LES Silicon Valley Webinar "Funding IP Enforcement to Support Licensing and Monetization"

The Silicon Valley Chapter of the Licensing Executives Society [LES] is hosting a webinar titled, “Funding IP Enforcement to Support Licensing and Monetization” on February 24 from noon to 1:30 pm [Pacific Standard Time].  Here are details concerning the event:

Program:
The LES Silicon Valley Chapter is pleased to present this webinar in which leading experts will provide insight into the funding of IP enforcement to support licensing and monetization. Whether you're trying to protect a product, license your IP or monetize, chances are that expensive litigation will be required.

The webinar will explore the various aspects of financing the litigation process, including:

• Realities of doing licensing without litigation
• Financing litigation from the point of view of funders and companies/attorneys seeking funding
• How litigation funding may influence royalty rates or asset valuation
• Examine various options that are available
• What kind of cases are most suitable for financing
• Typical deal structures
• Details of the process and how long it takes
• U.S./Non-U.S. IP assets
• Other important considerations/lessons learned

Panel:
Michael Gulliford, Founder/Managing Principal, Soryn IP Capital Management, LLC
Phil Hartstein, President and CEO, Finjan Holdings, Inc.
Jeremy Pitcock, Founder, The Pitcock Law Group
Ron Vaisbort, General Counsel & Corporate Secretary, Ivalua
Moderator: Dave Stevens, Stevens Law Group

​Panel Bios:
Michael Gulliford, Founder/Managing Principal, Soryn IP Capital Management, LLC
Michael is the Founder of the patent advisory firm Soryn IP Group, as well as its sister company Soryn Capital, which invests significant capital in a host of patent-centric opportunities.  Prior to founding Soryn, Michael was a partner in the IP Litigation group of Kirkland & Ellis LLP.  At Soryn, he is a trusted advisor and investor to a number of the world’s most prestigious universities, law firms, companies and inventors.  He guides the management of private and publicly traded companies with respect to patent strategy, and has been the name behind almost two hundred million dollars in patent related deals.  Michael has also repeatedly been recognized as one of the Leading IP Strategists in the World.

Phil Hartstein, President and CEO, Finjan Holdings, Inc.
Phil is President and Chief Executive Officer of Finjan Holdings, Inc. and oversees the direction and management of current assets and future investments as well as working with the company’s executive management team to execute the shareholders vision as a public technology company.  Phil has worked in a number of technology and intellectual property related roles for over a decade. He started with a boutique IP law firm, worked in an in-house IP function for a VC funded startup, spent time in IP consulting and IP brokerage firms, and prior to joining Finjan spent four years with two groups focused on bringing both private and public market capital, expertise, and credibility in licensing and enforcing patent rights on behalf of owners.

Jeremy Pitcock, Founder, The Pitcock Law Group
Jeremy's current practice involves counseling clients in all areas of intellectual property, with a particular emphasis on patent litigation.  He serves as lead counsel on a variety of patent matters, and has been involved in all aspects of trial and appellate practice before federal courts throughout the country.  He has successfully argued all phases of litigation including at trial and at various summary judgment and Markman hearings, in diverse fields such as, Internet and mobile technology, authentication and encryption, fiber optic networks and various optical components, network and microprocessor architecture, computer software, Ethernet routing and communications, semiconductor manufacturing and fabrication, pharmaceutical inventions and business methods. Jeremy Pitcock also has served as lead counsel in copyright (including computer-related matters), trademark and trade secret litigation.

Ron Vaisbort, General Counsel & Corporate Secretary, Ivalua
Ron is a serial general counsel to world-class software and services companies. Prior to Ivalua, Ron served as the chief legal officer to MemSQL, C3.ai, Good Technology and Trillium Digital Systems. A veteran of the technology, media, and entertainment industries, Ron has been at the forefront of numerous innovative business concepts -  as both an attorney and business leader for startups as well as Fortune 100 companies such as Intel and Toshiba. Ron’s expertise is building and leading global legal and business development teams, and spans IPO/M&A readiness, international IP creation, data privacy and protection, commercialization strategy, licensing, and technology alliances.

Moderator: Dave Stevens, Stevens Law Group
Dave’s IP practice includes patent prosecution, transactions, due diligence work, agreements, opinions (including validity, infringement, patentability, right-to-practice (RTP), and freedom-to-operate (FTO) opinions), counseling, offensive and defensive patent issues, licensing, and litigation.  The technical focus of his practice includes electronics, computer technology, automotive technology, communications, optical systems, green technologies, software, semiconductors, and mechanical devices.  He also serves as an expert witness in technical and intellectual property legal issues and has been called as a fact witness in enforcement actions involving the many patents he has written. He also is an expert in copyright (including software, publications, products and artworks, and other copyrightable forms) and open source issues. He works with foreign IP firms and foreign clients with respect to domestic and international patent prosecution, including Patent Cooperation Treaty (PCT) work.

Here is the link to register: Licensing Executives Society (LES) (lesusacanada.org).  The cost for non-LES members is $69.

U.S. Office of Special Counsel finds Misuse of Funding for Vaccine and Emergency Preparedness

The U.S. Office of Special Counsel has found that the U.S. Department of Health and Human Services has misused funding allocated for vaccine preparation and emergency preparedness over the course of many years.  The funding was intended for use by the Biomedical Advanced Research and Development Authority (BARDA).  The press release notes that some apparently referred to the “Bank of BARDA.”  The press release of the Special Counsel states:

The U.S. Office of Special Counsel (OSC) today sent letters to the President and Congress alerting them that, over the last decade, the U.S. Department of Health and Human Services (HHS) misappropriated millions of dollars Congress intended to fund vaccine research and emergency preparedness for public health threats like Ebola, Zika, and COVID-19. A whistleblower alerted OSC to the misuse of funds appropriated to the Biomedical Advanced Research and Development Authority (BARDA) within HHS. OSC referred the allegations for investigation by the agency, which was conducted by HHS's Office of Inspector General (OIG). The investigation substantiated many of the allegations, finding that since at least fiscal year (FY) 2010, the Office of Assistant Secretary for Preparedness and Response (ASPR) misused funds appropriated for BARDA and failed to accurately report this mismanagement to Congress.   

The report contains evidence that ASPR used BARDA's research funds to pay for myriad unrelated expenses, including the removal of office furniture, administrative expenses, news subscriptions, legal services, and the salaries of personnel who did not work for BARDA. The report reveals that the practice of using BARDA funds for non-BARDA purposes was so common, there was even a name for it within the agency: “Bank of BARDA." HHS OIG determined that ASPR had “violated the Purpose Statute" and “potentially violated the Antideficiency Act."

While the report does not contain a specific estimate for total funds misappropriated, it contains evidence that as recently as FY 2019, approximately $25 million was taken from BARDA's Advanced Research and Development (ARD) programs and improperly provided to ASPR. Moreover, from FY 2007 to 2016, ASPR's reporting to Congress failed to account for $517.8 million in administrative expenditures. The report found that “ASPR is unable to demonstrate that the[se] BARDA funds were used for their appropriated purposes."

In response to the findings, HHS's Assistant Secretary for Financial Resources and Office of General Counsel have initiated an internal review of the agency's use of ARD funding for FY 2015 through 2019 to identify potential Antideficiency Act violations. The agency has also hired an outside accounting firm to audit the agency's use of ARD funding, both of which are estimated to be completed by the summer of 2021.

“I am deeply concerned about ASPR's apparent misuse of millions of dollars in funding meant for public health emergencies like the one our country is currently facing with the COVID-19 pandemic," said Special Counsel Henry J. Kerner. “Equally concerning is how widespread and well-known this practice appeared to be for nearly a decade, even garnering the nickname 'Bank of BARDA.' I urge Congress and HHS to take immediate actions to ensure funding for public health emergencies can no longer be used as a slush-fund for unrelated expenses."

Senator Klobuchar Introduces Legislation to Strengthen Antitrust Enforcement in United States

Former Democrat Presidential Candidate and current Senator from Minnesota, Amy Klobuchar is the new chair of the antitrust subcommittee in the U.S. Senate.  She recently introduced new legislation designed to reign in technology companies and increase competition through antitrust law.  The Press Release from her office states:

WASHINGTON – U.S. Senator Amy Klobuchar (D-MN), the lead Democrat on the Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, introduced sweeping new legislation today to reinvigorate America’s antitrust laws and restore competition to American markets. The Competition and Antitrust Law Enforcement Reform Act will give federal enforcers the resources they need to do their jobs, strengthen prohibitions on anticompetitive conduct and mergers, and make additional reforms to improve enforcement.

“Competition and effective antitrust enforcement are critical to protecting workers and consumers, spurring innovation, and promoting economic equity. While the United States once had some of the most effective antitrust laws in the world, our economy today faces a massive competition problem. We can no longer sweep this issue under the rug and hope our existing laws are adequate,” said Senator Klobuchar. “The Competition and Antitrust Law Enforcement Reform Act is the first step to overhauling and modernizing our laws so we can effectively promote competition and protect American consumers.”

This bill is cosponsored by Judiciary Subcommittee on Antitrust and Commerce Committee members Richard Blumenthal (D-CT), Cory Booker (D-NJ), Ed Markey (D-MA), and Brian Schatz (D-HI).

Many industries are consolidating as large mergers and acquisitions increase and big companies buy out upstart rivals before they can become a competitive threat. Harmful exclusionary practices by dominant companies – such as refusals to deal with rivals, restrictive contracting, and predatory pricing – squelch competition. U.S. antitrust law enforcement against powerful firms has lagged efforts in other developed countries, particularly when it comes to enforcement against the dominant digital platforms and other large corporations. To remedy these longstanding issues, the Competition and Antitrust Law Enforcement Reform Act will:

1. Increase Enforcement Resources

For years, enforcement budgets at the Justice Department’s Antitrust Division and Federal Trade Commission have failed to keep pace with the growth of the economy, the steady increase in merger filings, and increasing demands on the agency's resources. To enable the agencies to fulfill their missions and protect competition by bringing enforcement actions against the richest, most sophisticated companies in the world, this bill would authorize increases to each agency’s annual budget.

2. Strengthen Prohibitions Against Anticompetitive Mergers

The bill would restore the original intent of Section 7 of the Clayton Act, which was designed to stop anticompetitive mergers in order to address competitive problems in their “incipiency” before they ripened and caused harm. As the law stands today due to court decisions, enforcers can block only the most egregious acquisitions, which has allowed many harmful mergers to escape scrutiny. To remedy this, the Competition and Antitrust Law Enforcement Reform Act will:

• Update the legal standard for permissible mergers. The bill amends the Clayton Act to forbid mergers that “create an appreciable risk of materially lessening competition” rather than mergers that “substantially lessen competition,” where “materially” is defined as “more than a de minimus amount.” By adding a risk-based standard and clarifying the amount of likely harm the government must prove, enforcers can more effectively stop anticompetitive mergers that currently slip through the cracks. The bill also clarifies that mergers that create a monopsony (the power to unfairly lower the prices a company it pays or wages it offers because of lack of competition among buyers or employers) violate the statute.
• Shift the burden to the merging parties to prove their merger will not violate the law. Certain categories of mergers pose significant risks to competition, but are still difficult and costly for the government to challenge in court. For those types of mergers, the bill shifts the legal burden from the government to the merging companies, which would have to prove that their mergers do not create an appreciable risk of materially lessening competition or tend to create a monopoly or monopsony. These categories include:

1.       Mergers that significantly increase market concentration

2.       Acquisitions of competitors or nascent competitors by a dominant firm (defined a 50% market share or possession of significant market power)

3.       Mega-mergers valued at more than $5 billion

3. Prevent Harmful Dominant Firm Conduct

Decades of flawed court decisions have weakened the effectiveness of Section 2 of the Sherman Antitrust Act to prevent anticompetitive conduct by dominant companies. The bill creates a new provision under the Clayton Act to prohibit “exclusionary conduct” (conduct that materially disadvantages competitors or limits their opportunity to compete) that presents an “appreciable risk of harming competition.”

4. The legislation would establish a new, independent FTC division to conduct market studies and merger retrospectives.

5. Implement Additional Reforms to Enhance Antitrust Enforcement

The Competition and Antitrust Law Enforcement Reform Act will also implement a series of reforms to seek civil fines for antitrust violations, study the effect of past mergers, strengthen whistleblower protections, and more.

“This bill will turbocharge antitrust enforcement,” said Charlotte Slaiman, Competition Policy Director at Public Knowledge. “Much-needed updates to the Clayton Act’s merger review and exclusionary conduct provisions, along with a new office at the Federal Trade Commission and more funds for antitrust enforcers, will help level the playing field for enforcers to better protect consumers from anticompetitive abuses. I’m looking forward to continuing to work with Senator Klobuchar on this and other competition policy proposals.”

"Consumer Reports appreciates Senator Klobuchar's steady leadership in working to strengthen our antitrust laws to equip them to protect a competitive marketplace and the benefits that consumers, small businesses, and workers receive from it. This legislation gives our antitrust laws an important re-set. It ensures that harmful merger trends and exclusionary conduct can be stopped before it is too late and the harm is locked in. It extends the reach of the law so that blocking others from a fair chance to compete is a violation, even before a monopoly results. And it gives our government the enforcement authority and resources needed for effective deterrence. We look forward to working with Senator Klobuchar and others to revive our antitrust laws for the marketplace of the 21st century,” said George Slover, Senior Policy Counsel, Consumer Reports.

“Senator Klobuchar’s bill puts us on a path toward tractable, actionable, achievable antitrust reform that will free consumers, workers, and businesses from the crushing economic impact of anticompetitive mergers and monopolies. This is exactly the kind of leadership we need at the moment we need it most,” said Diana L. Moss, President, American Antitrust Institute.

This legislation is endorsed by Professor Jonathan Baker of American University Washington College of Law, Professor Martin Gaynor of Carnegie Mellon University, Professor Nancy Rose of Massachusetts Institute of Technology, Professor Steven Salop of Georgetown University Law Center, Professor Fiona Scott Morton of the Yale University School of Management, and Professor Carl Shapiro of the University of California at Berkeley.