8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

As National Law Review member you are entitled to a 10% discount to the

8th ITechLaw International Asian Conference

ITechLaw’s 8th annual run of the very popular International Asian Conference will take place in Bangalore – the high technology capital of India.

The theme for India VIII is Technology Law in an Era of Changing Business Paradigms. For a glimpse of what is lined up for a discerning attendee like you, please visit http://www.itechlaw-india.com. Be sure to be one of the first to sign up for this landmark India event.

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu

Look forward to a considerable amount of debate and brainstorming. Social meets such as luncheons and gala dinners will enable attendees to indulge into fruitful networking with prospects, contacts and peers from around the world.

See you at the 8th ITechLaw International Asian Conference.

The ICC Rules of Arbitration training

ICC (International Chamber of Commerce) will run two-day practical trainings on the 2012 ICC Rules of Arbitration in Paris, for the first time since their publication

Through this training, you will:

  • acquire practical knowledge of the main changes in the 2012 ICC Rules of Arbitration on topics such as Emergency Arbitrator; Case Management and Joinder, Multi-party/Multi-contract Arbitration and Consolidation
  • apply the 2012 ICC Rules of Arbitration to mock cases, studying them in small working group sessions
  • be provided with valuable insights from some of the world’s leading experts in arbitration including persons involved in the drafting of the New ICC Rules.

The revised version of the ICC Rules of arbitration reflects the growing demand for a more holistic approach to dispute resolution techniques and serves the existing and future needs of businesses and governments engaged in international commerce and investment: The 2012 ICC Rules of Arbitration are the result of a two year revision process undertaken by 620 dispute resolution specialists from 90 countries.

Who should attend?

Arbitrators, legal practitioners and in-house counsel who wish to know more about the 2012 Rules of Arbitration.


The ICC Rules of Arbitration training

 

ICC (International Chamber of Commerce) will run two-day practical trainings on the 2012 ICC Rules of Arbitration in Paris, for the first time since their publication

 

Through this training, you will:

  • acquire practical knowledge of the main changes in the 2012 ICC Rules of Arbitration on topics such as Emergency Arbitrator; Case Management and Joinder, Multi-party/Multi-contract Arbitration and Consolidation
  • apply the 2012 ICC Rules of Arbitration to mock cases, studying them in small working group sessions
  • be provided with valuable insights from some of the world’s leading experts in arbitration including persons involved in the drafting of the New ICC Rules.

 

The revised version of the ICC Rules of arbitration reflects the growing demand for a more holistic approach to dispute resolution techniques and serves the existing and future needs of businesses and governments engaged in international commerce and investment: The 2012 ICC Rules of Arbitration are the result of a two year revision process undertaken by 620 dispute resolution specialists from 90 countries.

 

Who should attend?

 

Arbitrators, legal practitioners and in-house counsel who wish to know more about the 2012 Rules of Arbitration.


8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

 

As National Law Review member you are entitled to a 10% discount to the

8th ITechLaw International Asian Conference

 

ITechLaw’s 8th annual run of the very popular International Asian Conference will take place in Bangalore – the high technology capital of India.

The theme for India VIII is Technology Law in an Era of Changing Business Paradigms. For a glimpse of what is lined up for a discerning attendee like you, please visit http://www.itechlaw-india.com. Be sure to be one of the first to sign up for this landmark India event.

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu

Look forward to a considerable amount of debate and brainstorming. Social meets such as luncheons and gala dinners will enable attendees to indulge into fruitful networking with prospects, contacts and peers from around the world.

See you at the 8th ITechLaw International Asian Conference.

Appeal Against Exclusion From Patentability of Software to Protect Minors Online Allowed

An article regarding Patentability of Monitoring Software was posted recently in The National Law Review.  The article was written by Rohan MasseyFrancesco MattinaHiroshi SheratonVincent Schröder, and Boris Uphoff of McDermott Will & Emery:

In relation to the application by Protecting Kids the World Over (PKTWO) [2011] EWHC 2720 (Pat), the High Court of England and Wales has allowed an appeal against a decision of a Hearing Officer that found that an alarm notification system for monitoring inappropriate electronic communications fell within the computer program exclusion.

BACKGROUND

PKTWO applied to register a system for monitoring the content of electronic communications to ensure that children are not exposed to inappropriate content. The system as claimed analyses data sampled from a communication channel. Where the data is judged to be of concern, the user of the system—the child’s parent—can be notified by email or text message and by reply can send a remote response command either to terminate the electronic communication or to completely shut down the computer.

The Hearing Officer held that the invention was excluded from patentability because it related to a computer program and to a method of performing a mental act as such. PKTWO appealed to the High Court, submitting that the contribution its invention made to the state of the art had been ignored. Just before this hearing, the Comptroller withdrew the mental act exclusion and only put forward the computer program exception.

DECISION

Floyd J began by referring to the exclusion found in Article 54 of the European Patent Convention (and Section 1(2) of the Patents Act 1977) against the patentability of computer programs “as such”. He then turned to the wealth of case law on the interpretation of this exclusion, including the four step approach from Aerotel v Telco/Macrossan’s Patent Application [2007] RPC 7 that should be applied in such cases:

1. Properly construe the claim

2. Identify the actual contribution

3. Ask whether it falls solely within the excluded subject matter

4. Check whether the actual or alleged contribution is actually technical in nature.

In identifying the actual contribution made by the invention, Floyd J observed thatAerotel required that when considering the invention “as a whole”, this contribution had to be to the effect that the invention added something to human knowledge. He then went on to ascertain whether the contribution made was technical, as this had to be the case before the requirements for patentability could be met, by applying the approach set out in AT&T Knowledge Ventures [2009] EWHC 343. Furthermore, Floyd J observed that Gemstar-TV Guide International Inc v Virgin Media Ltd [2010] RPC 10 required this technical contribution to achieve a physical effect or activity as opposed to being abstract, such as simply making something “better” or producing a different display.

Applying these principles, Floyd J held that the contribution made by the claim at issue was that a more rapid and reliable alarm notification was generated. While this was not new, the particular way in which the notification was sent, i.e., sending messages to the user by email or text, was not known in the existing art and was technically superior to other known forms of notification. He held that it therefore contributed to human knowledge. He added that the invention when viewed as a whole improved the way electronic content was monitored and was therefore technical, albeit outside the computer. He held that because of this, the invention had the necessary characteristics of a technical contribution that was superior to that produced by the prior art, and therefore did not fall wholly within the exclusion. The appeal was allowed.

COMMENT

Although there is no shortage of authority on the subject of computer programs, this ruling is a reminder of how difficult it can be to navigate these issues with any certainty. The question of determining whether the contribution is technical is by far the most difficult to answer and each case has to be decided based on its own particular facts and features, using the guidelines in the case law. What this case does not address is the tension between the European Patent Office approach and the UK approach to the exclusion.

© 2012 McDermott Will & Emery

8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu

Televisual “Communication To The Public” Stays Undefined: The Law Needs to “Catchup” with Technology

Found recently in The National Law Review was an article by Rohan MasseyFrancesco MattinaHiroshi SheratonVincent Schröder, and Boris Uphoff of McDermott Will & Emery regarding Televisual Definitions:

In ITV Broadcasting Ltd v TVCatchup Ltd [2011] EWHC 2977 (Pat), the High Court of England and Wales decided to maintain its reference to the Court of Justice of the European Union (CJEU) on the issue of “communication to the public”, however the reference on “reproduction of a substantial part” was no longer necessary.

BACKGROUND

TVCatchup operates a website that allows viewers to watch live streams of free-to-air-televisions channels. The Claimants (a number of broadcasters and TV content providers) allege that TVCatchup infringes their copyrights in films and broadcasts by reproduction and by communication to the public.

TVCatchup denied infringement and, alternatively, relied on the transient copying defence under Section 28A of the Copyright Designs and Patents Act 1988(Article 5(1) of the Copyright Directive (2001/29/EC)) and the defence under Section 73 of the 1988 Act that permits cable retransmission of some broadcasts within their intended reception areas.

In July 2011, Mr Justice Floyd proposed references to the CJEU to determine whether live internet streaming of free-to-air TV channels is lawful. A further hearing was convened to consider the impact of the CJEU decisions in Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd v QC Leisure (FAPL) and in Joined Cases C-431/09 and C-432/09 Airfield NV v Sabamand Airfield NV v Agicoa Belgium (Airfield).

REFERENCES

The Claimants submitted that the decisions in FAPL and Airfield meant that a reference on the issue of “communication to the public” was no longer needed. Floyd J disagreed, stating that the CJEU’s decision in Airfield did not make it easy to distil a clear principle as to what amounts to communication to the public in this context. He therefore maintained the reference on this point.

In particular, Floyd J asked the CJEU to rule on whether, in the circumstances of there being available a free-to-air terrestrial broadcast in a given area, it amounts to communication to the public for a third party to provide the same broadcast by way of retransmission through the internet in the same area.

As for “reproduction of a substantial part”, Floyd J held that FAPL made it clear that the “rolling” approach to reproduction of Berne works was incorrect, and that the question must be asked in relation to “transient fragments”. Floyd J concluded that there was a reproduction of a substantial part of the films in the memory buffers of TVCatchup’s servers. He said that the segments of the films stored in the buffers must be sufficient to satisfy the tests as explained in FAPL. However, reproduction of the films on the screens was not established.

It therefore followed that Floyd J did not consider that this point warranted reference to the CJEU. Further, as regards broadcasts Floyd J said: “I do not see how it can be rational to apply the rolling basis to broadcasts when it does not apply to films”. Floyd J was further convinced of this fact given that: “If the Claimants fail on communication to the public the defence under Article 5(1) succeeds and there will be again no need to determine the point of law raised here”.

A further reference on the construction of Section 73 was also refused: this was a question for the national court.

COMMENT

In general, “communication to the public” has been given a rather wide interpretation by European case law. What is perhaps of most significance is that the communication has to be to a new public, i.e., not the public the broadcasters initially sent their broadcasts to. However, in this case, Floyd J was not persuaded either way: “It is not clear whether the audience reached by these broadcasts is an audience which is additional to the public targeted by the broadcasting organisation concerned”.

All of this is unsatisfactory for a number of reasons, not least because what is meant by the right of communication to the public now languishes somewhere between the ether and cyberspace while Floyd J’s reference wends its way to Luxembourg.

© 2012 McDermott Will & Emery

Going Private: U.S. Listed Chinese Companies

An article by  Sheppard Mullin’s Shanghai Office of  Sheppard, Mullin, Richter & Hampton LLP regarding U.S. Listed Chinese Companies That Want to Go Private was published recently in The National Law Review:

 

 

Many U.S. listed Chinese companies have their eye on going private, with a growing number of such transactions having recently closed. This is the combined result of the current weakness of the U.S. capital markets, significant losses in the value of many U.S. listed Chinese companies, and pessimistic market forecasts that have resulted in trading at values below what controlling shareholders, management or private equity firms may think certain companies are worth.

 

Why Companies May Go Private

 

  • To save costs. There are considerable costs associated with being listed on a U.S. exchange, including ongoing regulatory compliance and defending against shareholder lawsuits and other litigation. Further, in the case of leveraged buyouts, acquirers and targets may realize tax and accounting benefits of a more leveraged capital structure, as compared to a public company.
  • Strategic business reasons and the ability to manage the company. Private companies are not required to publicly disclose competitive information, are provided more flexible corporate governance, and can focus on business objectives rather than investor relations issues and the short-term pressures of appeasing shareholders. Moreover, a going private transaction can allow for the restructuring of a company’s businesses in ways that would adversely affect its stock prices in the short run if it remained a public company.
  • The ability to realize value. Going private may allow shareholders to realize a better price for their shares then they would otherwise realize from continuing to hold the shares or selling them on an exchange. Further, companies may go public because analysts consider a company’s share valuations to be low when compared to what the company could generate from other equity markets such as Hong Kong or Mainland China.

 

Challenges

 

Going private presents companies with challenges as well, including the inability to utilize the public markets to obtain immediate financing, a diminished public profile, and less transparency. Further, the going private process can be arduous and many such transactions are challenged in court.

 

Structures

 

A going private transaction may take various forms. Factors that influence the choice of structure include the need for outside financing, the composition of shareholders, and the likelihood of a competing bid for the company. Going private transactions are commonly structured as buyouts (either mergers or tender offers), and in some cases as reverse stock splits.

 

Special Committees

 

In order to mitigate litigation risks for the breach of fiduciary duties, boards need to ensure the fairness of a transaction to the company’s shareholders, particularly where transactions involve controlling shareholders. As such, it is common for a board to appoint a special committee of independent directors.

 

Listing in Mainland China or Hong Kong

 

Some companies plan subsequent listings in Hong Kong or Mainland China, where they speculate the valuation for their companies may be higher. For companies that were delisted or suspended from U.S. exchanges, the stigma associated with such could pose a challenge with respect to a subsequent listing, as stock exchanges and regulators require issuers to disclose their history.

 

Conclusion

 

Some basic questions that the directors and senior management of all U.S. listed Chinese companies should be asking themselves when considering going private, include: what is the most appropriate going private structure? What is a price that is demonstrably fair? Is the special committee of the board sufficiently independent? How should detailed records be maintained of board and special committee meetings, transaction negotiations and other proceedings? How can the risk of litigation be minimized?

Copyright © 2012, Sheppard Mullin Richter & Hampton LLP.

8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu

8th Annual Asian ITechLaw Conference

The National Law Review is pleased to bring you information on the upcoming 8th Annual Asian ITechLaw Conference:

ITech --8th Annual Asian ITechLaw Conference on February 23 and 24, 2012

  • 8th Consecutive event of the ITechLaw India series
  • A ringside view of Indian IT, Media and Telecom Law
  • Supported by several of the largest law firms and global associations
  • ITechLaw’s CyberSpaceCamp® to be held on February 22, 2012
  • Contemporary topics addressed by leading experts drawn from some of the best global law firms
  • Engaging debates with panelists from industry, regulatory authorities and in-house legal departments
  • Interactive sessions on issues affecting the largest IT bases in the world
  • Welcome Reception and Art Show, promoting emerging Indian artistes, allowing delegates to network with local corporates and invited guests
  • Gala Dinner and Networking Luncheons – ample networking opportunities to meet fellow professionals
  • I – Win Tea Meeting
  • In – House Counsel Breakfast Meeting
  • Exclusive golf outings on February 22 and 25, 2012
  • Make the trip a memorable experience by taking an excursion to exotic destinations across southern India, such as Mysore, Kerala and Tamil Nadu