Technology & Intellectual Property Committee Newsletter

vol 15, num 1 | March 2017

Emerging Industries
and Technology

AN ABI COMMITTEE NEWSLETTER

Visit the Emerging Industries and Technology Committee page

► IN this issue:

Committee Rebrands by Broadening and Redefining Scope
Ethical Use of Artificial Intelligence in the Legal Industry:
The Rules of Professional Conduct
Practical Tip: Trade Secrets
AI Programs Offered at Upcoming Annual Spring Meeting
Looking to Become More Involved?

Committee Rebrands by Broadening and Redefining Scope

Ericka F. Johnson
Womble Bond Dickinson (US) LLP
Wilmington, Del.

Kenneth Kraft
Dentons Canada LLP
Toronto

We are excited to announce that the Technology and IP Committee is broadening and redefining its scope. In connection with these efforts to remain progressive in an ever-changing innovative and technological world, the committee is now rebranded as the Emerging Industries and Technology Committee.

We do not want any of our members to be left with the impression that the historic scope of our committee, which had included telecommunications and intellectual property, is narrowed to exclude these topics. Rather, the committee’s leadership examined the existing ABI committees and determined that there was an opportunity to broaden the committee’s reach by focusing on an industry rather than narrower topics within bankruptcy practice. Our former scope was “to study unique bankruptcy issues arising from cases filed by high-tech and telecommunications companies.” This scope was a remnant from when the committee was known as the Telecommunications Committee. While this was relevant when the committee was originally formed, we believe that part of our commitment to you, our members, is to reevaluate and take advantage of opportunities to provide timely, meaningful content. Accordingly, the committee’s revised scope is now “to examine and highlight emerging industries and technology in the context of intellectual property, restructuring, and the bankruptcy practitioner.” This new, broader scope will permit us to provide you with cutting-edge insights into technology and emerging industries.

We hope that you are as excited about our broader vision and revised committee name as we are. As part of this process, we are launching a new LinkedIn group to use technology to enhance communications. We hope you join and encourage your colleagues to do so as well. Posting and sharing insights with our colleagues is also a great way to get involved with the committee and ABI.

Also, if you have not already registered for ABI’s Annual Spring Meeting, we hope that you do so now. The Emerging Industries and Technology committee has teamed up with the Unsecured Trade Creditors Committee to host a session called “Innovative Technologies in Law Practice.” This session is being held on Saturday, April 21, from 11:30 a.m.-12:30 p.m. During the session, the panel will discuss how innovative technologies and artificial intelligence (AI) are changing the ways in which law firms operate. The panelists will also share their own experiences with using AI in their practices. You won’t want to miss it!

Ethical Use of Artificial Intelligence in the Legal Industry: The Rules of Professional Conduct

Ericka Johnson
Womble Bond Dickinson (US) LLP
Wilmington, Del.

Lawyers, due to their risk-adverse nature, are commonly thought of as slow to adopt technology. Perhaps this perception has led to a slower development of the use of artificial intelligence (AI) in the legal industry when compared to other industries like the medical field, where AI is increasingly used for medical diagnostics and robotic surgical systems. Nonetheless, Moore’s law has taught us that the development of technology doubles approximately every two years. To understand how this exponential development of technology has impacted the legal industry, let us look back at historical technological advancements that are now considered commonplace:

Practical Tip: Trade secrets

Trade secrets have two primary components. They are not generally known or easily ascertainable, and they are subject to reasonable measures of secrecy. Once disclosed, trade secrets lose their protected status. Thus, identifying trade secrets in a bankruptcy schedule can be tricky. The debtor should give enough information about it to provide proper disclosure of an asset, but not so much information that it is no longer a secret. But how much information is appropriate? No. 22 in Schedule B of a bankruptcy petition requires the disclosure of “Patents, copyrights, and other intellectual property. Give particulars.” So merely stating “Trade Secret” would not be enough. The best rule of thumb is to provide a general description without disclosing the secret itself. For example: “Trade secret in the nature of a method for applying a non-skid to surfaces.” This example gives enough information to show that the debtor owns something protectable without disclosing exactly how it works. Certainly any further disclosure should be made only with a proper protective order in place first.

The Emerging Industries and Technology Committee is partnering with ABI’s Unsecured Trade Creditors Committee and ABI’s Chief Strategy & Innovation Officer, Karim Guirguis, to plan two programs at the ABI Annual Spring Meeting, which will be held April 19-22 in Washington, D.C. The first program will be a plenary session on Friday, April 20, entitled, “Artificial Intelligence: Why It Matters to Your Future Bankruptcy Practice.” This program will consist of a panel of experts discussing the increasing usage of artificial intelligence software by law firms and clients to perform legal services. This program will also discuss some of the benefits of using such technology, and will address some of the practical and ethical issues that can be raised by using such technology to supplement traditional legal work. On Saturday, April 21, a second committee session will be held for those who want to take a deeper dive into these issues. This second program will include a demonstration of how some of the most popular legal artificial intelligence technology works. We hope that you will join us at the Annual Spring Meeting to learn more about the rapidly developing technology that, in the near future, may change the way we all practice law.

Looking to Become More Involved?

We are always looking for contributors who would like to showcase their expertise to other like-minded professionals. One way of doing so is to write an article for our newsletter. Possible topics should be focused on bankruptcy or law firm management/legal industry issues involving technology (whether industry-specific or focused on use of technology itself) or intellectual property. For example, a recent listserv communication featured a case highlighted by Rochelle’s Daily Wire on a circuit split issue concerning whether rejection of a trademark license agreement precludes the licensee from continuing to use the license. This case sparked some discussion from other committee members, as well as additional case background. A suggested article would be one on the circuit split with analysis of the underlying cases. Contact Beverly Berneman, Ericka Johnson, or Ken Kraft if you are interested in writing about this topic or any other topic, or if you would like to discuss other ways to get more involved with the committee.