Attorneys > Business Practice Group

Our business practice group leverages its transaction skills with extensive knowledge of intellectual property and technology to promote our client’s business objectives.

Our Business Thinking

  1. The On-Sale Bar to Patent Eligibility: When Does Experimentation End?

  2. To Avoid the On-Sale Bar, Patent Applicant’s “Experimental Use” Should be Unmistakable

  3. Protecting IP in the Face of Russia Sanctions

  4. Client Alert: Intellectual Property in Russia
  5. New Restrictions on Exports to Russia: US Technology Embedded in Products Made Overseas
  6. The EU’s New Privacy Rules: The Promise and Peril for US Data Processors
  7. The European Commission Publishes Comprehensive Contractual Clauses For Use in Data Transfers from Europe

  8. Privacy in the Cellphone Era: The Supreme Court Opens the Door to Automated Text Messages

  9. When a State University is a Reluctant Plaintiff, Can Its Licensee Sue Anyway?

Business Practice Results

Zango, Inc. v. Kaspersky Lab

United States Court of Appeals for the Ninth Circuit; United States District Court for the Western District of Washington

In a boost for the internet security industry, Sunstein won broad immunity for our client Kaspersky’s anti-malware products. Both the district and appeals courts extended a statutory protection for internet service providers to sellers of software that safeguards users against spyware and adware. Zango, an operator of websites providing downloadable videos and other programs, alleged that the Kaspersky software improperly classified Zango’s downloads as “adware” and thus improperly blocked potential users from downloading Zango’s programs. With the Ninth Circuit’s ruling, the “Good Samaritan” immunity of the Communications Decency Act of 1996 now accommodates certain filtering software, a conclusion which reassures the makers of anti-spyware and anti-spam tools that developing robust user protections puts them on the right side of the law.

The HipSaver Company, Inc.

United States District Court for the District of Massachusetts

Sunstein represents the HipSaver Company, an innovator in the design and manufacture of products which protect against hip fracture and newly invented products which protect against skin injury. We have represented HipSaver in two lawsuits which safeguard the marketplace integrity of its hip protector products under the Lanham Act and the Massachusetts business practices act. Significantly, we have also obtained an important judicial ruling which advances the law in the First Circuit on damages relief for willful, literally false advertising. Under this ruling, the trial court has recognized a rebuttable presumption of causation and injury where willful, literally false advertising is committed by a direct competitor in a concentrated market.

First Act Inc. v. Brook Mays Music Company, Inc.

United States District Court for the District of Massachusetts

Sunstein won a $20.7 million jury verdict for First Act in this suit for false advertising in violation of the Lanham Act, commercial disparagement and interference with contractual relations. During the five-week trial, we presented extensive expert witness testimony including in-courtroom demonstrations as proof that defendant’s statements about our client’s musical instruments were false. The global aspects of the parties’ manufacture and distribution of the products in issue posed unique challenges involving discovery throughout the United States and in China and Hong Kong. In addition, because of the harm being caused to our client on an ongoing basis, we acted quickly upon filing suit to obtain expedited discovery and a preliminary injunction against the defendant. The case is also of general interest because we established jurisdiction in Massachusetts over the Texas-based defendant by proving (among other facts) the defendant’s contact with Massachusetts through email messages sent to residents of the forum state.


$20.7 million jury verdict

Brahmin Leather Works, Inc. Surette

Suffolk Superior Court

Brahmin’s success in the global marketplace as a designer and manufacturer of leather handbags and accessories rests upon its proprietary, trade secret integration of design, manufacturing processes, vendor relationships, and sales. When confronted with direct competition from a former Brahmin executive, Sunstein obtained an emergency injunction that comprehensively enforces all terms of the executive’s non-competition agreement.

i.LAN Systems, Inc. v. NetScout Service Level Corp.

United States District Court for the District of Massachusetts

Sunstein represented i.LAN, a California computer network consulting firm, in its suit to enforce a software licensing agreement for network monitoring software. The dispute turned on cutting-edge legal issues concerning the application of the Uniform Commercial Code to software licensing, including the enforceability of so-called “click licenses” and the interplay between such standardized licenses and agreements specifically negotiated between businesses. After trial, the parties reached a settlement favorable to our client.

Antreassian v. City Council of Salem

United States District Court for the District of Massachusetts

Sunstein secured a reversal of the City Council’s rejection of a small business person’s applications for a license to conduct tours of historic Salem. Some members of the City Council objected to the content of Mr. Antreassian’s tour narrative. After unsuccessful attempts to negotiate a compromise, we challenged the Council’s action as a constitutional violation of the First Amendment. The court directed the Council to reconsider the license application, which resulted in the grant of a license to Mr. Antreassian.

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