March 4, 2022

New Blog Answers Questions That Arise When Law and Technology Intersect

Holland & Knight IP/Decode Blog
Jacob W. S. Schneider
IP/Decode Blog

"How does that work?"

The question motivates engineers to examine the world and use what they learn to advance technology. But the question is also always top-of-mind to any lawyer, regardless of their practice. Every law is a puzzle to understand how it operates in theory; every case is a clue as to how the law operates in practice. When a law is expressing a policy choice, we imagine a machine in motion and attempt to estimate how it will work over time (for example, "Will the threat of increased jail time reduce crime?").

This primary question has added significance where law and technology intersect because we need to understand the operation of both to draw correct conclusions. Did the defendant misappropriate a trade secret by accessing that server? The question hinges on both what legally counts as a "misappropriation" and "trade secret" as well as what technically counts as "access." The question cannot be answered until we know how these terms "work." As a result, engineers who find themselves practicing law are confronted daily with "how does that work?", whether we are digging deep into the law or the inner workings of a client's product. Discovering the answer to that question is what makes intellectual property such a fascinating area to study and practice.

And this exercise is made only more interesting because both systems (law and technology) are dynamic – the answer to "how does that work?" changes (sometimes dramatically) over time. It is clear to anyone that technology is rapidly changing – the phone you exchanged three years ago because it was not fast enough had 100,000 times the processing power of the 1969 Apollo 11's computer. Intellectual property law is also in flux. Since 2010, Congress has overhauled the Patent Act as well as created an entirely new federal regime for trade secrets. Also since 2010, the U.S. Supreme Court has substantially revised the requirements for obtaining a patent and completely reworked the standard for whether someone has willfully infringed a patent, among other important changes. Both law and technology are rapidly shifting under our feet.

Answering "how does that work?" for both law and technology – particularly software – as they evolve together is the purpose of this blog. Our hope is that we can present the interplay of both subjects in way that is informative and entertaining.

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