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A common refrain is that an invention is only as valuable as the patent that protects it. But what happens when you cannot secure the patent? This is a frequent hurdle for inventors seeking to patent products utilizing artificial intelligence (AI). While still in its infancy, at least compared to the lofty expectations of technology enthusiasts, AI has proven integral to driving innovation, but it has also proven equally vexing to fit into the intellectual property legal regime.

In the article, “How to Safeguard AI Technology: Patents versus Trade Secrets,” JMBM attorneys Stanley M. Gibson and Samuel R. Buchman discuss the potential advantages of using trade secret protection where patent protection cannot be obtained.

Read the article on IPWatchdog.com. Continue reading

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On March 2, Stan Gibson and Rachel Capoccia will host a free webinar exploring the issue of false advertising, how it can harm your company, and how you can resolve problems resulting from competitors’ misleading statements. Details on the program and a sign-up link are below. Please join us!

How to Defend Your Company Against False Advertising

Date: Tuesday, March 2

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Next month, Stan Gibson, Chairman of JMBM’s Patent Litigation Group, will run the 4x4x48 for the Special Operations Warrior Foundation. Read his message below.

Like many of you, I have wondered what I can do to help our country and the people in need during the pandemic. After recently reading the book, Can’t Hurt Me by David Goggins, a former Navy seal, I became inspired to run the 4x4x48 challenge on March 5, 2021 at 8 pm through March 7, 2021 at 8 pm.

The 4x4x48 challenge consists of running 4 miles every 4 hours for 48 hours. I’ll be running to fundraise for the Special Operations Warrior Foundation. Their mission it is to help fallen and wounded special operations forces and their families, which is particularly important to me as I have had a number of family members serve in the forces in Iraq and Afghanistan. Continue reading

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In a decision published on April 27, 2020, the United States Patent and Trademark Office determined that only a human can be considered an inventor. So, who owns the patent when artificial intelligence makes the invention? What are the practical and logistical complications inherent in artificial intelligence-created inventions? With technology advancing faster than the legal system, what can we expect moving forward?

Stanley M. Gibson, Chair of JMBM’s Patent Litigation Group discusses these issues in the article, “What Happens When Artificial Intelligence Invents: Is the Invention Patentable?” published in the Vol. 41 No. 4 issue of AI Magazine.

Read the article. Continue reading

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Upcoming webinar: When Artificial Intelligence is the inventor, who owns the patent?

Join us for a one-hour webinar on the topic, “When AI is the inventor, who owns the patent?”  Register now.

Who Should Attend:  General Counsel, Patent Counsel

Date: Tuesday, October 20, 2020

Time: 11 AM – 12 PM Pacific Time

Description:

Companies that develop products and services employing artificial intelligence (AI) face unique opportunities and challenges. One such challenge is patenting inventions created by AI.

This one-hour webinar will focus on the issue of whether AI can be considered an “inventor” under United States patent law. We will discuss recent developments and the implications that can be drawn from the rejection by the U.S. Patent Office of inventions created by AI. A question and answer period will be included. Continue reading

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In the article, “Deepfakes: new California laws address dangers and development”, published by the Daily Journal, author Stan Gibson address two new California laws that have been enacted to combat the risk of “deepfake” videos.

Deepfake videos, in which a person in an existing image or video is replaced with someone else’s likeness, have a high potential for abuse. For the victims of deepfakes, legal recourse may be difficult, as the law is just beginning to catch up with this technology.

Gibson discusses the implications of the new laws and what more needs to be done.

You can read the article, here. Continue reading

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Upcoming Webinar: COVID-19 and the Case for Force Majeure in California

Join us as two California business trial lawyers present “COVID-19 and the Case for Force Majeure in California”

The webinar will take place on Wednesday, May 27 at 10:00 AM – 11:00 AM Pacific Time. Register now.

Businesses throughout California are suffering the crippling economic consequences triggered by the COVID-19 pandemic. Looking for relief, many have been stymied by force majeure (so-called “Act of God”) clauses. Our speakers will discuss how to determine if you have a legitimate claim, and explore critical questions about force majeure in California, including:

  • What is a force majeure?
  • What constitutes force majeure in California?
  • How to determine when to assert force majeure?
  • Does force majeure trigger business interruption insurance?
  • What are the practical considerations for addressing force majeure in the
    COVID-19 Pandemic?

Our speakers include:

  • Stan Gibson, Partner, Jeffer Mangels Butler & Mitchell LLP

Stan is an experienced business trial lawyer and is the Chair of JMBM’s Patent Litigation Group. Among his numerous successes is the $570M breach of contract and patent infringement verdict for his client in Medtronic v. Michelson, which is listed in the National Law Journal’s Hall of Fame, a list of the 100 highest grossing verdicts since 2003.

 

Register Now

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Force Majeure in California: Does the COVID-19 Pandemic Qualify?

A Three Part Series

By Stan Gibson

Part 3 – Practical Guidance: Force Majeure and the COVID-19 Pandemic

 

See Part 1 – What Constitutes a Force Majeure

See Part 2 – Asserting Force Majeure

See Part 3 – Practical Guidance

Practical Guidance for Addressing Force Majeure in the COVID-19 Pandemic

Parties on both sides of a contract must weigh their options when faced with a force majeure event and should take steps to ensure that they have a clear understanding as to their obligations, the claims being made by the other contracting party, and what steps they can take to mitigate their losses and/or protect their rights.

There are a number of steps a party can and should take to limit any potential liability in the midst of the current COVD-19 Pandemic.

Review the Terms of Your Contract

First, review the specific terms of your contract. Parties may contract around certain risks that might otherwise be viewed as a force majeure event. You will need to know what your obligations are under the contract and whether you, or the other contracting party, will still be expected to perform even in the face of these unprecedented circumstances. For example, a contract may include specific provisions that a strike or national emergency does not relieve a party of its obligations under the contract.

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Force Majeure in California: Does the COVID-19 Pandemic Qualify?

A Three Part Series

By Stan Gibson

Part 2 – Asserting Force Majeure

 

See Part 1 – What Constitutes a Force Majeure

See Part 2 – Asserting Force Majeure

See Part 3 – Practical Guidance

When to Assert Force Majeure

As discussed in Part I, the party claiming inability to perform must be able to show that its performance is impossible or unreasonably difficult due to unforeseeable circumstances beyond its control. Typically, a claim of force majeure is made as an affirmative defense to a claim for breach of contract.

Where a force majeure event is claimed the party faced with the claim has two options. The party may “treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract, thereby terminating the contractual relationship between the parties, or [they] can treat the repudiation as an empty threat, wait until time for performance arrives, and exercise [their] remedies for actual breach if a breach does in fact occur at such time.”[1] Although California law “authorizes the injured party to immediately seek damages” it does “not require the injured party to seek damages or lose the right to treat the repudiation as an anticipatory breach.”[2] If, however, a party “continues to accept the [repudiating party’s] performance, [it] may be deemed to have waived the breach.”[3]

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Force Majeure in California: Does the COVID-19 Pandemic Qualify?

A Three Part Series

By Stan Gibson

Part 1 – What Constitutes a Force Majeure

See Part 1 – What Constitutes a Force Majeure

See Part 2 – Asserting Force Majeure

See Part 3 – Practical Guidance

Introduction

The ongoing COVID-19 Pandemic is disrupting day-to-day operations, supply and delivery chains and general contractual obligations around the world and throughout California. Many companies and individuals are facing unprecedented situations and demands. In the midst of all this you may be wondering what effect, if any, the COVID-19 Pandemic will have on your, and other parties’, contractual obligations. You may have heard people throwing around the term “force majeure” as a reason for excusing performance or terminating a contract. But what does that term mean? And how does it work in California? The purpose of this series of articles is to answer these questions and more.

Although these are unprecedented times, the disruption caused by the COVID-19 Pandemic alone, may not be sufficient to excuse performance under a contract. Before making or responding to any claims of impossibility of performance due to the current situation you should carefully review the terms of your contract. Bear in mind that you, or another party, will not be excused from performance simply because performance is more difficult or expensive than anticipated. If faced with a claim of inability to perform by another party, you should ask yourself whether you are willing and able to continue performing your own contractual obligations before asserting that they are in breach. A party suing for breach of contract must be able to show that it was capable of holding up its end of the contract.

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