Trade Enforcement and Trade Facilitation Act (Federal Regulation)

The Trade Facilitation and Trade Enforcement Act of 2015, H.B. 644, was signed into law on February 24, 2016. The Act may have far- reaching impacts on U.S. companies that use foreign suppliers. The Act allows the government to confiscate or turn away items being imported that it reasonably suspects were made using forced or child labor. The Act also requires Customs and Border Protection to file an annual report with Congress, describing its enforcement efforts each year.

Under the Trade Facilitation and Trade Enforcement Act, companies will need to determine the true origin of their critical supplies and components.  It may be necessary to review supplier codes of conduct, and revise them if necessary, to ensure that needed goods will not be rejected at Customs.  Companies will need to work with their foreign suppliers to ensure they can show that the products at issue are not made using forced or child labor.  Audit and verification programs can be established to satisfy this inquiry, however any such programs must be shown to be valid and robust – particularly for at-risk products. More information is available here.

Ambiguous Terms for Maintenance Fee (Federal 4th Cir. Case)

North Carolina Farm Bureau Mut. Ins. Co. v. Clear Technology, Inc., 601 Fed. Appx. 181 (4th Cir. 2015).

This case concerned conflicting terms regarding a maintenance fee found in a Master Agreement and a Purchase Order. The Purchase Order was subject to, and incorporated, the terms of the Master Agreement. The Master Agreement incorporated any subsequent purchase orders. The disputed term in this case appeared on its face to be a recurring license fee, which did not fit into either of the fee categories set out in Master Agreement. The inconsistency between the fees described in the Master Agreement and those in the Purchase Order rendered the maintenance  fee term susceptible to more than one interpretation. It was unclear whether the fee was for optional maintenance or to maintain the license. The Court determined that the  fee provision was ambiguous. As a result, it may be advisable to examine any purchase orders to ensure fee terms do not conflict.

Business Method Patents (Federal USPTO case)

OIP Technologies, Inc. v., Inc., 788 F.3d 1359 (Fed. Cir. 2015).

This case concerned the infringement of a patent concerning a computer-implemented method for pricing a product for sale. The Court determined that the patent involved no more than an abstract idea coupled with routine data-gathering steps and conventional computer activity, not constituting patentable subject matter. The infringement claims were directed to the concept of offer-based price optimization. This concept of offer-based pricing was similar to other fundamental economic concepts found to be abstract ideas by the Supreme Court and this court. The fact that the claims did not pre-empt all price optimization or may be limited to price optimization in the e-commerce setting did not make them any less abstract. At best, the claims described the automation of the fundamental economic concept of offer- based price optimization through the use of generic-computer functions. Relying on a computer to perform routine tasks more quickly or more accurately was insufficient to render a claim patent eligible. This ruling will be relevant if patent protection for any computer-implemented method involving data gathering is sought.