Now more than ever, technology is influencing the way we do business, communicate, move through and around the world, access and manage our homes, receive and administer healthcare, make purchases, secure information, and protect our most valuable property. Morrison Foerster keeps pace with this rapidly evolving landscape across our internationally recognized corporate, finance, intellectual property, and litigation practices. MoFo Tech brings together our insights relating to fields such as blockchain and distributed ledger, cloud and as-a-service technologies, driverless cars, drones, fintech, computer hardware and software, the Internet of Things, semiconductors, and telecommunications. The MoFo Tech blog offers real-time, in-depth analyses of the trends and complex issues shaping the global technology industry.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Scott Llewellyn’s practice focuses on complex litigation in federal and state courts around the country, with an emphasis on patent and trade secret disputes. Over the past decade, he has worked on some of the most significant, high–profile IP cases involving technology for televisions, smartphones, and self–driving cars, relying on 40 years of experience with computer hardware and software. Scott also has significant experience with business divorce cases before courts and arbitrators, involving a mix of trade secret, patent, tort, and contract claims relating to technology development and implementation.Scott also has successfully tried general commercial arbitration and agency matters, briefed and argued various appeals in federal appellate court, and tried more than 20 cases for the Denver City Attorney’s office, most of them jury trials.Scott also has an active pro bono practice, having worked on a variety of criminal and immigration appeals, and having represented Colorado criminal defense and mental health organizations in high–profile suits against the state of Colorado for violations of the constitutional rights of defendants.At MoFo, Scott serves on the board of the Morrison & Foerster Foundation. In the broader legal community, he serves on the boards of the Colorado Lawyers Committee and Drop in the Bucket (a charity that builds wells and sanitation systems in sub–Saharan Africa).After law school, Scott clerked for the Honorable Clarence A. Brimmer, District of Wyoming, and the Honorable Diarmuid F. O’Scannlain, Ninth Circuit. He was also previously an adjunct professor at the Georgetown University Law Center.

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Partner

Scott Llewellyn’s practice involves complex litigation before state and federal courts around the country, with an emphasis on patent and trade secret disputes for high-tech companies, to which he brings more than 35 years of experience with computer hardware and software, in particular relating to the processing and transmission of audio, video, voice, and other types of data. Mr. Llewellyn has also tried commercial arbitration and agency matters; briefed and argued various appeals in federal appellate court; and tried more than 20 cases for the Denver city attorney’s office, most of them jury trials.

Scott F. Llewellyn

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MoFo Tech brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry, covering fields such as blockchain and distributed ledger, cloud and SaaS technologies, driverless cars, drones, FinTech, computer hardware and software, the IoT, semiconductors, and telecommunications.

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Recentive: Federal Circuit’s Patent-Eligibility Guideposts for Machine-Learning Inventions

Japan’s Approach to AI Regulation in 2025

Federal Circuit Clarifies Requirements for Prior Art Under Pre-AIA 35 U.S.C. § 102(e)

AI Agent as a Service in Medtech - Key Considerations for Commercial Contracts

D.C. Circuit Holds that Works Created Solely by AI are Not Copyrightable

The United States Patent and Trademark Office (USPTO) just issued new rules that directly affect trademark owners.  Going forward, trademark applicants, registrants, and parties to a proceeding before the Trademark Trial and Appeal Board will need to provide their email address in USPTO filings. Unfortunately for trademark owners, unscrupulous third parties will likely take advantage of this new rule and start to use the email addresses to spam trademark owners, as they will be publicly available on the USPTO website. We therefore recommend trademark owners set up an email address specifically for the purpose of complying with the rule. Read our <a href="https://protect-us.mimecast.com/s/BF9ACxk78yUg5RYYUvEQY7?domain=www2.mofo.com">client alert.</a>

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Of Counsel

Muzamil Huq represents clients in the protection and enforcement of U.S. and non-U.S. trademark matters and other IP transactions. 

Muzamil Huq

Muzamil Huq represents clients in the protection and enforcement of U.S. and non-U.S. trademark matters and other IP transactions.

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New USPTO Rule Likely to Increase Spam

California Supreme Court Clarifies Standards for Whistleblower Claims Under California Labor Code Section 1102.5

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The United States Patent and Trademark Office (USPTO) just issued new rules that directly affect trademark owners.  Going forward, trademark applicants, registr

New USPTO Rule Likely to Increase Spam

The European Patent Office has denied two patent applications on the grounds that an AI system cannot be listed as the inventor. For the first time, the European Patent Office (EPO) has issued a ruling on its approach to patent applications that designate artificial intelligence (AI) systems as inventors. In January 2020, the EPO published its reasons for rejecting two patent applications where the inventor named on the applications was an AI system called “DABUS.” The UK Intellectual Property Office (UKIPO) has also rejected the applications on similar grounds.  What did DABUS “invent”?The “Artificial Inventor Project,” a group of patent attorneys, filed two patent applications at the EPO covering inventions that were supposedly “invented” by DABUS, an AI system developed by Dr. Stephen Thaler (the “Applicant”). One application was directed to a light emitting device that could be used as an emergency signal beacon and the other was directed to a food container device.Patent applications for these inventions were also filed at the UKIPO and the U.S. Patent and Trademark Office (USPTO).  The decisions of the EPO and UKIPOThe EPO and the UKIPO both addressed three key issues in their decisions:<ol><li>Can an AI system be named as an inventor in a patent application?</li></ol>The EPO and the UKIPO respectively applied the formal requirements of the European Patent Convention (EPC) and the UK Patents Act (UK PA), both of which require an inventor to be a named person. The EPO went one step further, stating that the requirement for an inventor to be a named person appears to be an international standard, citing a study that it had conducted on the concept of AI inventorship in multiple countries.While the UKIPO acknowledged that the idea of an AI inventor had not been contemplated when either the EPC or the UK PA was drafted, because the wording of the UK PA is clear and no other court had supported the concept of an AI inventor, the UKIPO was unable to decide that an inventor could be anything else besides a “natural person.”<ol><li>Would naming a natural person as an inventor mislead the public?</li></ol>Before the EPO, the Applicant argued that incorrectly listing a human as the inventor would mislead the public. The EPO rejected this argument, stating that the EPO does not verify the accuracy of named inventors. The EPO also pointed out that, because the application would be published, any member of the public could question or challenge its contents in national courts. <ol><li>Can an AI system transfer the right to apply for a patent to its owner? </li></ol>The Applicant argued that he obtained the right to apply for the patents from DABUS. However, both the EPO and UKIPO rejected the idea that a machine or AI system could own any intellectual property rights. If an AI system is unable to own any intellectual property rights, then it is unable to assign or transfer such rights to its owner.Will these decisions discourage the distribution of information about innovations involving AI?The UKIPO considered this point, but decided that the dissemination of information about innovations involving AI may occur in a number of ways, not just through the publication of a patent application or patent.Additionally, the UKIPO noted that recognizing an AI system as an inventor would not affect the likelihood that information about AI innovation would be available to the public because this decision would ultimately be made by the owners or developers of the AI system.What happens next?Currently, it appears that an inventor must be a named human person for a patent application filed at the EPO and the UKIPO.However, the UKIPO observed, in its decision, that the present patent system may not properly cater to inventions by AI systems, and encouraged a wider debate on this issue.As the Applicant has the right to appeal both decisions, higher courts may provide additional guidance on this issue in the future.The USPTO has not rejected these applications. On August 27, 2019, the USPTO published a Notice in the Federal Register requesting information from the public on AI patent-related issues, including whether current patent laws and regulations regarding inventorship need to be revised to take into account inventions where an entity or entities other than a natural person contributed to the conception of an AI invention or any other invention.London-based Trainee Solicitor, Danial Alam, contributed to the writing of this article.

Autodesk

HM Revenue and Customs

Home Office, Department for Communities and Local Government, Department of Health

Intel

ITworx

lastminute.com

NYSE-listed health tech company

One of UK's largest public EV charging networks

Phoenix Group

Telenor

UK Border Agency

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Senior Counsel

Alistair Maughan co-leads Morrison & Foerster's European Technology & Commercial Practice.

Alistair Maughan

Alistair advises on the deployment of new technology platforms involving, for example, the internet of things, AI and machine-learning, and blockchain and distributed ledger technology.

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Anna Yuan’s practice focuses on patent prosecution, IP due diligence, post-grant proceedings, and IP litigation support. 

Anna Yuan

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Can AI Be an Inventor? Not at the European Patent Office.

Biometric Information as Personal Information In A Brave New World of Regulatory Compliance

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The European Patent Office has denied two patent applications on the grounds that an AI system cannot be listed as the inventor. 
For the first time, the Europe

Can AI Be an Inventor? Not at the European Patent Office.

On Friday, February 7, the California Attorney General’s office published a modified set of draft regulations under the California Consumer Privacy Act (“CCPA”). These are not the Attorney General’s final CCPA regulations but rather are a modified set of draft regulations that are subject to a new public comment period. The deadline to submit written comments on the modified CCPA draft regulations is February 25, 2020 at 5:00 pm (PST).  Read our <a href="https://protect-us.mimecast.com/s/8klSCv29RwtPXgAruXpF7L?domain=www2.mofo.com">client alert.</a>

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Mary Race assists clients with a wide range of challenging privacy compliance and data security matters. Her practice focuses on managing privacy risks and helping clients develop and implement comprehensive privacy programs across a variety of industries, including tech, retail, manufacturing, advertising, social media, and communications.

Mary Race

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California Attorney General Issues Modified CCPA Draft Regulations

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On Friday, February 7, the California Attorney General’s office published a modified set of draft regulations under the California Consumer Privacy Act (“CCPA”)

California Attorney General Issues Modified CCPA Draft Regulations

It all happened quite quietly in the end. The legislation that governs the UK’s exit from the EU became law and the UK left the EU at 11 p.m. UK time/midnight CET on January 31, 2020. Read our <a href="https://protect-us.mimecast.com/s/InriCyPJ7zfQm9VzsMG63e?domain=www2.mofo.com">client alert.</a>

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Managing Partner, London

Annabel is a partner at Morrison Foerster and co-Managing Partner of the London office.

Annabel Gillham

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Not with a Bang but a Whimper: As the UK Bows Out of the EU, What's Next for UK Data Protection?

Court Allows Microsoft to Challenge Secrecy of User Data Requests

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It all happened quite quietly in the end. The legislation that governs the UK’s exit from the EU became law and the UK left the EU at 11 p.m. UK time/midnight C

Not with a Bang but a Whimper: As the UK Bows Out of the EU, What's Next for UK Data Protection?

<p style="background-color: transparent;box-sizing: border-box;color: rgb(33, 37, 41);font-size: 16px;font-variant-numeric: normal;font-variant-east-asian: normal;line-height: 26.4px;margin-bottom: 16px;margin-top: 0px;">Morrison & Foerster senior counsel Lokke Moerel authored an op-ed for IAPP’s Privacy Perspectives that discusses why risk management best practice is not fit for digital innovation. <p style="background-color: transparent;box-sizing: border-box;color: rgb(33, 37, 41);font-size: 16px;font-variant-numeric: normal;font-variant-east-asian: normal;line-height: 26.4px;margin-bottom: 16px;margin-top: 0px;">Lokke argues that innovation requires a culture of openness and transparency where joint decisions about the design of services and the risks that need to be taken can be made. <p style="background-color: transparent;box-sizing: border-box;color: rgb(33, 37, 41);font-size: 16px;font-variant-numeric: normal;font-variant-east-asian: normal;line-height: 26.4px;margin-bottom: 16px;margin-top: 0px;">Read the <a style="background-color: transparent;box-sizing: border-box;color: rgb(3, 65, 147);text-decoration-line: none;transition-duration: 0.2s;transition-timing-function: cubic-bezier(0.42, 0, 0.58, 1);transition-delay: 0s;transition-property: color;" target="_blank" href="https://iapp.org/news/a/why-this-risk-management-best-practice-is-not-fit-for-digital-innovation/">full article</a>.

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Senior Of Counsel

Among the world’s best-known privacy and cybersecurity advisers, Lokke Moerel is regularly called upon by some of the most sophisticated multinational organizations to confront their global privacy and ethical challenges. Lokke routinely offers guidance to clients when implementing new technologies and digital business models and assists them with their global cybersecurity incident response and regulatory investigations.

Lokke Moerel

Lokke Moerel is among the world’s best-known privacy lawyers. She advises companies on their global information handling governance, strategy, and compliance. “An authority on data protection matters” (Chambers 2014), Lokke is consistently ranked as a leader in data protection law in Chambers Global and Legal 500. She is also professor of global ICT law at Tilburg University, member of the Cyber Security Council of the Netherlands, the advisory body of the Dutch cabinet, and member of the Board of Trustees of WWF International.What do you like best about your work? I enjoy thinking about the data privacy issues and ethical dilemma’s presented by the new technologies, and helping companies decide on how to tune them and implement on a global basis, in an emerging regulatory environment.What do you enjoy doing in your free time? Travel with my husband and three children, the modern arts, but most of all, a good book!What individual most inspired you, and why? In my former EU-based firm, there were no female role- models (I was the first female partner with children) and partners step out at age 55. After moving to MoFo, I met women years older than me and fully at the forefront of their field. What an inspiration! I still have a whole career in front of me.

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Why the Three Lines of Defense Model for Risk Management is Not Fit for Digital Innovation

Don’t Get Caught by the Phisherman’s Hook This Tax Season

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Morrison & Foerster senior counsel Lokke Moerel authored an op-ed for IAPP’s Privacy Perspectives that discusses why risk management best practice is not fit fo

Why the Three Lines of Defense Model for Risk Management is Not Fit for Digital Innovation

The UK has announced that it will not implement a key change in the EU copyright regime after Brexit. As a result, for affected businesses, consistent Europe-wide digital compliance in the post-Brexit era just became a little bit harder.The EU Digital Copyright Directive imposes greater obligations on online content-sharing platforms to avoid users’ uploading copyright infringing content. The UK’s position means that its post-Brexit liability regime will be more favorable to content-staring platforms than in the remaining 27 EU member states.Three and a half years after the UK’s referendum, <a href="https://www.mofo.com/resources/insights/200124-brexit-withdrawal-agreement.html?utm_source=publication&utm_medium=email">Brexit has finally become a reality</a>. Given the protracted negotiations around the UK’s decision to leave the EU – and with a minimum 11-month transition period – you could be forgiven for thinking that it could take a while before UK law would begin to diverge from the EU in any material way. However, the UK now seems to be embracing its legislative freedom before Brexit has even arrived, by changing its position in relation to one of the EU’s most controversial recent laws.As we have previously reported, the EU approved a new Digital Copyright Directive in 2019 after a long and controversial legislative process. Now, however, a UK government minister has announced that the UK “has no plans” to implement that Directive. This means that the UK will have a different liability regime than the EU for uploaded or online content which infringes a third party’s copyright. Perhaps not coincidentally – given the need for the UK to negotiate new trade deals with key global partners (especially the United States) – the UK’s liability regime will be more friendly to technology service providers and operators of online platforms.Under the Digital Copyright Directive, online content sharing service providers (“OCSPs”) are required to take greater responsibility for infringing content that is shared on their platforms.  The so-called “content filtering” provision (originally Article 13, now Article 17 as passed) in the Directive was fiercely opposed by many technology providers – and was even criticized by the current UK prime minister as being “terrible for the internet”. Despite the opposition (and with the UK’s active support), the Digital Copyright Directive passed and must be implemented in the 27 remaining EU member states by June 2021.Here is a summary of the key takeaways in relation to this provision:<ul><li>Any online content-sharing service providers must obtain licences from copyright holders before hosting or otherwise making available any copyright-protected materials on their service.</li><li>If an OCSP makes available copyright-protected materials without a valid licence, in order to avoid liability for user-generated content that’s uploaded and that turns out to infringe copyright it must demonstrate that:</li></ul><div><ol><li>it made “best efforts” to obtain permission from the copyright holder; </li><li>it made “best efforts” to make specific copyrighted works or material unavailable, if so requested by the rights holder; and</li><li>it acted expeditiously upon receiving notice from the relevant rights holder to remove or block access to the infringing material, and made “best efforts” to prevent future uploads of that material – the latter being known as the “stay down” obligation.</li></ol></div><ul><li>Smaller businesses (meaning, OCSPs whose services have been available in the EU for less than three years and that have an annual turnover of less than €10 million) are only required to demonstrate that they made “best efforts” in relation to obtaining authorization from the copyright holder, and acted expeditiously in removing or blocking access to the content – so while there is still a “take down” obligation, there is no “stay down” requirement. </li><li>Despite the above “softening” of this provision, the requirement to use “best efforts” to avoid liability is still a high threshold that many OCSPs may struggle to meet.</li><li>After receiving backlash for the potential impact on legitimate acts of expression (such as the creation of GIFs or memes), this provision was amended in 2019 to carve out exceptions for “purposes of quotation, criticism, review, caricature, parody and pastiche”. </li></ul><div>The UK’s decision not to implement the Directive will mean that the UK will maintain a much lighter-touch approach than the EU to online copyright infringement – i.e., there is no ‘stay down’ obligation, and liability would only accrue to an online hosting platform that goes beyond merely acting as a “conduit,” “cache” or “host” of information. Essentially, this means that passive online service providers that operate without actual knowledge of infringing content on their services are likely to escape liability for copyright infringement, as long as they act expeditiously in taking down that content if and when they do gain actual knowledge of the content. Online platforms will not be under a general obligation to monitor content that they transmit or store (and, indeed, may lose the protection of the above carve-outs, if they did choose to monitor the content and came across infringing content that they did not take down expeditiously).By diverging from the EU position to retain more technology-friendly digital compliance standards, the UK is sending a clear message that it intends to remain “open for business” post-Brexit. Other EU Member States will have until June 7, 2021 to implement the Digital Copyright Directive into domestic legislation but the UK, which will have left the EU by then, will not be one of them.</div>

One of UK’s largest public EV charging networks

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Associate

Sana Ashcroft is an associate based in the London office of Morrison & Foerster and is a member of the Technology Transactions Group.
Sana advises on a wide range of domestic and cross-border commerci

Sana Ashcroft

Un-Levelling the Playing Field: The UK Declines to Implement the New EU Copyright Law

The UK has announced that it will not implement a key change in the EU copyright regime after Brexit. As a result, for affected businesses, consistent Europe-wi

Un-Levelling the Playing Field: The UK Declines to Implement the New EU Copyright Law

From hospitals to media companies to manufacturing plants, ransomware attacks have become increasingly prevalent and caused far-reaching impacts. As more and more of our valuable data is only stored digitally, the impact to a business from their data being rendered inaccessible is greater than ever. In addition to data loss, such incidents can present significant business and legal risks, including damage to brand and reputation, disruption of business operations, and contractual and regulatory obligations. This Masterclass on ransomware and cyber extortion features Morrison & Foerster’s John P. Carlin and Alex Iftimie, who discuss the latest threats and emerging trends, and how businesses can prepare for and respond to such attacks. Topics addressed include: • The threat landscape for ransomware attacks and cyber extortion• Potential actors, ranging from nation states to opportunistic criminals• Best practices for policies and procedures to respond to extortion demands• Considerations for whether to pay an extortion demand, and best practices should companies pay• Key decisions companies must make in responding to a ransomware attack or extortion incidentWatch our recent webinar <a href="https://www.veracast.com/mofo/mcle_programs/webinars.cfm?&idleTimeout">here</a> and apply for CLE credit.

Webinar - Ransom Proof: Hard Lessons and Best Practices for Responding to Ransomware Attacks and Cyber Extortion

From hospitals to media companies to manufacturing plants, ransomware attacks have become increasingly prevalent and caused far-reaching impacts. As more and mo

Webinar - Ransom Proof: Hard Lessons and Best Practices for Responding to Ransomware Attacks and Cyber Extortion

On December 19, 2019, the Staff of the U.S. Securities and Exchange Commission’s Division of Corporation Finance issued guidance outlining the Staff’s views about disclosure obligations that companies should consider with respect to technology, data and intellectual property risks that could arise when operations take place outside the United States. Companies should consider this guidance when preparing risk factor and other disclosures included in upcoming periodic reports and registration statements. Read our <a href="https://protect-us.mimecast.com/s/pkYiCXDkqPHNzPjXtDQ4ze?domain=www2.mofo.com">client alert.</a>

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SEC Staff Issues Guidance on Technology, Data and Intellectual Property Risks in International Operations

Why Should Your Startup Care About Intellectual Property?

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On December 19, 2019, the Staff of the U.S. Securities and Exchange Commission’s Division of Corporation Finance issued guidance outlining the Staff’s views abo

SEC Staff Issues Guidance on Technology, Data and Intellectual Property Risks in International Operations

California’s Attorney General has issued a brief advisory providing consumers with an overview of their rights under the California Consumer Privacy Act (CCPA), which went into effect on January 1, 2020, as well as additional information relating to California’s new data broker law. Although the advisory offers no new guidance on CCPA requirements, it demonstrates the Attorney General’s desire to ensure that California consumers are informed of their rights under the CCPA. The advisory also serves as an important reminder of the new California data broker law, including the new requirement for companies acting as “data brokers” to file an online registration. Read our <a href="https://protect-us.mimecast.com/s/fQX2ClYMX0hK8VWpi92NNw?domain=www2.mofo.com">client alert.</a>