SEC Approves Making Material Disclosures on Social Media

The SEC recently approved of executives making material disclosures about their company via social media sites like Facebook and Twitter.  I find this fascinating for two reasons.  First, because of the change this brings to the painful securities disclosure regulatory scheme that has been in place for so long, which has required companies to disseminate information broadly and non-exclusively through filings and press releases.  Often cumbersome, but at least it was consistent and predictable for the investing public.  And second, because this information could now be at risk of being released without the sanitizer of the company's PR and legal departments.  

So now investors will have to follow the feeds and tweets of corporate officers to keep up with the latest material information -- as long as the company tells them to look there.

SCOTUS to Determine Whether Reselling Used Books is Copyright Violation

It may have been overshadowed by the drama and tragedy of hurricane Sandy this week, but the U.S. Supreme Court heard arguments on a case which may determine whether you will be able to sell a used book on eBay or other reseller web sites. In Kirtsaeng v. John Wiley & Sons, Inc., a student, through his family in Thailand, legally purchased books that were published there by a U.S. publishing house.  That publisher, like many others, publishes similar versions of their U.S. titles in foreign countries at cheaper prices.  After the student resold the books on eBay, the publishing company argued that his actions amounted to copyright infringement because the U.S. copyright laws give the owner of the copyright the exclusive right to import copies of a work from outside the United States.  The student argued that another provision of the copyright laws give a purchaser of a particular copy of a work "lawfully made under this title" of the copyright law the right to resell the book without getting the permission of the publisher.  The case could have a dramatic impact on e-commerce and online resale sites and is being closely watched by both sides.

The trial court and the Second Circuit Court of Appeals both sided with the publisher. The U.S. Supreme Court decision is expected by the end of its term in June, 2013.

Will Software Patents Destroy the Smartphone Industry?

I will admit it.  I am an Apple junkie.  Our house is home to two Macs, two iPhones, an iPad, and an iPod Touch (not to mention a few old devices gathering dust in a bin).  But I am also a bit torn on the patent battles that continue to rage between smartphone companies.  The iPhone, for example, completely revolutionized the mobile phone industry and all of the other device manufacturers "emulated" it.  If you don't believe me, check out this graphic.  But the headlines over lawsuits, injunctions, and other forms of legal maneuvering are becoming daily reading. Now it's about to get worse.  Apple was granted a number of patents this week that will only make the patent battles more absurd.  In particular, the United States Patent and Trademark Office granted a patent to Apple relating to the iPhone's graphical user interface for displaying electronic lists and documents, which, in particular, according to Patently Apple "covers UI modules covering blogging, email, telephone, camera, video player, calendar, browser, widgets, search, notes, maps and more importantly, a multi-touch interface."  If you thought the battles over software patents so far were ridiculous (and many serious people do), these new patents should bring it to a new level and keep patent lawyers salivating.

Does Your Startup Need a Patent? Maybe Not So Much.

With all of the talk in the news recently about the increasing hostile patent wars between tech companies (see the ongoing Apple v. Motorola saga that was thrown out of court in a big way today), it would seem natural that startups would be getting in on that trend early to protect their ideas.  However, an interesting report that came out this week seems to indicate that that is not necessarily the case.

"Despite the overall decline in application activity, those companies that have chosen to pursue patents have done so more aggressively than ever. This is indicative of the increasing dichotomy in the marketplace, in which some thought leaders are actively speaking out against certain types of patents while patent portfolios are being bought and sold for lucrative amounts."

That sounds right to me.  Many of my startup clients will about the feasibility of obtaining a patent early on.  There is a common perception that they need to formally protect their idea to maintain a competitive advantage.  That still may be true in some industries (see, e.g., biotech and semiconductors), but for many entrepreneurs starting companies in the ecommerce and web space, the time and expense of obtaining and protecting a patent is just not worth it.