USA Law and Practice Contributed by: G. J. Ligelis Jr., Christopher K. Fargo, Alyssa K. Caples and Margaret T. Segall, Cravath, Swaine & Moore LLP
However, US employees may have contractual rights impacted by the structure of a transaction. Upon a sale of a legal entity, employees of the acquired enti - ty will automatically transfer to the acquirer as their employment relationship will continue with the trans - ferred legal entity. In the case of a sale of the assets of a business, employees of the business will not auto - matically transfer to the acquirer, and the acquirer would instead offer employment to each employee intended to transfer with the business. 11. Intellectual Property and Data Protection 11.1 Intellectual Property Considerations for Approval of FDI Technology and the intellectual property underlying it form a key component of review by the CFIUS. In the last few years, the CFIUS has gained significant authority in reviewing national security implications of foreign investments in US companies in possession of sensitive personal data of US citizens or involved in certain critical technologies. For a general overview of the CFIUS process, see 7. Foreign Investment/ National Security . Foundational technologies are often particularly attractive investments for FDI, with diverse applica - tions across multiple sectors. Consequently, scrutiny by the CFIUS focuses on these technologies espe - cially. These technologies include semiconductors, robotics, artificial intelligence and machine learning, big data, quantum computing, IT processing and storage, and mobile computing and communications (including 5G). 11.2 Intellectual Property Protections The USA has traditionally been considered a strong IP regime, with high standards of protection for IP owners. Unlike other jurisdictions, it has no general compulsory licensing statute. Involuntary licensing is limited to particular patented or copyrighted subject matter under narrow circumstances. The most significant limitation on IP protection instead stems from evolving judicial and administrative inter - pretation of subject matter ineligibility as set out in
35 USC Section 101. Constant refinement and evolu - tion of eligibility under Section 101 has challenged the availability of IP protection for several key technolo - gies, including electrical and computer technologies (including AI) and life sciences. Additionally, works containing AI-generated material or created with AI assistance require significant human contribution or authorship in order to meet USA statu - tory standards for patent and copyright protection. 11.3 Data Protection and Privacy Considerations The USA lacks a comprehensive federal data privacy law. The landscape is instead a complicated frame - work of discrete, sectoral federal data privacy regula - tions complemented by state and local regulations. Federal Even without a single federal privacy law, the USA safeguards data privacy through several vertically integrated regulations targeting particular industries and media. Generally speaking, the FTC has broad oversight of “unfair or deceptive acts or practices”, under which the FTC issues regulations, enforces privacy laws, and takes enforcement actions to protect consumer data. In addition to enforcement by the FTC, federal laws govern the collection of information online, including: • the Children’s Online Privacy Protection Act (infor - mation about minors); • the Fair Credit Reporting Act (credit information); • the Health Insurance Portability and Accountability Act (health information); and • the Gramm–Leach–Bliley Act (personal information collected by financial institutions). State Over half of all US state attorney generals currently oversee data privacy laws, although many are spe - cific to particular industries or types of data. These may apply to government entities, private businesses or both. Currently, California, Colorado, Connecticut, Delaware, Florida, Iowa, Maryland, Minnesota, Mon - tana, Nebraska, New Hampshire, New Jersey, New
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