Idaho Laws Protect Intellectual Property

We were recently asked what Idaho laws protect intellectual property rights. Here's a summary of some Idaho statutes and common law protecting your valuable intellectual assets.

Note that IP protection is often a matter of federal law. You may find links to resources about some of the relevant federal IP laws at this Tech-Lawyer blog post. Domain names, an important adjunct to trademarks as indicia of brand, are protected under the federal anti-cybersquatting statute, under World Trade Organization regimes, and otherwise.

For reference in using the summary below, you may find a table of contents for and links to Idaho statutes may be found here.

Some of the Idaho statutes protecting IP include the Communications Security Act (I.C. § 18-6701 et seq.), the Computer Crime Act (I.C. §§ 2201-02) (new statute providing felony prosecution), and many of the statutes found in Title 48 dealing with Monopolies and Trade Practices.

As to Title 48, some of the applicable statutes include Idaho’s Trademark Act (I.C. § 48-501, et seq.), portions of Idaho’s Consumer Protection Act (see particularly I.C. § 48-603), and Idaho’s Trade Secrets Act (I.C. § 48-801, et seq.).

In 2008, Idaho increased IP and related competitive protections regarding former employees and key independent contractors and enacted I.C. § 44-2701, et seq. covering Agreements and Covenants Protecting Legitimate Business Interests.

Further, if parties cooperate in the theft or misappropriation of IP rights or related information, then claims under racketeering and conspiracy statutes may also be available. See, e.g., I.C. § 18-7805.

In addition to statutory protections, common law protects against breaches of the duty of loyalty by directors and offices and against infringement of unregistered trademarks, for example.

For more information, please contact me at:

Emile Loza, JD, MBA, CLP
Managing Partner & Founder
E. eloza@TechnologyLawGroup.com
P. 208.939.4472
LinkedIn. http://www.linkedin.com/pub/dir/emile/loza

Loza Featured as IWJ's Spotlight Woman

I am honored to be featured as the Idaho Women's Journal's Spotlight Woman in its December 2008-January 2009 issue. See the cover and read the article at Pages 8-9.

In conjunction with this feature, I also spoke at IWJ's "6 Degrees of Collaboration" business networking event in Boise, Idaho on December 10th.

Spotlight Woman is a regular feature of the Idaho Women's Journal. The column highlights "woman who deserves a spotlight, that unique person who demonstrates a level of discipline, service, courage, or creativity that encourages us to higher aspirations."

If you are a woman entrepreneur or like doing business with one, please contact us at Technology Law Group at 208.939.4472 or info@technologylawgroup.com.

BBC's Global Business - Entrepreneurship Interviews

The BBC's Peter Day has a terrific program called "Global Business," and I am an avid online listener.

Check out Mr. Day's interview on entrepreneurship with Carl Schram of the Kaufman Foundation and founder of the World Enterpreneurship Award. Here's the link.

This episode of Global Business focuses on innovation, the new economy, and Global Entrepreneurship Week.

Technology Law Group can help power the commercialization of your entrepreneurial venture.

To find out how, please contact us at 208.939.4472 or info@TechnologyLawGroup.com.

Global Entrepreneurship Week Activities at Boise State University

Boise State will participate in Global Entrepreneurship Week with a series of seminars for students and the business community Nov. 18-20.

The College of Business and Economics, the Idaho Small Business Development Center and the Entrepreneurship Center have developed the seminars that will be held from 3:15-4:30 p.m. each day in Room 404 of the Interactive Learning Center on the Boise State campus.

All sessions are free, but seating is limited to the first 40 people to register at www.IdahoSBDC.org. Parking is available in the Brady Parking Garage. For a map of both locations, see the Idaho SBDC link above.

The seminar schedule is as follows:

Nov. 18 - Young Entrepreneurs will provide background on their businesses and the challenges they face. Young entrepreneurs are the driving force behind much of the innovative products and services we see today.

Ryan Woodings - MetaGeek

Becky Louge - The Dental R.A.T.

J. Glerum - Valitics / Check A Biz

Nov. 19 - Hispanic entrepreneurs are a growing part of Idaho's entrepreneurial community. Three successful entrepreneurs will share their experiences.

Enrique Camarillo, Molly Maid

Emile Loza, Technology Law Group PLLC

Nov. 20 - Angel investors will provide a picture of equity investing, taking into account the banking crisis and its impact on equity investing.

Kevin Learned, Boise Angel Alliance

Dave Light - PakSense

Dozens of countries are participating in Global Entrepreneurship Week activities Nov. 17-21.

The initiative aims to inspire young people to embrace innovation, imagination and creativity and to turn their ideas into reality. See http://www.unleashingideas.org for more information.

For questions about Boise State's entrepreneurship week activities, contact Katie Sewell at 426-3838 or ksewell@boisestate.edu, or Kent Neupert at ext. 426-2397 or kneupert@boisestate.edu.

Partner Dossiers - Strategic Intelligence is Key to the Best Deals!

When a client looks to execute a manufacturing, distribution, or licensing agreement, we recommend that the client equip itself with as much useful information about its partner as reasonably possible in advance of the negotiations and certainly before any deal is inked.

PARTNER DOSSIERS are key to this valuable strategic intelligence.

The price of this strategic intelligence varies depending upon the client's budget, whether the prospective partner is a domestic or foreign company, how complex the partner's organization is, and the number and type of special reports that need to be purchased as inputs for the strategic analysis of the partner.

The benefits to being armed with strategic intelligence prior to negotiations, however, make the spend well worth it.

For example, a prolifically-innovative business was approached with a license agreement for a particular automotive invention. The pay-off for the business was $100,000 in an upfront royalty fee. The prospective licensee was a successful mom-and-pop towing business operating in several locations in the Midwest.

The business came to us to review the deal, already agreed in principle. To advise our client properly, we conducted in-depth research and compiled a Partner Dossier on the prospective licensee.

What we learned was a shock to the client! The licensee turned out to be a small subsidiary of a New York Stock Exchange-traded company worth hundreds of millions of dollars. Furthermore, the company had an exclusive contract for the Australian military and a similar contract in Germany to which our client's invention was perfectly positioned to contribute in a big way. Properly compensated, that deal should have easily run into the several hundreds of thousands of dollars, if not $1 million or more.

The proposed licensing agreement presented by the mom-and-pop business also attempted to exploit the kind of "aw shucks" ruse by which it had approached our client. The rights to be licensed by our client would, under than agreement, flow through the mom-and-pop straight to the NYSE parent company.

Fortunately, our strategic intelligence, along with the intellectual property rights flow analysis it enabled, helped the client have the information it needed to avoid a bad deal and put it on a more equal footing with its partner.

For more on how Partner Dossiers can assist you in getting the best possible deals for your business, please contact us at 208.939.4472 or info@TechnologyLawGroup.com.

If you want to opt out for future emails about TLG blog posts, please email info@TechnologyLawGroup.com.

Licensing Software in a Global Market

Last week, I presented at ACI's 14th annual software licensing conference on this topic of international licensing.

My very knowledgeable co-presenters on the panel talked about licensing in India and in China. Both jurisdictions have licensing limitations and software royalties and other treatments and rules that are important to know before you enter an agreement.

For more on licensing in India and China, please contact me at 208.939.4472 or eloza@TechnologyLawGroup.com.

My presentation focused on three key cross-jurisdictional points:

1. The tactical advantages and uses of STRATEGIC INTELLIGENCE in the negotiation and ongoing compliance and enforcement work for licensing agreements;

2. The GLOBAL HARMONIZATION OF LICENSING TERMS for greater efficiencies in terms of legal fees and contract management; and

3. The maximization of "home-bound" income using TAX TREATY-OPTIMIZED TERMS.

I'll spend the next several blog posts drilling down on these topics and telling some interesting "war stories" to illustrate them.

If you'd like to have a copy of my presentation or to discuss any topic in detail, please contact me using the information provided above.

Loza Presents on International Software Licensing

I will be speaking on Tuesday, October 21, 2008, at the American Conference Institute's 14th Software Licensing Agreements event in San Francisco.

My presentation will focus on licensing software in a global market. I will emphasize the analysis of divergent laws and best practices for achieving legally-sound software agreements across multiple foreign jurisdictions.

I will draw on my experience in licensing software distributed online to such diverse jurisdictions as Malta, China, and the European Union. In addition, I will address best practices for due diligence and enforcement in Taiwan, Korea, and Japan.

Attorneys from Baker McKenzie and from Mumbai's Thacker & Thacker will join me on the podium to discuss licensing in China and India, respectively.

For more information and copy of the conference program, click the title of this post. For more on how we here at Technology Law Group can support your software licensing business, please contact us at 208.939.4472 or info@technologylawgroup.com.

Federal PRO-IP Bill Enacted

President Bush signed the Prioritizing Resources and Organization for Intellectual Property Act of 2007, or PRO-IP Act, into law on Monday, October 13th.

The U.S. Chamber reports on the signing at its Global IP Summit. For more, click here.

TLG can help protect your intellectual property assets. For more, call us at 208.939.4472 or email us at info@technologylawgroup.com.

U.S. Chamber Backs PRO-IP Act

United States Chamber of Commerce president, Thomas Donahue, writes about the importance of innovation in our nation's economic development.

He also rightly includes the protection and enforceability of intellectual property rights as a foundational requirement for that innovation-driven development.

Click here for the full article posted on the U.S. Chamber's Web site.

The article contains a brief note about Congress' recent passage of the Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act).

The House of Representatives passed its version of the PRO-IP Act in May 2008. (Click here for H.R. 4279)

The Senate passed its version of the bill on September 26, 2008. (Click here for a news report.)The Chamber sees this bill as a positive way to protect American-owned intellectual property rights and to elevate this protection in the Administration. Although the Senate bill is narrower than the House version, some regard PRO-IP Act as controversial, including for provisions that may require the Department of Justice to enforce privately-held copyright registrations.

The online Chamber article offers a comment function. Add your voice there.

Legislative Agenda for Idaho's Tech Community

Log on to our discussion under the Eagle-Star Technology Corridor (ESTECH) group on LinkedIn.

Representatives Mike Moyle and Raul Labrador and Senate candidate Chuck Winder recently met with technology business leaders and enthusiasts at the invitation of the Eagle Chamber of Commerce.

The group discussed the Chamber's legislative agenda in detail. (ESTECH Group Members - See my Sept. 11 email.)

Representative Moyle issued a call for the technology community to come forth with legislative agenda of its own.


I would expand that call to include actions that Governor Otter and the Department of Commerce and other executive branch agencies could undertake to support our success.

Norris Krueger has also begun a white paper on Google Docs: https://docs.google.com/Doc?docid=dd39r2qq_70dsfnxjfx&hl=en.


For more on our legislative and policy development efforts, please contact us at info@technologylawgroup.com or 208.939.4472.

Online Piracy and Payment Providers

In our recent client projects and in discussions on LinkedIn, we have examined the comparative strengths and weaknesses of online payment providers. Our particular emphasis has been on the detection and prevention of software piracy and fraud.


PayPal, Google Checkout, and Authorize.net are three commonly used online payment processing systems.


Fraudulent transactions are often a problem with online sale and distribution of software and online content. For example, the fraudulent operators may phish PayPal accounts, placed orders using those phished accounts, obtained license keys to the software, and downloaded the software, likely for illegal resale. In some instances, the purchases were geotracked to eastern Europe, in others to various locations here in the United States.


There are a number of technological and legal approaches to dealing with online piracy, including cross-border piracy. There are services that help detect and combat fraud and phishing, such as those offered by Kount and MarkMonitor.

For more information, please contact us at info@technologylawgroup.com or 208.939.4472.

Women & Entrepreneurship: Have We Unlocked the Secret to Success?

I am an accidental entrepreneur. That happy accident came in the form of contract work as intellectual property attorney for a global technology company. I was well-prepared in education and experience and downright lucky to be at the right place at the right time in front of the right people.


I started Technology Law Group in a spare bedroom with that single, excellent opportunity. Now in our sixth year, I reflect upon what a rewarding, challenging, and inspiring journey entrepreneurship is.

Entrepreneurship in the legal profession is unusual. The profession has time-honored ways of doing things. Over centuries, men have created these ways of approaching client projects and organizing and running law firms. Men similarly predominate in science, in technology, in banking. The list goes on.


Women are recent entrants into the external workforce. America’s need for productive capacity during World War II brought women out of the home and reshaped them and their self-perceptions as economically and otherwise powerful. Who can forget Rosy the Riveter, that symbol of vibrant, feminine strength?

Women entrepreneurs are an even more recent phenomenon, and I often reflect on what it means to effectively lead and compete as a woman in two male-predominant professions, technology and the law.


Without question, some men are extraordinarily supportive of my endeavors as a woman entrepreneur. Likewise, I deeply value my mentors who are women. Still, entrepreneurship is a tough business.

When I received an invitation to write an article for the University of Pepperdine Law School’s Journal of Business, Entrepreneurship, and the Law, I jumped at the chance.


It is an opportunity to critically examine how women entrepreneurs operate, what special challenges we face, and how we effectively compete. Would the answers be different than for men? Do women run businesses differently than men? Do women have unique strengths that enable them to succeed when men would not to the same degree? And, why are there so few women like me out there, leading businesses, convincing political leaders and funding sources to support the innovation community, competing and winning?

To answer these questions, I harnessed the power of online social networking and posted them on LinkedIn. LinkedIn, a social networking site used by more than 24 million professionals worldwide, is a powerful business tool.

Answers to my LinkedIn questions came from across the United States, from India, South Africa, Japan, the United Kingdom, and Denmark. Commentators include single entrepreneurial moms like me, professors, investors, media professionals, change management experts, and others.

Most say that women entrepreneurs operate at a disadvantage as compared to men. They say women have to work harder, smarter, and more creatively to succeed.


The principle reason, they say, is because women’s entrepreneurial success is directly tied to power, a woman’s willingness to embrace and leverage her power as a business innovator. Women are more than willing to take the calculated risks that all entrepreneurs take. They make the tough and necessary choices to integrate the hard work of entrepreneurship with the hard work of parenting and running a household. Women have the smarts, guts, and ambition to succeed as entrepreneurs.

Yet, women are a small minority of entrepreneurs. Why?


Some say that our social history with its rigidly-defined gender roles and lack of acceptance of women in the work force is the reason. They say investors, prospective customers, and other people critical to business success hold tightly to these historical perspectives without ever considering the resulting biases in their decisions to do (or not to do) business with women entrepreneurs.

Women flexing their power as business leaders are often viewed disparagingly, as masculine, and therefore unacceptable as women. Men using power are viewed as . . . well . . . powerful, and we respect and admire them for it. When will we likewise respect and admire powerful entrepreneurial women?


Some say that women themselves harbor a flawed notion that it is somehow wrong to have and exercise power, that women haven’t given themselves permission to be powerful. Because women are often ambivalent about their power, they are ineffective at using it. The failure to use power fully and effectively means the failure to achieve entrepreneurial success. This is true for all entrepreneurs and particularly for women.

As I continue work on the Pepperdine article, I gain insight into how I and other entrepreneurs work, how we leverage our power to introduce an innovative pricing model or otherwise add value to our services, how we best help our clients achieve their goals. It is a personal and community inquiry of critical importance to all entrepreneurs, to all who serve and do business with them, and to all who aspire to become them.

I am completing the article now. If you would like to receive a copy of the final piece, please drop me a note at eloza@technologylawgroup.com.

Women & Entrepreneurship: Your Thoughts?

I have been invited to write an article for the Journal of Entrepreneurship, Business & the Law. JBEL is a publication of the University of Pepperdine Law School.

I am writing on the topic of women and entrepreneurship, a crucial subject in economic development and a rising area of legal scholarship.

As part of my research this month, I am inviting views and stories from both women and men.

To participate through LinkedIn, please click here. You may also participate by posting comments on this blog. To stimulate your thinking, I have posted two questions below. Please respond to any or all.

I plan to attribute comments that I use in the article to their contributors. If you prefer to remain anonymous, please so indicate in your response.

I earlier published in the Idaho State Bar's The Advocate regarding my own adventures in entrepreneurship. Here's a link to that article. For more information, please contact me at 208.939.4472 or info@technologylawgroup.com.

Thank you in advance for your answers and input.

1. What special issues do women entrepreneurs face?

2. How may women entrepreneurs maximize their opportunities for success?

Technology Start-Ups Rejoice! Value-Based Pricing is Here!

We interact with innovators of all types and across many different industries from agribusiness to high tech. It's engaging and inspiring work! We especially enjoy partnering with technology start-ups and mentoring them on their paths to success. After all, we're entrepreneurs, too.

The road less traveled can be rocky for technology start-ups, however. Major hurdles arise often because they avoid engaging attorneys up-front for fear of high and unpredictable legal fees.

This means that start-ups often come to us with thorny legal problems to solve. These problems often could have been avoided had they engaged us as Partners early on. Under the traditional billable-hour approach to legal fees, attempts to resolve those thorny problems can become significant financial burdens to start-ups. Not a pretty picture!

To make partnership with Technology Law Group more accessible for start-ups and to help our clients prevent problems from arising in the first place, we will begin offering fixed-fee Value-Based Pricing for key intellectual property and Internet legal services that are especially important for start-ups.

Please check out our Idaho Business Review announcement tomorrow, June 23rd, and contact us at 208.939.4472 or info@technologylawgroup.com. Let us know what you think!

Obama Asks How Innovation Can Make America More Competitive

Presidential candidate Barack Obama has posted this question on LinkedIn:

"What ideas do you have to keep America competitive in the years ahead?"

He mentions innovation frequently in his Renewing American Competitiveness address at Kettering. See the video and text here.

Innovation and fostering innovation are huge topics. Whatever your politics, add your voice and detailed ideas to the discussion. Click here.

To discuss how we can support your success as an innovation leader, please contact us at 208.939.4472 or info@technologylawgroup.com.

Idaho's Tech Economy Stats

Idaho is an energizing place to live and work. If you love beautiful country like the Sawtooth Mountains shown here, an active lifestyle, great people, and fascinating technology, this is the place for you!

A number of recent publications and reports have highlighted our innovation economy. Below is a start at compiling statistics contained in these reports. As the numbers show, Idaho presents opportunities for innovators and for those who work to promote innovation-focused economic development in the state.

These figures are useful for gauging the economic opportunities for innovation companies here; for business planning; and for advocating for government initiatives to facilitate and support our technology community. Please comment on this blog post with additional statistics (please include sources and dates). The compilation of these numbers will be helpful to many.

From the Office of Science & Technology, Idaho Department of Commerce, Idaho ranks:

#1 in Patents Per Capita
#1 in Manufacturing Investment
#3 in Energy Costs
#5 in Long-Term Employment Growth
#5 in Net Migration of Residents
#5 in Renewable Energy Potential
#6 in “Entrepreneurial Energy” (2007 Corporation For Enterprise Development; for more details of the CFED report, please click here.)
#6 in New Company Creation
#8 in Resident Home Ownership
#10 in Households With Computers

From the American Electronics Association's 2008 Cyberstates Report, Idaho ranks:

#6 in semiconductor manufacturing employment (12,100 jobs)
#9 in computer & peripheral equipment manufacturing employment (3700 jobs)
#10 in concentration of technology workers (68 people per 1000 work in the technology industry, compared with Virginia, the state with the highest concentration, at 91 per 1000)
#28 in average high technology wages ($67,200/year, and 107% of average private sector wages)
#32 in high technology payroll ($2.4 billion)
#35 in high technology employment (36,400 people out of 5.9 million nationwide)
#35 in venture capital investment ($16.2 million out of $16.9 billion nationwide)
#35 in spending on research & development ($1 billion)
#39 in number of high technology companies (1800)*

Static numbers, however, don't tell the whole story. Note the changes in the AEA statistics from 2006 to 2007:

Big boost in venture capital investment - Up 977% from a mere $1.5 million**
Flat high technology employment overall - 200 new jobs added.
Semiconductor manufacturing employment - 900 new jobs added.

[NOTES : The American Electronics Association is the nation's largest high technology trade association. *A recent study by the Idaho Department of Commerce, Idaho TechConnect, and Virginia Tech's Dr. Heike Mayer puts the number of innovation companies in Idaho at 3849 with the greatest concentration (1335) in the Boise area. **Mark Solon, a managing partner with Highway 12 Ventures in Boise, told the Idaho Statesman that the bulk of the 2007 venture investments were limited to only a few companies and that this initial growth in investment should not yet be considered a trend.]

For more on how we support innovators in all industries from agribusiness to software, please contact us at 208.939.4472 or info@technologylawgroup.com.

Loza Earns Certified Licensing Professional Designation

I am pleased to announce that I have been awarded the designation of Certified Licensing Professional.

The United States & Canada Society of Licensing Executives Society International, the world’s largest association of intellectual property licensing professionals, awards this important credential. To my understanding, the CLP designation is the world's only professional credential for intellectual property licensing professionals.

The standards for achieving the Certified Licensing Professional credential are educational and experiential, requiring demonstrated leadership, proficiency, and skill in these eight domains:

1. Intellectual property (IP) strategy;
2. IP protection;
3. IP valuation;
4. Assessment and development of opportunities to commercialize and monetize intellectual property;
5. Marketing IP;
6. Licensing negotiations;
7. Development and drafting of licensing agreements; and
8. Post-execution management and enforcement of licensing agreements, including agreements impacting licensing, e.g., manufacturing and design contracts.

It is an honor to receive this important recognition. My work over the years for Hewlett-Packard Company, Nikon, a Jet Propulsion Laboratory spin-off, a genetic research and testing firm, and other companies has enabled me to attain this leading-edge professional achievement.

Technology Law Group, PLLC is an intellectual property, international, and Internet law and technology legislative practice based in Boise, Idaho. TLG’s practice has a global and strategic business-driven focus. TLG serves a wide range of representative clients from the world’s largest technology company and other Fortune 1000 companies to leading academic institutions to innovation entrepreneurs, and general business and litigation law firms.

For more information about how we can assist with intellectual property licensing and other transactions, please contact us at info@technologylawgroup.com or 208.939.4472.

China's New Anti-monopoly Law Goes Into Effect August 1, 2008

The American Bar Association's international law conference in New York this spring highlighted the new Anti-Monopoly Law of the People's Republic of China. See Order of the Chairman No. 68.

Promulgated on August 30 of last year, the new law is set to go into effect on August 1, 2008. The law governs monopolistic activity occurring within China and that occuring outside of China, but affecting the Chinese domestic market.

In addition to addressing monopolistic activity, the law addresses concerns by the Chinese authorities about increasing foreign control and influence of and upon companies there.

We can make available an English translation of the new law and and other related ABA Conference materials. In particular, you may want to examine an excellent slide deck presentation by Zhu Zhongliang, the Chinese Ministry of Commerce's Deputy Division Chief of the Anti-monopoly Investigation Office. The Ministry's English language Web site is at http://english.mofcom.gov.cn/.

For more information, please contact us at info@technologylawgroup.com or 208.939.4472.

Social Networking, User-Generated Content & Risk Management

Web 2.0 and social networking are powerful and exciting advances in marketing strategy and implementation. Facebook, MySpace, and others demonstrate just how effective and lucrative new media marketing can be.

In part, new media marketing success depends upon effective community-building and that, in turn, depends upon content generated by members of the target community.

GoSleepGo.com is a new, fun, and edgy example. It's a user-built online travel guide in which far-flung 20-somethings (generally) go around the world and log on to post their travel photos and comments. Here's a user adventured posted about North Korea's Propaganda Village. BACKGROUND: GoSleepGo won first prize in the 2007 University of Idaho VIEW Business Plan competition put on by the College of Business & Economics.

Online contracts governing users' conduct and interaction with the marketer's Web site (consumer agreement titled "terms of use," "acceptable use policy," etc.) are fundamental instruments in limiting legal risk. Along with other online contracts that govern user conduct on their sites, Facebook and MySpace's general terms of use provide good examples of these risk management instruments.

That said, a online marketer may be well-advised to operate under an affirmative duty to monitor user content posted by members of its target community or to respond promptly to complaints sent to customer service email addresses.

In a recent example of the former, a Web marketer designated an individual as a discussion moderator. In the course of one of these discussions, the moderator then allegedly libeled one of the parties to the discussion. Under an agency theory, the marketer (principal) could be held responsible for the libelous conduct of its moderator (agent).

One recent example of the duty to respond to emailed complaints, a MySpace participant posted an invitation on his profile to view sexual content featuring minors and also posted links directing viewers to those postings on XTube, a pornographic site. In that instance, MySpace responded and terminated the poster's participation in its community. XTube, however, was non-responsive to complaints until the federal criminal authorities were involved.

Online marketers may face other legal risks as a result of user-generated content, including, among others:

1. Infringement of trademarks or copyrights;
2. Privacy violations;
3. Invasion of publicity rights; and
4. Consumer protection violations, including posting of false or misleading advertisements.

In addition to excellent consumer agreements, a number of other best practices can go far to limit risk associated with user-generated content. For more information, please contact us at info@technologylawgroup.com or 208.939.4472.

China's New Law on Resolving Employment Disputes May Enhance Intellectual Property Protections

Late last December, China's National People's Congress adopted and China's President promulgated the Law on Mediation and Arbitration of Labor Disputes of the People’s Republic of China. See Order No. 80, Dec. 29, 2007.

That law went into effect on May 1, 2008 and is touted as a significant improvement over the prior law, improving fairness in the treatment of employees and employers and improving efficiencies. Among the advantages of the new law include that it expands the scope of cases that courts will accept and the statutory limitation period. It also increases opportunities for mediation and arbitration and significantly improves both of these alternative dispute resolution mechanisms.

Of particular interest regarding disputes involving intellectual property that may arise under employment contracts containing non-disclosure or related provisions, this new law applies pursuant to Article 2(2).

Under Article 23, a third-party with a material interest in the outcome of a dispute may apply to receive notice or otherwise participate in arbitration proceedings. This may provide a significant opportunity for U.S. and other companies with Chinese design or manufacturing partners to better protect their intellectual property interests.

The protection of these interests are generally required by U.S.-to-China design or OEM agreements, for example, where the Chinese company is required to put employment contracts in place by which its employees are bound by the same or substantially similar non-disclosure obligations to those that bind the employing entity. Such provisions extending to employees are included in these outsourcing and supplies contracts as a matter of best practices.

Prior to the new law, however, these provisions were largely regarded as unenforceable in China where piracy and industrial espionage are notorious and where the exclusivity of intellectual property rights is still a developing concept. From intellectual property and international transactions perspectives, China's new labor dispute law may be a welcome change indeed.

For the full text of the new law in English or for more information about Technology Law Group's international practice, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com/.

Update - Hague Convention on Choice of Court Agreements

The important Hague Convention on Choice of Court Agreements is now open for signature, ratification, and accession. For a discussion of the Convention and the process by which it advances toward its entry into force, click here.

Recently, the ABA's International Litigation Committee was in communication with the U.S. State Department's David Stewart, Assistant Legal Adviser for Private International Law in the Office of Legal Affairs, about the Convention and progress toward its ratification.

Mr. Stewart advised that the current focus is on issues regarding the Convention's implementation. The State Department, after its evaluation, forwards a memorandum to the President requesting authority to sign the desired convention. Before State forwards its signature memorandum as to this Convention, it requires a clear understanding as to how the Convention might be implemented. Mr. Stewart and his staff are working on the drafting of a tentative federal statute, but he states that considerable concern exists as to whether solely federalizing the issues addressed by the Convention is the optimum approach.

The National Conference on Commissioners on Uniform State Laws (NCCUSL) is actively evaluating how a uniform state law might be structured. A NCCUSL Drafting Committee, chaired by Idaho Uniform Law Commissioner, Rex Blackburn, is at work in that regard.

State will consider how NCCUSL's draft uniform state law and the draft federal statute might be integrated. That said, State expects to issue its signing memorandum shortly.

For more information about our international legal services, please contact us at +1.208.939.4472 or info@technologylawgroup.com or visit our Web site at http://www.technologylawgroup.com.

Hague Convention on Choice of Court Agreements - Backgrounder

The Hague Convention on Private International Law concluded the Hague Convention on Choice of Court Agreements in June 2005 after thirteen (13) years of negotiation. The goal of the Convention is to improve the ability to efficiently resolve disputes and enforce judgments in cross-border transactions. For a comprehensive text on the Convention and its commentary, please click here.

In terms familiar to those drafting contracts in common law countries like the United States, the Convention establishes conditions under which the parties may contractually agree to consent to exclusive personal jurisdiction in a particular state or federal court.

Late last fall, Mexico became the first state to accede to the Hague Convention on Choice of Court Agreements. The American Bar Association has urged that the United States adopt, ratify, and implement the Convention. See Background Note, infra.

The Convention sets forth the rules by which parties in different countries prospectively agree to resolve civil or commercial disputes in an agreed forum. Further, judgments in those agreed fora must be enforced by the courts in other countries adopting the Convention, provided exceptions do not apply.

The Convention sets forth a number of public policy exceptions to its applicability. Of importance to our intellectual property clients and constituencies, the Convention is not applicable to certain intellectual property matters. Specifically, the Convention does not govern in matters regarding the invalidity of intellectual property rights (excluding copyright and related rights) and regarding infringement of intellectual property rights that occur or could be brought under contract law (again, excluding copyright and related rights). See Articles 2 (2)(n)-(o) & 10(3).

For more information about the assistance we can provide in international transactional matters, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

BACKGROUND NOTE: As the development of the positive international law (treaty law) goes, conventions, once concluded, are then opened for accession by states (countries), both members of the Hague Convention and non-members. Once agreed by the specified number of states, the Convention then enters into force. This process of adoption and implementation, that is, the incorporation of the treaty's principles into the domestic law, takes several years. Note, however, that treaties may become evidence of binding customary international law even without their entry into force. Generally and in addition, parties may opt in to the applicability of a treaty even if that treaty has not yet entered into force.

Supreme Court Rules Emails Offering/Seeking Online Child Porn Not Protected Speech

The U.S. Supreme Court released its 7-2 ruling on Monday that people who send online messages seeking or offering sexual images of children are not engaging in speech protected under the First Amendment and so can be sent to prison. The Court's ruling applies even if there is no such underlying pornography.

Law enforcement officials praise the decision as enabling them to more efficiently combat criminal acts surrounding and depicting the sexual abuse of children. The decision is one of an ongoing judicial rulings on legislative attempts to balance free speech rights against the need to protect children from the rampant and insidious criminal activity.

For more information, see this report by David Savage in The Los Angeles Times. The Court's decision in United States v. Williams is available here.

For more information about Internet law-related matters, please contact us at info@technologylawgroup.com or +1.208.939.4472.

More Disputes Going Before China's Courts

China News recently reported on new systems put in place by the Chinese courts to increase public awareness of complicated court proceedings and to expedite the resolution of disputes through the courts.

The article also reports some encouraging statistics that reflect on the rule of law in China. It cites a March 2008 State Supreme Court work report that China's courts handled almost 32 million cases from 2003 through 2007. That's up 1.6% over the previous four-year period (1998-2002).

The Shanghai courts saw a much larger increase in their case loads, however, which were up 10% during the same time period. This finding about the Shanghai courts is consistent with observations by my colleagues in the Licensing Executives Society and the American Bar Association's China Committee that courts in certain Chinese cities, Shanghai among them, are becoming more educated as to intellectual property rights and more reliable as fora for the resolution of intellectual property disputes.

To read the China News article, click here. For an excellent list of China resources compiled by the ABA's China Committee, click here.

For more information about doing business in China and with Chinese companies, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

Doing Business in China? Check Out This Recommended Reading!

Recently, the American Bar Association's China Committee discussed books on China that have been useful to our members and to our respective clients doing business in that country or planning to do so.

With more than 500 attorney members around the world, the China Committee is a joint body of the ABA's International Law, Intellectual Property Law, and Science and Technology practice sections.

The China Committee's recommended reading includes books covering topics ranging from China's place in the global economy to the consumer products market there to histories that elucidate Chinese cultural and business philosophies.

I have gathered these titles together for you here in the new Resources link. You'll find the link on the right side of this page above the blog archive listing. Click here and you'll go to our Amazon store to see all the China titles.

You will also see a collection of the TLG team's favorite resources on entrepreneurship, intellectual property strategy, women in science and technology, and more. Because we support Science Olympiad and other programs to foster children's creativity and natural interest in science and technology, we've even put together a set of excellent chemistry sets, books, and other great products to help Kids Create!

To discuss more about your business activities and plans in China, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

Chinese Intellectual Property Cases Online

To improve the rule of law in China and the transparency and availability of court decisions there, the Intellectual Property Rights (IPR) Division of the Supreme People's Court offers an online resource for obtaining published decisions in intellectual property cases in China.

The Web site is principally in Chinese language. The search engine operates in English and Chinese. One may search by litigant name, court, filing date, case number, and cause of action.

Just enter search terms in English, and the site returns a list of search results in Chinese, but with some English labeling. The decisions are in Chinese, but no worries! We have Chinese linguistics on our team.

The Web site's navigation bar to the left also has English labels for types of actions: trademarks, copyright and related rights, patents, unfair competition, plant varieties, technology contracts, and others.

Among the Others category are cases involving integrated circuit ("IC") design and cases involving discovery and innovation. (RESOURCE NOTE: For a detailed, albeit 2003, analysis of China's IC design protection law, click here.)

Under Article 134 of China's Civil Procedural Law, "The people's court shall publicly pronounce its judgment in all cases, whether publicly tried or not." (RESOURCE NOTE: For the text of this law, click here.) Further, Article 8 of the 1993 Supreme Court's Rules in Court of the People's Court states that "citizens may audit the court session of cases which are publicly tried according to law."

That said, the courts appear to have some discretion regarding publication, having, for example, no time frame within which they must publish their decisions and no requirements as to the methods of such required publication.

For more information, please reach us at +1.208.939.4472 or info@technologylawgroup.com.

Is Tibet A Country?

Those of us serving on the ABA's China Committee are now discussing the question of Tibet's legal status, particularly whether Tibet is independent or part of China.

For those of you who have been following the compelling stories of political unrest in Tibet and China's intervention there, this post will be particularly interesting.

The term "suzertainty" refers to a principle first seen in feudal law and later used in more modern (late 1800s) positive law in which one country is a vassal state to other. Parts of the Ottoman Empire, e.g., Egypt, Bulgaria, Romania, and others, were organized this way.

The vassal is described as an independent state that gives up some, but not all, of its autonomy to the suzerain state in exchange for certain obligations flowing back to the vassal state.

(RESOURCE NOTE: For an excellent summary of the history of the term "suzertainty" with references, click here.)

Unraveling the legal status of Tibet takes one through the period of British colonialism in the region and later through one or more treaties between Britain and imperial Russian, later cancelled by the Communist government, and through the 1950 invasion by China of Tibet to the present day. A partial timeline of the historical development of Tibet's legal status follows.

One discussion, attributed to Sir Algemon Rumbold, President of the Tibet Society of the United Kingdom from 1977-1988, says that Britain treated Tibet as an independent state from 1910, but stated in 1912 and again 1943 that it acknowledged the suzertainty of China in Tibet, but on the condition that Tibet's autonomy was respected. The latter is cited Memorandum from Sir Anthony Eden to the Chinese Foreign Minister, T.V. Soong, FO371/93001 (May 8, 1943).

Some say that Tibet initially declared independence in 1912, a position apparently agreed by the British government, which treated Tibet as independent from 1910 or from 1912, depending on the commentator. Others say that that 1912 and two subsequent declarations, at least through 1965 or so, did not amount to declarations. See Alfred P. Rubin, Tibet's Declarations of Independence, 60 AM. J. INT'L L. 812-14 (1966).

The 1914 Simla Convention between Great Britain and Tibet established or purported to establish internationally-recognized boundaries, the McMahon Line, for an independent Tibet. China refused that Convention, and Sir Rumbold writes that it was a that point that Tibet repudiated China's suzertainty.

On September 19, 2006, the Declaration of Independence of the Nations of High Asia: Tibet, East Turkistan and Inner Mongolia was made in Washington, D.C. at the Capitol Building.

Although not a thorough analysis of the question of Tibet's legal status, the foregoing indicates that Tibet is indeed a separate country.

For more information on international law, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

Intellectual Property Registration Still Nascent in China, but Growing

China's National Bureau of Statistics (NBS) issued a report on March 17, 2008 on the rates of patent and trademark registration there. The report studied a range of companies, including the 300,000 large industrial companies in China that produced some 90% of that country's industrial output in 2006.

Only a minority of these large companies have formalized intellectual property rights, however. Fewer than nine percent (8.7%), or 26,000, applied for patents from 2004 through 2006. Fewer than one-quarter (24.3%), or 73,000, registered their trademarks, although more than one-third (38.4%) registered their own brands. Finally, only about one-fifth (20.7%) had company policies to protect their trade secrets.

This last statistic is interesting. The limited enforceability and enforcement of formalized intellectual property rights in China contribute to the perception of their value as investments for companies. Trade secret policies, however, have relatively little cost associated with their implementation, but high value in terms of preventing proprietary information and know-how from leaking out to competitors.

Enforceability may be one reason that trade secret policies are so scarce. There is no trade secret law as such in China. Rather, enforcement occurs under contract, employment, and other civil laws, which may or not be recognized by the courts there. A lack of professional training about intellectual property rights and communal cultural perspectives may provide other reasons.

The NBS report also examined patenting practices in a broader range of Chinese companies, including small to medium enterprises, and non-industrial companies. Among this broader range of companies, some twenty-seven percent (27.5%) of domestically-owned companies filed patent applications in 2006. This compares with about twenty-one percent of foreign-invested joint ventures (20.6%) and Hong Kong-, Macau-, and Taiwan-invested companies (20.8%).

Despite the currently low adoption rate for patenting in China, the trend is toward increased patenting. The State Intellectual Property Office earlier reported an impressive seventeen percent (16.9%) increase in the number of registered patents in 2007 over the previous year. In 2007, those registered patents totaled 850,043. For more statistics on patenting in China, please click here.

Intellectual assets are sure to play a increasing role in China's economic might and integration within the World Trade Organization and the global economy. Speaking before the 11th National People's Congress on March 5, 2008, Chinese Premier Wen Jiabao, pictured above, stated that China will adopt the National IP Strategy and will systematically promote individual innovation.

For more information about international protection for intellectual property rights, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

Issue-Spotting for Web Sites

Web sites are ubiquitous and an essential part of virtually every business or organization’s operational and marketing activities. Although numerical precision is a challenge, a respected resource found 142,805,398 sites on the World Wide Web in October 2007, up more than 36 million from the beginning of that year.[1]

Up-front attention to these issues when Web sites are first being developed and hosted can save time, money, and legal wrangling later. Here, Benjamin Franklin was right! "An ounce of prevention is worth a pound of cure."

Read on for some of the important legal issues to consider regarding Web sites. Also, check out the Resource Notes at the bottom.

Ownership and Control

One may view Internet domain names as a form of intellectual property, that is, an intangible property right belonging exclusively to the owner of that right. One establishes the property right by registration with a domain name registrar, such as NSI (formerly Network Solutions, Inc.), or by purchasing the domain name from an intermediary or auction sites, such as SnapNames.com. As strange as it may seem in dealing with a property right, the ownership and control of Web sites are common problems faced by many businesses.

For example, individuals may purchase an existing business, believing that the domain name by which that business is promoted online was part of the acquired business. They may later discover that title to the domain name, i.e., the registration, did not rest with the seller, but rather with the business’s former Web site developer, who decides to try to usurp the value of the business for his own aims or to leverage his control of the essential domain name to extract exorbitant Web hosting or other fees from the new owners.

Other businesses may hire a marketing or Web development company to acquire one or more domains and to build a Web site for it. Conflicts arise over payment, quality, or other issues, and the business now finds itself having invested thousands of dollars into an e-commerce site tied to a crucial domain name that its vendor owns and controls.

Just as issues arise as to domain name ownership, there can be issues as to the ownership of the source code that makes up the Web site. Many smaller businesses may contract out for the development of their Web sites and may rely upon oral contracts or contracts comprised of oral and electronic mail exchanges. These informal agreements leave much to be desired and are rife with ambiguity.

Businesses may assume that they own the Web site’s source code when indeed that title remains with the Web developer. This ownership issue can create problems where the ongoing maintenance of the Web site remains tied to the Web developer, perhaps at an inappropriate price for the business. Even where formal Web development contracts are executed between the parties, these may be drafted to the Web developer’s advantage, and ownership rights may not transfer under those agreements.

Many Web site developers now use Open Source tools for their development activities. There are many dozens of Open Source license agreements that govern what can be done with the Web sites and other products that result from the use of various Open Source components. These agreements may permit some ownership rights to be transferred to the business purchasing the Web site development services.

More frequently, however, these agreements prohibit or severely restrict the transfer of ownership rights. (Indeed, version 3.0 of the GNU General Public License is far more restrictive in this regard than version 2.0.) This means that a business may pay a Web developer to create a certain look-and-feel or special navigational aids for the Web site, but may not have absolute or any ownership rights therein. In such an instance, the business may have no ability to legally prohibit the Web developer’s use of that customization for subsequent clients.

Intellectual Property Liability

Business owners may select corporate names and purchase domain names for their businesses without considering whether the effect that selection may have on their risk profiles. For example, the selection of a corporate or domain name may infringe upon existing trademark rights. If it does not infringe an existing mark outright, the company may still face liability from allegations that the domain name dilutes the value of famous trademarks.

Copyright infringement is another concern principally regarding the content of the Web site. Here, there are issues as to whether the textual content of the site was copied from another source. Images and other graphical or visual content on the Web pages may be purchased through Web sites like BigStockImages.com. Because the license agreements that govern those purchases are generally very one-sided to favor the purveyor of that content, one must exercise care to understand and retain a record of the agreement and to ensure that the content is being used in accordance with the terms of the agreement. For example, the inbound license agreement may permit the use of the purchased images online, but not in printed collateral marketing materials.

Terms of Use

Many businesses fail to set forth on their Web sites the terms of use that govern the Web visitors use of the sites. Others may incorporate some terms of use in the text of some Web pages, but may not set forth a single contract encompassing all use of the site. Still others may have terms of use that deal with more traditional aspects of a brick-and-mortar business, such as return policies, but may not consider the intellectual property aspects of the business’ online presence. As an example, the Web site may set forth an invitation to call a contact person for licensing the business’ trademarks. Such vague language engenders the position that a mere phone call to the named individual suffices for the caller to obtain a royalty-free, inbound license to the logos contained in, and often easily copied from, the Web site.

Linking policies are another contractual control that businesses often fail to include. These policies set for the terms under which other Web sites can link to the business’ Web site. Absent these policies, linking may occur freely, and the business may find itself associated with Web sites offering questionable health remedies and other products or services not to the business’ liking.

Privacy Matters

Web sites may collect information about visitors, whether through an online registration or order form or secretly through the capture of the visitor’s Internet protocol, or IP, address. Businesses often fail to put consumers on notice that these data are being gathered and as to the uses to which the data will be put. This opens the door for disclosures of consumer information that can lead to unsolicited email complaints and identity theft. Further, where the Web site may attract youthful populations, federal law requires parental consent and other important measures to protect children and their privacy.[2]

Advertising Claims

Just as in the real world, consumer protection laws govern claims made in advertising, testimonials, statements comparing competitive products, and more. Because the Internet puts these claims in the global arena, international, federal, foreign domestic, and a variety of state laws may apply. Businesses must carefully weigh the costs and the benefits in the form of risk avoidance presented by the potentially applicable patchwork of laws. Fortunately, federal and state consumer protection laws in the United States are harmonized to a significant degree. The harmonization is not complete, however.

Conclusion

Web sites present an abundance of legal issues for consideration. Some, such as the issues presented by linking policies, are wholly unique to the Internet. Other issues are more traditional in nature, but emerge in new and thought-provoking ways in application to Web sites. We hope this article serves as a useful issue-spotting guide to entrepreneurs and businesses.

[1] Netcraft, October 2007 Web Server Survey, http://news.netcraft.com/archives/2007/10/index.html (visited Mar. 23, 2008); Netcraft, New York Internet and ThePlanet Most Reliable Hosting Companies in December 2006, (visited Nov. 7, 2007).

[2] See generally Federal Trade Commission, Implementing the Children’s Online Privacy Protection Act: A Report to Congress (Feb. 2007).

RESOURCE NOTES:

BigStockImages.com offers some terrific resources, including links to free images and tutorials. Check it out here.

Netcraft, cited in the first paragraph, is a great resource for Web-based statistics to include in business plans and pro forma analyses. This English company offers useful statistics worldwide. For an overview and to a newsletter sign-up, click here.

We hope the information here will be helpful to you. Please note, however, that, as always, information posted on this blog does not constitute legal advice, and your visits to this blog or contacts to us regarding the information posted here do not establish an attorney-client relationship. For more information, please contact us at 208.939.4472 or info@technologylawgroup.com.

Responsible Business Conduct in China

As a member of the American Bar Association's China Committee, I keep a close eye on trends and legal and political developments in that vital and expanding, but challenging, market.

One of the biggest challenges in China is that there are significant differences between Chinese political and ethical philosophy and western perspectives of democracy and of what constitutes fair and responsible business conduct.

The Organisation for Economic Co-operation and Development (OECD) is working to reconcile those differences and to bring China more fully within the community of nations governed by the rule of law and responsible business practices. Toward those ends, the OECD recently released for comment its draft report, entitled "China-OECD Project on Government Approaches to Encouraging Responsible Business Conduct."

Please read on for more about the report, including my review of intellectual property issues. This blog also contains link and, at the bottom of the posting, Resources Notes to direct you to other invaluable sources of information and assistance. For more about OECD's role in the creation and harmonization of international commercial law, check out another of my postings here.

More on the OECD Draft Report

Labor rights, food and health safety, and environmental protection predominate in this draft. The prominence of these issues should telegraph to American and other companies that there are opportunities for them to align their China ventures with these hot button and high profile issues and to thereby build greater leverage in that challenging market.

This report, in final form, should continue to motivate China to adopt business practices that more closely comport with western standards for transparency and free markets. As with increasing intellectual property protections in their country, the pragmatic Chinese should be increasingly motivated by the realization that such standards are good for business.

Read on for my comments on intellectual property protections and other highlights from my review of the report.

Intellectual Property Protection

Intellectual property protections are conspicuously inadequate in the text of the draft report. The report contains three minor references. That said, the two referenced IP protection requirements of the Shenzhen Stock Exchange have the potential to increase respect for intellectual property rights as Chinese companies increasingly move to access capital through the financial markets.

In Paragraphs 173-74, the report discusses a dispute resolution mechanism in China, called "conciliation," that is not present in many other jurisdictions. There is a specific conciliation procedure for intellectual property disputes, but the report does not elaborate. It does list a variety of dispute resolution and arbitration bodies in which China cooperates, including, via cooperation agreements, with conciliation centers in New York and Hamburg.

The only other mentions of intellectual property protection are in the report's Annex 1, which reproduces the Shenzhen Stock Exchange's Social Responsibility Instructions of Listed Companies, dated September 25, 2006.

In Article 4, those Instructions state that listed companies should not infringe upon the intellectual property rights of others, but this requirement is notably drafted so as NOT to mandatory.

Article 20 of those Instructions does include mandatory "shall not infringe" language, but limits that prohibition on infringement to the rights of the listed companies' customers and suppliers. Of course, one can see that such a mandate only reflects good business sense and not any inherent respect for intellectual property rights in general. Customers and suppliers naturally have degrees of leverage in their relationships with Chinese companies, and infringements of customers and suppliers' intellectual property rights can have the very practical effects of injuring the Chinese company that engages in such conduct. Regrettably, the pragmatism for which Chinese companies and business leaders are so renowned apparently does not yet encompass third-party intellectual property rights, and neither does the Instructions' mandate.

Other Comments on Review

Paragraph 3. The OECD report states that the Chinese government is "strongly encouraging" Chinese businesses to adhere to high standards of behavior. It states that the latest Company Law encompasses principles of responsible business conduct (RBC) by requiring companies to comply with applicable law and social and business morality. It gives, as an example, of a code of conduct established for the Chinese textile industry, long known for its sweat shop operations.

Paragraphs 71-80. The report gives an excellent backgrounder on key aspects of Chinese philosophy and business culture and the influence of these inherent characteristics upon the view and adoption of international, and largely westernized, standards of responsible business practices. In our China-focused competitive intelligence work, we have seen these forces at work, particularly within large family-owned enterprises in the high tech sector, or what we call "industrial dynasties," and within state-owned enterprises and those closely tied by indirect ownership to the Chinese government, such as Lenovo, which acquired IBM's personal computer business in 2005.

Paragraphs 148-58. Transparency is an essential component to compliance with and enforcement of responsible business practices. The OECD report provides a concise history of the development of China's Company Law, Accounting Law, and other laws, regulations, and initiatives geared toward the promotion of transparency within Chinese companies. The report also discusses the importance of competitive intelligence in making good business decisions for the China market. See Resource Note below.

Paragraphs 159-77. Here, the report documents the key ways in which the Chinese government can promote and ensure the adoption of responsible business conduct by countries operating in that country. Among the ways discussed are further development of the Chinese legal system, increased education of its business professionals, independence of the Chinese judiciary, and better collaboration with the international community. The ABA China Committee has been active in such collaborations and in facilitating the development of Chinese legal system and the independence of its courts.

Box 10 & Paragraphs 186-87. The report lists relevant United Nations Conventions to which China is a party and, tellingly, not yet a party. It has, for example, agreed to the United Nations Convention Against Corruption, but not to certain conventions protecting the rights of women.

Table 2 & Paragraph 198-203. Chinese corporations are beginning to publish annual RBC reports. Table 2 lists sixteen (16) domestic Chinese companies and eight (8) foreign-invested Chinese enterprises (FICEs) that the Chinese Enterprise Confederation says filed 2007 RBC reports. The domestic companies include huge cell phone makers, white goods giant, Haier, whose magnificent central building in Quingdao is pictured above, chemical companies, water suppliers, and financial institutions. The FICEs include big name American, European, and Japanese companies, such as Ford, Peugot, Sony, and Toshiba.

Unfortunately, CFC does not make any of these RBC reports available online. Haier, for instance, likewise does not publish its report online.

The draft report is unpublished. If you would like a copy, please contact us at +1.208.939.4472 or info@technologylawgroup.com.

RESOURCE NOTES:

On the subject of competitive intelligence, the U.S. Department of Commerce operates the U.S. Commercial Service for the purpose of assisting American companies find, evaluate, and obtain businesses partners around the world. This source of competitive intelligence is both invaluable and affordable. To learn more, check out the U.S. Commercial Service in Boise. For contact information for Director Amy Benson, click here.

For a current list of bilateral agreements that the United States has with China, check out the Treaties in Force, last published by the U.S. Department of State in November 2007. The listing for China is on Pages 16-19. Listings for China's Special Administrative Regions of Hong Kong and Macao are on Pages 19-20.

The Odyssey: One Woman Attorney's Journey in Entrepreneurship

Homer’s Odyssey, circa 700 B.C., is an epic story of heroic struggle and adventure, of creative intelligence, and of commitment in the darkest of times. It weaves a tangled, tragic, and ultimately triumphant tale of the hero’s journey home after the long Trojan War.

So influential on Western culture, the writing’s title, Odyssey, has become a word in English meaning an ambitious, classic, larger-than-life journey. A short synopsis demonstrates why.

Our hero is the shrewd and intelligent Odysseus. He leaves his wife, Penelope, and his infant son to fight for ten years in the Trojan War. The journey home takes our hero another ten years during which Athena, goddess of heroic endeavor and wisdom, protects him and the sea god Poseidon punishes him. Storms drive Odysseus’ fleet off course, and the monster Cyclops captures Odysseus and his sailors.

Odysseus escapes and Aeolus bestows upon him a precious gift, a bag containing all the winds to carry our hero and his fellows safely home. The foolish fellows, however, open the bag while Odysseus sleeps, the gift forever lost and Aeolus disinclined to bestow another.

Later, the cannibal Laestrygones destroys the entire company except Odysseus and his crew. Potions then turn most of the crew into swine. Our hero resists the potion, thanks to intercession by the god Hermes and bringing Odysseus into the favor of Circe, the witch-goddess, who gives him rest and frees his men. A year passes thus.

Odyssey then travels to the world’s westernmost reaches where he makes sacrifices and invokes help from the spirits. After receiving spiritual guidance, he travels back to Circe’s island and, with her aid, avoids and overcomes many perils: the Sirens; the hydra-headed monster, and the whirlpool.

Disaster rains again, however, when Odysseus’ men ignore warnings about hunting sacred cows belonging to Helios, the sun god. Outraged, Helios wrecks their ship. All but Odysseus drown. Finding him washed ashore on her island, the goddess Calypso helps Odyssey, but compels him to stay for seven years.

Finally escaping, our hero is befriended by the Phaeacians who, enthralled by his story, help him home to Ithaca. After unraveling intrigues at home, Odysseus eventually makes himself known to Penelope, and they reunite, our hero’s journey completed.

To the American author Joseph Campbell, Odyssey and other legendary stories of struggle and triumph have larger and timeless meaning. In his 1949 seminal book, The Hero with a Thousand Faces, Campbell examines the patterns in these mythical stories of heroism and considers the universal truths that they convey about an individual’s journey of self-discovery and self-transcendence, his or her role within society, and the interplay between that personal journal and one’s societal role. As Campbell and others observed, these stories exhibit the same sequence of events and can be viewed as telling the same story, the so-called monomyth.

The monomyth has a recognizable pattern. It begins with a call to adventure, which our hero must accept or decline. The adventure then takes our hero on a road of trials as to which he or she succeeds or fails. Our hero achieves his or her goal, viewed as a boon in the monomyth, and thereby often gains vital knowledge of him- or herself. Success or failure then awaits our hero as he or she returns to the ordinary world. The hero’s return heralds one of the real triumphs of the hero’s journey when the hero improves the world by using or applying the boon.

Campbell encapsulates the monomyth thusly: “A hero ventures forth from the world of common day into a region of supernatural wonder. Fabulous forces are there encountered, and a decisive victory is won. The hero comes back from this mysterious adventure with the power to bestow boons on his fellow man.”[i]

Gender references aside, lawyers in entrepreneurial practices and other endeavors can relate to the monomyth, the hero’s journey, the odyssey. For women in male-dominated professions, like law, technology, and the sciences, the entrepreneurial journey often seems more gargantuan and overwhelming. There seem to be fewer gods to intercede on our behalves and help us along the way, although there are some truly golden ones out there. There certainly are more evil monsters to outwit and battle as bitter experience reveals.

One of the more difficult parts of the entrepreneurial journey, the hero’s journey, for women, is perhaps however that because we are women, there are fewer mapmakers, fewer course-charters, fewer pathfinders and pioneers who have traveled the ways before us and have bequeathed us the maps, business experiences, social and business networks, the tricks of the trade that we need to succeed. In many ways, being an entrepreneurial woman attorney is uncharted territory, a journey to the westernmost reaches of the world.

It is not a journey for everyone. Real and perceived risk is part of the landscape, and to journey through the entrepreneurial odyssey, one must face this risk, manage it, and work to minimize it. Eleanor Roosevelt, one of our first women political leaders, said: “You gain strength, courage and confidence in every experience in which you really stop to look fear in the face. . . . You must do the thing you think you cannot do.”[ii] Succinctly put, you’ve got to gut it out.

Catalyst, the nation’s leading women’s research organization, and the National Association of Women Business Owners (NAWBO) have conducted comparative research to analyses of risk-taking by female entrepreneurs and their male counterparts. A recent NAWBO study revealed that women entrepreneurs are substantially more likely than men to take risk investing in their respective companies. In addition, more than seventy percent (70%) of those female risk-takers reported success in their investments.[iii]

Not only is the hero’s journey fraught with risk, it is not one characterized by the lack of failures, betrayals, reversals of fortune, and other monstrous events. Being an entrepreneurial female attorney is a singular endeavor and, like the experiences of our sisters in science and technology, one that the singularity of which seems to render more visible to those we aspire to serve, collaborate with, and influence.

For this reason and because we have so few role models among the ranks of female attorneys, scientists, and engineers, it is perhaps a natural response to question one’s own judgment, common sense, and intuition when these trials occur. What is more helpful, productive, and imminently more liberating than such self-flagellation is a correction to one’s thinking and the realization that these events are learnings. Painful, destructive, and infuriating, yes, they are. When we gleam these learnings, however, we take away knowledge and the wisdom of experience so that we can avoid or overcome murderous monsters and painful events in the years to come. As a good friend and sister small business founder says, she has a master’s degree from the school of hard knocks. I know precisely what she means.

So what is it that drives a person, much less a woman scientist-technologist-attorney, to undertake the odyssey? Even a golden god has advised at least one former entrepreneur not to start a business, in that instance, a technology business. He said that the personal costs were just too high. Floored upon hearing that advice, I asked him why then did he co-found his huge technology company? The answer: “We had to.” Apparently, he and his fellow co-founders were attempting a product for which they could not locate an integrated circuit component that would perform the required functions, and they were dead set on making that product.

In looking forward to the beginning of our sixth year in business at Technology Law Group, I realize that my answer to the why is just that: I had to.

The “had to” came in when I began looking for employment toward the end of my deeply appreciated clerkship for the Honorable Sergío Gutierrez at Idaho’s Court of Appeals. Opportunities presented themselves, but at an unacceptably low rate of pay. Other firms, even ones that professed to know better, responded with a resounding lack of resonance to my stated goal to have a technology-focused legal practice. Partners at other firms understood my vision, but had no positions then open for a beginning lawyer, if experienced technology professional.

Although highly desirous of remaining in Idaho, the odds of doing so looked increasingly slim. In attempting to gently break the news of our possible relocation to my family, it was indeed the then-seven-year-old love of my life who laid down the law and emphatically informed me, “I’m an Idaho spud, mama, and I’m not moving!”

Oddly enough, that funny little episode seemed to set things straight. It had to. Shortly thereafter, the kindest of mentors, a skilled gentlemanly in-house intellectual property attorney and another of the golden gods, and his principle clients, more golden gods, made the most remarkable opportunity available to me. With that, Technology Law Group was born, humbly in the spare bedroom, but born nonetheless.

As I have learned and now believe, chance favors a prepared mind, and serendipitous events have a special way of unfolding when one follows a course of integrity and hard work. I was perfectly prepared and willing to work hard, very hard and very creatively. Great good fortune came my way. I reached out and grabbed it, and I have never, well, almost never, looked back.[iv]

I have a second answer to the why question: I wanted to.

All of my life from the time I was a little, snaggle-toothed girl on the farm, collecting eggs and tadpoles, until today, I have had an unquenchable curiosity, a keen intellect, and an all-embracing passion to know. This love of learning drove me from a successful, but in the end, predictable profession in technology marketing and health care administration. It drove to multiple jobs because, well, I just grew bored.

Today, I work with virtual and real multimillionaires, young and young-at-heart software programmers who have figured out have to crack a nut and make a tidy sum, large companies and institutions in the thrilling process of transforming themselves into beacons of industrial and academic leadership, and mid-sized businesses in legacy industries becoming paragons in the new knowledge-based economy. I work with engineers of all types, geneticists, researchers, lawyers around the world and in organizations here at home, economic development professionals, linguists, librarians, technology advocates in and out of government, students, and geeks extraordinaire.

These people and their work thrill me. I am deeply passionate about what they do and about what I and my treasured team do to support them in their own passions for excellence. Perhaps I am Odysseus, called upon now to feast and then to suffer, but always to toil, create, discover, build, and grow, always to journey toward that place I call home.

Here in beautiful, becoming Idaho, in my own private Idaho, I am grateful for the days now and in the future when I can give back all that I have learned, all my boons, to those who will benefit the most: the learners, my colleagues, the entrepreneurs, the creative, the women who will follow me, the brave undaunted. Then I can say that I have truly arrived home.

[i] Joseph Campbell, The Hero with a Thousand Faces 30 (1949).
[ii] Eleanor Roosevelt, You Learn by Living 29-30 (1960).
[iii] Lois P. Frankel, See Jane Lead: 99 Ways for Women to Take Charge at Work 56 (2007).
[iv] The almost, I credit to the monsters.