EmTech Law Blog

On November 10^th, two Babst Calland attorneys, Julie Domike and Gina Falaschi, will participate in an Environmental Law Institute (ELI) and Babst Calland co-sponsored webinar entitled "State Clean Transportation Initiatives: Stepping Towards Success for High EV Adoption."  They will be joined by Colorado State Senator Chris Hansen, Jim Chen, Vice President of Public Policy at Rivian, and Matt Nelson, Director of Government Affairs at Electrify America, in a discussion of 2020’s most important state-led clean transportation initiatives, their goals and impacts, as well as funding sources for such efforts.  The panel will also explore the partnership that state and local governments can forge with industry to facilitate high electric vehicle penetration, charging and grid infrastructure, and direct sales to consumers.

The event is open to the public (there is a $50 fee for those who are not members of ELI; Press/Full-Time Students, $0); registration is required by November 6 through the ELI Website.

The world of data privacy is constantly changing. Regulatory compliance has never been more important, particularly as the business world has been forced to become more digital as a result of the pandemic. In this recent podcast Babst Calland Data Privacy Attorneys Justine Kasznica and Ashleigh Krick review domestic and international data privacy and security laws, and how such laws may affect your business and online presence.

Topics of discussion include:

• Overview of the General Data Protection Regulation (GDPR), Personal Information Protection and Electronic Documents Act (PIPEDA), and California Consumer Privacy Act (CCPA)
• Common elements among GDPR, PIPEDA, and CCPA; including: privacy policy notice requirements, business obligations, and consumer rights
• Overview of U.S. Regulatory Landscape: proposed state legislation and thoughts on federal action
• Practice pointers and best practices for compliance with existing privacy laws and preparing for the future

Listen to this episode of the Emerging Tech Law Podcast series on Pittsburgh Technology Council’s TechVibe Radio.

When the economy started shutting down in March as a result of COVID-19 and employees began working remotely, keeping intellectual property and proprietary information safe didn’t top the list of companies’ concerns. “Some businesses didn’t put procedures in place or have appropriate training classes because no one really thought the pandemic would extend as long as it has,” says Carl Ronald, shareholder at Babst Calland. “They didn’t instruct employees on how to identify important confidential information or safeguard certain proprietary documents when working from home.” Smart Business spoke with Ronald about how to keep your company’s proprietary information safe when employees are working outside the office. Read more.

The State of California has taken another leap to support electric vehicle owners and manufacturers.  On August 27^th, the California Public Utilities Commission formally approved a plan from investor-owned utility Southern California Edison (SCE) to fund approximately 37,800 electric vehicle charging ports within its service territory.  Under the program, known as Charge Ready 2, SCE will install and maintain the charging infrastructure, while program participants will own, operate and maintain qualified charging stations.  SCE will also provide rebates to lower the cost of program participation, including an expanded rebate program to support EV charging ports in new multifamily dwellings under construction. Of the $436-million-dollar budget, $417.5 million will fund the charging infrastructure for Level 1, Level 2, and direct current fast chargers, while the remaining funds will be used for marketing, education, outreach, and evaluation programs.  The utility, which provides power to 15 million people across 50,000-square miles of Southern California, has committed to install 50% of these chargers in disadvantaged communities that are often disproportionately impacted by air pollution. This program expands the Charge Ready Pilot program, which began three years ago, and joins SCE’s Charge Ready Transport, which aims to provide charging to support 8,490 medium- and heavy-duty electric vehicles over the next five years. The Charge Ready 2 program will benefit current owners of electric vehicles by increasing charging options and possibly enhancing the market for used electric vehicles, making electric vehicles a more affordable option for more consumers.  The program will also encourage the purchase of new electric vehicles, which will benefit not only consumers wanting to own an EV, but also manufacturers who must meet their required percentage of zero emission vehicle sales. Under California law, which has also been adopted by several other states under the federal Clean Air Act, manufacturers must produce enough zero emission vehicles to meet the minimum credit requirement, which increases by 2.5% annually.  For example, for model year 2020 vehicles, a manufacturer must produce enough zero emission vehicles to have credits equal to 9.5% of the manufacturer’s average fleet sales in model years 2016-2018.

Not only has the global pandemic spawned a race to develop a cure for COVID-19, it has also created a race to the Patent Office to protect the massive investments companies are making in their attempts to develop novel diagnostics, therapies, and vaccines to combat the disease. In the United States, the first inventor to file a patent application that teaches a new and non-obvious way to treat the virus or its effects will be eligible for the limited monopoly that a patent provides. As has been reported, researchers are employing a variety of different mechanisms to attack the virus and it is expected that a significant number of patents will ultimately issue from these efforts.

While Big Pharma is well-poised to incur the expense of patent filing, including the additional expense of paying for accelerated examination of their applications, smaller concerns may not be in a position to do so. To help small businesses and solo inventors in this regard, the United States Patent Office has announced a program that would fast-track the examination of certain patent applications related to the pandemic. While the typical turn-around time for an Examiner to provide an initial review of a new application is about two years after filing, payment of an extra fee to accelerate examination is also an option. Small businesses and startup companies, however, typically can’t take advantage of this program due to the substantial increased initial cost. To remove this impediment, the new program enables business with less than 500 employees to request accelerated examination of certain COVID-19-related applications with no additional upfront payment. If an application qualifies for the program, the Patent Office promises to fully examine it within a year of being granted prioritized status.

The program is further limited to therapeutics, vaccines and diagnostic tests that are subject to FDA approval for COVID-19 related uses. FDA approvals include, for example, Investigational New Drug (IND) applications, Investigational Device Exemptions (IDE), New Drug Applications (NDA), Biologics License Applications (BLA), Pre-market Approvals (PMA), and Emergency Use Authorizations (EUA).

As of Thursday, August 20^th, there have been 274 applicants with 146 requests having been granted. The program is limited to the first 500 approved applicants.

On August 3, 2020, Twitter disclosed in a regulatory filing that it is under investigation by the Federal Trade Commission (FTC) for allegations that the company used user phone numbers and email addresses for targeted advertising in violation of a 2011 Consent Agreement. Twitter estimates that it could face $150 to $250 million in losses due to legal fees and enforcement penalties resulting from this matter. The 2011 Consent Agreement resolved charges that Twitter violated the Federal Trade Commission Act (FTC Act) when hackers obtained administrative control of Twitter allowing them access to non-public user information, private tweets, and the ability to send out fake tweets from any user’s account. The FTC found that Twitter’s actions neither upheld statements in its privacy policy, nor provided reasonable and appropriate security to prevent unauthorized access to nonpublic user data and honor the privacy choices of its users. Read more. 

This is one in a series of profiles featuring members of Babst Calland’s Emerging Technologies team of attorneys who provide business and legal representation on matters impacting companies developing or investing in new technologies and businesses. Read more. 

Significant funding will soon be available in California to support the expansion of zero-emission trucks in the heaviest weight class that has previously relied on diesel engine technologies.  On August 18, 2020, California will start to parcel out $27 million in funding from the Volkswagen (VW) Environmental Mitigation Trust program to replace higher polluting trucks with zero-emission vehicles.

The VW Environmental Mitigation Trust provides about $423 million for California to mitigate the excess nitrogen oxide emissions caused by VW's use of emissions defeat devices in certain of its diesel passenger vehicles.  The trust is a component of partial settlements with VW and provides earmarked funding opportunities for actions like "scrap and replace" projects for the heavy-duty sector, including on-road freight trucks, transit and shuttle buses, school buses, forklifts and port cargo handling equipment, commercial marine vessels, and freight switcher locomotives.  As required by the settlement, California developed a Beneficiary Mitigation Plan that was approved by the trustee in June 2018.

As part of the Beneficiary Mitigation Plan, $90 million was made available for the Zero-Emission Class 8 Freight and Port Drayage Trucks category to replace freight trucks (including drayage), waste haulers, dump trucks, and concrete mixers.  The first $27 million installment of the total $90 million has been approved and applications for funding will be available on August 18.  Eligible applicants will be awarded funding on a first-come, first-served basis.

To qualify, existing vehicles must be powered by engine built in model years 1992 to 2012, in compliance with all applicable regulations, and scrapped in exchange for a zero-emission replacement vehicle certified or approved by the California Air Resources Board or eligible under the Hybrid and Zero-Emission Truck and Bus Voucher Incentive Project. Applicants must be able prove ownership for at least one year, and the old and new vehicles must operate within California at least 75% of the time.  Applicants granted an award must submit annual usage reports for the term of the contract.

Maximum funding will not exceed $200,000 per eligible replacement vehicle and funding is available for both public and private entities.  Non-government entities, however, may only receive an incentive up to 75% of the cost of the vehicle, while government-owned vehicles are eligible for 100% of the cost up to the $200,000 cap.

VW Environmental Mitigation Trust funding for this and other projects, in California and in many other states, promotes the development of and investment in cleaner transportation technologies and the infrastructure that supports them.  While the total $90 million is simply a drop in the bucket when it comes to meeting California’s goal of phasing out diesel trucks completely by 2045 under its newly passed Advanced Clean Trucks regulation, it is a start.

Can Technology Help Us Return to Work? 

Coronavirus restrictions are both easing and tightening in cities around the country, and a nationwide return to work seems further off than it did a month ago. But it is never too early to plan ahead. As the United States looks to safely return to work, offices are preparing for a radical shift, accelerating a need for emerging technologies to address challenges in the workplace. Separation, space, health, and cleanliness concerns are paramount, in an abrupt about-face from the pre-virus trends towards flexible workspaces and open floor plans. This has created a host of novel issues for business administrators, who are leveraging technology to keep work environments safe while maintaining a semblance of business normalcy in these unprecedented times.

Read More. 

On Thursday, June 11, 2020, Attorneys Justine Kasznica and Carl Ronald joined the Scott Institute’s Jay Whitacre and Anna Siefken for an informative discussion, “From Idea to Invention to Intellectual Property: What Startups and Innovators Need to Know.”  To view this discussion, click here.