a hotbed for autonomous vehicle activity.

A different way to attract industry interest may be to provide clear rules and regulatory certainty.

California, another autonomous vehicle hub, sets out detailed regulations distinguishing among different types of testing and different types of deployment. Each type has its own permitting and other requirements. There is testing conducted with drivers versus testing conducted without drivers, and special programs for testing with passengers compared to testing without passengers. There also are rules differentiating between deployment of passenger vehicles versus deployment of trucks. California has a relatively comprehensive framework compared to that of other states, providing clarity and certainty that may help engender consumer confidence.

Getting all of this right is important because of the effects: safety, mobility, efficiency, productivity, economic growth and the environment. The best ideas (we hope) will percolate to the top.

Chung Wei, a partner in the IPT group and based in Silicon Valley, advises public and private companies in a broad range of industries on business and technology-related transactions. You may reach him at chung.wei@dlapiper.com.

“Getting all of this right is important because of the effects: safety, mobility, efficiency, productivity, economic growth and the environment.”

IPT NEWS

10

DLA Piper expands cybersecurity capabilities with Edward McAndrew

Edward McAndrew, a counselor, investigator and trial lawyer who focuses on cybersecurity, privacy and technology matters, has joined DLA Piper ‘s Intellectual Property and Technology practice as a partner. He will be based in both Wilmington and Washington, DC.

A former federal cybercrime prosecutor, Ed helps companies manage cyber-risk, comply with legal requirements and industry standards, prepare for and respond to cyber incidents and handle related investigations and litigation.

In his public service, Ed was a National Security Cyber Specialist with the US Department of Justice in Washington, DC, in the US Attorney’s Offices for the Eastern District of Virginia and the District of Delaware.

Ed received his J.D. from Catholic University and his B.A. from The College of New Jersey.

Learn more about Edward McAndrew at:

ITC Section 337 Update

Commission decision stayed?By Tony V. Pezzano and Michael P. Dougherty

www.dlapiper.com/en/us/people/m/mcandrew-edward

WWW.DLAPIPER.COM/IP_GLOBAL

11

New developments: On March 31, 2019, ALJ Cameron Elliot joined the Commission bench, thus completing the ITC’s roster of six Administrative Law Judges.

• Federal Circuit affirms commission decision not to institute synthetically produced predominantly EPA Omega-3 products, Inv. No. 337-TA-3247: On May 1, 2019, a Federal Circuit panel (Chief Judge Sharon Prost and Circuit Judges Evan J. Wallach and Todd M. Hughes) affirmed the Commission’s decision not to institute an investigation into the importation of certain synthetically produced Omega-3 products. Complainant Amarin alleged such products were falsely labeled as “dietary supplements,” and were actually “new drugs” as defined in the Food, Drug, and Cosmetic Act (FDCA) that were not approved for sale or use in the US. Amarin contended this violated both Section 43(a) of the Lanham Act (15 U.S.C. §1125(a)) and the FDCA (21 U.S.C. §321 et seq.). The court held that “claims based on such allegations are precluded by the FDCA, at least where the FDA has not yet provided guidance as to whether violations of the FDCA have occurred,” because the FDCA “provides the United States with ‘nearly exclusive enforcement authority.’” The court also found that “the FDA has not provided guidance as to whether the products at issue … should be considered ‘new drugs’ that require approval.”

• Commission stays remedial order pending appeal to Federal Circuit of PTAB decision in Magnetic Tape Cartridges, Inv. No. 337-TA-1058: On August 17, 2018, ALJ Clark S. Cheney issued an ID finding that respondent Fujifilm infringes two of complainant Sony’s patents covering magnetic tape used for computer system storage and data archiving. On that same date, the ALJ also issued an RD that an exclusion order not be enforced with regard to one patent claim pending an appeal to the Federal Circuit of a PTAB decision holding the claim invalid. On March 29, 2019, the Commission affirmed the ALJ’s recommendation to stay the remedial order pending the Federal Circuit review of the PTAB decision.

This was the first time that a Commission decision to issue an exclusion order was stayed pending the result of a PTAB proceeding, although the Commission noted in its opinion that the remedial order is still in effect with respect to other asserted patent claims.

In a later investigation, Memory Modules, Inv. No. 337-TA-1089, Chief ALJ Charles E. Bullock more broadly interpreted the Commission’s willingness to stay a remedial order pending Federal Circuit review of a PTAB decision. In that investigation, Judge Bullock issued an order denying a motion to stay pending a PTAB proceeding because of the late stage of the ITC investigation and early stage of the PTAB proceeding. However, Judge Bullock addressed the lack of undue prejudice in the proceeding, stating that the Commission has “signaled a willingness to suspend the enforcement of remedial orders” if the asserted claims are cancelled in a PTAB proceeding pending final resolution by the Federal Circuit.

Tony Pezzano is a partner in the IPT group and based in New York. In his almost 30-year career as a patent litigator, he has tried numerous cases involving technology innovation. Reach him at tony.pezzano@dlapiper.com.

Michael Dougherty is a partner in the IPT group and based in New York. Representing brand pharmaceuticals in suits against generic drug companies under the Hatch-Waxman Act is a cornerstone of his 30-year career. Reach him at michael.doughtery@dlapiper.com.

IPT NEWS

12

Fourth Estate Public Benefit Corp. v. Wall-Street.comCOPYRIGHT – DECIDED: MAR. 4, 2019Holding: A copyright claimant may commence an infringement suit when the Copyright Office registers a copyright.

Petitioner Fourth Estate owns copyrights in certain journalistic works and licenses them to a cloud-based news organization that, in turn, licenses them to others. Respondent Wall-Street.com licensed some of these materials to publish on its website. After Wall-Street.com canceled the license, it continued to display the material. Fourth Estate then filed an application for registration of the copyrighted works with the Copyright Office, but did not wait for the Copyright Office to act before filing a copyright infringement suit against Wall-Street.com.

A copyright infringement suit shall not be instituted until “preregistration or registration of the copyright claim has been made” or where “registration has been refused” by the Copyright Office. 17 U.S.C. § 411(a) (limited to US works). Under the Copyright Act, the copyright owner “may obtain registration of the copyright claim by delivering to the Copyright Office” a copy of the copyrighted work and “the application and fee specified.” 17 U.S.C. § 408. The Eleventh Circuit, in affirming the dismissal of Fourth Estate’s copyright infringement claim, agreed with the Tenth Circuit that the Register of Copyrights must act on the application before the

statute permits suit. In contrast, in the Fifth and Ninth Circuits the copyright owner may initiate an infringement action once the application has been filed.

In a unanimous decision delivered by Justice Ruth Bader Ginsburg, the Court affirmed the Eleventh Circuit’s decision. If applying for the copyright sufficed, the statute’s provision allowing suit when “registration has been refused” would be superfluous. Moreover, if an application sufficed, other provisions in the Copyright Act would lack utility, among them actions the Register may take, such as preregistration (§ 408(g)) or allowing the Register to become a party to the infringement action (§ 411(a)). The Court dismissed Fourth Estate’s argument that a copyright owner may lose the ability to enforce its rights if the three-year statute of limitations runs while the registration application is in process, reasoning that registrations take on average seven months and the infringement suit can look back three years. Even so, delays are due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”

With the circuit split now resolved, practitioners will no longer need to consider this issue when contemplating forum. However, copyright owners would be wise to diligently seek registration to ensure the three-year statute of limitations does not run before the Copyright Office acts.

For more, see our alert here: www.dlapiper.com/fourth-estate-copyright

Supreme Court Corner Cases we are following By Stan Panikowski and Brian Biggs

WWW.DLAPIPER.COM/IP_GLOBAL

13

Partner Stan Panikowski, based in San Diego, focuses on IP, antitrust, appeals and other areas of business litigation. Reach him at stanley.panikowski@dlapiper.com.

Associate Brian Biggs, based in Wilmington, Delaware, represents clients across many technical fields in patent litigation. Reach him at brian.biggs@dlapiper.com.

Mission Product Holdings Inc. v. Tempnology, LLCTRADEMARK – DECIDED: MAY 20, 2019Holding: A debtor-licensor’s “rejection” of a trademark license in bankruptcy does not terminate the licensee’s right to continue to use the mark.

Section 365 of the Bankruptcy Code allows the trustee to reject an executory contract of the debtor in some circumstances. In 1985, the Fourth Circuit’s Lubrizol decision held that rejection of a patent license under § 365 terminated the licensee’s rights to use the licensed invention. In response, Congress added § 365(n) to the Code, allowing an “intellectual property” licensee to retain its rights post-rejection, but trademarks are not among the enumerated “intellectual property.”

Respondent Tempnology licensed to petitioner Mission rights to use Tempnology’s trademarks. Tempnology later filed a voluntary petition for Chapter 11 bankruptcy and rejected the license agreement with Mission; Mission objected. Following the Seventh Circuit’s 2012 Sunbeam decision, the First Circuit Bankruptcy Appellate Panel found Tempnology’s rejection under § 365 constituted a breach by the debtor which does not affect Mission’s right to continue

to use the mark. On the next appeal, a divided First Circuit panel reversed and followed Lubrizol, finding rejection terminates the licensees’ trademark rights.

In an 8-1 decision delivered by Justice Elena Kagan, the Court held the bankruptcy estate’s rejection of an executory contract under § 365 functions as a breach, not a complete rescission, of the contract. Thus, the trademark licensee retains the rights it would have had under the terms of the breached contract, which may include continuing to practice the license, paying the royalty, and seeking any potential redress for the estate’s breach. The Court found that one cannot read § 365(n)’s omission of trademarks to mean trademarks should be treated differently. Second, 365(g) establishes the general rule that rejection functions as a breach, and Congress enacted § 365(n) as a tailored response to Lubrizol’s treatment of patents.

Trademark licensing practitioners now can have confidence that a licensee’s rights will survive the licensor’s bankruptcy. More generally, this decision seems to clarify the general disposition of rejected executory contracts not subject to an enumerated exception in § 365.

IPT NEWS

14

As companies shift more data to the cloud, the US government’s ability to gain access to content held by cloud providers should not be overlooked. The government may obtain access to the contents of an individual’s communications, without notice to the individual, through several avenues.

The Electronic Communications Privacy Act (ECPA), protects the privacy of certain communications and consists of the Wiretap Act and the Stored Communications Act. ECPA sets forth limitations and requirements for law enforcement access to content and metadata held by providers of electronic communications and remote computing services (RCS) – including in a cloud environment.1 The Wiretap Act – sometimes referred to as Title I of ECPA – exclusively applies to the interception of communications—such as access or conduct that occurs “contemporaneous” to (ie, at the precise time of) transmission. Access to stored content is governed by the SCA – or Title II of ECPA –which only applies to conduct that occurs subsequent to transmission. Under ECPA, non-content information – subscriber records and transactional details about communications – can generally be obtained without a warrant, pursuant to an administrative subpoena under Section 2703(c)(2).

Under ECPA, the interception of communications is heavily restricted. Currently, the general position is that law enforcement access to stored communications requires probable cause and a warrant under most circumstances, though under some circumstances the burden is lower.

SECTION 2703(B): “REASONABLY RELATED” OR “PROBABLE CAUSE” STANDARD?At inception, Section 2703(b) of the SCA, on its face, permitted the government to obtain certain content from “remote computing services” (which would include many cloud providers) without a warrant or showing of probable cause, provided the content has been in storage for more than 180 days. In U.S. v. Warshak, the Sixth Circuit addressed whether this was constitutional, concluding that 18 U.S.C. §2703(b) violated the Fourth Amendment to the extent it permitted the government to obtain emails from a remote computing service without showing probable cause.

In Warshak, the government argued it was permitted by Section 2703(b) to obtain access to emails in storage for more than 180 days with a remote computing service, without showing probable cause, because the access was not a “search” under the Fourth Amendment. The government argued that it need only show that the emails were “reasonably relevant.” Though the ruling applies only in the Sixth Circuit, the Department of Justice has agreed, as a matter of policy, to follow Warshak generally and to seek warrants to obtain email content.

Partner Kate Lucente, based in Seattle, focuses on privacy, data security, and e-commerce laws, rules and regulations, as well as related industry best practice and self-regulatory initiatives. Reach her at kate.lucente@dlaiper.com.

1. The Cloud Act of 2018.

Partner Andrew Serwin, based in San Diego, has counseled on many of the highest profile privacy and cybersecurity matters of recent years. He is regarded as one of the pre-eminent privacy and security practitioners in the world. Reach him at andrew.serwin@dlapiper.com.

The government in your cloudBy Kate Lucente and Andrew Serwin

WWW.DLAPIPER.COM/IP_GLOBAL

15

WWW.DLAPIPER.COM/IP_GLOBAL

15

SECTION 2703(D) ORDERSThe SCA offers another path for the government to obtain the content of communications: a court order that is not a warrant, but more than a Section 2703(b) request. A court order for disclosure of the contents of communications or subscriber information can be issued if the governmental entity offers specific, articulable facts showing reasonable grounds to believe the contents of a wire or electronic communication, or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a state governmental authority, such a court order cannot issue if prohibited by the state’s laws. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information requested is unusually voluminous or if compliance otherwise would cause an undue burden on the provider.

These issues are important to many companies. Under the ECPA, many cloud-based providers will be considered an RCS; the government may be able to get content from an RCS without notice to the target of the request because the data will be obtained from the cloud provider directly, including under 2703(d).

Furthermore, the government has other tools that may allow it to access data that an RCS stores in the cloud. Among these are National Security Letters and the Foreign Intelligence Surveillance Act. If you are concerned about the government seeing any data you store in the cloud, keep the existence of these tools in mind.

DLA Piper hosts IAPP Reception in Washington, DC

On May 2, 2019, DLA Piper’s Data Protection, Privacy and Security team hosted a reception in Washington, DC as part of the International Association of Privacy Professionals (IAPP) Global Privacy Summit 2019. DLA Piper lawyers from coast to coast and around the world enjoyed connecting with more than 70 clients, showcasing the firm’s global capabilities.

The highly anticipated IAPP event is the largest and most comprehensive global information privacy community resource highlighting the state of data protection. More than 3,600 people from all over the world attended this year’s event.

DLA Piper’s Data Protection, Privacy and Security team at IAPP 2019.

Lex Machina’s 2018 Patent Litigation Year in Review recognizes DLA Piper as one of the top ten most active national law firms representing defendants in US patent disputes. We are truly honored that our

clients trust us with their most important patent litigation matters.

Top Patent Litigation Firm

Attorney Advertising

DLA Piper LLP (US) 2000 Avenue of the Stars Suite 400 North Tower Los Angeles, CA 90067-4704

Intellectual Property and Technology News is published in the North America, Asia Pacific and EMEA regions. Find all current and past editions of the IPT News here: www.dlapiper.com/ipt_news. To subscribe to this complimentary publication, please email your contact information to IPTnews@dlapiper.com.

You are receiving this communication because you are a valued client, former client or friend of DLA Piper and you have requested to receive this information. The information contained in this newsletter is for informational purposes only and should not be construed as legal advice on any matter and does not create any attorney-client relationship between you and DLA Piper. Further, any description of past successes or comparisons does not guarantee future results. To unsubscribe from this mailing list, send an email to communications@dlapiper.com or send your written request to DLA Piper, Attention: Marketing Department, 2000 Avenue of the Stars, Suite 400 North Tower, Los Angeles, CA 90067-4704, USA. Copyright © 2019 DLA Piper LLP (US), DLA Piper UK LLP and other affiliated entities. For questions, comments and suggestions, email us at IPTnews@dlapiper.com or contact Mohib Qidwai, Marketing Manager, T +1 310 595 3043, mohib.qidwai@us.dlapiper.com. Global and US Co-Chair – Intellectual Property and Technology, Frank W. Ryan, T +1 212 335 4850, frank.ryan@us.dlapiper.com. US Co-Chair - Intellectual Property and Technology, Ann K. Ford, T +1 202 799 4140, ann.ford@us.dlapiper.com. Editor in Chief, Matt Gruenberg, T +1 310 595 3018, Matthew.Gruenberg@us.dlapiper.com. Director, Intellectual Property and Technology, Licia Vaughn, T +1 619 699 2997, licia.vaughn@us.dlapiper.com. DLA Piper LLP (US), 2000 Avenue of the Stars, Suite 400 North Tower, Los Angeles, CA 90067-4704, USA | MRS000128891