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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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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At the Intersection of Technology, Law, and Business

At the Intersection of Technology, Law, and Business

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Current State of the AI VC Financing Market

MoFo Tech Law Summit – Tech and Antitrust: Policy Shifts in the Second Trump Administration

MoFo Tech Law Summit – Responsible Tech: Policy Becomes Practice

AI Dynamics: Regulatory Landscape and Industry Insights

Introducing the MoFo Tech Law Summit – Innovation Under Regulation

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In a bid to keep English law up to date with technological advances, the Crime (Overseas Production Orders) Bill 2018 has passed the committee stage at the House of Lords.  The proposed legislation is intended to allow enhanced judicial cooperation to tackle serious crime. However, it adds an additional layer of complexity to the compliance regulations to be followed by each business; it’s also lacking in adequate protections for individual rights, in particular in relation to data protection. In this alert, we will discuss the proposed mechanics of the overseas production order and analyse the implications it may have on companies’ data retention policies and reporting obligations. This alert will be of particular interest to technology and communication companies.Read our <a href="https://protect-us.mimecast.com/s/taZDCPN5gGSzKBVVF15sEn">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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Updating Evidence Laws for the Digital Space: Overseas Production Orders

The Madden Saga Continues: On Remand, Madden Survives Summary Judgment and District Court Certifies Class

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In a bid to keep English law up to date with technological advances, the Crime (Overseas Production Orders) Bill 2018 has passed the committee stage at the Hous

Updating Evidence Laws for the Digital Space: Overseas Production Orders

Last week, the English High Court limited the availability of collective actions for data breaches to identifiable individuals who have suffered specific and discernible damage. In Richard Lloyd v Google LLC, the Court refused to allow a representative action alleging breach by Google of its duties under the Data Protection Act 1998 (“DP Act 1998”) to proceed. The Court reinforced the need to prove “damage” resulting from data privacy breaches in order to claim compensation and continued its policy of reluctance to permit English court procedures to be used to bring U.S.-style “opt-out” class actions.The case reinforces the need to prove damage or distress when bringing data breach claims, as well as the hurdles involved in bringing representative actions in the English courts. It will also be relevant to claims for breach of the new Data Protection Act 2018 (“DP Act 2018”) (which has largely replaced the DP Act 1998) and could therefore serve as a deterrent to future claims.Read our <a href="https://protect-us.mimecast.com/s/RXqWCVO0oWI89PvycyGBW8">client alert</a>.

Lloyd v Google – English High Court Blocks Collective Data Breach Claim

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Lloyd v Google – English High Court Blocks Collective Data Breach Claim

Google Ordered to Comply with Warrant for Foreign-Stored User Data

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Last week, the English High Court limited the availability of collective actions for data breaches to identifiable individuals who have suffered specific and di

Companies acquiring or selling businesses that leverage data through technology face special challenges and risks. Focus and prioritization can assist both business principals and lawyers effectively manage these concerns.  This article offers answers to five key questions toward achieving that end.Read the full article in The M&A Journal <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltb2175331524d0a8c/627317c8a1a1dd2aa9f6ca66/180711-five-legal-risks-technology-ma.pdf">here</a>.

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Stephanie assists companies with technology and life sciences transactions, representing both private and public companies, from emerging growth through the Fortune 50. In particular, Stephanie focuses on helping companies that leverage data through technology in structuring their business and commercial transactions.

Stephanie Sharron

Stephanie Sharron is partner in the Palo Alto office and a member of the firm’s Technology Transactions Group. Clients turn to Ms. Sharron for advice on how to leverage data through technology and the related issues that apply to their business models in light of the rapid changes in business, technology and law.

Stephanie Lynn Sharron

Fertility Center Litigation

Fitbit

MicroPort

Leading Healthcare, Pharmaceutical, and Medical Device Company

Lethal Injection Matters – Major Pharmaceutical Company

Pain Pump Matters – Large Pharmaceutical Company

Major Technology Company

Leading Chemical Company

Security Device Company

In re Air Crash Near Peixoto de Azevedo, Brazil

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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

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Five Key Legal Risks for Data-Centric Technology M&A

Chinese Interest High Despite Uncertainty

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Companies acquiring or selling businesses that leverage data through technology face special challenges and risks. Focus and prioritization can assist both busi

Five Key Legal Risks for Data-Centric Technology M&A

While companies are focusing on compliance with the EU’s General Data Protection Regulation (GDPR) requirements, Californians will likely be given the option on the November 6, 2018 ballot to impose a sweeping, GDPR-like privacy regime that also deserves attention. If approved by voters in November, the California Consumer Privacy Act would require businesses to disclose the categories of personal information they collect, sell, or share about California consumers, and gives consumers a right to say “no” to the sale of their information.  The Act would also allow consumers to sue for violations (which include data breaches resulting from failure to maintain “reasonable security procedures and practices”) without suffering any loss of money or property, and would impose stiff penalties for noncompliance. Read our <a href="https://protect-us.mimecast.com/s/NqnBCYElrZFzOYZ9irKtwt">client alert</a>.

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Purvi G. Patel is the former managing partner of the Los Angeles Office. She represents retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy 

Purvi G. Patel

Purvi G. Patel defends retail, e-commerce, and other businesses in significant advertising, unfair competition, consumer fraud, and privacy matters. She has built a robust practice defending household names in complex and class action litigation in federal and state courts across the country, winning motions to dismiss, defeating class certification, and securing summary disposition in several multi-million dollar lawsuits. Purvi is a strategic and practical thinker who is in tune with her clients’ priorities, which leads to successful outcomes both inside and outside the courthouse.

Purvi Patel

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California’s GDPR? The 2018 California Consumer Privacy Act

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

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While companies are focusing on compliance with the EU’s General Data Protection Regulation (GDPR) requirements, Californians will likely be given the option on

California’s GDPR? The 2018 California Consumer Privacy Act

The Unified Patent Court (“UPC”) will be a Court common to 25 Member States of the European Union (“EU”) (currently including the UK) and thus be part of their judicial system.  The Court will have exclusive jurisdiction over traditional European patents (a bundle of national rights) to the extent patentees have not opted them out from the new system and so called “European patents with unitary effect,” a new type of patent to be issued by the European Patent Office upon request of the applicant that will confer protection over the entire territory of the participating European nations (currently Spain and Poland refuse to sign up) as one single right (for more details on the new system click <a href="https://www.unified-patent-court.org/">here</a>).  The UPC has always been regarded as a truly pro-European initiative to enhance the EU’s competitive advantage and designed to enable innovators to defend their rights across the EU in providing a less expensive and time-consuming way than current present procedure, in which patents have to be registered and enforced in individual EU countries.  On the other hand, the UPC raises the risk of centralised revocation of a patent, which could have serious implications on high value patents.Now, on Thursday, April 26, 2018, with BREXIT being less than a year away, the UK’s Intellectual Property Minister announced that the United Kingdom had ratified the UPC Agreement (“UPCA”), which is an important step towards the realisation of the new envisaged European patent system and paves the way for negotiations to ensure the UK’s continued participation in the UPC following BREXIT.  The declaration stating that the UK agrees to be bound by the UPCA and the UPC’s Protocol Privileges and Immunities (“PPI”) has been signed by the UK’s Foreign Minister and deposited with the EU Council’s General Secretariat in accordance with Article 84 UPC and Article 17 PPC (<a href="https://www.gov.uk/government/news/uk-ratifies-the-unified-patent-court-agreement">press release of UK Government</a>).  The ratification has meanwhile been confirmed on the EU’s status webpages for the UPCA (<a href="https://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2013001">here</a>) and the PPI (<a href="http://www.consilium.europa.eu/en/documents-publications/treaties-agreements/agreement/?id=2016047">here</a>).  This step is paramount, as, for the UPC to take effect, 13 EU Member States (including France, UK, and Germany) must pass national legislation to ratify the UPCA.  As of now, the UK, France, and 14 other EU countries have done so.  Germany, however, which is hosting one section of the central division of the UPC in Munich, has still to ratify and deposit its ratification instrument before the UPC can come into force. While some commentators struggle with how membership of the UPC is compatible with the stated BREXIT aim of “taking back control”, when essentially signing up to a European patent litigation system does exactly the opposite, others emphasise that the UPC is nothing but a logical evolvement of the European Patent Convention, an international patent system that (despite its name) is not exclusive to EU Member States, and that the UPC may be open to non-EU countries, too. Anyhow, first there is a short-term obstacle for the UK to join the UPC to be overcome.  Ironically, the ratification of the UPCA by Germany, one of the most pro-EU countries and a key driver behind the UPC (at least as far as the German patent professionals community is concerned) is currently on hold due to a constitutional complaint (the “Complaint”) filed at the German Federal Constitutional Court (Bundesverfassungsgericht) (“FCC”).  The Complaint has been covered <a href="https://www.linkedin.com/pulse/unified-patent-courtunexpected-roadblocks-ahead-germany-sch%C3%B6nig/">here</a> and received extensive third-party assessments <a href="http://patentblog.kluweriplaw.com/2018/01/25/eplit-brak-grur-publish-view-german-complaint-upca-ratification/">here</a>.  In essence, what is being challenged by the Complaint is, inter alia, (1) a violation of Article 4 subsection 3 and Article 19 subsection 1 of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union, as regards to the creation of an international court within the legal system of the EU; (2) non-compliance with Article 38 subsection 1, sentence 1, Article 20 subsections 1 and 2 in conjunction with Article 79 subsection 3 of the German Constitution (“GC”), as regards the qualified majority requirement under German constitutional law to sign up to the UPC; and (3) non-compliance with the rule of law principle as regards to an insufficient legal status of the UPC judges and the UPC rules of procedure—again, the Complainant is referring to Article 38 subsection 1, sentence 1, Article 20 subsections 1 and 2 in conjunction with Article 79 subsection 3 of the GC.  Details on the Complaint and the complainant can be found <a href="http://www.stjerna.de/cc/?lang=en">here</a>.Time Is of the EssenceWhile the British government repeatedly expressed their intention to ratify the UPCA despite BREXIT, the UPCA itself stipulates (at least if read literally) that only EU Member States may participate in the UPC.  But it appears that some BREXITEERS believe that the UPC is an international rather than an EU project and that in the future there may be even (other) non-EU states that may be able to join too.  Given the codified jurisdiction of the European Court of Justice over the UPC (more info on that dimension can be found <a href="http://curia.europa.eu/juris/document/document.jsf?docid=80233&doclang=EN">here</a>), we can already see all International Law experts rubbing their hands on that one.All sarcasm aside, the now effectuated ratification may be crucial for the UK’s participation in the UPC system, but it may be worth nothing if the UPC fails to enter into force before the UK is expected to leave the EU—i.e., on March 29, 2019.  Even though the Complaint has been published in the list of cases to be heard by the FCC this year, timing could be an issue for the UK’s participation in the UPC.  The UPCA will enter into force on the first day of the fourth month after receipt of the German ratification documents.  Therefore, in order to enter into force in good time (i.e., pre-BREXIT), the German approval must be obtained by the end of November of 2018 at the latest.  It is, however, completely open as to when a decision of the FCC can be expected.  The Court sought the opinions of 27 institutions, including the constitutional bodies, which were received by the end of January (see <a href="http://patentblog.kluweriplaw.com/2018/01/25/eplit-brak-grur-publish-view-german-complaint-upca-ratification/">here</a>).  Some of them are rather extensive.  Furthermore, it is speculated as to whether the complainant has gotten another opportunity to respond, for which the Court would usually grant a three-month deadline.  Only if the FCC will dismiss the Complaint as inadmissible, the German Federal President (Bundespräsident) will sign the UPCA and the PPI, and the UPC will come into force in time for the UK.  The earliest such a dismissal can be expected is mid-May of 2018.  If the Complaint is admitted, however, the case will be decided on its merits, which will be a longer process.  In this case, it cannot be ruled out that the Court will come to a decision as late as late autumn 2018 or impose conditions to remedy constitutional concerns on the German Federal Government (Bundesregierung), which could lead to further delays.It remains to be seen whether timing will prevent the UK from participating in the UPC.    ****

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Wolfgang advises clients on contentious and non-contentious matters involving their most valuable intellectual property assets in the digital, high-tech, life sciences, and pharmaceutical industries.

Wolfgang Schönig

Wolfgang Schönig is a partner of Morrison Foerster (International) LLP based in our German office in Berlin. His practice specialty is advising on IP aspects relative to transactions in, among others, the life sciences, AgTech and pharmaceuticals industry, as well as legal representation in IP disputes. Wolfgang is specialized in research and development collaborations, complex licensing agreements, technology acquisitions, know-how protection strategies, and employee invention law.

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Counsel

Robert advises companies in the healthcare, pharmaceutical, medical device, and technology industries on all aspects of intellectual property law, primarily in connection with commercial life sciences, licensing, and technology transactions. His clients range from multinational companies to startups.

Robert Grohmann

Robert Grohmann is counsel at Morrison Foerster’s German office in Berlin. As a member of the technology transactions group, he focuses on advising domestic and foreign companies and startups in all areas of technology and IP law, including patent and software licensing, employee inventions law, as well as know-how protection. Moreover, Mr. Grohmann’s expertise encompasses the judicial and extra-judicial representation in matters of trademark law, design law, and competition law.

Turn On, Tune In, and Drop Out? BREXETING UK Signs up for the UPC, Whilst Germany Is Lingering to Ratify

The Unified Patent Court (“UPC”) will be a Court common to 25 Member States of the European Union (“EU”) (currently including the UK) and thus be part of their 

Turn On, Tune In, and Drop Out?  BREXETING UK Signs up for the UPC, Whilst Germany Is Lingering to Ratify

SummaryThe European Union is finally making significant progress in implementing the first pan-EU trade secrets protection rules. The EU’s largest country, Germany, has published its long-awaited draft bill setting out how it proposes to implement trade secrets protection.The <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt5cfcc7821cd50915/627317c14886af2aa2be1106/160527harmonizationtradesecrets.pdf">EU directive on trade secrets protection</a> was agreed to in 2016 in the same month as the United States adopted its <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/bltaf19da9aae7587ac/627317c14d9f892971290243/160511defendtradesecretsact.pdf">Defend Trade Secrets Act</a>. EU Member States have had two years from adoption to implement the Trade Secrets Directive (TSD) into their national laws. While the TSD generally provides for uniform protection, Member States can implement higher standards, so all eyes have been on the German government to see how it will approach the task of conversion of the TSD rules and principles into national law.Current DevelopmentsAfter a prior version of the German draft bill on the implementation of the TSD was <a href="https://netzpolitik.org/wp-upload/2018/04/entwurf-geschgehg.pdf">leaked</a>, the German Federal Ministry of Justice and Consumer Protection (Bundesministerium für Justiz und Verbraucherschutz ‘BMJV’), on April 19, 2018, published its draft bill (Referentenentwurf) of the proposed German act on the implementation of Directive (EU) 2016/943 for the protection of trade secrets against unlawful acquisition, use, and disclosure (Gesetz zum Schutz von Geschäftsgeheimnissen, GeschGehG).  While other Member States of the EU (e.g., <a href="http://ipkitten.blogspot.co.uk/2018/04/the-danish-act-on-trade-secrets-has-now.html">Denmark</a> and Sweden) have already incorporated the TSD into their national laws, and the UK (despite Brexit) is currently analysing feedback on its <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/682184/Consultation_Trade_Secrets_Directive.pdf">Consultation on draft regulations concerning trade secrets</a>, Germany was rather slow in providing specific information on a potential transposition of the TSD into German law.  In view of the limited remaining time for the implementation (due June 9, 2018), the publication of the German draft bill is overdue and should be provided to companies and trade secrets holders, which will need to adjust their businesses and implement or adjust their trade secrets protection strategies in order to benefit from the TSD.In summary, the German draft bill widely implements the TSD “one-to-one” without making much use of the Member States’ discretionary leeway that the TSD permitted. The most important consequences for companies and other trade secrets holders relate to:(1)   the new, more objective definition of trade secrets, requiring “reasonable steps” to keep them secret;(2)   new requirements to prevent reverse-engineering (to the extent legally possible);(3)   potential restrictions on injunctive relief; and(4)   the enhanced protection of trade secrets during litigation.The draft bill is subject to ongoing public consultation, and it is likely that further changes will be made to accommodate all of the stakeholders’ requests.  We will keep you updated on developments.1.       Reasonable steps to protect trade secretsUnder both the TSD and the draft bill, trade secrets holders must take “reasonable steps” to keep their information secret.  Previously, German law adopted a rather subjective view and placed emphasis on the will of the holder of trade secrets to keep the information secret, and on whether such will was apparent from the circumstances.  Now, companies holding trade secrets will have to implement reasonable steps in order to benefit from the new rights provided for trade secrets holders.  As the authors of the Referentenentwurf pointed out, “reasonable steps” are an objective criterion.  In this regard, trade secrets holders seeking to litigate their trade secrets bear the burden of proof.  Reasonable steps include (i) physical, (ii) organisational, and (iii) contractual measures.  The BMJV noted that the reasonableness may depend on factors such as the value of the trade secrets to be protected, the underlying R&D costs, thier importance for the trade secret holder, comparable measures implemented in the company, the way of marking the information as confidential, and existing agreements with employees and business partners of the company.  2.       Reverse-engineeringUnder the heading “Permitted Use,” the Referentenentwurf states that reverse-engineering is a permitted means for obtaining trade secrets.  Despite its two subcategories, the German draft bill seems to be a one-to-one implementation of the respective provision of the TSD.  Similar to the TSD, the German draft bill refers to contractual possibilities to protect products against reverse-engineering.  To the extent legally possible, companies are advised to start reviewing their existing agreements (including, e.g., cooperation, R&D, and know-how agreements), and to amend them if necessary.  3.       Restriction of injunctive relief The claim for injunctive relief provided in the Referentenentwurf is subject to a proportionality test.  In certain cases, pecuniary compensation shall suffice as a remedy.  This represents a doctrinal change, as previously an injunction was the default remedy.  It remains to be seen how German courts will make use of these provisions, and whether this means a deviation from the German system of a default injunction as a result of trade secrets misappropriation, with little to no wiggle room for the infringer.  4.       Protection of trade secrets during litigationThe Referentenentwurf provides important improvements for trade secrets holders seeking to litigate misappropriation of their trade secrets in Germany.  Herein lies the true value of the draft bill.  Currently, German procedural law provides little to no protection to ensure the secrecy of information in legal proceedings.  For trade secrets, the saying often was: “Lose the trade secret, or lose the trial.”Now, most importantly, parties to the litigation, as well as legal representatives, witnesses, experts, and other persons participating in the trade secrets litigations, are legally obliged to keep information secret which has been classified by the competent court as a trade secret.  This secrecy obligation continues even after the end of the litigation.  Violation of this obligation can trigger a fine in the amount of €1,000.  Following heavy criticism, it is likely that the fine will be increased significantly during the legislative process.The draft bill provides for a certain procedure that can be initiated by a plaintiff in parallel to filing a complaint for trade secrets misappropriation.  When filing a complaint, a plaintiff may provide a redacted copy of the complaint, together with a motion requesting service of the redacted complaint only.  To benefit from the trade secrets protection, a trade secrets holder has only to provide credible evidence (Glaubhaftmachung), something which can be provided in the form of an affidavit under German law.  A competent court will then decide on the request per a court order (Beschluss), which can be rendered without a prior hearing in order to not jeopardise the secrecy of the (alleged) trade secrets.  If the request of the plaintiff is successful, the defendant can attack the court order, together with the judgment, following the trial (on the appeal level) only.  This is to make sure that there is no delay in the litigation.  If, however, the court does not intend to grant the plaintiff’s motion to protect its trade secrets, the court will provide the plaintiff with the reasons and request further information from the plaintiff as to why the alleged trade secrets should be protected.  In the case of a subsequent rejection by the court, the trade secrets holder can file an immediate appeal (sofortige Beschwerde).  We understand that this procedure can be repeated with every court brief filed during litigation if there are new trade secrets that need to be protected as well.  While protective measures may be requested by the trade secrets holder, the competent court is free to decide about additional appropriate measures ex officio at its own discretion.  Such measures include, e.g., the exclusion of the public from oral hearings and further restrictions on file inspection requests.While this procedure is certainly a major plus for trade secrets holders, there is one restriction stemming from the TSD which Germany had to, and did, implement in the draft bill.  At least one natural person and one legal or other representative of the defendant in the trade secrets litigation must have access to both the unredacted documents and the oral hearings.  This exception constitutes a certain factual risk for the trade secrets holder, since the disclosure of a trade secret to the (alleged) infringer – often a competitor – may lead to further disclosure inside the infringer’s company and ultimately lead to the competitive advantage of the infringer.  When deciding about a protective measure, German courts have to consider the principle of proportionality and strike a fair balance between the infringer’s right to a fair trial and effective judicial protection, on the one hand, and the trade secrets holder’s interest in keeping its trade secrets. on the other hand.  Since due process of law is an important principle under German law, we expect that the exact scope of the procedure will be further specified by future case law.  In this respect, the draft bill states that trade secrets chambers (Geschäftsgeheimniskammern) of the regional courts (Landgerichte) shall have exclusive jurisdiction over trade secrets disputes (Geschäftsgeheimnisstreitsachen).  The draft bill provides for the possibility to transfer judicial power from one state to another.  It remains to be seen whether German states will make use of this possibility.  The concentration of know-how regarding a specific type of litigation is already known from IP litigation (e.g., patent disputes are mainly litigated in Düsseldorf, Mannheim, and Munich), and could further improve trade secrets litigation in Germany.

German draft bill on the implementation of the EU Trade Secrets Directive

Summary
The European Union is finally making significant progress in implementing the first pan-EU trade secrets protection rules. The EU’s largest country, Ger

German draft bill on the implementation of the EU Trade Secrets Directive

After the biggest challenge yet to the Patent and Trademark Office’s popular inter partes review proceedings, the name of the game is largely “same old” for today’s Supreme Court decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712. The Court rejected the argument that the PTO’s post-grant review of patents violates the Constitution. In the separate SAS Institute Inc. v. Iancu decision (the subject of a forthcoming alert) the Court reversed the PTO’s practice of adjudicating some, but not all, claims challenged by an inter partes review petitioner.Read our <a href="https://protect-us.mimecast.com/s/irqpClYMX0hB52AMfDWrsj">client alert</a>.