The Ever-Changing State of Intellectual Property Law Friday, March 10, 2017, Seattle, WA Presented by WSBA CLE in partnership with the Intellectual Property Law Section Tell us what you think: www.surveymonkey.com/s/17602SEA Co-Chairs and Faculty A Special Thank You to Our Program Co-Chairs and Faculty! Those who have planned and will present at this WSBA CLE seminar are volunteers. Their generous contributions of time, talent, and energy have made this program possible. We appreciate their work and their service to the legal profession. P rogram Co-Chairs Elizabeth Reilly — Patentpending PLLC, Tacoma, WA Thomas J. Satagaj — Seed IP Law Group PLLC, Seattle, WA Kevin A. Zeck — Perkins Coie LLP, Seattle, WA P rogram Faculty Theodore Angelis — K&L Gates LLP, Seattle, WA Patchen Haggerty — Perkins Coie LLP, Seattle, WA Alison Malsbury — Harris Bricken, Seattle, WA Michael E. McCabe, Jr. — Funk & Bolton PA, Baltimore, MD Scott Mckeown — Oblon, McClelland, Maier and Neustadt LLP, Alexandria, VA Robert McVay — Harris Bricken, Seattle, WA William C. Rava — Perkins Coie LLP, Seattle, WA Jerry A. Riedinger — Perkins Coie LLP, Seattle, WA Judge Benjamin Settle — United States District Court, Seattle, WA Nagendra Setty — Orrick, Herrington & Sutcliffe LLP, Seattle, WA Aravind Swaminathan — Orrick, Herrington & Sutcliffe LLP, Seattle, WA Mark Wittow — K&L Gates LLP, Seattle, WA Copyright © 2017 • Washington State Bar Association • All Rights Reserved The materials and forms in this manual are published by the Washington State Bar Association for the use of its program registrants. Neither the Washington State Bar Association nor the contributors make either express or implied warranties in regard to the use of the materials and/ or forms. Each attorney must depend upon his or her own knowledge of the law and expertise in the use or modification of these materials. The views and conclusions expressed herein are those of the authors and editors and are not necessarily those of the Washington State Bar Association or any division or committee thereof. Any websites represented by screenshots, logos or ads reproduced in the materials and forms are the copyrighted material of the website owners and are included for illustrative and educational purposes only. The Washington State Bar Association does not recommend or endorse any products or services discussed or demonstrated during the course of this seminar. Course materials accompanying the recorded product may have been reformatted or otherwise modified from those delivered in connection with the live presentation. Any such changes do not affect the substantive content of the course materials. 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • i Summary of Contents Program Schedule ...........................................................................................................iii Co-Chair Biographies. ...................................................................................................... v 1 Patent Law Year In Review ................................................................................1-1 Theodore Angelis 2 Patent Litigation Strategies in Light of Alice Corp. v. CLS Bank Int’l ....................2-1 Jerry A. Riedinger 3 The Evolution of PTAB Trial Practice - Just Because You Can, Doesn’t Mean You Should! ..............................................................................................................3-1 Scott Mckeown 4 Copyright Year in Review: 2016 Cases (Plus a Few Other Items of Note)...........4-1 Mark Wittow 5 Trademark Law - Year in Review ........................................................................5-1 Patchen Haggerty 6 Recent Developments in Generic Top Level Domain Names ..............................6-1 William C. Rava 7 Keynote Presentation ......................................................................................... 7-1 Judge Benjamin Settle 8 Data Privacy & Cybersecurity: Why It Matters to the IP Practitioner ...................8-1 Aravind Swaminathan 9 DTSA - A Review of the Defend Trade Secrets Act and its Application in the First Year Since Enactment ........................................................................................9-1 Nagendra Setty 10 Recent Developments in Cannabis Law and Intellectual Property ....................10-1 Alison Malsbury 11 Surviving The Perfect Protostorm: An Anthology of Recent IP Malpractice Decisions ..........................................................................................................11-1 Michael E. McCabe, Jr. 12 Rules of Professional Conduct (Table of Rules) .................................................12-1 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • ii Program Schedule The Ever-Changing State of Intellectual Property Law Friday, March 10, 2017 8:00 a.m. Check-in • Walk-in Registration • Coffee and Pastry Service - PATENT LAW TRACK - 8:25 a.m. Welcome and Introductions by Program Co-Chair Thomas J. Satagaj, Seed Intellectual Property Law Group LLP, Seattle 8:30 a.m. Patent Law Year In Review This presentation will recount the wild, zany, and otherwise eventful developments in patent law in 2016. We will talk about the Supreme Court’s rejections of the Federal Circuit’s damages frameworks in Halo/Stryker and Apple v. Samsung, and we will look ahead to the key issues it will decide in 2017. We also will discuss the Federal Circuit’s most notable 2016 opinions. Theodore Angelis, K&L Gates LLP, Seattle 9:30 a.m. Patent Litigation Strategies in Light of Alice Corp. v. CLS Bank Int’l Alice v CLS Bank has wreaked havoc upon enforcement of method patents, especially software and Internet patents, making “unpatentable subject matter” a critical litigation defense. Sufficient decisions from both District Courts and the Federal Circuit have occurred to provide guidance on strategies for both plaintiffs and defendants. This session will explore the best and worst of those strategies. Jerry A. Riedinger, Perkins Coie LLP, Seattle 10:30 a.m. BREAK 10:45 a.m. The Evolution of PTAB Trial Practice - Just Because You Can, Doesn’t Mean You Should! From motion practice to development of the trial record to discovery tactics, there are plenty of opportunities to shoot oneself in the foot at the PTAB. This segment will explore the significant differences between administrative trial before the PTAB and district court practices. Best practices will be discussed along with expected changes and trends going forward. Scott Mckeown, Oblon, McClelland, Maier and Neustadt LLP, Alexandria, VA 11:45 a.m. BREAK and move to Luncheon Schedule continued on next page 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • iii Program Schedule (cont.) - COPYRIGHT/TRADEMARK LAW TRACK - 8:25 a.m. Welcome and Introductions by Program Co-Chair Kevin A. Zeck, Perkins Coie LLP, Seattle 8:30 a.m. Copyright Law - Year in Review: Key Developments and Pending Cases We’ll review an active year of copyright law, looking at key decisions and pending cases concerning copyrightability/originality, fair use, public performance rights and streaming, the DMCA safe harbor, and copyright infringement and substantial similarity determinations. We’ll be looking at litigation about cheerleader uniforms, the Batmobile, monkey selfies, Star Trek fan fiction, chicken sandwiches, Madonna’s “Vogue,” Led Zeppelin’s “Stairway to Heaven,” PlumbBobs, pre-1972 sound recordings, mobile device software, stream-ripping, “Who’s on First?” -- and more. Mark Wittow, K&L Gates LLP, Seattle 9:30 a.m. Trademark Law - Year in Review We will review recent developments in trademark law, including: (1) the constitutionality of § 2(a) of the Lanham Act following In re Tam; (2) the effect of B&B Hardware; (3) the availability of preliminary injunctive relief and the presumption of irreparable harm; and (4) initial interest confusion under the Ninth Circuit’s recent decision in Multi Time Machine, Inc. v. Amazon. Patchen Haggerty, Perkins Coie LLP, Seattle 10:30 a.m. BREAK 10:45 a.m. Recent Developments in Generic Top Level Domain Names William C. Rava, Perkins Coie LLP, Seattle 11:45 a.m. BREAK and move to Luncheon 11:45 a.m. Luncheon with the Intellectual Property Section Annual Meeting and Elections Keynote Presentation: Judge Benjamin Settle, United States District Court 1:00 p.m. Data Privacy & Cybersecurity: Why It Matters to the IP Practitioner Hackers and cyber attackers are not just after personal data, many (including nation-state actors) are after trade secrets and intellectual property. Thus, preparing for such attacks and ensuring we are appropriately and reasonably protecting such information is key. In this session, we will cover proactive cybersecurity and the interplay with trade secret protections. Aravind Swaminathan, Orrick, Herrington & Sutcliffe LLP, Seattle Schedule continued on next page 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • iv Program Schedule (cont.) 2:00 p.m. DTSA - A Review of the Defend Trade Secrets Act and its Application in the First Year Since Enactment This discussion will cover the key provisions of the federal Defend Trade Secrets Act, enacted in 2016, and review the early cases in which the Act has been interpreted and applied. We will touch on the data, including individual cases, preferred jurisdictions, and the outcomes. We will discuss the extraordinary seizure provisions, temporary restraining orders involving the Act, and assess the materiality of the differences between the Act and state law trade secrets remedies. Nagendra Setty, Orrick, Herrington & Sutcliffe LLP, Seattle 3:00 p.m. BREAK 3:15 p.m. Recent Developments in Cannabis Law and Intellectual Property This session will cover the current state of intellectual property in the cannabis industry as it pertains to federal and state trademarks, trademark licensing, copyrights, trade secrets, and IP litigation. Alison Malsbury, Harris Bricken, Seattle Robert McVay, Harris Bricken, Seattle 4:00 p.m. Surviving The Perfect Protostorm: An Anthology of Recent IP Malpractice Decisions The threat of legal malpractice looms large in the private practice of intellectual property law. Whether your work is in the field of IP prosecution, litigation, or licensing, it makes no difference. Attorneys who practice in the field of IP law are at significant risk of malpractice litigation by dissatisfied clients. Moreover, although IP malpractice lawsuits are relatively rare compared to similar types of actions in other practice areas, when an IP malpractice claim hits, it usually hits hard. Relatively high defense costs, time and energy consumed on defending a claim, and the possibility of a substantial damages award can create the “perfect storm.” This session will tell the stories behind some of the most important recent IP malpractice decisions and the lessons IP practitioners and law firms can learn from those cases. Michael E. McCabe, Jr., Funk & Bolton PA, Baltimore, MD 5:00 p.m. Adjourn • Complete Evaluation Forms 5:15 p.m. Meet and Greet 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • v Co-Chair Biographies Elizabeth Reilly Elizabeth Reilly is a patent attorney and owner of the law firm Patentpending, PLLC, where she focuses her legal practice on patent prosecution, patent disputes, trademark prosecution, and trademark disputes, generally, for the individual inventor. She represents a formidable list of domestic clients in a wide variety of industries, particularly, mechanical devices, medical devices, fashion apparel, glassware, and food consumer goods. She, also, serves on the Washington State Bar Association’s Intellectual Property Executive Committee as Chair. She is a registered attorney with the United States Patent and Trademark Office; Washington State Bar; and New York State Bar. Thomas J. Satagaj Tom Satagaj is a patent attorney & partner at Seed IP Law Group PLLC, once again a U.S. News & World Report and Best Lawyers® Tier 1 patent law firm. Before joining Seed in 2006, Tom spent nearly 20 years as an embedded engineer, systems architect, and team leader in the electronics industry. Kevin A. Zeck Kevin Zeck is Counsel with the law firm Perkins Coie LLP, where he focuses his practice on patent and trade secret litigation. He has been named a Rising Star (Intellectual Property Litigation) by Super Lawyers Magazine, 2015-2016. He has also served on the Executive Committee of the Washington State Bar Association’s Intellectual Property Section since 2012, and is currently the Chair-Elect of the IP Section. He was admitted to the Washington State Bar in 2009. 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • vi Under MCLE Rules, we report hours of course attendance. Our report is based on you confirming your attendance with our CLE representative as you arrive, and the receipt of the form below from anyone who chooses to attend only part of the seminar. We ask that you complete this form and turn-in to our representative if you leave before the end of the program. Thank you, WSBA-CLE The purpose of this form is to notify the sponsor listed below if you have earned less than the available credits while attending this CLE course. You can fax your completed form to WSBA-CLE: (206) 727-8324. Under Washington State MCLE Rules (APR 11(j)(3)), sponsors must report attendance at each CLE course. The sponsor’s report is based on confirming your attendance as you arrive and the receipt of this form as you leave if you choose to attend only part of the CLE course. • If this form is not returned, the sponsor will presume that you have attended the entire CLE course and earned full credit. • If you did not attend the full CLE course, this form must be returned to the sponsor. How to calculate L&LP/Ethics/Other credits: One credit is equivalent to one hour (60 minutes) of instruction time at an approved CLE course. Credits can be obtained in quarter-hour increments: 15 minutes of instruction equal .25 credits. No credit is given for breaks. Contact the sponsor if you have questions about which sections of the program, if any, have been approved for ethics credit. For information, see the following website or contact the WSBA Service Center. http://www.wsba.org/Licensing-and-Lawyer-Conduct/MCLE/Members/Member-Online-MCLE-FAQs - questions@ wsba.org Seminar Sponsor: WSBA-CLE Seminar Name: The Ever-Changing State of Intellectual Property Law (17602SEA) Seminar Date: March 10, 2017 Approved Credits: 6.75 CLE Credits for Washington Attorneys (5.75 Law & Legal Procedure, 1.0 Ethics and 0.0 Other) Hours of Attendance: TIME OF ARRIVAL TIME OF DEPARTURE Credits Earned: L&LP Ethics Other Printed Name: Bar #: I hereby certify that I have earned the number of L&LP/Ethics/Other credits inserted above on the Credits Earned line. Signature: Date: 17602SEA • THE EVER-CHANGING STATE OF INTELLECTUAL PROPERTY LAW • vii This page left intentionally blank.