Copyrights, Patents, and Trademarks — A Practical Guide to Intellectual Property
In today’s knowledge-driven economy, intellectual property (IP) stands as a cornerstone for innovation and business success. Understanding the nuances of copyrights, patents, and trademarks is essential for professionals across various fields. This guide delves into the legal and financial dimensions of these IP categories.
Understanding Intellectual Property
IP covers creations of the mind, ranging from inventions, literary and artistic works, and designs to symbols, names, and images used in commerce. These intangible assets are protected by law, enabling creators and businesses to control and benefit from their use.
Allan Grafman of All Media Ventures emphasizes that recognizing and safeguarding your IP is not just a legal necessity but a strategic business move.
Copyrights: Safeguarding Creative Expressions
Copyrights grant creators exclusive rights to their original works, covering a broad spectrum from literature and music to software and architecture.
Scope of Copyright Protection
Copyright protection applies to:
Literary Works: Books, articles, and poems.
Musical Works: Songs and instrumental compositions.
Artistic Works: Paintings, sculptures, and photographs.
Architectural Works: Building designs and blueprints.
Software: Computer programs and applications.
It’s crucial to note that while the expression of an idea is protected, the idea itself is not. As Patrick Reilly of Spike Dynamics explains, copyright safeguards the unique expression, not the underlying concept.
Registration and Its Benefits
While copyright protection is automatic upon creation, formal registration with the US Copyright Office offers significant advantages:
Legal Enforcement: Ability to file infringement lawsuits.
Public Record: Establishes a public claim of ownership.
Statutory Damages: Eligibility for statutory damages and attorney’s fees in litigation.
Timely registration, preferably within three months of publication, strengthens these protections.
Duration of Copyright
The length of copyright protection varies:
Individual Authors: Life of the author plus 70 years.
Corporate Works: 95 years from publication or 120 years from creation, whichever is shorter.
Understanding these timeframes is vital for managing and planning the use of creative assets.
Fair Use Doctrine
The fair use doctrine permits limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, determining fair use involves a nuanced analysis of factors like purpose, nature, amount used, and market effect.
Patents: Protecting Innovations
Patents provide inventors with exclusive rights to their inventions, preventing others from making, using, or selling the invention without authorization.
Types of Patents
There are three primary categories of patents:
Utility Patents: For new and useful processes, machines, manufactures, or compositions of matter.
Design Patents: Protect new, original, and ornamental designs for manufactured articles.
Plant Patents: Granted for the invention or discovery of a distinct and new variety of plant that is asexually reproduced.
Criteria for Patentability
To secure a patent, an invention must be:
Novel: Not previously known or used by others.
Non-Obvious: Not an evident development to someone with ordinary skill in the field.
Useful: Demonstrably functional and operative.
Meeting these criteria requires thorough documentation and, often, a strategic approach to research and development.
Patent vs. Trade Secret
Businesses must decide between patenting an invention, which requires public disclosure, or maintaining it as a trade secret, which involves keeping the information confidential to gain a competitive edge. Each approach has its own legal and financial implications.
As Allan Grafman notes, choosing between patent protection and trade secrecy depends on the nature of the invention and the business strategy.
Trademarks: Building Brand Identity
Trademarks protect symbols, names, and slogans used to identify goods or services, serving as a company’s brand identity.
Importance of Trademarks
Trademarks distinguish products or services in the marketplace, helping consumers identify the source and quality. They can take various forms:
Words and Phrases: Brand names and slogans.
Logos and Symbols: Graphic representations.
Colors and Sounds: Distinctive hues or jingles associated with a brand.
Brian Landry of Saul Ewing LLP emphasizes that a strong trademark is invaluable for fostering consumer trust and loyalty.
Benefits of Trademark Registration
While common law provides some trademark protection based on use, federal registration with the US Patent and Trademark Office (USPTO) offers significant legal and financial advantages:
Nationwide Protection – Registration establishes exclusive rights across the US, unlike common law, which is limited to geographic areas of use.
Presumption of Ownership – A federally registered mark creates a legal presumption of the registrant’s ownership, making it easier to enforce rights in court.
Public Notice – The mark is listed in the USPTO database, warning potential applicants of an existing claim.
Ability to Sue in Federal Court – Owners of registered trademarks can bring infringement cases in federal court, often leading to higher monetary damages.
Stronger Legal Position – The USPTO actively prevents similar marks from being registered, reducing the risk of disputes.
David Perry of Blank Rome LLP notes that registering a trademark is an investment in your brand’s longevity, because it adds legal muscle to your ability to protect and expand your business.
How To Lose Trademark Rights
Even a federally registered trademark is not invincible. Here are some common ways businesses lose trademark protection:
Abandonment – If a trademark isn’t used for three consecutive years, it is presumed abandoned.
Genericide – A trademark can lose protection if it becomes the generic term for a product or service. Examples include:
Escalator (formerly a trademark of Otis Elevator Co.)
Aspirin (originally trademarked by Bayer)
Thermos (once a brand name but now a generic term for vacuum flasks)
Naked Licensing – If a trademark owner allows others to use the mark without proper quality control, it may lose its distinctiveness.
Failure to Renew – Trademark registrations must be maintained between the 5th and 6th year after registration, and again by every 10th anniversary.
Patrick Reilly warns that brands that don’t enforce their trademark risk losing it. Vigilant protection is key to maintaining brand integrity.
Trademarks vs. Domain Names
A common misconception is that owning a domain name (e.g., example.com) automatically grants trademark rights — it does not. A domain name is merely an internet address, while a trademark identifies and protects brand names, products, and services.
If a business secures a great domain name but does not use it as a trademark, another company could potentially claim trademark rights and force the domain to be surrendered. To avoid disputes, businesses should register both the trademark and relevant domain names.
Trademark Infringement: What To Do If Someone Uses Your Mark
If another business uses a confusingly similar trademark, it is important to determine whether legal action is necessary. This typically follows a step-by-step approach:
Investigate – Confirm when and how the infringing party is using the mark.
Send a Cease-and-Desist Letter – This formal letter notifies the infringer of your rights and requests that they stop using the mark.
Negotiate – In some cases, an agreement can be reached, such as:
Licensing the mark
Coexisting under specific conditions
File a Lawsuit – If the infringer refuses to stop, litigation may be necessary. Courts consider:
Strength of the original mark
Similarity of the marks
Similarity of the goods/services
Evidence of consumer confusion
Intent of the infringer
If successful, the trademark owner may recover damages, the infringer’s profits, and attorney’s fees.
Brian Landry adds that a proactive enforcement strategy prevents dilution and protects a brand’s value in the long run.
Patent Rights: A Barrier to Competition
Patents provide an exclusive right to inventors, allowing them to monopolize their innovations for up to 20 years. This exclusivity creates a competitive advantage, making patents highly valuable in technology, pharmaceuticals, and industrial design.
When Should a Business Patent an Invention?
Patents are most valuable when they:
Provide a technological breakthrough (e.g., new drug formulas, AI algorithms)
Offer long-term competitive advantage
Have high commercial potential
Are difficult to keep as trade secrets
Filing a patent requires disclosure of the invention, so businesses must weigh the risk of revealing confidential details. Allan Grafman notes that a trade secret may be preferable over a patent if secrecy is your priority.
Patent vs. Trade Secret
Feature
Patent Protection
Trade Secret Protection
Duration
20 years max
Indefinite (as long as secret is maintained)
Disclosure
Public (via USPTO)
Confidential
Cost
High (filing, maintenance, legal fees)
Low (no government registration)
Enforcement
Strong (lawsuits for infringement)
Weak (once disclosed, lost forever)
A trade secret (e.g., Coca-Cola formula) can last indefinitely, whereas a patent expires after 20 years, allowing competitors to use the technology.
Monetizing IP: Licensing and Assignments
Intellectual property is a financial asset that can be licensed or sold for profit.
Licensing vs. Assignment
Licensing: The IP owner retains ownership but grants usage rights for a fee (royalty payments).
Assignment: The IP owner sells all rights permanently.
Licensing is common in entertainment, technology, and pharmaceuticals, where companies profit from allowing third parties to use their patents, trademarks, or copyrighted content.
Patrick Reilly highlights that licensing can generate passive income, but owners must ensure strict contractual terms to avoid loss of control.
Conclusion: Why IP Protection Matters
Intellectual property rights drive economic growth, foster innovation, and enhance brand value. Businesses must actively protect and enforce their rights, whether securing a copyright, patenting an invention, or registering a trademark.
IP is an asset class that should be treated with the same diligence as real estate or stock portfolios. By understanding the legal and financial intricacies of intellectual property, businesses and professionals can protect their innovations, strengthen their brands, and maximize long-term value.
To learn more about this topic, view the webinar Copyrights, Patents, and Trademarks…Oh My!. The quoted remarks referenced in this article were made either during this webinar or shortly thereafter during post-webinar interviews with the panelists. Readers may also be interested in reading other articles about intellectual property protections.
This article was originally published here.
©2025. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
US Treasury Issues Interim Final Rule That Removes the Requirement for US Companies and US Persons To Report Beneficial Ownership Information to Fincen Under the Corporate Transparency Act
The Financial Crimes Enforcement Network (FinCEN) announced on March 21, 2025, that FinCEN had issued its Interim Final Rule that provides that FinCEN will not require US companies and US persons to report beneficial ownership information (BOI) to FinCEN under the Corporate Transparency Act (CTA).
In the Interim Final Rule, FinCEN revised the definition of “reporting company” in its implementing regulations to mean only those entities that are formed under the law of a foreign country and that have registered to do business in any US State or Tribal jurisdiction by the filing of a document with a secretary of state or similar office (formerly known as “foreign reporting companies”). FinCEN also exempts entities previously known as “domestic reporting companies” from BOI reporting requirements.
Thus, through this Interim Final Rule, all entities created in the United States — including those previously known as “domestic reporting companies” — and their beneficial owners will be exempt from the requirement to report BOI to FinCEN. Foreign entities that meet the new definition of a “reporting company” and do not qualify for an exemption from the reporting requirements must report their BOI to FinCEN under new deadlines, to be determined following receipt of comments from the public and publication in the Federal Register. These foreign entities, however, will not be required to report any US persons as beneficial owners, and US persons will not be required to report BOI with respect to any such entity for which they are a beneficial owner.
The Interim Final Rule will be effective immediately. In accordance with the Congressional Review Act, FinCEN has determined that “FinCEN for good cause finds that providing public notice or allowing for public comment before this Interim Final Rule takes effect is impracticable, unnecessary, and contrary to the public interest.”
The Interim Final Rule may be reviewed here.
While the March 21st, 2025, Interim Final Rule eliminates the CTA’s reporting requirements for “domestic reporting companies” and US persons, FinCEN could conceivably reverse or further revise such modifications with limited or no prior notice or comment. While this is not anticipated at this time under the current administration, companies and practitioners should continue to monitor CTA developments. The CTA also remains subject to various legal challenges.
For more information, click here.
Alexander Lovrine contributed to this post.
Greenpeace Found Liable for Supporting Unlawful Protests
A jury in North Dakota recently ordered the environmental group Greenpeace to pay more than $660 million dollars in damages to a Texas-based energy company. While commentators have focused on Greenpeace’s tenuous future in the wake of the decision, the more important outcome is that the trial set an important precedent that violent protests cannot be excused as a form of free speech.
The trial centered on protests surrounding the construction of the Dakota Access Pipeline, which was the subject of months-long protests that involved violent threats, attacks, vandalism, and property destruction. In the aftermath, the company operating the pipeline, Energy Transfer, sued Greenpeace International, its US affiliate, and its financier the Greenpeace Fund for damages.
During the trial, Energy Transfer presented evidence demonstrating Greenpeace’s well-coordinated efforts to encourage and organize the protest efforts. Most notably, Greenpeace provided funding and training to the Red Warrior Society, a resistance group that led the most destructive and violent actions during the protests.
Although Greenpeace leadership testified that the group would never direct a campaign that supported violence, the evidence presented brought those statements into question. Energy Transfer pointed out that Greenpeace continued to lead supply drives for the Red Warrior Society through the middle of September 2016, more than a month after that encampment began some of its violent confrontations with law enforcement and construction workers.
As part of its coordination efforts, Greenpeace reportedly provided the protesters with $21,000 as part of a “rapid response grant,” and sent them other materials such as lockboxes which were used to help protesters tie themselves to equipment, and propane canisters that could be lit and thrown at security and construction workers.
In addition to training and funding protesters, Greenpeace spread baseless accusations about Energy Transfer as part of a bid to shut down financing for the pipeline’s construction. The group circulated statements claiming the company had “deliberately desecrated documented burial grounds” and was building the pipeline across tribal land.
In fact, the pipeline does not cross any of the Standing Rock Sioux Tribe’s land or encroach on the tribe’s water supply. During the trial, it was also revealed that Energy Transfer had attempted to meet with the tribe to discuss their concerns before the pipeline’s construction. The tribe’s leadership refused but other tribes accepted the invitation, leading to 140 modifications to the pipeline’s route to accommodate cultural sites.
During the trial, Greenpeace attempted to downplay its role in the protest efforts. But Energy Transfer presented the jury with an email from Greenpeace USA’s executive director in 2016 to its board members saying the organization had played a “massive role” in the protest efforts “since day one.”
Throughout the months-long protests, moreover, Greenpeace was eager to claim credit for its role and raised millions of dollars spreading misleading claims about Energy Transfer and the pipeline project.
While the pipeline was eventually constructed, Energy Transfer cited the protests as the cause for a five-month construction delay. Greenpeace is finally paying the price for costing the company millions of dollars in lost profits and shareholder value.
Greenpeace has argued publicly that this case could have a chilling effect on protests and free speech, but as I wrote before the trial “it’s not Greenpeace’s speech or public positioning that the lawsuit questions—it’s the organization’s conduct.”
The jury has now spoken: perpetrators of violence and vandalism cannot avoid accountability merely by claiming it’s their First Amendment right. It’s a powerful reminder to radical environmentalists and other groups that destroy property and stoke violence in a misguided attempt to draw attention to their causes.
The views and opinions expressed in this article are those of the author and do not necessarily reflect those of The National Law Review.
What Next for Diversity and Inclusion Initiatives in Financial Services? (UK)
As was widely reported in the press, the FCA and Prudential Regulation Authority both recently issued announcements (FCA announcement / PRA announcement), the contents of which are variously being reported as “a retreat from efforts to help under-represented groups” (as per the Guardian) and, by contrast, a welcome “response to criticism that [the proposed new rules on D&I] would add an onerous reporting burden for firms and create overlap with government proposals to legislate in this area” (as per the Financial Times).
So is the FCA abandoning its D&I efforts, reducing the heat under them, or simply aligning its efforts with Prime Minister Starmer’s aims of reducing regulatory burdens and boosting economic growth?
Of course, the proof of the pudding is in the eye of the beholder, or something like that (please excuse the potentially messy mixed metaphor), so to assist in sorting fact from fiction, here is our high-level summary of what has been announced and what it means, probably.
Joint FCA and PRA update on D&I – proposed changes not going ahead
In 2023 the PRA and FCA each published a consultation paper entitled, respectively, “D&I in PRA-regulated firms” and “D&I in the financial sector – working together to drive change”. The proposals within the papers were largely aligned but did diverge in some respects. Their stated aim was to “drive change” by linking D&I to a firm’s overall strategy, ensuring that strategy is embedded in the firm’s day-to-day operations and culture, requiring firms to gather extensive D&I data to inform improvement, and developing an understanding of “what good looks like” across the sector. These proposals were fairly complicated and imposed some potentially very onerous requirements (see our Roadmap published at the time here for a reminder: D&I in the Financial Sector Roadmap).
At that stage, it looked very likely that the rule changes would go ahead – it was very much a “when”, not an “if”. Soon thereafter, however, the House of Commons Treasury Committee Report on “Sexism in the City” on 5 March 2024 pushed back on the extensive data gathering and reporting requirements under the regulators’ proposals.
“We welcome the focus of the PRA and FCA on diversity and inclusion in financial services, and agree they have a role to play. We have concerns, however, about their proposals to require firms to implement strategies, collect and report data and set targets. These requirements would be costly for firms to implement and have unclear benefits, while not capturing the many smaller firms that we have heard have some of the worst cultures and levels of diversity. We are also concerned that the requirements would be treated by many firms as another ‘tick-box’ compliance exercise, rather than necessarily driving the much-needed cultural change. Instead, we recommend that all financial services firms, particularly private businesses, hedge funds and other smaller firms, sign up to the voluntary Women in Finance Charter. We recommend that the regulators drop their plans for extensive data reporting and target setting. In our view, a lack of diversity is a problem that the market itself should be able to solve without such extensive regulatory intervention. Boards and senior leadership of firms should take greater responsibility for improving diversity and inclusion given that it should lead to a competitive advantage in the development of talent. Firms that perform best on diversity and inclusion and have the best cultures should be able to benefit from the clear business advantages this provides, leaving those that perform badly in these areas to suffer the consequences for their reduced competitiveness and profitability.”
In short, whilst the Treasury Committee was very much in favour of increased D&I in financial services, it did not believe that extensive reporting of data and target setting was the way to achieve that.
Since then, there has been a significant political sea-change in the UK with the new Labour government holding a significant mandate to make sweeping legislative changes, many of which deal with D&I. As such, it is perhaps not surprising that the regulators have reconsidered their positions and the FCA and PRA have now confirmed that “in light of the broad range of feedback received, expected legislative developments and to avoid additional burdens on firms at this time, the FCA and PRA have no plans to take this work further”.
Our view: Undoubtedly, the proposals made by the FCA and PRA would have placed a significant regulatory burden on financial services firms. The announcements made refer expressly to the pushback from Treasury Committee, but equally both reiterate that D&I within regulated firms can “deliver improved internal governance, decision making and risk management”, i.e their position is that they are not turning their back on D&I, just on the onerous reporting requirements. In terms of those “expected legislative developments” (as per the FCA and PRA’s statements), Labour has indeed announced various proposals in this regard, including ethnicity and disability pay gap reporting (see here for a recap: Labours New Employment Rights Bill – Key Changes UK). There is arguably some sense in waiting until that legislation is passed before moving forward (if at all) with any specific new rules for the financial services sector. That said, as some of the press coverage notes, this does come amidst a wave of D&I rollbacks in the US. There had been speculation about what impact those rollbacks might have in other jurisdictions. While this decision from the PRA and FCA does not seem to be a direct result of the situation in the US, it does undoubtedly add to the overall geopolitical picture, where the perceived value of D&I initiatives is increasingly scrutinised.
The proposed new Non-Financial Misconduct (NFM) rules remain on the agenda, but are given some more thought
Another aspect of D&I high on the FCA’s agenda in recent years has been NFM, following trenchant criticism from regulated firms and professional advisers. Specifically, the FCA has taken flak for its new rhetoric on bullying and discrimination being noticeably at odds with the types of NFM about which it took most enforcement action in the past (this was largely confined to serious criminal activity and dishonesty). That mismatch, combined with a lack of a clear definition or guidance or obvious understanding of the nuances of either bullying or harassment at law, has made it difficult for firms to know the relevance of NFM to their fitness and propriety assessments and when giving regulatory references in any particular set of circumstances.
However, the FCA has committed to fixing this issue and the consultation paper referred to above (“D&I in the financial sector – working together to drive change”) included a very lengthy explanation of how NFM should be defined and when it would be relevant to fitness and propriety (see Appendix 1 to the consultation paper).
Towards the end of last year, the FCA suggested that it was prioritising proposals to tackle NFM and that final rules on its definition and relevance would be published early in 2025. However, while the FCA has confirmed that tackling NFM remains a priority, it has now stated that it “is important that [the] approach is proportionate and aligned with planned legislation. The legislative landscape has also changed since [it] consulted”. The commitment to provide detail on next steps is now only “by the end of June”.
Our view: It seems very likely that the NFM proposals will proceed in some form. The loss of regulatory face if they do not would be too great. However, we note the reference to the importance of the approach being “proportionate” and “aligned with planned legislation”. Labour’s new Employment Rights Bill includes various proposed changes to the rules on harassment which might be relevant to NFM. For example, it is proposed that the new mandatory duty to take reasonable steps to prevent sexual harassment in the workplace (which came into force only in October) will be amended to require employers to take “all” reasonable steps. Labour have also proposed the re-introduction of a new statutory obligation also to take such steps to prevent harassment of employees by third parties. In addition, workers who report sexual harassment will qualify for whistleblowing protection. The view might conveniently be taken that the new law is broad enough to minimise the need for much more work on the position of D&I within NFM.
Most of the ERB is not expected to come into force until 2026 and we note that the commitment made by the FCA is not to provide the new rules by this June, but merely an update on next steps – so while we can expect some further clarity at that time, it is unlikely to be the final answer. It is to be hoped, though not particularly expected, that any revised guidance floated at that time would sufficiently reflect those nuances and allow employers to make proportionate calls on the impact of certain behaviours on regulatory fitness and propriety based on the actual facts of the situation, not its legal definition.
So-called “naming and shaming” changes not going ahead
More briefly, there had been a proposal to increase the circumstances in which investigations into firms were publicised as part of a drive to increase enforcement transparency – however, considerable concerns were expressed and so these plans have been abandoned. The FCA will stick to publicising investigations in exceptional circumstances only, as is currently the case.
Our view: The proposal to “name and shame” investigated firms was subject to widespread criticism from the industry, including concerns about the impact on consumer confidence and various other unintended consequences. In consumers’ eyes, being “named and shamed” would clearly imply the company to be guilty until proven innocent, except that even being found innocent would not remove the stigma of the original publication. For many, this will be seen as a victory. However, we note that the final policy will be published by the end of June and so it remains to be seen exactly how the “exceptional circumstances” provision for publicising investigations will be defined.
EEOC and DOJ Release Guidance on DEI and Workplace Discrimination
On March 19, 2025, the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice issued two technical assistance documents discussing how the agencies view and define Diversity, Equity and Inclusion (“DEI”) in the context of workplace discrimination: “What You Should Know About DEI-Related Discrimination at Work” and “What To Do If You Experience Discrimination Related to DEI AT WORK.”
Background
On January 20, 2025, President Trump appointed Andrea Lucas to serve as Acting Chair of the EEOC. According to the EEOC, Acting Chair Lucas “prioritizes evenhanded enforcement of civil rights laws for all Americans, including by rooting out unlawful DEI-motivated race and sex discrimination.” Acting Chair Lucas’s priorities align with the current Administration’s rejection of “illegal DEI,” as set forth in several Executive Orders, notably Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
This technical guidance sheds light on what constitutes “illegal DEI” in the EEOC’s view in relation to Title VII of the Civil Rights Act of 1964.
What Conduct May Constitute Illegal “DEI”
The technical guidance starts by acknowledging that “DEI is a broad term that is not defined in Title VII.” It explains that initiatives, policies, programs, or practices “may be unlawful if [they] involve[]” taking employment action “motivated—in whole or part—by race, sex, or another protected characteristic.” The EEOC states that Title VII protects all workers from discrimination, not only “individuals who are part of a ‘minority group,’ (such as racial or ethnic minorities, workers with non-American national origins, ‘diverse’ employees, or ‘historically underrepresented groups’) women, or some other subset of individuals.” To this end, “[t]he EEOC’s position is that there is no such thing as ‘reverse’ discrimination; there is only discrimination.”
The EEOC has identified several areas where “DEI” may result in actionable discrimination, including the following employment decisions:
Hiring and firing;
Promotion and demotion;
Selection for interviews, “including placement or exclusion from a candidate ‘slate’ or pool;”
Internships, fellowships, and summer associate programs;
Job duties and responsibilities;
Compensation; and
Fringe Benefits.
In addition, the EEOC states that providing access to certain opportunities may give rise to a charge of discrimination in the following areas:
Access to or exclusion from training (including leadership development programs);
Access to mentoring, sponsorship, or workplace networking/networks; and
Limiting membership in Employee Resource Groups “or other employee affinity groups” to certain protected groups.
The EEOC further states that separating employees into different groups based on protected characteristics is prohibited. The prohibited conduct is described as:
“Separating employees into groups based on race, sex, or another protected characteristic when administering DEI or other trainings, or other privileges of employment.”
With respect to training, the EEOC states that:
“DEI training may give rise to a colorable hostile work environment claim”; and
“Reasonable opposition to a DEI training may constitute protected activity.”
No Exceptions in the Name of Diversity
The guidance notes that employers cannot justify making employment decisions motivated by protected characteristics by virtue of their interest in diversity or equity, even if that interest is a “business necessity” or is guided by operational benefits or the preferences or requests of clients and customers.
Implications
In addition to identifying the types of activities it considers to be illegal DEI, the EEOC has advised the public how to report perceived acts of discrimination to the EEOC and explained how the agency may respond to such complaints. Employers may wish to revisit their training materials and policies in light of these recently issued documents and will want to consider the guidance going forward.
Global Focus on Anti-Corruption Increases
While the United States has announced a pause on Foreign Corrupt Practices Act enforcement, the rest of the world is increasing its focus on prosecuting corrupt activities. This is a reminder to companies with a global footprint, including those headquartered in the U.S. that may not have physical operations overseas, that foreign activities likely fall under jurisdictions where foreign bribery and corruption are still enforcement priorities with sizeable penalties.
On March 20, 2025, the United Kingdom’s Serious Fraud Office, France’s Parquet National Financier and the Office of the Attorney General of Switzerland announced a new anti-corruption alliance, the International Anti-Corruption Prosecutorial Taskforce, affirming their shared commitment to addressing international bribery and corruption and strengthen cross-border collaboration. The announcement noted that all three countries have wide-reaching anti-bribery legislation with jurisdiction to prosecute criminal conduct, even if that activity occurs overseas, provided there is a link to the prosecuting country. The Taskforce’s founding statement may be found here.
How Should a Licensing Commitment Affect the Availability of Injunctions at the ITC?
We may be about to find out, as the Commission seeks comments on exclusion orders for infringement of standard essential patents.
Governed by 19 U.S.C. § 337, the U.S. International Trade Commission (“ITC”) is empowered to investigate unfair acts in the importation of articles into the United States. The ITC can be a powerful forum for owners of U.S. patents as it may issue exclusion orders barring infringing articles from entering the United States. Although the ITC is an independent federal agency, it is natural to wonder whether the Trump administration’s policies – including, in particular its “America First Trade Policy” issued on January 20 – could affect litigation before the Commission.
While the day-to-day handling of investigations before the ITC is unlikely to be affected by the specific trade policies of a particular administration, § 337 provides for a presidential review period, during which the president can review and potentially veto an exclusion order entered by the Commission in an investigation. This power has rarely been exercised, but the history of presidential review in investigations involving standard essential patents (“SEPs”) provides an example where the policies of an administration can directly impact ITC practice.
It started in 2013 when the Obama administration overturned an ITC order that would have excluded various Apple iPhone and iPad products from the United States market. In that investigation, Samsung alleged that Apple infringed patents that had been declared essential to certain telecommunications standards, and, in overturning the import ban, the U.S. Trade Representative acting on behalf of the Obama administration cited a “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” jointly issued by the Department of Justice and the U.S. Patent and Trademark Office on January 8, 2013. https://www.justice.gov/d9/pages/attachments/2018/12/10/290994.pdf
The Obama-era Policy Statement cautioned that granting exclusion orders for infringement of standard essential patents – which are typically accompanied by commitments to license on terms that are fair, reasonable and non-discriminatory (“FRAND” or “F/RAND”) – may result in the patent owner engaging in “patent hold up” by demanding a higher royalty for the use of its patent than would have been possible before the standard was set, and that such behavior may harm consumers. Accordingly, the 2013 Policy Statement concluded that “[a]lthough [] an exclusion order for infringement of F/RAND-encumbered patents essential to a standard may be appropriate in some circumstances, we believe that, depending on the facts of individual cases, the public interest may preclude the issuance of an exclusion order in cases where the infringer is acting within the scope of the patent holder’s F/RAND commitment and is able, and has not refused, to license on F/RAND terms.”
During President Trump’s first term, the administration issued its own “Policy Statement on Remedies for Standard-Essential Patents Subject to Voluntary F/RAND Commitments” on December 19, 2019. https://www.justice.gov/atr/page/file/1228016/dl This 2019 Policy Statement identified “concerns that the 2013 policy statement has been misinterpreted to suggest that a unique set of legal rules should be applied in disputes concerning patents subject to a F/RAND commitment,” such that “injunctions and other exclusionary remedies should not be available in actions for infringement of standards-essential patents.” The 2019 Policy Statement warned that “such an approach would be detrimental to the carefully balanced patent system.” Accordingly, the USPTO and DOJ withdrew the 2013 Policy Statement in favor of a policy where “the existence of F/RAND or similar commitments [] may be relevant and may inform the determination of appropriate remedies,” but “the general framework for deciding these issues remain[ed] the same as in other patent cases.”
This back-and-forth continued with the Biden administration, but to a lesser extent. After soliciting written submissions and hearing a variety of views on both sides of the issues, on June 8, 2022, the Biden administration issued a “Withdrawal of 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments,” which stated in a footnote that it was also not reinstating the Obama-era 2013 Policy Statement. https://www.uspto.gov/sites/default/files/documents/SEP2019-Withdrawal.pdf. Accordingly, the 2022 Withdrawal concluded that conduct by SEP holders and standards implementers should be reviewed “on a case-by-case basis to determine if either party is engaging in practices that result in the anticompetitive use of market power or other abusive processes that harm competition.”
It remains to be seen whether the USPTO, DOJ and NIST will reinstate the 2019 Policy Statement in President Trump’s second term. The policy statement put into effect during President Trump’s first term was withdrawn by President Biden, but in a way that did not reinstate the earlier Obama-era policy, and the 2022 Withdrawal does not on its face articulate any view of available remedies for infringement of standard essential patents that is inconsistent with the 2019 Policy Statement. Nevertheless, one would reasonably expect that the second Trump administration would be inclined to favor a policy where available remedies for infringement of standard essential patents would not materially differ from the remedies available for infringement of other patents.
However, earlier this month the International Trade Commission issued a notification suggesting that the Commission’s thoughts on this issue may not be so predictable. On March 4, 2025, the ITC published a Notice in the Federal Register relating to Investigation No. 337-TA-1380, which involved an allegation by Nokia that Amazon infringes certain patents declared essential to video compression standards which carry with them a commitment to license on RAND terms. The Notice indicates that the Commission has determined to review the Initial Determination of the Administrative Law Judge in its entirety, and it solicits written submissions from the parties on various issues, including the following SEP-specific questions:
When the complainant alleges that an asserted patent is a standard essential patent, subject to reasonable, and nondiscriminatory (RAND) licensing terms, is the complainant precluded from seeking an exclusion order and/or cease and desist order based on infringement of that patent? Should the Commission consider RAND licensing obligations as a legal or equitable defense (i.e., as part of its violation determination) under section 337(c), 19 U.S.C. 1337(c)) or as part of its consideration of the public interest factors under section 337(d)(1) and (f)(1)? Please discuss theories in law, equity, and the public interest, and identify which (if any) of the public interest factors of 337(d)(1) and (f)(1) preclude issuance of such an order.
In the event a violation is found, does the information regarding the parties’ RAND obligations and licensing attempts inform any particular public interest factor that the Commission should consider under section 337(d)(1) and (f)(1)? If so, please identify which factor it informs and explain why, including the relevant evidence of record. As part of its public interest analysis, should the Commission determine whether any prior license offer made by the patent holder covering the accused products is reasonable and non-discriminatory? If so, what evidence should the Commission consider in determining whether offers are reasonable and non-discriminatory based on the record of this investigation?
In addition, the March 4 Notice solicited written submissions from not just the parties, but also any interested government agencies or other interested parties on the issues of remedy and the public interest, which would seemingly include addressing the above two questions and, in general, Amazon’s argument in the case that an exclusion order would be against the public interest because it would exclude articles that practice SEPs. Such submissions were due on March 13, though approved late submissions continue to be filed, and the target date for completion of the Investigation is currently May 14, 2025.
The questions are interesting, particularly in view of the Obama administration’s directive in 2013 that “in any future cases involving SEPs that are subject to voluntary FRAND commitments, the Commission should be certain to (1) to examine thoroughly and carefully on its own initiative the public interest issues presented both at the outset of its proceeding and when determining whether a particular remedy is in the public interest and (2) seek proactively to have the parties develop a comprehensive factual record related to these issues in the proceedings before the Administrative Law Judge and during the formal remedy phase of the investigation before the Commission, including information on the standards-essential nature of the patent at issue if contested by the patent holder and the presence or absence of patent hold-up or reverse hold-up.”
Following that directive, the Commission has considered the issue in the past, and although it typically followed the 2013 Obama administration’s directive to consider the issues, it virtually always found that SEPs should not receive any type of “special treatment” at the ITC. However, based upon the Commission’s recent Notice, it appears that the Commission may be thinking more critically about the issue of defenses and exclusionary remedies for infringement of SEPs, with the history of these various Policy Statements showing that there is not a singular policy view, both from administrations with different perspectives and from parties with divergent interests. And with the target date for completion of the Nokia/Amazon Investigation just two months away and with comments having just recently been submitted, we may soon learn how the ITC intends to treat the Obama-era directive in the context of current trade policy.
The AI Workplace: A Guide on AI Policy Essentials [Podcast]
In this episode of our new podcast series, The AI Workplace, where we explore the latest advancements in integrating artificial intelligence (AI) into the workplace, Sam Sedaei (associate, Chicago) shares his insights on crafting and implementing effective AI policies. Sam, who is a member of the firm’s Cybersecurity and Privacy and Technology practice groups, discusses the rapid rise of generative AI tools and highlights their potential to boost productivity, spark innovation, and deliver valuable insights. He also addresses the critical risks associated with AI, such as inaccuracies, bias, privacy concerns, and intellectual property issues, while emphasizing the importance of legal and regulatory guidance to ensure the responsible and effective use of AI in various workplace functions. Join us for a compelling discussion on navigating the AI-driven future of work.
The End of the Self-Affirmed GRAS Pathway?
On March 10, 2025, Robert F. Kennedy, Jr., Secretary of the U.S. Department of Health and Human Services (“HHS”), in a seismic shift, announced that the U.S. Food and Drug Administration (“FDA”) would “explore potential rulemaking” to eliminate the pathway allowing companies to self-affirm that food ingredients are Generally Recognized as Safe (“GRAS”).
This means that companies seeking to introduce new food ingredients would be required to publicly notify the FDA of the ingredients’ intended use and underlying safety data. Presently, the FDA strongly encourages but does not require the submission of a GRAS notice. Given the importance of the issue, the food industry should closely monitor any change to the FDA’s regulation of GRAS ingredients.
Defining GRAS
Under the Federal Food, Drug, and Cosmetic Act, unless a substance is generally recognized among qualified experts as safe under the conditions of its intended use, food additives are subject to premarket review and approval by the FDA. The implementing regulations, 21 C.F.R. §§ 170.3 and 170.30, provide that the use of a food substance can be GRAS through scientific procedures or experience based on common use in food before 1958. Salt, pepper, vinegar, baking powder, and monosodium glutamate are some examples.
GRAS Pathways and FDA Procedures
Currently, manufacturers may determine a food ingredient is GRAS through one of two pathways: self-affirmation, or notification to the FDA by submission of a GRAS notice. But if the voluntary FDA notification pathway becomes mandatory through legislation or rulemaking, companies using the self-affirmation process would be well-served to familiarize themselves with current FDA GRAS procedures.
As mentioned above, 21 C.F.R. § 170.30 sets forth the eligibility for classification of a substance as GRAS.
Under 21 C.F.R. § 170.35, the Commissioner may affirm that a substance that directly or indirectly becomes a component of food is GRAS under the conditions of its intended use. If so, the Commissioner will publish a notice in the Federal Register and evaluate comments received following a 60-day comment period.
If there is convincing evidence that the substance is GRAS, the Commissioner will publish a notice listing the GRAS conditions of use.
If there is a lack of convincing evidence and the substance should instead be considered a food additive, the Commissioner shall publish a notice in accordance with 21 C.F.R. § 170.38.
In 2016, the FDA issued the final rule at issue, 81 Fed. Reg. 54960 (Aug. 17, 2016), that formalized the voluntary GRAS notification program. 21 C.F.R. Part 170, Subpart E provides the process for submission of a GRAS notice, including how to send a GRAS notice to the FDA, general requirements of a GRAS notice, the seven required parts of a GRAS notice, the FDA’s evaluation and response, and public disclosure of a GRAS notice. According to the HHS, the FDA evaluates 75 GRAS notices per year and has published over 1,000 notices, which are available in a public inventory.
Takeaways
In the HHS release, Secretary Kennedy commented, “For far too long, ingredient manufacturers and sponsors have exploited a loophole that has allowed new ingredients and chemicals, often with unknown safety data, to be introduced into the U.S. food supply without notification to the FDA or the public.” His proposal for addressing the “loophole” may involve more than rulemaking—the release also states that the HHS “is committed to working with Congress to explore ways legislation can completely close the GRAS loophole.” In the meantime, companies should familiarize themselves with FDA GRAS procedures.
Catherine Eschbach Named OFCCP Director Amid Executive Order 11246 Rollback
On March 24, 2025, the U.S. Department of Labor announced the appointment of Catherine Eschbach as director of the Office of Federal Contract Compliance Programs (OFCCP), signaling a new chapter for the agency following the rescission of Executive Order (EO) 11246, a nearly sixty-year-old executive order that had prohibited employment discrimination by federal contractors.
Quick Hits
Catherine Eschbach has been named director of OFCCP to “oversee its transition to its new scope of mission.”
OFCCP will enforce EO 14173’s revocation of EO 11246, Eschbach said, stating that EO 11246 “had facilitated federal contractors adopting [diversity, equity, and inclusion (DEI)] practices out of step with the requirements” of civil rights laws.
Contractors must unwind their EO 11246 compliance within ninety days of the issuance of EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”).
In her statement, Eschbach emphasized the administration’s policy shift: “I’m honored to serve as director of the OFCCP under the Trump Administration and oversee its transition to its new scope of mission.”
“President Trump made clear in his executive order on eliminating DEI that EO 11246 had facilitated federal contractors adopting DEI practices out of step with the requirements of our Nation’s civil rights laws and that, with the recission of EO 11246, the President mandates federal contractors wind those practices down within 90 days,” Eschbach said.
The new directive reflects a broader reorientation of OFCCP’s role. Eschbach stated that she was committed to “carrying out President Trump’s executive orders, which will restore a merit-based system to provide all workers with equal opportunity.”
Prior to her appointment, Eschbach worked for six years in Morgan, Lewis & Bockius LLP’s appellate group, focusing on complex constitutional, statutory, and administrative law issues. In that role, she worked to limit the government’s reach, “including issues affecting OFCCP.”
It is unclear if OFCCP still has authority to review DEI activities of federal contractors after the rescission of EO 11246. Federal contractors may want to review their DEI initiatives, EO 11246 affirmative action programs, and broader compliance strategies in light of this leadership change and shifting enforcement priorities.
Commissions Are ‘Wages’ Under the New Jersey Wage Payment Law, New Jersey Supreme Court Rules
On March 17, 2025, the Supreme Court of New Jersey held that “commissions” must be considered “wages” under the New Jersey Wage Payment Law (WPL) and cannot be excluded as “supplementary incentives” because they are tied to the “labor or services” of employees.
Quick Hits
New Jersey Supreme Court Ruling on Commissions as Wages: On March 17, 2025, the Supreme Court of New Jersey ruled that commissions must be considered “wages” under the New Jersey Wage Payment Law (WPL) and cannot be excluded as “supplementary incentives” since they are tied to the labor or services of employees.
Case Background and Court’s Decision: In Musker v. Suuchi, Inc., the court determined that commissions earned by a sales representative for selling PPE during the COVID-19 pandemic were “wages” under the WPL, and rejected the argument that these commissions were “supplementary incentives” because they were tied to her labor or services.
Implications for Employers: The ruling clarifies that commissions are always considered “wages” under the WPL, regardless of whether they are for new or temporary products.
Background
In Musker v. Suuchi, Inc. the plaintiff, Rosalyn Musker, a sales representative, earned a salary plus commissions pursuant to an individualized sales commission plan (SCP) to sell software subscriptions. In March 2020, Suuchi, Inc., began to also sell personal protective equipment (PPE) because of the rise of COVID-19. Musker ultimately completed PPE sales that generated approximately $35 million in gross revenue for Suuchi. The parties disagreed regarding the amount of commissions owed to Musker pursuant to the SCP for her PPE sales and further disagreed as to whether such payment constituted “wages” or “supplementary incentives” under the WPL.
Musker then filed suit against Suuchi claiming it violated the WPL by withholding from her payment of commissions for her PPE sales. Suuchi, on the other hand, argued that Musker’s WPL claim should be dismissed because the commissions for the PPE sales in this instance would be considered “supplementary incentives” and not “wages” under the WPL. Specifically, Suuchi argued that because PPE was a new product and not its primary business, Musker’s commissions for her PPE sales should be considered “supplementary incentives” under the WPL.
Both the Superior Court of New Jersey and the New Jersey Appellate Division denied Musker’s WPL claim, concluding that because her sale of PPE went “above and beyond her sales performance, and the [PPE] commissions are calculated independently of her regular wage,” such commissions did not constitute “wages” under the WPL.
The Supreme Court of New Jersey disagreed and held that Musker’s commissions for the sale of PPE could not be excluded from the definition of “wages” as a “supplementary incentive.”
Commissions Are Wages and Cannot be Excluded as Supplementary Incentives
The supreme court pointed out that the WPL defines the term “wages” as “the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto.” (Emphases in the original.) Unfortunately, however, the WPL does not define what constitutes a “supplementary incentive.”
In reviewing the WPL’s definition of “wages,” the Supreme Court of New Jersey concluded that a “supplementary incentive” is compensation that “motivates employees to do something above and beyond their ‘labor or services.’” The court opined that the “primary question addressing whether compensation is a ‘supplementary incentive’ is not whether the compensation only has the capacity to [incentivize work or provide services], but rather whether the compensation incentives employees to do something beyond their ‘labor or services.’”
In so concluding, the court clarified that a “commission” can never be a “supplementary incentive” because “supplementary incentives,” unlike “commissions,” are not payment for employees’ labor or services. To illustrate this point, the court provided several examples of “supplementary incentives” which it determined are not tied to employee’s “labor or services” and therefore would not constitute “wages” under the WPL, including: working out of a particular office location, meeting a certain attendance benchmark, or referring prospective employees to open positions.
Accordingly, the court held that Musker’s commissions from her PPE sales were not “supplementary incentives” because those sales necessarily resulted from her “labor or services.” Accordingly, the court held that those commissions would be considered “wages” under the WPL. Further, the court rejected Suuchi’s argument that because PPE was a new product for the company and it only temporarily sold such product, the sale of PPE therefore fell outside the regular “labor or services” an employee provides. Rather, as a result of the COVID-19 pandemic, selling PPE became part of Musker’s job and thus, commissions for selling PPE became owed to her as “wages” pursuant to the WPL.
Key Takeaways
The Supreme Court of New Jersey has clarified that commissions can never be “supplementary incentives” and excluded from the definition of “wages” under the WPL. Commissions are “wages” pursuant to the WPL, regardless of whether they are based on sales of new products or products temporarily marketed by their employers. Commissions are tied to employees’ “labor or services” and, as a result, are not “supplementary incentives.” Furthermore, the penalties under the WPL include liquidated damages of up to 200 percent of the wages recovered, as well as attorneys’ fees for successful claimants. Employers may want to keep in mind that all commissions are owed to employees to ensure compliance with the WPL to avoid exposure to significant financial penalties.
Missouri’s Paid Sick Leave and Minimum Wage Increase: Legislature, Court Challenges Continue
On Nov. 5, 2024, Missouri voters approved Proposition A, which included a new statewide paid sick leave law and an increase to the minimum wage. The paid sick leave requirement is set to go into effect on May 1, 2025, while the $13.75 per hour minimum wage took effect on Jan. 1, 2025.
On March 13, 2025, the Missouri House of Representatives passed a bill (HB 567) that, if enacted, would repeal the paid sick leave requirement and delay the minimum wage increase. However, if passed by the Senate and signed by the governor in its current form, the bill would not become effective until Aug. 28, 2025, after the paid sick leave requirement is set to take effect on May 1, 2025. The bill has now been read twice in the Senate, and a public hearing is set for March 26, 2025.
On March 12, 2025, the Missouri Supreme Court heard oral argument on the constitutionality of Proposition A.
Opponents of the law, mostly business groups, argue that:
The fiscal note summary to the ballot initiative did not include the costs to state and private businesses or some local governments
The summary statement failed to notify voters of certain elements of the paid sick leave law
It included two different subject matters (paid sick leave and a minimum wage increase) in violation of the Missouri Constitution.
Proponents of the law dispute that Proposition A was misleading or violated Missouri’s Constitution. They argue that overturning the law would be denying the will of the Missouri voters who voted to approve Proposition A.
The Court’s questions focused on whether it has original jurisdiction to rule on the legal challenges or whether the trial courts were the proper venue to hear the matter. A decision should be forthcoming.
Barring extraordinary relief by the Missouri legislature or the Missouri Supreme Court, employers are required to provide written notice to their employees about the paid sick time by April 15. Employers should proceed as if the paid sick leave law will take effect on May 1, 2025, and they are able to provide the required notices by April 15.