IP-Driven Growth Strategies

IP-Driven Growth Strategies

We invest our time with great companies and great ideas, taking a practical, entrepreneurial approach to work with our clients from the true start-up stage through growth, maturity and, ultimately, exit.

Business growth follows many paths. Effectively advising growth-stage companies (whether in technology, retail, media, services, or heavy industrial segments) requires a combination of deep experience, strategic vision and a holistic understanding of the business and legal issues unique to growing companies.

Regardless of the path to growth, the appropriate cost-effective intellectual property strategy is paramount. Our firm partners with these growth-stage companies to provide ongoing, and often evolving, IP strategy that is appropriate for the company's industry sector, stage of maturity and fundraising plans.

Our Services

Our specific expertise includes the food and restaurant industry, retail products, manufacturers, marketers, app developers, software and technology-based services companies (SaaS), and many others. We understand the challenges and opportunities unique to start-up and growth-stage companies, and provide effective strategies for turning a great idea into a flourishing, sustainable business.

  • IP strategy: customized to your industry, technology, competitive landscape, and resource availability; patent issues; brand (trademark) protection; contract negotiation
  • License/contract negotiation: key customer and vendor agreements; work-for-hire and assignment of IP ownership
  • Human capital management: retaining proper IP ownership with contractors and employees; strategic non-compete agreements
  • Fundraising strategies: effective, strategic fundraising; navigating applicable securities laws; advice on developments in crowdfunding
  • Company structuring: growth-company structuring (i.e. corporation vs. LLC); tax planning; maximizing flexibility for future fundraising
  • Franchise and IP licensing: franchise compliance; domestic and international licensing transactions
  • Structuring employee incentive plans
  • R+D and commercialization joint ventures

Our Clients

Our clients range from true “basement start-ups” to established businesses looking to expand. We represent companies in all sectors at every point in the growth stage. From formation through growth, we offer representation to innovative clients.

People

Jeff Nein

Director + Chair, Intellectual Property Practice

614-462-5418Email
Jessica Skelly

Associate

614-462-5445Email
Steve Barsotti

Managing Director + Chair, Emerging Business

614-462-5458Email
Sarah Bernheisel

Intellectual Property + Franchise Paralegal

614-462-5465Email

Experience

Multiple Franchisor Negotiations of Stadium Licensing Deals

Computer generated graphic of the inside of a sports stadium with an open roof at night

Forging a Landmark Strategic Partnership between Donatos and Red Robin

A Donatos pizza with green peppers, onion, and sauage with a plate of shredded cheese and a glass of wine next to it

Recapitalization and Related Negotiations for a UK Tech Company

Circuit Board Background - Computer, Data, Technology, Artificial Intelligence

Publications + Presentations

Newsletter

The Impact of Brexit on Your IP: Key Considerations + Action Steps

Smart SummaryUK trademark and patent protection for US businesses is set to be significantly disrupted on January 1, 2021.Existing registered EU trademarks will be automatically cloned by the UK, but pending applications will not.Companies should be reviewing IP clauses, auditing their assets, filing new applications, and obtaining physical addresses in the UK to remain protected.On the heels of “Brexit,” the 2016 referendum in which a majority of UK citizens voted to leave the European Union, the UK has been working diligently throughout the past 11 months to facilitate a smooth exit. Although the status of Brexit and the related rules for the transition are constantly evolving, US companies doing business in the UK must prepare themselves for the impact Brexit will undoubtedly have on their strategy and local operations. Among the many impacts Brexit could have on a company’s “crown jewels,” one that could be overlooked is the effect it will have on your IP strategy. So, for companies doing business in the UK, here are five key IP considerations to be aware of in light of Brexit and a list of recommended actions each of those companies should be taking.5 Brexit-Related IP Considerations to Know Beginning on January 1, 2021, all EU-wide trademark and Community design rights obtained under the EU regime will no longer be protected in the UK. Going forward, to protect rights in the UK, trademark rights holders must file an application directly with the United Kingdom Intellectual Property Office (UKIPO), which would be separate and apart from their application filed with European Union Intellectual Property Office (EUIPO).Moreover, under the Madrid Protocol, an international treaty designed to simplify and centralize a singular trademark registration application that would then secure protection in 90 countries (including the US and UK), rights holders must designate the UK as a separate territory from the EU in their applications.On December 31, 2020, whether or not the UK and EU come to an agreement for transition, the UKIPO will automatically place on its records all registered EU trademarks, Community registered designs, and unregistered Community designs. These “cloned” registrations will become a UK-equivalent registration and will be effective as of January 1, 2021. No additional action on behalf of the current rights holders will be necessary, as the registrations will not be re-examined by the UKIPO.Applications that are pending in the EUIPO will not be cloned. Rights holders of pending EUTM applications and EU designations must actively file “clone applications” with the UKIPO for protection within 9 months in order to claim priority based upon the initial EU application date.Brexit would not impact rights of patent holders in the EU. The UK is a part of the European Patent Convention, which is an international convention of members from the EU. However, the UK has vocalized that it will not participate in the Unified Patent Court located in EU member states or the unitary patent system, so the impact of Brexit on a uniformed EU patent regime would need to be closely monitored.Most copyright works are not dependent on the EU and will still be protected in the UK and the EU, whether made before or after January 1, 2021. However, some EU cross-border copyright protection agreements, such as content services and databases, will be the subject of the ongoing negotiations, and will also need to be closely monitored.Recommended Action Plan for US CompaniesRevisit IP clauses. If a rights holder has cross-border agreements that reference IP protection limited to the EU jurisdiction, it should revisit those agreements to ensure that additional protections are included to cover IP rights in the UK, effective, January 1, 2021.Audit your EU/UK IP portfolio. Undertake an audit of all your current EU registrations to ensure that they are adequately and properly cloned by the UKIPO. Our IP team is already well underway toward working with our clients on these audits.File UK applications. If a rights holder is seeking protection in the UK specifically through its pending application before the EUIPO, pursuant to the Madrid Protocol, a separate application needs to be filed in the UK.Re-file for renewal. If the rights holder of an EU registration has already filed for a renewal before the 6-month 2021 due date, the renewed registration will not be cloned by the UKIPO. In these cases, rights holders must file a separate renewal with the UKIPO.Obtain a UK address. Effective January 1, 2021, all new matters before the UKIPO must have an address for service in the UK, though cloned marks that derive comparable UK rights from existing EU registered marks are not required to have an address for service in the UK for 3 years from transition date. As a rights holder, you should consider a strategy that includes obtaining an address for service in UK. Some options could include using your legal counsel’s resources in the UK or, if you already have a presence in UK through a subsidiary or affiliate, that local address could be used for service.A Dedicated Brexit IP Task ForceWith the specter of Brexit carrying such wide-ranging implications for US businesses, our IP team has created a dedicated task force in charge of working with international clients on their UK IP protection strategy, including reviewing IP agreements, leading international IP audits, filing UK applications, re-filing UK renewals, and securing physical addresses to comply with UK regulations. You may contact one of our task force members directly to discuss your strategy.Vinita Mehra, Director + Chair, Global BusinessJeff Nein, Director + Co-Chair, Intellectual Property Jessica Skelly, Associate Sarah Bernheisel, IP Paralegal About our Global IP Protection PracticeOur global IP team regularly works with businesses and individuals to establish, monitor, investigate and prosecute thousands of trademarks, service marks, patents and other brand assets for our clients around the world. We offer unique, efficient and creative cost-effective solutions that guide businesses through the regulatory and legislative hurdles that exist in the ever-evolving global landscape. Our services primarily include global IP portfolio management, franchising and licensing, private investigations of infringement, and trademark and patent litigation.

publication

Latest PPP Guidance Provides More Pieces to the PPP Puzzle

After more than a month without additional guidance from the Treasury or the SBA, new guidance was released on August 4th in the form of Frequently Asked Questions on Loan Forgiveness. Many borrowers have completed their covered periods and spent most or all of their PPP funds at this point. Accordingly, this guidance will be most helpful to those who have elected to use a 24-week covered period or have yet to apply for a PPP loan. If you have spent all of your PPP funds already, take solace in the fact that the SBA has clarified that borrowers may rely on the guidance available at the time of their application. With that out of the way, I have outlined some of the new pieces to the PPP puzzle below.Timing Timeline for Applying for ForgivenessBorrowers must apply for forgiveness within 10 months of the completion of their covered period. PaymentsBorrowers do not need to begin making payments on amounts not forgiven until the forgiveness amount is remitted to the lender by the SBA. Interest accrues on amounts owed during the time between the disbursement of the funds and the SBA’s remittance of the forgiveness amount on any amount that is not forgiven. After the lender receives notice from the SBA of the forgiveness amount, the lender is responsible for notifying the borrower of the forgiveness amount and the date on which the first payment is due. After that, the amount not forgiven must be repaid by the maturity date of the loan. Note that the maturity of the loan is 5 years if the loan was issued after June 5, 2020. For loans issued prior to June 5, the maturity date is 2 years, unless a different arrangement is reached between the lender and the borrower.Payroll Costs Cash v. Accrual BasisAccrual basis is reaffirmed for payroll costs incurred prior to the covered period, but paid during the covered period, and payroll costs incurred during the covered period, but paid by the next payroll date after the covered period. Cash Compensation and CalculationAll forms of cash compensation are includable as payroll costs (subject to the $100k annualized limit). This includes: tips, commissions, bonuses, and hazard pay. In calculating cash compensation to employees, it was not previously clear whether this would include the gross or net amount. The newest guidance clarifies that the gross amount before deductions for taxes, employee benefits payments, and similar payments should be used for calculating cash compensation. Group Health BenefitsAlthough not previously clear, the guidance clarified that forgiveness is not provided for group health payments accelerated from periods outside of a borrower’s covered period. However, those group health benefits payments by borrowers on behalf of employees that were incurred or paid during the covered period are still eligible for forgiveness. Retirement ContributionsAs with group health benefits, forgiveness is not provided for employer contributions for retirement benefits accelerated from periods outside of a borrower’s covered period. However, employer contributions for retirement benefits on behalf of employees that were incurred or paid during the covered period are still eligible for forgiveness. Owner CompensationThe guidance has provided detailed guidance on amounts paid to owners that are eligible for forgiveness for owners of C. Corps, S. Corps, Self-Employed Individuals, General Partners, and LLC Owners. Non-Payroll Costs Alternative Covered PeriodFor payroll costs, borrowers may elect an alternative covered period, beginning on their first payroll date after receiving their funds. However, this is not permitted for non-payroll costs. For non-payroll costs, the covered period is limited to the period beginning on the date of the disbursement of the PPP loan. Cash vs. Accrual BasisAccrual basis is reaffirmed for non-payroll costs incurred prior to the covered period, but paid during the covered period, and non-payroll costs incurred during the covered period, but paid during the next regular billing date after the covered period. Prepayments of Non-Payroll CostsPrepayment of all non-payroll costs (except for mortgage payments) is not prohibited. Unsecured DebtsInterest payments on unsecured debts are not eligible for forgiveness. Forgiveness is limited to interest payments on business mortgages on real or personal property (like auto loans). Renewal of Leases and Refinancing of MortgagesPayments on leases renewed during the covered period or mortgages that were refinanced during the covered period are eligible for forgiveness, so long as the obligation under the original agreement existed prior to February 15, 2020. Prepayments on lease obligations are not expressly prohibited. Transportation CostsPrior to the latest guidance, there was much confusion as to what constituted “transportation costs” as a permitted non-payroll cost. The guidance clarified that “transportation costs” refers to transportation utility fees assessed by state and local governments. Forgiveness Reductions Comparison Period for Seasonal EmployersSeasonal employers are to use the same 12-week period used for calculation of their loan amount as the period used for calculation of any reduction in the amount of loan forgiveness. Employees Making More Than $100kBorrowers are to include those employees who made more than $100,000 in 2019 on their forgiveness applications. Reductions to CompensationFinally, the guidance clarified that only decreases to an employee’s salary or wages are to be counted against a borrower for purposes of reductions to its forgiveness amount, as opposed to all reductions to that employee’s compensation.

publication

Strategies to Maximize Your PPP Loan Funds + Forgiveness

Smart Summary PPP forgiveness is valuable, but there are certain conditions that businesses should take care to avoid.Businesses should be documenting their payments meticulously and planning re-hires strategically to fully realize loan forgiveness.Employers may need to get creative with payroll in order to incentivize employees currently receiving unemployment while meeting their quotas for forgiveness.When the CARES Act passed on March 27, 2020, the Paycheck Protection Program (“PPP”) provided an opportunity for small business owners to receive an injection of cash while their businesses are subject to government-ordered shut downs. Those businesses fortunate enough to receive funds now face a myriad of issues as they spend their PPP funds while also trying to plan for forgiveness to the greatest extent possible. The most pressing issue is one of time. The funds must be spent within 8 weeks of the loan’s funding, yet many businesses are still closed to the public or working with limited revenue potential. To that end, this article provides some FAQs and examples to show how forgiveness works so small business owners can plan accordingly.Forgiveness Like anything else, forgiveness under the PPP comes with conditions. What is the limit on forgiveness? The full principal amount of the loan, plus accrued interest. What expenses can be forgiven? It depends on the total amount spent over the covered period. We’ve prepared a worksheet that helps you understand and calculate all of this, which can be downloaded for free here. Are there restrictions on forgiveness? Yes. 75% of the amount forgiven must be attributable to payroll costs. How can my forgiveness be reduced? There are two ways your total forgiveness amount can be reduced: a reduction in number of employees or a reduction to employees’ salary or wages. Refer to our worksheet for help on your specific situation. If there is a reason my forgiveness amount may be reduced, are there any second chances? Yes. The PPP provides a grace period. If, from February 15 to April 26, 2020, you had: (i) a reduction in the number of FTEs as compared to February 15, 2020; and/or (ii) a reduction in the salary or wages of one or more employees as compared to February 15, 2020, but you eliminated the reduction in FTEs and/or salary or wages by June 30, 2020, then the amount of loan forgiveness will be determined without regard to any reductions.Employment Concerns Once you have your PPP money and a plan in place for forgiveness, it’s time to spend. But many employers are finding it hard to allocate 75% of their spending to payroll when employees have been laid off and are happy collecting employment. With the CARES Act’s additional $600 benefit, employers may need to get creative to compete with the expanded benefits. Options include a one-time “recall” bonus, temporary raises, partial unemployment, or any combination of the three. The best strategy will depend on your recall needs and PPP spend plan. ExamplesTo better understand your options, here are three common scenarios to consider.Company A – No LayoffsOn February 15, 2020, Company A had 10 FTEs. From February 15 – June 30, 2019, Company A had an average of 10 FTEs. Over the 8-week period after receiving loan funds, Company A had an average of 10 FTEs. Result: Company A will have its loan amount entirely forgiven with respect to covered expenditures, provided that at least 75% of the forgiveness amount is attributable to payroll costs. Company B – 60% Layoff with Full FTE Re-Hires Before June 30On February 15, 2020, Company B had 10 FTEs.From February 15 – June 30, 2019, Company B had an average of 10 FTEs. Company B operated on a skeleton crew of 4 FTEs over the 8-week period after the disbursement of the loan funds. Company B hired 6 additional FTEs on June 15, 2020, as their business ramped back up. Normally, Company B’s forgiveness amount would be reduced by 60%, but because Company B eliminated the discrepancy in FTEs before June 30, 2020, the reduction amount is calculated without regard to such reduction. Note in this example that it is unlikely Company B will have spent all of their available funds because they operated on a skeleton crew during the 8-week payment period. Thus, there would likely be some funding remaining which can be repaid or retained as a loan. Result: Company B will have its loan amount entirely forgiven with respect to covered expenditures, provided that at least 75% of the forgiveness amount is attributable to payroll costs. Company C – 100% Layoff with Re-Hires and Bonus IncentivesOn February 15, 2020, Company C had 10 FTEsFrom February 15 – June 30, 2019, Company C had an average of 10 FTEs. Company C was forced to completely shut down operations. To make matters more difficult, most of Company C’s employees make less than $50,000 per year, such that its full-time employees were making more on unemployment than if they returned to work. In order to incentivize employees who would otherwise qualify for continued unemployment, Company C decides to implement temporary raises. It did not bring back any of them until week 6 of the 8-week period, at which point, Company C re-hired all 10 FTEs and gave them temporary raises in an amount equal to the entire loan amount, dispersed evenly among them. Result: Although Company C’s average FTE over the 8-week period was equal to 2.5 FTE, Company C’s loan amount will be entirely forgiven with respect to covered expenditures. This is because Company C eliminated the discrepancy in FTEs before June 30, 2020. Further, all payroll costs, including the incentives, were paid during the 8-week period. What You Should Do Now Document Everything. When you apply for forgiveness, you will need to provide documentation of payroll records over the covered period. Such documentation may include Form 941, state quarterly wage unemployment insurance tax reporting forms, or equivalent payroll processor records that best correspond to the covered period. You must also submit evidence of business rent, business mortgage interest payments on real or personal property, or business utility payments during the covered period if you used loan proceeds for those purposes. Accordingly, you will want to document all expenses with these important categories in mind. Project and Plan. As with Companies A, B, and C above, each borrower will be in a unique situation. You should project your FTEs over the 8-week period against both your designated historical comparison period and February 15, 2020. You will also want to plan how and when funds will be expended with forgiveness in mind. Know the categories of expenses for which forgiveness is permitted and that the expenditures must occur over the 8-week period after you have received the funds. Watch for Reduction Traps and Don’t Forget About Grace. If your projected average of FTEs over the 8-week period is less than your historical comparison period, then you should look for creative ways to receive 100% forgiveness. As long as you can eliminate any discrepancies prior to June 30, 2020, then you may be able to take advantage of the grace period to receive full forgiveness. Work with Your Advisors. Given how quickly everything has developed with the PPP, it is important to take the time to plan for how you will comply with forgiveness requirements. The earlier you bring in your financial and legal advisors, the greater chance you have of making the most of your PPP funds.Danielle Crane is an employment lawyer with Kegler Brown, advising clients on human capital strategies to help navigate the COVID-19 pandemic and prepare for re-opening. She can be reached directly at dcrane@keglerbrown.com or (614) 462-5444.Brendan Feheley is a director and chair of Kegler Brown’s Labor + Employment practice where he is working with business owners and their HR leaders to navigate the COVID-19 pandemic. He can be reached directly at bfeheley@keglerbrown.com or (614) 462-5482.

E-mployment Alert
publication

Startups + Small Businesses

On Wednesday, July 17, Kegler Brown’s Women’s Collaborative hosted a seminar that provided useful legal resources and strategies focused on key aspects of small businesses. This fast-paced presentation featured several Kegler Brown attorneys covering a number of topics. Jane Gleaves discusses employment basics and best practices. Vinita Mehra showed why it’s important to have an IP strategy. Molly Werhan gave an introduction to considerations for entering into a business partnership. Rebecca Roderer Price discussed general coverages available for businesses. Rachel Gold showed off a Tenant Lease Review Checklist and key commercial lease terms. Finally, Lori Fuhrer discussed when non-competition agreements are enforceable.

The Women’s Collaborative July Seminar
Article

Why the CCPA Matters to You and Your Business

Is your company ready for the CCPA? The California Consumer Privacy Act (CCPA), which becomes effective on January 1, 2020, will require companies to be ready to create greater transparency about the collection, use, and sharing of California consumers’ personal information by: Understanding the consumer data being collected Complying with new disclosure requirements Preparing for customer data requests that include 12 months of data Implementing new systems and processes to ensure ongoing compliance In June 2018, the California legislature adopted, and the governor signed into law, the California Consumer Privacy Act of 2018 (CCPA), which will become effective January 1, 2020. Similar to the EU’s General Data Protection Regulation (GDPR), the CCPA creates greater transparency about the collection, use, and sharing of consumers’ personal information by forcing companies to comply with additional requirements regarding the processing of the data. All residents of California are protected under the CCPA, but not just when they function as consumers. They are also protected as employees 1, patients, tenants, students, parents, children, etc. This legal protection persists as long as the individual can be identified by any unique identifier, even if that individual is out of the state temporarily. The CCPA protects a wide array of data by defining “personal information” more broadly than other sections of the California Civil Code and other state privacy laws. It applies to all information that relates to a specific consumer or household, protecting various types of data such as a person’s name or government identification number, a household’s annual energy consumption, or a device’s IP address. This is similar to the GDPR’s definition of “personal data,” which includes information that is deemed identifiable; however, while the GDPR’s protections include “publicly available information,” the CCPA excludes it. Consumers will also now have the ability to opt out of the sale of their personal information to third parties, and the CCPA restricts a company’s ability to penalize individuals who exercise that right. This is done by not allowing businesses to deny goods or services, charge different prices, or provide a different level of quality to the consumer. However, there is a potentially broad exception that allows businesses to evade the restrictions if their conduct is reasonably related to the value provided to the consumer by the utilization of the consumer’s data. Furthermore, businesses may offer financial incentives, including payments to consumers, for collecting and selling their personal information as long as the action is not unjust, unreasonable, coercive, or usurious in nature. Compliance is required by all companies, not just those located in California, that receive personal information from California consumers while either: (i) exceeding annual gross revenues of $25 million; (ii) annually obtaining personal information of 50,000 or more California consumers, households or devices; or (iii) gaining 50 percent or more of their annual revenue from selling California consumers’ personal information. While these three thresholds seem straight forward on their face, application may not be easy. For example, it is not clear whether the $25 million annual gross revenue figure is limited only to sales in California or expanded to sales globally. Additionally, the scope of information that most companies passively capture by utilizing websites, such as IP addresses, could lead to outsized consequences for small businesses inside and outside California by forcing compliance. Companies worldwide will need to act proactively to comply with these new requirements. Similar to the efforts global companies have undertaken in preparation for the GDPR, it is recommended to prepare data maps, inventories, or other records of all personal information in relation to California consumers, households, and devices. In addition, it is strongly recommended to commence identifying information sources, storage locations, usage and recipients. This will not only help businesses comply with new disclosures required of company privacy policies, but also prepare for user data access, deletion, and portability requests of up to 12 months of data, known as the “look back” requirement. Businesses will also need to secure prior consent for data sharing for parents and minors, and to comply with opt-out requests. Businesses should also consider alternative business models, especially with their web preferences, to address the complex nature of the new law, including exploring a California-only website and charging for formerly free services. Under the CCPA, consumers must have a method, such as a toll-free telephone number, to submit data access requests, and be able to access a clear and conspicuous “Do Not Sell My Personal Information” link that enables them to opt out of the sale of their personal information to third parties. Further, compliance will be aided by adopting new systems and processes that do things such as verify the identity (including the age and authorization) of individuals who make requests for data access, deletion, or portability; respond to these requests within 45 days; avoid requesting opt-in consent of consumers for 12 months after opting out; and update privacy policies. It’s important to note that the scope of the CCPA is subject to amendment, with several proposed amendments pending, until September 13, 2019, which means companies will need to be ready to comply in this fluid situation. If the CCPA is not adhered to, companies may find themselves in a civil action brought by the California Attorney General’s Office and will be required to pay penalties of up to $7,500 per intentional violation, or in the case of unintentional violations $2,500 per violation if the company fails to remedy it within 30 days of notice. Individuals will also be able to bring claims in civil class action law suits, where companies that are victims of data theft or other security breaches can be ordered to pay damages between $100 to $750 per California consumer and incident, or actual damages – whichever is greater – and any other relief deemed proper by the court. The AG will also have the option to prosecute in replacement of a civil suit brought by consumers. The CCPA was the first in a current trend of comprehensive data privacy laws enacted in the United States. While California is still deliberating amendments that will help define the scope and impact upon its effective date, other states, including Maine and Nevada, have taken notice and recently passed legislation, continuing the trend. The complexity of complying with differing privacy laws in different states has elicited rumblings for federal privacy legislation. However, until a federal act passes, we should expect more laws like the CCPA to follow. For further information about the impact of the CCPA on your company’s operations, contact David Wilson (dwilson@keglerbrown.com). This article was prepared with the assistance of summer associate Jordan Boak. [1] Note that employees may be excluded pending an amendment to the CCPA (Bill AB-25 in CA Senate)

Article

Keeping the “Tell” in Intellectual Property

Steve Barsotti appeared in the November 2017 issues of Columbus CEO, interviewed as part of an article on businesses protecting their intellectual property. Its focus was on the need for IP protection when faced with First to File provisions and collaborative cultures. Steve discusses incubators and accelerators, saying they need to agree on rules of engagements from the beginning, and says “There has been a shift in the entrepreneurial culture to one of collaboration and sharing of ideas. That’s definitely a positive, but it also presents a real opportunity to create thorny IP issues.”

Columbus CEO, November 2017
Presentation

New Year's Resolution: A Better IP Strategy Presentation

On Wednesday, January 25, our Intellectual Property team hosted a breakfast briefing on how to prepare a better IP Strategy. The briefing focused on three cases studies from three different industries: retail, technology, and service. Each case study walked through the IP strategy of a prominent company - Chipotle, P&G, and Uber.

publication

FCC Declares "Open" Internet: What Now?

On Thursday, February 26, the Federal Communications Commission (FCC) voted 3-2 along party lines to approve the policy known as "net neutrality" or "open Internet." But, as history has shown, the new rules are bound to face legal challenges in the near future.We recently discussed the background on net neutrality and why it is important. Now that the Internet has been declared "open," we must discuss how the new rules will affect both businesses and consumers. What Do the New Rules Mean to Us?The following are key provisions and rules of the FCC's Open Internet Order: Application to fixed and mobile broadband – protects consumers no matter how they access the Internet, whether on a desktop computer or a mobile device. No Blocking – broadband providers may not block access to legal content, applications, services, or non-harmful devices. No Throttling – broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices. But, there is nothing that prevents a carrier from throttling your service once you've reached your data cap. No Paid Prioritization – broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind (i.e. no "fast lanes") and it also bans ISPs from prioritizing content and services of their affiliates. New Authority – the Commission can hear complaints and take appropriate enforcement action if it determines the interconnection activities of ISPs are not "just" and "reasonable." Political DivideIn a general press release, the FCC declared the new regulations establish "basic ground rules and a referee on the field to enforce them" and that "if an action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag." It went on to say, "Under the Order we adopt today, open Internet protections would – for the first time – apply equally to both fixed and mobile networks." But, the split Commission vote and separate press releases tell a much different story.FCC Chairman, Tom Wheeler, states in a press release, "The American people reasonably expect and deserve an Internet that is fast, fair, and open. Today they get what they deserve: strong, enforceable rules that will ensure the Internet remains open, now and in the future." Chairman Wheeler has two other Democratic members of the Commission in his corner, including Mignon Clyburn and Jessica Rosenworcel, in addition to President Obama, consumer advocates and Internet companies – like Google, Twitter and Netflix. As expected, the two dissenting votes offer a different perspective.Michael O'Rielly and Ajut Pai, the two Republicans on the Commission, warned that the FCC was overstepping its authority and interfering in commerce to solve a problem that doesn't exist. Commissioner Pai stated in a press release, "Americans love the free and open Internet . . . The Internet has become a powerful force for freedom, both at home and abroad. So, it is sad this morning to witness the FCC's unprecedented attempt to replace that freedom with government control." Republican Congressional members, in general, as well as large broadband service providers, including AT&T, Verizon and Comcast, have adopted Commissioners O'Reilly and Pai's position.What Now?The new rules are certain to make their way through the court system. Why? The two previous versions of net neutrality rules each faced legal challenges for starters and both were overturned. While the fate of the new rules will likely remain in flux for some time, the FCC's application of the two previous court rulings may help improve the rule's chances of survival this time around.

Kegler Brown Legislative Update
publication

Columbus Direct-ly in the Startup + Venture Mix

Exciting news broke on Thursday, February 19, when Columbus officials announced Southwest Airlines will roll out a new schedule for daily, direct flights from Columbus International Airport (CMH) to both Oakland, CA (San Francisco Bay Area) and Boston, MA airports. Service begins August 9, and with sizeable demand already in place, those brokering the deal are expecting big things.Make no mistake about it, this new arrangement has promise. Opening new doors to Silicon Valley and Boston provides the Columbus tech/startup community with greater access to coastal capital. Along with that access, however, comes something far more intriguing – potential to alter perceptions and attitudes, shaping a new mindset around venture. Easier travel to and from the venture capital and tech centers of the world may trigger a shift Columbus toward a more robust growth capital approach.Only time will tell what impact this will have on Columbus’ growing marketplace for emerging businesses, but we have our thoughts. Step one is exposure and, thanks to Southwest, Columbus is now primed to take full advantage of the opportunity. We’ll help you gear up for what comes next, so stay tuned!

Kegler Brown Intellectual Property News

Firm Highlights