Tuesday, June 28, 2022

20 Years of Trade Secrets Scholarship

Professor Sharon Sandeen, at Mitchell Hamline School of Law, has posted an ongoing bibliography of trade secrets scholarship. It is pretty amazing. It includes books, book chapters, law review articles, and non-law review articles such as blog posts.  It contains links for many of the documents and complete citations. The bibliography looks only at relatively modern sources, from 2002-2022. Other major sources for trade secret law and scholarship include statutes and legislative history (e.g. UTSA Commentary, DTSA Senate and House Reports) as well as many excellent treatises available through Westlaw or Lexis, including Milgrim & BensenJager, and Quinto et al.  (There's also a Pooley treatise, though the author has other publications that are more easily accessible.)

Professor Sandeen produced this  bibliography with the help of Mitchell Hamline students Arneda Perkins and Amy Gustafson, and Mitchell Hamline research librarian Alisha Hennen. 

Wednesday, June 8, 2022

What does ending the COVID-19 pandemic mean from a legal perspective?

By Lisa Larrimore Ouellette, Nicholson Price, Rachel Sachs, and Jacob S. Sherkow

The COVID-19 pandemic isn’t over. The United States is averaging around 100,000 new cases per day and recently marked 1 million total deaths, and global deaths associated with the pandemic are estimated at nearly 15 million. But the U.S. legal response to the pandemic appears to be winding down, with mask mandates disappearing, an uncertain congressional response, COVID relief money running out, the end of most emergency orders at the state level, and calls for an end to federal emergency declarations. In this post, we examine COVID-related public health emergency declarations, what ending those would mean from a legal perspective, and what impact that would have on pandemic innovation policy, including access to existing COVID innovations and incentives to develop new ones.

What are the major COVID-19 emergency declarations?

Broadly speaking, public health emergency declarations give governments the power to “activate funds, personnel, and material and change the legal landscape to aid in the response to a public health threat,” generally in a manner legally different from typical law- or rule-making processes. Because public health measures often are (and need to be) wide-ranging, federal, state, tribal, and local governments all have the power to issue such declarations. And even within a given government authority, individual agencies often possess complementary but different powers to issue their own public health emergency declarations. COVID-19 has consequently prompted a large number of distinct emergency declarations, each with different legal effects.

Thursday, March 3, 2022

How do we encourage innovation on “long COVID”?

By Jacob S. Sherkow, Lisa Larrimore Ouellette, Nicholson Price, and Rachel Sachs

Since the pandemic began, numerous recovered COVID-19 patients have reported having “long COVID”: COVID-19 symptoms persisting well beyond the underlying viral infection period. Whether such a condition is specific to COVID-19, or more generally a form of “post-acute sequelae”—or even a discernable condition—has bedeviled scientists and clinicians alike. The fact remains, though, that likely millions of people in the U.S. alone will continue to report a variety of challenging symptoms more than 6 months after they’re infected. Despite this magnitude of reports, confusion regarding defining the condition and identifying its etiological basis has presented significant challenges to innovating treatments for it. In this post, we explore some of the current evidence surrounding “long COVID,” some of the difficulties in developing long COVID treatments, and how policymakers can move things along.

Wednesday, February 9, 2022

Motorola v. Hytera: Why Might Government Bring a Criminal Trade Secrets Case After a Successful Civil One?

A federal indictment was unsealed yesterday in the Northern District of Illinois, charging Hytera, a Chinese maker of radio transceivers and radio systems, with conspiracy to commit theft of trade secrets under the Economic Espionage Act. The indictment alleges that Hytera conspired with former employees of Motorola, who were working for Motorola Malaysia at the time, to steal digital mobile radio (DMR) technology developed by Motorola.  The indictment brings criminal trade secrets claims under various provisions of 18 U.S.C. § 1832, including Sections 1832(a)(2) (copies, communicates, downloads, etc.), (a)(3) (possession), 1832(a)(4) (attempt), and 1832(a)(5) (conspiracy).

It is not necessarily uncommon for the government to bring a criminal case after a civil case.  Recall in the Waymo v. Uber case, the judge in the civil case actually referred the case to the US Attorney for investigation, and he did so very early in the case, a long time before the actual trial.  Sometimes the civil plaintiff can even lose or settle the civil case, and the government still brings the criminal case anyway. That happened to Anthony Levandowski in the Uber/Wayo dispute. He was indicted and convicted, even after the companies settled the civil case.  (Trump pardoned him).

But here, Motorola had a very big win in the civil case. The Illinois district court case (Judge Norgle presiding) was decided after a full jury trial. Motorola won a massive verdict of over $700M in damages, more than half of which were punitive. See Motorola Sols., Inc. v. Hytera Commc'ns Corp., 495 F. Supp. 3d 687, 695 (N.D. Ill. 2020). (This was thereafter reduced by ~ $200M).

One might think: "isn't that enough?" Why should the government bother to pursue a criminal claim now? I will not dwell here on the obvious political motive: "We think China is stealing US trade secrets and we need to make an example of them..." even if that is probably there.  I'll put that hot potato aside and instead highlight several practical reasons why the government might be getting involved after the victorious civil case.

Friday, January 21, 2022

What are the challenges in developing information around mixing-and-matching COVID-19 vaccines and therapies?

By Rachel Sachs, Jacob S. Sherkow, Lisa Larrimore Ouellette, and Nicholson Price

The FDA has now authorized three vaccines and several treatments (including both monoclonal antibodies and small-molecule drugs) for the prevention and treatment of COVID-19. But the initial evidence supporting these products’ introduction into the market did not include information about how they might work together. Nevertheless, information about mixing-and-matching COVID-19 vaccines and therapies would be highly valuable not only to physicians and their patients, who must already make decisions about what treatment options to pursue under conditions of uncertainty (if the treatments are available), but also for policymakers, who want to know what products to prioritize for investment. Why is it so difficult to obtain this information? How can policymakers encourage its development? 

Wednesday, January 12, 2022

Jessica Litman: Who Cares What Edward Rogers Thought About Trademark Law?

Professor Jessica Litman has a fascinating forthcoming book chapter on the history of the Lanham Act and the influence of Edward S. Rogers, "Edward S. Rogers, the Lanham Act, and the Common Law. " Litman tells the history of the drafting of the Lanham Act of 1946 through the lens of Edward S. Rogers, detailing how his advocacy and drafting work influenced the final statutory text. 

Readers may be surprised to learn that Litman started research on the topic as a law student in the 1980s, while writing a student note on trade dress infringement. She went into the stacks of the Columbia Law Library and started reading bound copies of legislative history. She noticed it seemed like Rogers was everywhere, from 1932 all that way up to 1946, and that the chairs of the committees were deferring to him.  That was really interesting, she thought.  But after the note was done, she kind of forgot about it.

Now, forty years later, Litman is a professor at the very institution Rogers attended, the University of Michigan. She was surprised to find no one seemed to remember Rogers had been at Michigan, even though he "earned three law degrees and was a member of the adjunct faculty for 18 years" (3). In this book chapter, Litman is making up for that, returning to the topic of Rogers and his legacy. She's found her notes from 1981. She's read everything he wrote, and all his cases, starting in 1895 all the way until his death in 1949.

The result is a remarkably personal history of Rogers' involvement in the development of trademark law, full of contemporary details and selected quotes from Rogers' own writings. Litman's chapter, which engages extensively with the secondary literature as well as the primary sources, adds a tremendous amount to this history and to the many excellent recent articles touching on this subject, including The Lost Unfair Competition Law by Christine Haight Farley, The Erie/Sears/Compco Squeeze: Erie's Effects Upon Unfair Competition and Trade Secret Law by Sharon Sandeen, In the Shadow of the Trade-Mark Cases: The 1881 Trademark Act and the Supreme Court by Zvi Rosen, Mark McKenna's book chapter, Trademark Law's Faux Federalism, and many others.

My interview with Litman is transcribed in this post. The interview significantly deepened my knowledge of the subject and I am excited to share it with readers.