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INTERAction Technology Law Update

Speakers’ Notes

Tuesday, 16 October 2012from 12:30pm - 7:30pm

Stationers’ Hall Ave Maria LaneLondon EC4M 7DD


Table of contents

Conference programme 1

IT cases from a Leading Counsel’s perspective 2Alan Gourgey QC, 11 Stone Buildings

Big Data in the Healthcare/BioPharma sector: Emerging Issues 3Ben Goodger

Online and Across Borders: A Net Gain For Technology Companies? 4Gareth Dickson

Waking the Watchdog: Recent Competition Law cases in the Technology sector 5Becket McGrath

The latest on Data Protection 6Suzanne Rodway, Group Head of Privacy, RBS Legal

Cloud Computing: The silver lining for 2012 7Richard Graham

Business Secrets and Information: Are you protected from the enemy within? 8Neil Adams

Agile developments: Pitfalls and Waterfalls 9Mark Deem

European Court developments on the protection of computer software 10Akash Sachdeva

Speakers’ Biographies 11

Tab number


16 October 2012

PROGRAMME

from 12:30 pm REGISTRATION

12:30 - 1:45 pm LUNCH

1:45 - 1:55 pm Introduction from Chair

1:55 - 2:30 pm Alan Gourgey QC, 11 Stone BuildingsIT cases from a Leading Counsel's perspective

2:30 - 2:55 pm Ben GoodgerBig Data in the Healthcare/BioPharma sector: Emerging Issues

2:55 - 3:20 pm Gareth DicksonOnline and Across Borders: A Net Gain For Technology Companies?

3:20 - 3:45 pm Becket McGrathWaking the Watchdog: Recent Competition Law cases in the Technology sector

3:45 - 4:15 BREAK

4:15 - 4:50 pm Suzanne Rodway, Group Head of Privacy, RBS LegalThe latest on Data Protection

4:50 - 5:15 pm Richard GrahamCloud Computing: The silver lining for 2012

5:15 - 5:40 pm Neil AdamsBusiness Secrets and Information: Are you protected from the enemy within?

5:40 - 6:05 pm Mark DeemAgile developments: Pitfalls and Waterfalls

6:05 - 6:30 pm Akash SachdevaEuropean Court developments on the protection of computer software

6:30 - 6:35 pm Closing Remarks from Chair

6:35 - 9:00 pm DRINKS RECEPTION

Eligible for 4.5 CPD Hours

IT cases ~ a counsel's perspective

by Alan Gourgey QC


Tuesday, 16 October 2012

My typical ‘IT’ case

Implementation of business change using technology with/without outsourcing – the project is failing or has failed.

For example:

• Air traffic control system for the North Atlantic

• CRM system

• Cabinet Office’s Delivery of the Promise, Government Gateway and Knowledge Network Projects

• Store card management and processing for department store chain

Lessons

Lessons to be learned on:

•Mitigation of risk of failure by better operational and contract management

•Optimal means to resolve disputes when they arise

I will suggest ways contract can be better structured in both these areas.

Why large IT projects fail

Criteria for success

• Delivery of a system that meets customers needs

• Delivery on budget

• Delivery on time

2010 study based on review of 214 IT projectsacross EU shows only 1 in 8 satisfied thesecriteria.

Root causes

• Unrealistic expectations of customer• Unrealistic promises of contractor• Incompetence of the contractor• Failure by customer to secure buy-in of staff• Inadequate articulation and management of requirements

Business change and requirements

A typical large-scale IT project will effect business change.

The IT project will often form only part, albeit amajor part, of the business change programme.

IT Requirements

IT Design

IT Development

Test ImplementationDetailed Business Processes

Business Design

Business Objectives

BusinessVision

IT Project

Change Programme

Common project model for a change programme

Requirements definition process

“The single most prevalent cause of IT project failures and overruns has been a failure to control the scope and requirements or the IT system”.

• The input for the requirement definition process is the OutlineSpecification (the Scope). The output is the IT Requirements (functional and non-functional).

• A stable and accurate requirements baseline prior to coding is essential for success.

Typical definitions process involves series of workshops attended by representatives of customer and supplier. The task of the customer isto explain in business terms the process that the customer requires thesystem to perform and the task of the supplier is to reflect this in the ITRequirements.

Common problems

• Failure by the customer to allocate personnel who sufficiently understand the business process and/or are not empowered to make adjustments to the process to reduce cost and delay.

• Conflicting requirements emerging from different workstreams.

• Arguments about scope.

• Changes to requirements.

Cumbersome change control procedure

Typical change control procedure

• Change control note raised by one party identifying change and requiring detailed supporting documents.

• Pricing of change.

• Period for other party to agree (say 20 days).

• In default of agreement escalates to Change Control Board – issues in dispute will frequently be whether there is a change in scope or in requirements.

• If still no agreement, may then be referred for expert determination.

The process drains valuable management resource and can lead to significant delay in delivery of the project. Delay means extra cost and loss of benefits that the programme is supposed to bring. Proceduremay be OK for isolated change requests but rarely the case.

On one recent case, there were over 3,000 formal change requests and the number of contested changes that were not the subject offormal change request was many times this figure.

Encourages a “leave the contract in the drawer” approach. This may suit the short-term needs of those on the project (on both sides) but stores up major problems for the future when inevitable arguments overincreased costs and delays arise.

Cumbersome change control procedure

Some suggestions for improvement

• More focus in advance of contract in developing so far as possible the OBS.

• Management ensure that suitably qualified and informed personnelattend workshops and have power to make decisions on requirements.

• A streamlined and rigorously enforced requirements definitions process with documents being signed off to ensure no disagreement as to the requirements baseline.

• Simplify the material that is needed for the purposes of a change request.

Some suggestions for improvement

• Have short timescales for responding to change requests.

• Weekly meetings/telephone conferences by CCB to seek to resolve any disputed change requests.

• The contract should name an independent expert (with an alternative to allow for lack of availability). That expert will be made familiar at the outset with the contract, the IT Project, the Project Plan and other relevant material. In the event of a dispute on change (whether as to requirements or as to scope), he will be on hand to resolve that dispute within a short period of it being referred to him by either party.

Dispute resolution

Variety of different ways to resolve disputes

• Parties meeting face to face

• Mediation

• Neutral evaluation

• Expert determination

• Court proceedings

• Arbitration

• Tree hugging

Dispute escalation process

Typically contracts for large scale IT projectswill have a schedule which delineates a disputeescalation process. The individual componentsvary.

Dispute escalation process

Notice of dispute

Project board

Nominated representatives

CEOs

Mediation

Court proceedings / Arbitration

Observations

May want to have in mind the following when drafting your own Dispute Resolution Procedure:

•The full party/party process might only be necessary for the major disputes (e.g. termination).

•Court proceedings/arbitration may be the best form of resolution for some disputes but not all.

•Fixed timescales for resolution may be required, even for major disputes, due to need for certainty and to limit costs.

A sophisticated DRP will tailor the process to the type of dispute.

Mediation and neutral evaluation

Prospects of reaching agreement will be higher if the contract is still on foot than if it has already been terminated.

Mediation can be effective even with sophisticated parties, well-versed in litigation, who have failed to resolve the matter through direct negotiation.

Neutral evaluation is unlikely to be useful save for simpler disputes.

Expert determination

The expert may be a lawyer, an IT consultant, management consultant or with other relevant experience.

Advantages over court or arbitration options are speed, cost, and relevant expertise.

Decision (usually with reasons) is “final”.

Not ideal where dispute involves substantial conflicts of evidence or requires extensive disclosure.

Best utilised in contract to deal with disputes over change, issues as to whether a party has unreasonably refused consent, or confined technical disputes (for example, whether a milestone has been met or categorisation of defects).

Arbitration/Court proceedings

Advantages of arbitration include:•Confidentiality•Finality•Speed and cost (potentially)

Advantages of court proceedings include:•Pre-action protocol•More extensive disclosure (though this can also be a disadvantage),•No arbitrators’ fees •Arguably a more extensive examination of the issues at trial.

In a major dispute such as over termination, may be no way to resolve the dispute other than either of these routes. The uncertainty however needs to be resolved quickly. Court proceedings will not produce a quick result unless the Court is persuaded to direct a ‘speedy trial’.

Arbitration/Court proceedings

Arbitration should give you a quicker decision if you draft the DRP inthe contract appropriately:

• Stipulate the appointment of a sole arbitrator rather than a panel.

• Provide a short period for the parties to try and agree an arbitrator.

• Require the parties to request the default appointee (e.g. LCIA) to make an appointment on an expedited basis.

• Stipulate that the parties will require the arbitrator to set a timetable that will deliver an award in a set period of time (e.g. 6 months) from the date of his appointment (cf ICC’s new rules which include such a requirement).

• Consider making proving for disclosure criteria e.g. IBA rules.

© 11 Stone Buildings

The information or commentary provided in this document (the “Information”) is confidential and for your personal use only. The recipient (s) of the Information should not copy, distribute or otherwise divulge the Information, directly or indirectly, to any other person or publish the Information, in whole or in part, for any purpose, without written permission of 11 SB. Every effort is made to ensure that the Information is accurate and up to date, but no representation or warranty, express or implied, is given by or on behalf of 11 SB or any of such person’s directors, officers or employees or any other person as to the accuracy or completeness of the Information or opinions contained in this document and no liability is accepted for any such Information or opinions.

The Information does not, and is not intended to, amount to legal advice and is not intended to be relied upon. You are stronglyadvised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the Information.

Legal information

Thank youFor more information, please contact:Alan Gourgey QCT 020 7831 6381 | email [email protected]

IT cases ~ a counsel's perspective

by Alan Gourgey QC


Tuesday, 16 October 2012

© 2012 Edwards Wildman Palmer LLP & Edwards Wildman Palmer UK LLP

Use of Big Data in the Healthcare and Biotech Industry: Emerging IssuesBen Goodger, Partner16 October 2012

[email protected]

2

Overview

1. Healthcare and therefore Pharma, Medtech and Biotech industries are changing

2. Why is this relevant to IT and software industry?3. What are (some of) the legal implications of all this?

3

1. Healthcare and Pharma, Medtech and Biotech industries are changing

♦ Spiralling Costs of healthcare♦ aging population♦ unhealthy lifestyles♦ cost of new drug treatments♦ economic recession♦ cost / pressure on hospital beds

♦ ‘Traditional’ models for drug development and accumulation of patient data less & less satisfactory

♦ linear♦ slow♦ expensive♦ siloed

♦ Plus ‘the patent cliff’ removing blockbuster drug cushion

4

1. Healthcare and Pharma, Medtech and Biotech industries are changing

♦ Result: Changing emphasis on what the payers for healthcare want:

♦ financial rewards will be allocated to outcomes, rather than: numbers of treatments, or clever science per se

♦ “maintaining wellness” rather than “treating sickness”♦ remote healthcare♦ prevention♦ early diagnosis♦ changing patient behaviours♦ continuous engagement / monitoring

5

2. Why is this relevant to IT and software industry?

IT, software and telecoms are critical to driving and delivering what is required in this new landscape:

Patient-centricity♦ self-monitoring devices – ‘Consumerisation of medical

devices’♦ new smartphone apps♦ social media – discussions, communities♦ Electronic Health Records (EHR): Pres. Obama has allocated

$27b to incentivise US doctors to adopt EHRs

6

2. Why is this relevant to IT and software industry?

IT, software and telecoms are critical to driving and delivering what is required in this new landscape:

♦ Transforming R&D♦ sharing of data from scientific research, clinical trails,

pharmacovigilance♦ hospital & other patient data♦ health insurance claims data♦ open innovation♦ enables disease trend prediction♦ enables making connections otherwise impossible

7

Big Data

Concept of ‘Big Data’

Data Repositories

Extracting value from

Volume of data is considerably

larger than normal software and

storage facilities

Volume of data is considerably

larger than normal software and

storage facilities

8

Some examples

a health data-sharing platform intended to “transform the way patients manage their own conditions, change the way industry conducts research and improve patient care.”

9

Some examples

♦ [INTRO]

♦ recruited 500,000 people aged between 40-69 years in 2006-2010 from across UK to take part in this project.

♦ underwent various measures, and provided blood, urine and saliva samples for future analysis

♦ provided detailed information about themselves

♦ agreed to have their health followed

♦ resulting data available to researchers

10

Some examples

Attack on suppression of adverse data about drug performance:“Drug companies conduct lots of trials, and when they see that the results are unflattering, they simply fail to publish them. Because researchers are free to bury any result they please, patients are exposed to harm on a staggering scale throughout the whole of medicine. Doctors can have no idea about the true effects of the treatments they give… This is a bizarre situation to arise in medicine, a discipline in which everything is supposed to be based on evidence.”

11

Therefore …

“As healthcare enters the world of ‘big data’ and the ‘internet of things’, the ability to connect disparate information from diverse sources and extract insights, becomes a core competency and driver of competitive advantage. Information technology is strategy, not overhead.”

Ernst & Young Global Life Sciences Report2012

12

4. What are (some of) the legal implications of all this?

1. Data Protection and Privacy 2. Data Security3. Intellectual Property issues4. Contractual Arrangements / Liability

13

4. Legal Implications

Data Protection and Privacy

♦ The current legislation - the European Data Protection Directive 95/46/EC governs the use of personal data through eight principles:

1. Fair and lawful processing2. Processed for limited purposes3. Adequate, relevant and not excessive4. Accurate and up to date5. Not kept for longer than necessary6. Individual rights7. Security 8. Transborder data flow restrictions

Must obtain relevant consent, and comply with Notification and Filing requirements

14


S. 2: “sensitive personal data” means personal data consisting of information including as to—

♦ the racial or ethnic origin of the data subject, ♦ physical or mental health or condition, ♦ sexual life

Processing: ♦ requires “explicit” consent of data subject; or ♦ necessary in order to protect the “vital interests” of the data

subject and consent cannot be given by / on behalf of data subject; or

♦ necessary for medical purposes and is undertaken by (a) health professional, or (b) person who in the circumstances owes equivalent duty of confidentiality to health professional. (Sch 3, DPA 1998)

15


Seventh principle – data security:♦ “Appropriate technical and organisational measures shall

be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. ”

E-Privacy Directive (Directive 2002/58 on Privacy and Electronic Communications) beefs up enforcement powers:

♦ Members States to lay down rules on penalties, including criminal sanctions where appropriate, applicable to infringements of the national provisions adopted pursuant to the Directive.

16


Reform of data protection legislation

In 2012, the Commission proposed a major reform of the EU legal framework on the protection of personal data:

♦ Includes a ‘right to be forgotten’ - idea is to help people better manage data protection risks online

♦ people will be able to delete their data if there are no legitimate grounds for retaining it

♦ will this play havoc with the integrity of big data in the healthcare system?

17


Cyber Security and Data Breach Responses:

♦ Cost of data breaches: direct (immediate investigation, response and notification - as soon as possible, if feasible within 24 hours) and indirect (longer term costs of reputational damage and business interruption)

♦ Cost of regulatory compliance: in the UK under the Privacy and Electronic Communications (EC Directive) Regulations 2003, ICO may issue an information notice, request an undertaking, issue an enforcement notice, or issue a monetary penalty notice (up to a maximum of £500,000)

♦ ICO’s highest fine so far was £325,000 against two NHS trusts for stolen hard drives that were sold on eBay in 2011

18


SOURCE: HHS

- in US

19


Privacy & Data Security: some issues:

♦ How to you frame ‘explicit consent’ in this context?♦ Selling off ‘your’ data to drug companies. Happy about that?♦ Researchers matching purchasing habits profile (e.g. unhealthy

food, alcohol) with disease symptoms? Very useful, very invasive.♦ ‘Internet of things’ (sensors embedded in all kinds of objects

uploading information): e.g. monitor which transmits glucose levels to data centre in Cloud which then send message to adjustdosage of insulin pump. Suppose that was hacked into?

♦ Maybe patients / consumers, as with Facebook, may be prepared to give up some element or privacy for benefits of having joined-up healthcare. Really??

20


Intellectual Property Issues

♦ Who owns the data? ♦ Who owns the database?♦ Who controls the data?♦ Who can access the data?

There is a need for those collecting, storing and manipulating Big Data to understand whether they have the right to use data for wholesale copying or reproduction, and what they can and cannot access.

What IP rights are involved?

21


Copyright in Data

♦ The Copyright Exceptions

♦ The Google Books Settlement♦ Fair Use♦ Google Search♦ Google Books

22


Data Mining

♦ Copyright Exceptions for Data Mining? (CDPA 1998)♦ Section 28A defence permitting transient copying♦ Section 29(1) defence permitting fair dealing for the purposes

of non-commercial research♦ The Hargreaves Report

♦ Interim non-commercial research exception allowing the use of analytics for non-commercial use

♦ Proposed EU exception to support data mining and data analytics for commercial use

♦ Transformative & Non-Consumptive Use

23


Rights in Databases

♦ The Database Directive (Directive 96/9/EC): 2 types of potential protection for databases: ♦ (i) the “sui generis” database right (under Article 7) and ♦ (ii) copyright in databases (under Article 3).

♦ Football Dataco & Others v Yahoo & Others: database of football league fixtures:

♦ UK Court of Appeal had held the database did not qualify for the sui generis right as there had not been the requisite level of “investment”in either the “obtaining, verification or presentation of its contents”(investment in the creation of data irrelevant).

24


♦ Questions of copyright referred to Court of Justice of the EU:

♦ 1 March 2012, EU Court ruled that database will not attract copyright protection under Directive 96/9/EC (the Database Directive) where the database does not constitute the “original intellectual creation” of its author.

♦ The Database Directive was aimed at "stimulating the creation of data storage and processing systems… and not to protect the creation of materials capable of being collected in a database."

♦ Setting up a database must have a creative element.

♦ By imposing the criterion of originality the CJEU have set the bar quite high, and this decision may now make it harder to obtain copyright protection for databases.

25


♦ What is the impact on Big Data and the Healthcare and Biotech Sectors?♦ Will be more difficult to obtain copyright protection for

databases collating large volumes of data.♦ Anyone setting up a database in these sectors will need to meet

the requirements of originality and ensure that the databases possess a creative element: how is that likely with e.g. machine-to-machine uploading of vital signs data?

♦ It will not be sufficient to obtain protection for databases by simply proving that significant effort and resources have been invested in setting up the database.

♦ Cloud means it is hard to identify a single-owned database anyway

♦ Could this slow the uptake of Big Data in these sectors?

26


Contractual Issues

♦ End to end service-level agreements will be vital♦ Technical integration of various third party data and systems –

systems integration contracts♦ Who will be ultimately responsible for the quality, output and

processing of information, data and IT systems?♦ Liability arising out of inaccurate data or incorrect use. Who

bears this? ISP type defence?

27


♦ How will mining of data across the Cloud be enabled ? ♦ Unless standards are adopted, Cloud will not be single, useable

database, but simply a collection of separate data-sets♦ Is there enough expertise in the Healthcare/Biotech sector?

Recent McKinsey report estimates that there is a need for 1.5 million more data-savvy managers to take full advantage of Big Data in the US alone

28


Contractual & IP issues – R&D♦ Sharing of proprietary / confidential data from research … anathema to

IP lawyers?!♦ “Holistic Open Learning Networks”

♦ clearly-defined ‘pre-competitive’ information available for sharing♦ standards and ground-rules for such sharing will need to be created

– somewhat akin to a patent pool?♦ more cooperation in ‘pre-competitive’ space? e.g. clinical trial

enrolment or biomarkers: contracts will need to cover IP issues ♦ Pie in the Sky?? -- May 24 2012: “Several European drugmakers –

including GlaxoSmithKline, AZ and Sanofi – agreed to work with academics to combat antimicrobial resistance and speed the delivery of new antibiotics. The $285 million effort, called NewDrugs4BadBugs, will be run by the Innovative Medicines Initiative, which was launched by the European Commission.”

29

Conclusion

♦ A vital industry involving trillions of dollars which affects all of us, is beginning to get to serious about the potential of new technologies

♦ The opportunities for new entrants and new models are immense

♦ The legal challenges are complex and in many cases uncharted

♦ … It’ll be an interesting ride!

A vital industry involving trillions of dollars which affects all of us, is beginning to get to serious about the potential of new technologies

The opportunities for new entrants and new models are immense

The legal challenges are complex and in many cases uncharted

… It’ll be an interesting ride!


Use of Big Data in the Healthcare and Biotech Industry: Emerging IssuesBen Goodger, Partner16 October 2012

[email protected]


Online and Across Borders:A Net Gain For Technology Companies?Gareth Dickson, Associate16 October 2012

[email protected]

2

Introduction

♦ Rules on jurisdiction: Foundations for ivory towers?

♦ Application to eCommerce disputes:

♦ Recent European cases

♦ A cause for concern from further afield

♦ Conclusions for technology companies

3

Rules on Jurisdiction

♦ Jurisdiction and Governing law

♦ Home or away?

♦ Different procedural and evidential rules♦ Rules of disclosure and privilege♦ Recovery of damages and costs

♦ Practicalities♦ Location of evidence♦ Location of witnesses♦ Language barriers and transport costs

4

Application to eCommerce disputes

♦ Lack of harmonisation regulating online behaviour leads to forumshopping

♦ Where IT services are provided across borders, disputes typically involve claims in contract and in tort

♦ Desire to achieve foreseeability, sound administration of justice and the efficacious conduct of proceedings

♦ CJEU has given some guidance, not all of it helpful

5

Application to eCommerce disputes

Council Regulation (EC) No 44/2001 on jurisdiction and therecognition and enforcement of judgments in civil and commercialmatters:

♦ Persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. Art 2(1)

♦ A person domiciled in a Member State may, in another Member State, be sued:

♦ in matters relating to contract, in the courts for the place of performance of the obligation in question. Art 5(1)(a)

♦ in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur. Art 5(3)

6

Recent European CaseseDate v. X, Cases C-509/09 and Case C-161/10

♦ Can accessibility of online material create jurisdiction?

♦ Rules of special jurisdiction are derogations “based on the existence of a particularly close connecting factor between the dispute and the courts of the place where the harmful event occurred”

♦ “The internet reduces the usefulness of the criterion relating todistribution.” Criteria “must therefore be adapted”:♦ Sue for all damage in D’s domicile or place of establishment♦ Sue for national damage where information published♦ Sue for all damage where Claimant has “centre of interests”

7

Recent European CasesWintersteiger AG v. Products 4U, Case C-523/10

♦ Litigation in Austria over advertisement by a German company on google.de that allegedly infringed Austrian trade mark

♦ Did Austrian Court have jurisdiction to hear Wintersteiger’s claim?

♦ Contrast with eDate:♦ Mere accessibility insufficient to create jurisdiction♦ Sue in courts of Member States where right is protected♦ Sue in courts of Member States where Defendant is established

♦ “The place of establishment of the server cannot, by reason of its uncertain location, be considered to be the place where the event giving rise to the damage occurred.”

8

Recent European CasesFootball Dataco v. Sportradar, Case C-173/11

♦ FD alleged Sportradar had:♦ extracted data from FD’s football statistics database; and♦ jointly re-utilised that data with sites aimed at UK Internet users

♦ Transmission theory vs. Emission theory

“In the context of the Internet, the usefulness of employing conceptual constructions formulated in the context of broadcasting is highly questionable… What is required [is] a specific construction tailored to the particular characteristics of communication via the internet”

♦ “Making available to the public” is a “collection of acts” which occur, inter alia, where the server is located

9

Recent European CasesTitus Alexander Jochen Donner, Case C-5/11

♦ “Distribution to the public” to be given an independent interpretation – but same as “making available to the public”

♦ Distribution “characterised by a series of acts” from, at least, conclusion of a contract of sale to the performance thereof by delivery to a member of the public

♦ Distribution may therefore take place, and be actionable, in a number of Member States

♦ Acts of the supplier vs. acts on his behalf

10

Assessing Jurisdiction Under Article 5(3)EC Regulation 44/2001

11

Predicting Jurisdiction Under Article 5(3)EC Regulation 44/2001

WATCH THIS SPACE!Where any of the "collection of acts" needed to produce a "making available to the public" occur, including where the server is located

Third Chamber18 October 2012

Cruz Villalón21 June 2012

Sportradar(Online, database)

Where any of the "series of acts" giving rise to a "distribution [making available] to the public" occur

Where there is a targeted sales and delivery channel for buyers to acquire works

Fourth Chamber21 June 2012

Jääskinen29 March 2012

Titus Donner(Offline, copyright)

1. Where right protected; or2. Where advertiser is established; but3. NOT where the server is located

1. Where right protected; or2. Where means necessary to produce

a potential for infringement were used

First Chamber19 April 2012

Cruz Villalón16 February 2012

Wintersteiger(Online, nationaltrade marks)

All damage:1. Where content provider is

established; or2. Where Claimant has "centre of

interests“

National damage:Where content is accessible



interests" and dispute has its "centre of gravity"

National damage:Where content is published

Grand Chamber25 October 2011

Cruz Villalón29 March 2011

eDate(Online, personality rights and privacy)

Jurisdiction (Court)Jurisdiction (AG)CourtAGCase

12



















interests“










13



















interests“










14

Recent European CasesLucasfilm v. Ainsworth [2009] EWCA Civ 1328

♦ Online sale of allegedly infringing goods into California from UK. Lucasfilm sought remedies in the UK

© 2009 Danny Choo (@dannychoo). Reproduced with permission.http://www.dannychoo.com/post/en/1677/Mac+Life+4.html#image-25130

15

Recent European CasesLucasfilm v. Ainsworth [2009] EWCA Civ 1328

♦ Court of Appeal:♦ “The sheer omnipresence of the Internet does not easily create

that presence which is a necessary ingredient in the enforceability of foreign judgments”

♦ Mere accessibility falls short of “establishing a fixed place of business from which [a defendant] carries on business”

♦ “Mere selling of goods from country A into country B does not amount to the presence of the seller in country B”

♦ Supreme Court:♦ “The English court has jurisdiction [in claims for infringement of

foreign copyrights], provided that there is a basis for in personam jurisdiction over the defendant”

16

Recent European CasesSolvay v. Honeywell, Case C-616/10

♦ Belgian company sued one Dutch and two Belgian companies for infringement of a European patent, valid in Netherlands and Belgium, amongst others

♦ Honeywell raised invalidity as a defence and said Dutch courts had no jurisdiction

♦ CJEU said:♦ Since there was a risk of irreconcilable judgments, the

Defendants could be sued together in the Netherlands♦ National Court could grant preliminary injunctive relief against

all three Defendants

17

A Cause for Concern Further AfieldBahattab v. Juniper Networks Middle East, 2012

♦ Decision of the Dubai Court of Cassation

♦ Concerned a claim of infringement of a US patent by the sale of network routers within UAE

♦ Claimant sought royalty for all routers worldwide

♦ First patent dispute in Dubai’s 12 year patent-law history

♦ No Court made any finding on the issue of jurisdiction!

18

Conclusions for Technology Companies

♦ Trends in the CJEU’s jurisprudence

♦ The risks of an online “presence”

♦ Acknowledging the possibility of an outlier

♦ Forum shopping

♦ Practical considerations for working with third parties

19

Online and Across Borders:A Net Gain For Technology Companies?

Thank YouGareth Dickson

England and Wales, New York

[email protected]

+44 (0)207 556 4470


Online and Across Borders:A Net Gain For Technology Companies?Gareth Dickson, Associate16 October 2012

[email protected]


Waking The Watchdog: Recent Competition Cases in the Technology SectorBecket McGrath, Partner16 October 2012

[email protected]

2

Tech and Competition Law in the news

Financial Times

10 October 2012

3

Some characteristics of technology markets

♦ Fast-moving and innovative

♦ Global

♦ R&D focused

♦ IP-based (primarily patents and copyright)

♦ High stakes – ‘winner takes all’ markets

♦ Prevalence of two-sided markets, eg online platforms

♦ Prone to network effects and risk of customer ‘lock in’, therefore possible risk of ‘market-tipping’ and persistent market power(?)

♦ Complex products, often incorporating know-how and/or IP (eg patents, software code) of others

♦ Licensing an important aspect of development, exploitation and distribution

♦ Interoperability often desirable but likely to require IP licence

♦ Key role for standards and standard setting organisations

4

Implications for competition enforcement

♦ High financial stakes means high likelihood of disputes and therefore complaints to competition authorities

♦ Many companies may rely on a single technology or platform, potentially triggering high volumes of complaints

♦ Issues are international, so require cross-border agency coordination

♦ National framework of IP laws may create tensions with EU law, especially single market aspects

♦ Market definition often a challenge, due to novelty and fluidity of markets

♦ Linkage between ownership of IPRs/technology and market power potentially unclear

♦ Views differ over scope for dominance, even for owners of important technology/IP, in emergent/dynamic markets

♦ Complexity of products and theories of harm potentially means slow investigations

♦ Speed of competition investigations may struggle to keep up with rapid market developments

♦ Risk of over-enforcement, especially at early stages of market development

5

Current EC enforcement cases in the tech sector – I.

♦ Refusal to license SEPs on FRAND terms/use of injunctions (Art.102):♦ Samsung - proceedings initiated January 2012♦ Motorola Mobility (now Google) - proceedings initiated April 2012

♦ Refusal to license interoperability information/software (Art.102):♦ CAD software – pending♦ Microsoft: ECIS complaint – proceedings initiated December 2007♦ IBM (maintenance services) - case closed by Art 9 Commitments

Decision, December 2011♦ MathWorks – proceedings initiated February 2012

6

Current EC enforcement cases in the tech sector – II.

♦ Tying/favouring own services (Art.102):

♦ IBM – tying of hardware and OS♦ complaints withdrawn August 2011, case closed

♦ Google – online search, advertising and related services (Art.102)♦ proceedings initiated November 2010

♦ Microsoft – browser tying/’browser choice’ (Art.102)♦ case closed by Art 9 Commitments Decision December 2009♦ case reopened for non-compliance with commitments July 2012

♦ Thomson Reuters – abusive restrictions on use of proprietary data codes (Art.102)♦ Art. 9 Commitments Notices published December 2011 and July 2012

7

Current EC enforcement cases in the tech sector – III.

♦ European Payments Council – exclusion of competition in the online payments market through e-payment standardisation process (Art. 101)♦ proceedings initiated September 2011

♦ Honeywell/du Pont – car air conditioning refrigerants♦ Joint development, licensing and production agreements potentially

anticompetitive (Art. 101)♦ Failure to disclose patents/failure to license on FRAND terms (Art.

102)♦ Proceedings initiated December 2011

♦ Ebooks – competitor coordination/agency agreements (Art. 101)♦ Proceedings initiated December 2011♦ Art. 9 Commitments Notice published September 2012

8

Conclusions/observations

♦ Active enforcement by the European Commission, particularly in Article 102

♦ Finding of dominance has significant consequences for companies and agencies

♦ Dominance may arise from ownership of a single SEP or control over own technology

♦ Extensive use of Article 9 commitments process to close cases means shortage of final reasoned decisions

♦ Still substantial uncertainties over boundaries of abuse, eg what is FRAND?

♦ Potential for material divergence between US and EU enforcement


Waking The Watchdog: Recent Competition Cases in the Technology SectorBecket McGrath, Partner16 October 2012

[email protected]

ConfidentialInformation Classification

What’s New in Privacy

Suzanne Rodway

RBS Group Head of Privacy

[email protected]

2ConfidentialInformation Classification

Health warning

The views expressed here are my own and not those of RBS!


What’s new in Data Protection / Privacy

Increasing regulation around the world

Increasing enforcement around the world

Focus on EU proposals

Technological developments


Increasing regulation around the world

1. Taiwan

2. Philippines

3. Singapore

4. HK

5. Malaysia

6. Korea

7. Cayman Islands

8. US

9. mnm

10.EU – Uruguay– Monaco


Increasing enforcement

Undertakings

Employment law implications

Fines

Prison


EU changes – be afraid, be very afraid

A sample of the delights that await:

Change from a Directive to a Regulation

Increased territorial scope

Increased fines

“Explicit” consent

Right to be forgotten

Data portability

Privacy by design

Increased bureaucracy

Breach notification

Cross-border data transfers


And you thought the cookie rules were hard…

http://nocookielaw.com

Application of the cookie rules to mobile apps

New US rules – FTC

Geolocation data

Data pulled from apps


Social media

Smart utility meters

‘Black boxes’ in cars

BYOD

CCTV that records sound

Other ‘new’ issues

http://www.theonion.com/video/apple-introduces-revolutionary-new-laptop-with-no,14299/


Questions



ConfidentialInformation Classification

What’s New in Privacy

Suzanne Rodway

RBS Group Head of Privacy

[email protected]


Cloud Computing:The silver lining for 2012Richard Graham, Partner16 October 2012

[email protected]

3

♦ Introduction: The Problem with the Cloud

♦ Key Developments in 2012:

Development 1:Demystification

of the Cloud

Development 2:The Evolving

Cloud Contract

Development 3:Regulatory Change

CustomerDrivers

SupplierDrivers


Introduction:The Problem with the Cloud

5

Introduction: The Problem with the Cloud

♦ 1. Service Confusion

Software Providers

TechnologyManufacturers

NetworkProviders

Information & Service Providers

6

♦ 2. Jurisdictional Confusion

CloudCustomerLocation?

CloudProvider

Location?

DataLocation?

DataSubject

Location?


Contract Regulatory

IPR Data Protection

Breach Notification

US PARTIOTAct

7

♦ 3. Security Confusion


Denial ofService

Cyber Attack /Terrorism

Fraud /Theft /

ID Theft

CertificationAuthorityBreach

Phishing / Trojans /Botnets

Poor DataProtection

Compliance

AccidentalDisclosure

Data Loss

SecurityFlaw

DataDamage orDestruction


Key Developments in 2012

9

Development 1: Demystification of the Cloud

Demystifying Cloud

Computing

Data & SecurityData & Security

1. New Privacy Risks?

2. More Data Sharing?

3. More Security Risks?

4. More International?

Ownership & ControlOwnership & Control

1. Extraterritorial?

2. Local Retention?

3. Access & Audit?

4. Loss of Control?

PoliticalPolitical

1. Business Models

2. Employment Protection

3. Business Protection

4. Risk Allocation

10

Development 2: The Evolving Cloud Contract

♦ The Need for Change

Regulation & Consumer

Law

Large Negotiated

Deals

Differences Changers Legal Issues

Access

Shared

Commodity

Structure

Government

Industry

Landmark Deals

Insurers

Enforceability

Validity

Non-Compliant

Data Breach

The Cloud Contract

1111


♦ Unfair Contract Terms Act 1977: UCTA is in the CloudClause Check Consumer Contracts Business Standard Terms Negotiated Business Terms

Implied title Not Permitted Not Permitted Not Permitted

Implied goods etc. Not Permitted Reasonableness Test Permitted*

Implied services etc. Reasonableness Test Reasonableness Test Permitted*

Substantial performance Reasonableness Test Reasonableness Test Permitted*

Death or personal injury Not Permitted Not Permitted Not Permitted

Other negligent losses Reasonableness Test Reasonableness Test Permitted*

Cap/Exclusion Reasonableness Test Reasonableness Test Permitted*

Indirect/Consequential Reasonableness Test Reasonableness Test Permitted*

Limitation of time Reasonableness Test Reasonableness Test Permitted*

Exclusive remedy Reasonableness Test Reasonableness Test Permitted*

No set-off Reasonableness Test Reasonableness Test Permitted*

Pre-contract misrep Reasonableness Test Reasonableness Test Permitted*

Customer indemnity Reasonableness Test N/A Permitted*

No goods guarantee Not Permitted N/A Permitted*

1212


♦ Unfair Terms in Consumer Contracts

Fairness

Plain Language

Two Step Test

Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations

under the contract, to the detriment of consumers.

Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations

under the contract, to the detriment of consumers.

'Good faith' means that you must deal fairly and openly with consumers. Standard terms may be drafted to protect

commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary

to protect those legitimate commercial interests.

'Good faith' means that you must deal fairly and openly with consumers. Standard terms may be drafted to protect

commercial needs but must also take account of the interests and rights of consumers by going no further than is necessary

to protect those legitimate commercial interests.

A standard term must be expressed in plain and intelligible language. A term is open to challenge if it could put the

consumer at a disadvantage because he or she is not clear about its meaning - even if its meaning could be worked out by a lawyer. If there is doubt as to what a term means, the

meaning most favourable to the consumer will apply.

A standard term must be expressed in plain and intelligible language. A term is open to challenge if it could put the

consumer at a disadvantage because he or she is not clear about its meaning - even if its meaning could be worked out by a lawyer. If there is doubt as to what a term means, the

meaning most favourable to the consumer will apply.

1313


♦ Unfair Terms in Consumer Contracts

Exclusion of Liability Limitation of LiabilityNo Service yet

Consumer Bound

Retention of Payment on Customer

Cancellation

Financial Penalty CancellationSupplier’s Right to

Cancel without Notice

Excessive Notice for Customer

Cancellation

Binding Consumers to Hidden Terms

Supplier's Right to Vary Terms Generally

Right to Change what is Supplied

Price Variation Clauses

Supplier’s Right of Final Decision

Binding Consumer on Supplier Default

Assignment without Consent

Restricting Consumer Remedies

14


♦ Non-Cloud versus Cloud

IACCM Most NegotiatedIACCM Most Negotiated

1. Limitation of Liability

2. Indemnities

3. Charges

4. Intellectual Property

5. Payment

6. Liquidated Damages

7. Service/Service Levels

8. Delivery/Acceptance

9. Applicable Law

10. Confidentiality/Access

Cloud Most NegotiatedCloud Most Negotiated

1. Limitation of Liability

2. Indemnities

3. Data Integrity

4. Service/Service Levels

6. Confidentiality/Access

7. Security/Audit

8. Lock-in/Exit/Term

5. Regulatory Compliance

9. Service Change

10. Intellectual Property

1515

7. Liability

•Warranties

•Indemnities

•Exclusions

•Limitations


♦ Negotiation Checklist

3. Data

•Information Security

•Access

•Audit

•Business Continuity/DR

2. Service

•Services

•Service Levels

•Service Credits

•Price

4. Regulation

•DP/Privacy

•Other

•Change

•Breach

1. Structure

•Type (IaaS, PaaS, SaaS)

•Subcontractor

5. IPR

•Ownership

•Rights of Use

6. Termination

•Term

•Termination

•Exit

•Portability

8. Other

•Jurisdiction

•Change

•Insurance

•Certification

16

Development 3: Regulatory Change

♦ Transparency♦ Control♦ Sharing♦ Sub-Contracting♦ Data Portability♦ Outside of EEA

Article 29 Data Protection

Working Party Opinion 1 July

2012

♦ Interoperability♦ Data Portability ♦ Reversibility♦ Certification♦ 'Safe and Fair' Contract Terms♦ European cloud market

EC Strategy for "Unleashing the

potential of cloud computing

in Europe" 27 September 2012

♦ What data to put into the cloud?♦ Performance monitoring♦ Written contract♦ Security assessment♦ Security measures♦ Using cloud services from outside the UK♦ Multi-tenancy environment

ICO Guidance on Cloud

Computing 27 September 2012

17

Conclusion & Questions?

Richard GrahamPartnerEdwards Wildman Palmer LLP Dashwood69 Old Broad StreetLondonEC2M 1QS

+44 (0) 20 7556 4418 (Direct)+44 (0) 20 7583 4055 (Office)+44 (0) 7879 554 259 (Mobile)

[email protected]/rgraham


Cloud Computing:The silver lining for 2012Richard Graham, Partner16 October 2012

[email protected]


Business Secrets and Information: Are you protected from The Enemy Within?Neil Adams, Partner16 October 2012

[email protected]

2

Business Secrets and Information: Are you protected from The Enemy Within?

♦ on commencement of employment

♦ during employment

♦ on resignation

♦ on departure

3

On commencement of employment

♦ contractual provisions

♦ garden leave

♦ payments in lieu of notice (“PILON”)

♦ confidential information – need for express term

♦ post termination restraints – what is reasonable?

♦ non compete

♦ non solicitation

♦ non deal

♦ non enticement

4

During employment

♦ monitoring and review

♦ changing business

♦ changing roles

♦ expanding teams

♦ changing client base

♦ acquisitions

5

On resignation

♦ write to employee

♦ garden leave?

♦ reallocation of clients

♦ removing access to confidential material

♦ carry out checks

6

On departure

♦ monitoring

♦ act quickly

♦ remedies

♦ injunction

♦ damages

♦ account of profits


Business Secrets and Information: Are you protected from The Enemy Within?Neil Adams, Partner16 October 2012

[email protected]


Agile Developments: Pitfalls & WaterfallsMark Deem, Partner16 October 2012

[email protected]

2

Context

♦ More than half of IT professionals and two-thirds of companies are ‘agile’ [VersionOne, November 2011]

♦ Agile reflects the development process currently used by over a third of IT professionals [Forrester Research, May 2012]

♦ Perceived benefits: managing changing priorities and visibility

♦ BUT, one size does not fit all…

3

Waterfall - characteristics

♦ Sequential development process

♦ Development ‘flows’ downwards through feasilibity, analysis, design, implementation and testing

♦ Output of each stage is the input of the next stage

♦ Requirements agreed before development can begin

♦ Testing is the contractual tool for delivery / rejection

4

Waterfall Development

Feasibility

Analysis

Design

Implement

Test

5

Agile - characteristics

♦ Systems best developed in small increments

♦ Users and developers work hand-in-hand

♦ Each increment should handle the minimum requirements

♦ Changes in requirement, should be “designed in”

♦ Little or no documentation beyond the actual code

6

Agile Development

Dialogue with customer

Prototype generated

Prototype shared

Repeat

7

Agile?

LimitedHighCustomer involvement

FixedFrequently changingRequirements

Junior developersSenior developersExpertise of workforce

Large-scaleSmaller-scaleSize of development

ApartCo-locatedLocation of teams

Agileless appropriate

Agile more appropriate

… but success is invariably determined by balancing

scope, resources and scheduling

8

The Pitfalls

♦ Requirements

♦ Analysis, design, implementation and testing …

♦ … scope, resources and scheduling

♦ Contract, dispute resolution & exit

♦ Goods or services?

9

Requirements

♦ Waterfall depends upon requirements up front♦ Identifying problem does not equate to recognising solution♦ Language issues♦ Over capacity♦ Change mechanisms

♦ Agile involves iterative process♦ Framework required♦ Identify and accept idiosyncrasies of customer♦ Focus on the problem to be solved♦ Scope creep?

10

Analysis, design, implementation, testing …

♦ Waterfall mandates a sequential development process♦ Production of working software late in process♦ Too late in process?♦ Changes difficult to accommodate♦ Non-working code considered waste

♦ Agile mandates an iterative development process♦ Early indication of problems♦ Requires customer involvement♦ Do you know when you have reached solution?

11

…scope, resources and scheduling

♦ Waterfall development generally fixed requirements, fixed fee, fixed timetable♦ Change is costly♦ Insufficient flexibility

♦ Agile is more flexible♦ Customer ability to micro-manage all three♦ Need to fix one of scope, resources, and schedule

12

Contract, dispute resolution & exit

♦ Waterfall – testing is the contractual tool♦ Dispute escalation♦ Later in project♦ Material breach?♦ Exit manageable

♦ Agile – governance is key to contractual management♦ Traditional approach less obviously helpful♦ Document a process♦ Activation of formal dispute resolution♦ Material breach?♦ Exit difficult

13

Goods or services?

♦ Waterfall♦ Customer tests to determine if software meets requirements♦ Goods?

♦ Agile♦ Problem-solving exercise - “Try it, test it, fix it”♦ Services?

14

Conclusion

♦ We are becoming increasingly ‘agile’

♦ One size does not fit all

♦ Recognise the issues and respond accordingly


Agile Developments:Pitfalls & WaterfallsMark Deem, Partner16 October 2012

[email protected]


European Court Developments on the Protection of Computer SoftwareAkash Sachdeva, Partner16 October 2012

[email protected]

2

Two critical judgments from the CJE

♦ SAS Institute Inc v World Programming Limited (C-406/10) a/k/a “If you think patenting software in Europe is a pain, you haven’t heard what we have to say about copyright”

♦ UsedSoft GmbH v Oracle International Corp. (C-128/11)a/k/a “Exhaustion is exhausting but recycling is golden”

3

SAS sends an SOS

♦ The background:♦ SAS developed integrated set of computer programs over 35

years to all users to perform data processing and statistical analysis (the “SAS System”)

♦ users could write/run their own scripts (in SAS’s language) to adapt the SAS System to work with their own data

♦ WPL produced its own software designed to emulate SAS System and which could process applications written in SAS language

♦ Result: SAS user’s could then purchase WPL’s software and run their own SAS scripts on WPL’s software

♦ NO source code or structural design had been copied.

4

The questions referred to the CJEU

♦ SAS sued WPL for copyright infringement in the UK.

♦ Arnold J referred a number of questions to the CJEU: ♦ whether the functionality of a computer program, programming

language and/or format of data files were protected by copyright?

♦ whether a licensed user could observe, study or test functionality of a computer program to identify the principles and ideas underlying it?

♦ whether the reproduction in a computer program (or user manual) of certain elements in an earlier user manual can be an infringement of the copyright in that earlier user manual?

5

SAS’s SOS denied

♦ The CJEU answered as follows: ♦ functionality, formats and computer programming languages are

not protected by copyright (under the Software Directive)♦ a lawful user of a computer program may study, observe and

test a computer program so long as the owner’s exclusive rights are not infringed

♦ the copyright in the earlier user manual can be infringed if theelements taken constitute the “expression of the intellectual creation of the author” of the earlier user manual

6

What does it all mean?

♦ The CJEU is not committed to clarity, for example: ♦ although functionality etc. is not protected by copyright under

the Software Directive, it may be under a different Directive♦ the idea that allowing copyright protection for functionality of

software would enable owners to have a monopoly omits any reference to the requirement for copying in any claim for copyright infringement

♦ saying that a lawful user is able to do certain things unless that infringes copyright is not helpful in determining whether those things actually infringe copyright

♦ no guidance is given as to how to determine whether elements of a work constitute an author’s “intellectual creation”

7

Where does that leave us?

♦ Ignoring the uncertainty, what is clear is: ♦ this judgment is a major setback for SAS and other software

developers; but♦ many in software industry will be relieved to know that

underlying functionality cannot (is most cases) be protected by copyright

♦ Software developers will be anxiously re-examining their licences to ensure that they have maximum protection

♦ Finally, the fundamental course of jurisprudence in this area isthat copyright protection will not be permitted in anything other than lines of code: interoperability wins the day!

8

UsedSoft v Oracle – promoting the second hand market in downloaded software

♦ The background:♦ Oracle sells software the customers download directly from their

website♦ The user’s rights in the software include the right to store the software

permanently on a server and to obtain further updated version of the software as and when released.

♦ The licence agreement includes the following term: “…you receive, exclusively for your internal business purposes and

for an unlimited period, a non-exclusive, non-transferable user right, free of charge, in respect of anything which Oracle develops andmakes available to you..”

♦ UsedSoft sells “used” software licences purchased from Oracle customers to third parties which then allow those purchasers to download the product directly from Oracle’s website.

♦ Oracle sued UsedSoft for copyright infringement in Germany

9

The Questions referred

♦ The German courts referred three questions to the CJEU: ♦ Is a person who relies on the exhaustion of the distribution right

of a copy of a computer program a “lawful acquirer”?♦ Is the distribution right in respect of a copy of a computer

program exhausted in these circumstances?♦ If the answer to the 1st and 2nd questions is yes, can the “lawful

acquirer” also rely on the exhaustion of rights to download the program from the internet if the first acquirer has erased his program and no longer users it?

10

In which the CJEU deals a further blow to software copyright

♦ The CJEU, in essence, answered as follows: ♦ the first sale of a computer program exhausts the copyright in

that copy and it does not matter if the software is downloaded or purchased through physical media, eg. CD-ROM or DVD

♦ the “licence” Oracle provided to its customers was, in effect, a “sale” – it did not matter that the licences were personal and expressed to be ‘non-transferable’

♦ broadly speaking, there was never any intention to distinguish between works delivered by physical media or electronically (viathe Internet).

♦ Having said all of that, a reseller had to render his original copy ‘unusable’ even though it was possible for a reseller to make another copy of the software to allow different hardware to be used.

11

What does it all mean?

♦ It is another setback for software vendors♦ However, in considering whether there has been a “sale” the Court

emphasised that there must be a fee and a licence for an unlimited period. Developers will now consider providing licences on a time limited basis to avoid dilution of their rights.

♦ the same principle applies to music, movies, computer games. Might it also apply to any online content (e-books? online newspapers?).

♦ The “app” industry also should take careful note of the decision.


European Court Developments on the Protection of Computer SoftwareAkash Sachdeva, Partner16 October 2012

[email protected]

Called to the Bar 1984 Took silk in 2003

Alan Gourgey QC has an outstanding reputation in the field of commercial litigation and IT as a litigator as well as an arbitrator, adjudicating expert and qualified mediator. His wide-ranging practice deals with heavy contract disputes, including outsourcing agreements. In recent years Alan has acted in some of the UK’s largest IT and e-commerce disputes for clients such as CSC, ITNET, HP and EDS (in BskyB v EDS [2010] EWGHC 86). Disputes involved major government contracts, banking IT solutions and a significant CRM project. He was also involved in the NATS case involving air traffic control systems. He is an experienced trial and arbitration lawyer with particular strengths in rapid assimilation and analysis of complex material, tactical guidance and forceful advocacy. Alan is recommended in the major legal directories as a leading silk for commercial litigation, commercial dispute resolution, information technology, commercial chancery, insolvency and civil fraud.

Alan Gourgey QC11 Stone Buildings


Speakers’ Biographies

Suzanne trained with global law firm Linklaters, where she qualified into the Technology, Media & Telecommunications practice. In this role she advised clients on a variety of aspects of IT law but quickly developed an interest in global data protection and ecommerce laws – an interest which has remained firmly in place ever since.

This interest led, after completing a number of years in the practice, to a move in-house within Linklaters to advise the firm on its own privacy and information risk management issues. With the experience gained in this role Suzanne then undertook a secondment to Barclays as their Interim Head of Data Protection. She joined Barclays permanently in December 2006 as their Privacy Director within the Legal & Compliance team. For the last 2 years of her role at Barclays she was also Chair of the British Banker’s Association Data Protection Advisory Panel.

Suzanne presents frequently on privacy issues and writes regularly on the subject and is on the editorial board of the Privacy & Data Protection Journal. In 2009, under Suzanne’s leadership, Barclays were awarded a Privacy Innovation award by the International Association of Privacy Professionals for their approach to privacy across the group.

Suzanne RodwayGroup Head of Privacy, Royal Bank of Scotland

Guest Speakers

Geoff joined Edwards Wildman in 2012 and is a specialist litigator highly experienced in major IT disputes. Geoff partners with clients to understand their business better and to help them achieve their commercial objectives. This can involve risk evaluation and managing problem contracts behind the scenes or settling disputes to avoid proceedings and to preserve working relationships. Geoff has particular experience in dispute resolution procedures, including mediation, early neutral evaluation and arbitration.

Sometimes proceedings cannot be avoided. Geoff led the team in what Computer Weekly called, at the time, one of the longest running IT trials in the Technology and Construction Court against National Air Traffic Services Ltd. He continues to lead on significant disputes for large international IT companies. He and his team are currently advising a provider under the £12bn NHS National Programme for IT. Chambers notes that “Geoff Mendelsohn impresses clients with his ability to deal with difficult cases in a calm and competent way” and he appeared in the Legal 500 as “a genuine contentious heavyweight as demonstrated by his representation on high value disputes”.

Geoff Mendelsohn (Chair)Partner, Intellectual Property GroupEdwards Wildman Palmer UK LLPe: [email protected]

Neil qualified in 1993 and advises on all aspects of both contentious and non contentious employment law. He acts for a wide range of clients including both public and private companies and senior executives. Neil has particular experience in advising on both individual and team moves, the enforcement of restrictive covenants and board disputes. Neil’s work involves litigation in both the High Court and employment tribunals where he has successfully represented clients on significant breach of contract, unfair dismissal and discrimination claims. He also undertakes his own advocacy. Neil writes regularly on employment law and speaks at seminars both internally for clients and externally.

Neil AdamsPartner, Employment GroupEdwards Wildman Palmer UK LLPe: [email protected]

Mark is a commercial litigator, with considerable experience of complex domestic and cross-border litigation, international arbitration and regulatory matters.

He has conducted litigation in all commercial divisions of the English High Court, Court of Appeal, Supreme Court and Court of Justice of the EU; represented clients in international arbitration proceedings under the rules of the ICC, LCIA, RIDR and IFTA; and has a broad experience of mediation and other dispute resolution mechanisms. He is a Solicitor-Advocate with rights to appear in all Higher Courts in England & Wales.

Mark DeemPartner, Commercial Litigation GroupEdwards Wildman Palmer UK LLPe: [email protected]

Edwards Wildman Speakers

Richard is a partner in the Firm’s London office, where he specializes in technology, media and telecommunications (TMT) matters and strategic outsourcing transactions. Richard is a member of the Firm’s Privacy & Data Protection Group Steering Committee. He is actively involved in a wide variety of industry sectors, including the TMT, broadcasting, healthcare, financial services and insurance sectors.

Richard’s practice includes providing commercial and regulatory support in connection with IT, communications, media, e-commerce, broadcasting and gambling projects. He also regularly advises clients in connection with privacy, data protection and information security matters.

Richard GrahamPartner, Intellectual Property GroupEdwards Wildman Palmer UK LLPe: [email protected]

Ben has over 20 years experience in advising companies on the strategic management, commercialisation and protection of their valuable intellectual property. He specialises in high technology, and has worked with clients in a number of industries, including bio-pharma, ICT, food and drink, energy, and university technology transfer. He has advised many different types of client, including multinational corporations, SMEs, lenders, and academic institutions on issues relating to the commercialisation and licensing of IP. Ben spent two years in Shanghai, where he managed his previous firm’s China business and Asia commercial IP groups, and has internationally-recognised expertise in advising on strategies for the protection, commercialisation and management of IP assets in China and Asia.

Ben is widely recognised as a leading IP practitioner. Intellectual Asset Management magazine listed him in its “IAM Strategy 250” in 2010 and its “IP Top 250” in 2009 and 2010. He is ranked in the UK guide for Chambers, and Legal Business cited him as an expert in IP and IT in its “Legal Experts 2010.” In addition he is listed in “The World’s Leading Patent and Technology Licensing Practitioners” 2010.

Ben GoodgerPartner, Intellectual Property GroupEdwards Wildman Palmer UK LLPe: [email protected]

Becket is a Co-Chair of the firm’s Antitrust practice group. He advises clients on all aspects of EU and UK competition law, with an emphasis on behavioural issues, compliance, competition litigation and merger control. Although he advises clients in a broad range of sectors, he has a particular interest in the media, technology and communications sectors, as well as the interface between intellectual property and competition law. He also advises on broadcasting, rail and utility regulation. He has experience of enforcing UK and EU competition law at a senior level in the Office of Fair Trading and retains good links with enforcement agencies and regulators in the UK and across the EU. Becket is a frequent commentator on competition law developments, having appeared on the BBC’s Today Programme, BBC News, Channel 4 News, Radio 5 Live and CNBC.

Becket McGrathPartner and Co-Chair of Antitrust Practice GroupEdwards Wildman Palmer UK LLPe: [email protected]

Gareth is a litigator in the Litigation practice in Edwards Wildman’s London office. He is a UK qualified solicitor and New York admitted attorney whose practice focuses on the resolution of technology and intellectual property disputes. Gareth is regularly called upon by clients to urgently resolve cross-border disputes involving the technology, financial services, luxury goods and creative industries.

Gareth DicksonAssociate, Intellectual Property GroupEdwards Wildman Palmer UK LLPe: [email protected]

Akash Sachdeva joined Edwards Wildman in 2011 as a Partner. He is a qualified barrister, having trained in the IP specialist Chambers of Christopher Floyd QC. He has over 13 years of experience in intellectual property litigation including acting for Research In Motion on patent litigation matters in the English High Court, acting for BSkyB in a case involving the importation of foreign decoder cards, acting for a major defense contractor in an arbitration involving confidential information and acting for a major Chinese telecoms company in proceedings in Hong Kong and China.

He also has had significant experience in international arbitration having acted in ICC, AAA and LCIA arbitration disputes.

Akash SachdevaPartner, Intellectual Property GroupEdwards Wildman Palmer UK LLPe: [email protected]

Edwards Wildman Palmer UK LLPDashwood69 Old Broad StreetLondon EC2M 1QS

t: +44 (0) 207 583 4055f: +44 (0) 207 353 7377

edwardswildman.com

IPInteraction.comedwardswildman.com

© 2012 Edwards Wildman Palmer LLP and Edwards Wildman Palmer UK LLPATTORNEY ADVERTISING: Prior results do not guarantee a similar outcome.

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