Increasing the ASA’s impact in an evolving world

Earlier this month the ASA announced its new strategy, More Impact Online, which aims to advance its regulation of online advertising over the next five years. The strategy has been developed following consultation with consumers, industry organisations and the government, and recognises the need for the ASA to move forward and adapt to the changing world of advertising, as well as to build trust – with both the public and across the industry – in a system of self-regulation.

The reasoning behind the focus of the strategy is clear: not only were “88% of the 7,099 ads amended or withdrawn in 2017 online (either in whole or in part), but in the first half of 2018 there has been a significant increase in the number of adverts being amended or withdrawn, with 7,232 such rulings between January and June 2018.

The strategy has six key strands: People; Online; Effectiveness; Buy-in; Enforcement and Independence, and the ASA has identified key drivers, strategic decisions, and markers of success for each of these elements.

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Block Party? UK Government Considers New Ways of Clamping Down on Illegal Streaming

The UK government has recently published its response to its call for views on illicit Internet Protocol Television streaming devices or “ISDs”. The government describes ISDs as “small plug and play media servers, originally designed to allow consumers to stream legitimate content”, which have been modified with software that enables users to view “illegal content through streaming websites, file lockers and BitTorrent trackers”. Continue Reading

GDPR’s Impact on the CAP Code and How Prize Winners are Announced

Back in May this year, the Committee of Advertising Practice (CAP), which authors the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), launched a consultation (the Consultation) on changes that may be required to the CAP Code on the issue of administration of prize promotions. This followed the introduction of the General Data Protection Regulation (GDPR). The Consultation was completed on 19 June 2018.

Following the Consultation, CAP has agreed to change its prize promotion rules in order to comply with the stricter requirements under the GDPR, especially around consent. Continue Reading

Regulator Investigating Celebrities and Social Media Influencers Who do not Label Commercial Posts

The Competition and Markets Authority (CMA) in the UK is launching an investigation into concerns that social media stars and influencers may not be declaring payments or rewards when they endorse goods or services online.

UK Consumer law

Consumer law, under the Consumer Protection from Unfair Trading Regulations 2008, requires that if a blogger is paid to promote a product or service, they must make clear to their audience that it is in fact a paid-for endorsement. However, the CMA has identified growing concerns that these influencers may be misleading their audience by failing to declare their commercial relationships with these featured brands. Continue Reading

How Selecting The Wrong Prior Art References Will Doom An IPR

The Federal Circuit recently affirmed a Patent Trial and Appeal Board (“PTAB”) inter partes review (“IPR”) decision in Palo Alto Networks, Inc. v. Finjan, Inc., No. 2017-2059, holding that the PTAB did not err in concluding that a person of ordinary skill would not have combined certain prior art identified by Palo Alto Networks, Inc. (“PAN”) in a way that would teach a claim limitation common to the challenged claims.   The Federal Circuit’s opinion underscores that the prior art references selected for assertion by an IPR petitioner are the key to any IPR petition’s ultimate success.

As related in the opinion, on September 30, 2015, PAN petitioned the PTAB for an IPR of claims 1, 2–7, 9, 12–16, 19–23, 29 and 35 (“challenged claims”) of U.S. Patent No. 8,225,408 (the “’408 patent”) issued to Finjan, Inc. (“Finjan”).  The ‘408 patent relates to “methods and systems for detecting malware in data streamed from a network onto a computer,” by building “a parse tree data structure” from the “incoming content” that is evaluated for “specific patterns of content that indicate malware.” The following limitation is common to the challenged claims:

dynamically building, by the computer while said receiving receives the incoming stream, a parse tree whose nodes represent tokens and patterns in accordance with the parser rules

After institution, the PTAB adopted PAN’s unopposed construction for “dynamically building” based on the plain claim language, to mean “requires that a time period for dynamically building overlap with a time period during which the incoming stream is being received.” PAN had alleged that the challenged claims were invalid on two grounds: (1)that the claims would have been obvious over U.S. Patent No. 7,636,945 issued to Chandani (“Chandnani”) and U.S. Patent No. 5,860,011 issued to Kolawa (“Kolawa”); and (2) that the claims would have been obvious over Chandnani, Kolawa, and U.S. Patent No. 7,284,274 issued to Walls (“Walls”).

The Chandnani patent was the focus of the PTAB’s decision.  Chandnani teaches a method of “detecting malware in a data stream, including determining the programming language of the data stream and detecting viral code.”  Chandani also “teaches tokenizing the incoming data stream by breaking it into smaller pieces known as tokens.” Chandani summarizes its tokenizing procedure as follows:

To tokenize the data stream, a script language used in the data stream is determined using the language check data. The data stream is analyzed using the language check data to select the language definition data to use for the detection process. Next, the selected language definition data and the data stream are supplied to the lexical analyzer. The data stream is lexically analyzed again, this time using the language definition data, to generate a stream of tokens. As mentioned above, each generated token corresponds to a specific language construct, and may be a corresponding unique number or character.

The PTAB determined that the dispositive issue was whether PAN demonstrated that the prior art teaches or suggests “dynamically building” a parse tree “while” receiving an incoming stream of program code as required by its construction of “dynamically building.” The PTAB found that Chandnani did not teach the “dynamically building” limitation of the ’408 patent because it does not demand or even imply that the data stream is being received while being tokenized.

On appeal, PAN challenged the PTAB’s interpretation of the Chandnani reference.  The Federal Circuit held that the PTAB’s finding was “supported by substantial evidence because the reference itself, by using the word ‘again,’ indicates that the data stream is lexically analyzed more than once and not simultaneously.” The Federal Circuit also found that the PTAB did not err by relying on Finjan’s expert, Dr. Medvidovic, who opined that:

simply because Chandnani’s tokenizer operates on a data stream does not demand or even imply that the data stream is being received while being tokenized…

Chandnani would still temporarily store the entire data stream in memory at least between the first and second lexical analyses.

PAN also argued that the PTAB erred by “analogizing Walls to Chandnani and by not meaningfully reviewing Walls as a separate reference that discloses the dynamically building limitation.” In response, the Federal Circuit concluded that the PTAB “did not fail to meaningfully consider the teachings of Walls” because the PTAB “considered the disclosure of Walls and the expert testimony regarding Walls from both parties” and “performed its own review of Walls” before reaching its decision.

PAN further argued that the PTAB “erred by not considering particular cross-examination testimony from Finjan’s expert witnesses when analyzing whether the prior art taught ‘dynamically building’.”  In response, the Federal Circuit noted that the PTAB “acknowledged Dr. Medvidovic’s cross-examination testimony and explained its reasoning for why Chandnani does not disclose the required claim limitation.”  In reaching its decision, the Federal Circuit relied on its prior decision in PGS Geophysical AS v. Iancu, where it held that “we may not supply a reasoned basis for the agency’s action that the agency itself has not given, [but] we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.”

TAKEAWAY:  This case presents a further example of the Federal Circuit’s deference to the PTAB’s evaluation of substantive evidence in IPR proceedings and to the PTAB’s decision-making processes around such evaluations.  Further, practitioners who anticipate challenging a patent via an inter partes review should exercise great care in ensuring that identified prior art in their petition is consistent with their claim constructions.

Comparative Advertising: A Quick Guide

What is a comparative advertisement? The EU Misleading and Comparative Advertising Directive 2006 (the “Directive”) defines a comparative advertisement as an ad that explicitly or by implication identifies a competitor or goods or services offered by a competitor. It seems like an intuitive concept, but there are a whole host of legal requirements, which advertisers should bear in mind when considering a comparative advertising campaign. Continue Reading

In re Tomahawk and the Securities Law Implications for Airdropped Tokens

The legal status of cryptocurrency token airdrops under U.S. securities regulations remains a topic of great interest.  Many issuers wonder if they might use airdrops to avoid scrutiny of their token under U.S. securities regulations.  While the definitive answer remains unsettled, a recent order from the SEC suggests it may (rightly or wrongly) treat airdrops as securities. Continue Reading

‘Unhealthy’ Food Ads Banned Under New ASA Rules

Retailers should continue to monitor the Committee of Advertising Practice Code (CAP Code) governing the advertising of High in Fat, Salt and Sugar (HFSS) products to children. Last year, CAP introduced rules banning the advertising of HFSS products in children’s media and media where children comprise at least 25% of the audience. This includes placing ads within 100m of a primary school, for example. CAP intends to restrict the advertising of products that “most contribute to the problem of childhood obesity”. Continue Reading

The Service Date of a Patent Infringement Complaint Begins the One Year Clock for Filing an Inter Partes Review Petition

In Click-to-Call Technologies, LP v. Oracle Corporation, No.2015-1242 (en banc), the Federal Circuit has overturned the Patent Trial and Appeal Board’s longstanding interpretation of 35 U.S.C. §315(b)’s time bar for inter partes review (“IPR”) petitions, finding that the service of any civil complaint for patent infringement— even if later dismissed—starts the clock on the statute’s one-year window for filing an IPR. Continue Reading