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Competition between Amazon’s third-party merchants is notoriously fierce. The online retail giant often finds itself playing the role of referee, banning what it considers unfair business practices (such as offering free products in exchange for perfect reviews, or targeting competitors with so-called “review bombing”). Last month, in the latest round of this push and pull, the online retail giant blew the whistle on several merchants who Amazon claims crossed a red line and may now have to face litigation in federal court.

Antitrust and tech is in the legal news almost daily, and often multiple times a day.  Here are a few recent developments with notable implications that may have flown under the radar: 1) renewed focus on gig economy issues; 2) potential enforcement efforts regarding director overlaps; and 3) challenges to MFN pricing. 

Last month, the FTC issued a report to Congress advising governments and companies to exercise “great caution” in using artificial intelligence (“AI”) to combat harmful online content.  The report responds to Congress’s request to look into whether and how AI may be used to identify, remove, or otherwise address a wide variety of specified “online harms.”  Among the “harms” covered by Congress’s request were impersonation scams, fake reviews and accounts, deepfakes, illegal drug sales, revenge pornography, hate crimes, online harassment and cyberstalking, and misinformation campaigns aimed at influencing elections.

Recently, in Google LLC v. Ikongoro Tech. LLC, the Patent Trial and Appeal Board (“the Board” or “PTAB”) instituted inter partes review after it had previously denied the institution of such a review due to the pendency of related district court litigation in the Western District of Texas—a case which was subsequently transferred to the Northern District of California by the Federal Circuit granting mandamus relief.  The Board’s decision casts light on the interplay between the PTAB’s discretion to deny institution of inter partes review and the increased focus on transfers out of the Western District of Texas.

The United States District Court for the District of Massachusetts recently denied a motion by Philips North America seeking leave of the Court to amend its claims of patent infringement against Fitbit to include several additional products finding Philips did not act diligently. This case serves as a reminder of the importance of timeliness in any litigation, but especially when a party’s diligence is a factor the court must consider.

The situation is familiar: an employee leaves one company to go work for another, or perhaps to found her own start-up.  She may be working on the same problems that she faced at her former workplace, and in the same technological space.

The employee’s work at her new company results in the issuance of a patent, and the new company takes the lead in the marketplace.  Based on the work done by the employee at the former employer, however, the former employer may believe that it has ownership rights in the new patent.

What rights might the former employer have?  A recent Federal Circuit decision, Bio-Rad v ITC – CAFC, sheds some light on how courts may resolve this kind of dispute—and how thorny the issues may be.  Key takeaways are summarized below.

Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does not constitute a separate act of infringement where the infringing copy is stored only on third party servers. Instead, Judge Rakoff held that by re-posting the copyrighted content online, defendants had implicated plaintiffs’ exclusive display right – regardless of whether they created and stored a copy on their own servers. The opinion states that to hold otherwise would be to “make[] the display right merely a subset of the reproduction right.” Nicklen v. Sinclair Broadcast Group, Inc., et al.

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, Part 1: Proposals to Address Gatekeeper Power and Lower Barriers to Entry Online, focused on three proposed reforms: interoperability and data portability requirements, nondiscrimination rules, and structural separation. The majority of the hearing witnesses, ranging from the CEO of Mapbox to the Director the Competition Advocacy Program at the Global Antitrust Institute, were clear supporters for these proposed reforms. While none are new ideas, each, if passed, would be a significant sea change in competition law.