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Absent Proof of Government Ownership on an EEA Sovereign Immunity Defense is All Black and White

by Jodi Benassi | Aug 5, 2021 | Trade Secrets

The US Court of Appeals for the Ninth Circuit affirmed the district court’s denial of a motion to dismiss an indictment, charging four Chinese companies with violations of the criminal provisions of the Economic Espionage Act (EEA) and finding no sovereign immunity under the Foreign Sovereign Immunities Act (FSIA) in view of the defendant’s commercial activities and failure of proof. United States of America v. Pangang Group Company Ltd. et al., Case No. 19-10306 (9th Cir. July 26, 2021) (Collins, J.)

No company in China had been able to develop a clean and efficient technology to produce titanium dioxide, a white pigment used in products such as paints, sunscreen, lotions, paper and plastics. A group of related Chinese steel companies (collectively, the Pangang companies) wanted to obtain such technology.

In the United States, after many years of research and development, DuPont had managed to develop a process to produce titanium dioxide and was unwilling to sell or license the technology to Chinese companies. Chinese government officials approached US businessman and former DuPont research engineer Walter Liew to obtain DuPont’s trade secrets. Liew agreed to become a corporate spy and managed to gain access to DuPont’s technology. Liew unlawfully transferred the trade secrets to the Pangang companies. The Pangang companies also conspired with unknown computer hackers to access DuPont’s computers to further steal DuPont’s trade secrets.

The Pangang companies were indicted on one count of conspiring to commit economic espionage for the benefit of a foreign government or instrumentality to steal DuPont’s trade secrets and one count of attempting to commit such economic espionage in violation of the EEA. The Pangang companies pleaded not guilty and moved to dismiss a criminal indictment for violations of the EEA, arguing that they were “instrumentalities” of the government of the People’s Republic of China (PRC) and were entitled to sovereign immunity under the FSIA. The district court denied the motion, holding that the Pangang companies were not immune in light of the FSIA’s commercial activity and waiver exceptions. The Pangang companies appealed.

The Ninth Circuit found that the Pangang companies failed to show that they were instrumentalities of a foreign sovereign within the meaning of the FSIA. For a company to be considered a foreign instrumentality under FSIA, a government must own the majority shares in the company. The indictment included several allegations about the ownership structure of the Pangang companies. The indictment alleged that the Pangang Group Company was a “state-owned enterprise controlled by the State-Owned Assets Supervision and Administration Commission of the State Council” (SASAC), a “special government agency” of the PRC. The other Pangang companies were alleged to be direct or indirect “subsidiaries” of the Pangang Group Company. The Ninth Circuit found that the allegations, taken as true, affirmatively negated the premise that the other Pangang companies could be considered agencies or instrumentalities of the PRC because the indictment described all three of these entities as being “subsidiaries” of the fourth defendant (i.e., the Pangang Group Company). Because the corporate law [...]

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As Due Process Recognizes, it’s Hard to Shoot at a Moving Claim Construction Target

by McDermott Will & Emery | Aug 5, 2021 | Patents

The US Court of Appeals for the Federal Circuit vacated several Patent Trial & Appeal Board (PTAB) decisions as violating due process and the Administrative Procedure Act (APA), referencing the parties’ inability to respond to the PTAB’s sua sponte construction of a term on which the parties had previously agreed. Qualcomm Inc. v. Intel Corp., Case Nos. 20-1589; -1594 (Fed. Cir. July 27, 2021) (Moore, C.J.)

After Qualcomm sued Intel over a patent directed to techniques for generating a power tracking supply voltage for a circuit that processes multiple radio frequency signals simultaneously, Intel filed six inter partes review (IPR) petitions challenging the validity of Qualcomm’s patents. In each petition, Intel proposed that the claim term “a plurality of carrier aggregated transmit signals” meant “signals for transmission on multiple carriers at the same time to increase the bandwidth for a user.” Qualcomm proposed a different construction: “signals from a single terminal utilizing multiple component carriers which provide extended transmission bandwidth for a user transmission from the single terminal.” Neither party disputed that the signals were required to increase user bandwidth, either at the PTAB or in a parallel proceeding before the US International Trade Commission (USITC) where the USITC adopted a construction—including the increased bandwidth requirement.

However, during the oral hearing, one of the administrative patent judges (APJs) asked Intel counsel about the inclusion of the bandwidth limitation in the claim construction. No other APJ raised, or asked Qualcomm, any questions about the increased bandwidth requirement in the claim construction. The day after the hearing, the PTAB sua sponte ordered additional briefing on the meaning of other claim terms that had been extensively discussed at the hearing.

The PTAB ultimately issued six final written decisions concluding that all challenged claims were unpatentable. In doing so, the PTAB omitted any requirement that the signals increase or extend bandwidth in construing the term “a plurality of carrier aggregated transmit signals” to mean “signals for transmission on multiple carriers.” The PTAB also held that “means for determining a single power tracking signal” (power tracker limitation) was a means-plus-function limitation and that an integrated circuit (IC) board, the “power tracker 582,” was the corresponding structure.

Qualcomm timely appealed, arguing that 1) it was not afforded notice of, or an adequate opportunity to respond to, the PTAB’s construction of “a plurality of carrier aggregated transmit signals” and 2) that the PTAB’s construction of the power tracker limitation was erroneous for failing to include an algorithm in the corresponding structure.

NOTICE AND OPPORTUNITY TO RESPOND TO THE PTAB’S CONSTRUCTION

The Federal Circuit has discussed the administrative and notice requirements provided by the APA and due process in IPR proceedings: “[a] patent owner in [an IPR] is undoubtedly entitled to notice of and a fair opportunity to meet the grounds of rejection” (Belden v. Berk-Tek). The Court observed that for IPRs, the PTAB must “timely inform” the patent owner of “the matters of fact and law asserted” and, in terms of notice, “must provide ‘all interested [...]

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Even Judges Have a Boss: PTAB Must Sufficiently Articulate its Obviousness Reasoning

by Paul Devinsky | Jul 29, 2021 | Patents

Addressing the sufficiency of the Patent Trial & Appeal Board’s (PTAB) justification of its inter partes review (IPR) determination, the US Court of Appeals for the Federal Circuit reversed the PTAB’s obviousness determinations, concluding that the PTAB’s findings regarding motivation to combine were not supported by substantial evidence. Chemours Company FC, LLC v. Daikin Industries, Ltd., Daikin America, Inc., Case No. 20-1289, -1290 (Fed. Cir., July 21, 2021) (Reyna, J.) (Dyk, J., concurring in part and dissenting in part).

Chemours, owner of the challenged patents, appealed the PTAB’s final written decisions in two IPRs initiated by Daikin. The challenged claims relate to a unique polymer for insulating communication cables formed by pulling wires through melted polymer to coat and insulate the wires, a process known as “extrusion.” The challenged claims of the patents recite that the polymer has a specific melt flow range of about 30+/- g/10 mins. The polymer’s melt flow range correlates with how fast the melted polymer can flow under pressure during extrusion. A higher melt flow rate means a faster coating of the polymer onto a wire. During the IPRs, the PTAB found all challenged claims unpatentable as obvious.

The Federal Circuit reviews the PTAB’s legal determinations de novo and its factual findings for substantial evidence, which “requires more than a ‘mere scintilla’ and must be enough such that a reasonable mind could accept the evidence as adequate to support the conclusion.” Obviousness is a question of law necessarily made on underlying findings of fact, and in making factual findings, the PTAB “must have both an adequate evidentiary basis for its findings and articulate a satisfactory explanation for those findings.”

In this instance, the Federal Circuit found that the PTAB’s obviousness findings were not supported by substantial evidence. According to the Court, while the PTAB may rely on prior art other than the references being applied or combined to inform itself of the state of the art at the time of the invention, the scope of the relevant prior art encompasses only that which is “’reasonably pertinent to the particular problem with which the inventor was involved.”’ Here, the Court explained that the only prior art reference relied on was not appropriate because it expressly taught away from the claimed invention and relied on teachings from other references that were not concerned with the particular problems the prior art sought to solve. As the Court noted, the PTAB “did not adequately grapple with why a skilled artisan would find it obvious to increase [the reference’s] melt flow rate to [the] claimed range while retaining its critical ‘very narrow molecular-weight distribution.’” To support its obviousness conclusion, the PTAB needed “competent proof showing a skilled artisan would have been motivated to, and reasonably expected to be able to, increase the melt flow rate of [the reference’s] polymer to the claimed range when all known methods for doing so would go against [the reference’s] invention by broadening molecular weight distribution.” By failing to provide its reasoning, the PTAB relied [...]

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Supreme Court to Consider Whether 17 U.S.C. § 411 Requires Referral to Copyright Office

by Amol Parikh | Jul 29, 2021 | Cert Alert

The Supreme Court of the United States agreed to review whether a district court is required to request that the Register of Copyrights advise whether inaccurate information, if known, would have caused the Register to refuse registration of the plaintiff’s asserted copyright. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., Case No. 20-915 (Supr. Ct. June 1, 2021) (certiorari granted). The question presented is:

Whether the U.S. Court of Appeals for the 9th Circuit erred in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration.

In the circuit court decision, Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (9th Cir. May 29, 2020), the Ninth Circuit held that once a defendant alleges that (1) a plaintiff’s certificate of registration contains inaccurate information, (2) “the inaccurate information was included on the application for copyright registration” and (3) the inaccurate information was included on the application “with knowledge that it was inaccurate,” a district court is required to submit a request to the Register of Copyrights “to advise the court whether the inaccurate information, if known, would have caused [it] to refuse registration.”

PTO Updates Arthrex Guidance

by Amol Parikh | Jul 29, 2021 | Patents

The US Patent & Trademark Office (PTO) updated its June 29, 2021, interim procedure to implement the Supreme Court of the United States’ decision in U.S. v. Arthrex, Inc., and specifically updated the Arthrex Q&As section. The PTO’s July 20, 2021, updates address the effect of Arthrex on Patent Trial & Appeal Board (PTAB) proceedings generally and ongoing proceedings in particular. In Arthrex, the Supreme Court held that appointment of PTAB administrative patent judges violated the Appointments Clause of the Constitution, and that the proper remedy was to vest the PTO director with discretion to overturn the PTAB’s decisions.

In section A of the Q&As, pertaining to the effect of Arthrex on PTAB proceedings, the PTO explained that the director has the option to sua sponte initiate director review of any final written decision at any point before the filing of a notice of appeal or before the time for filing such a notice has expired. The updated Q&As further explain that a request for director review is not an opportunity for a party to make new arguments or submit new evidence and imposes a 15-page limit on any request. The updated Q&As also clarify the mechanism to request review by the director. The update clarifies that a party cannot request both director review and a panel rehearing after the issuance of a final written decision, and if a party requests both it will be treated as a request for director review. However, if a panel rehearing is granted, a party can request director review of the rehearing panel decision.

In section B of the update, pertaining to the effect of Arthrex on ongoing PTAB proceedings, the PTO clarified the deadline for requesting a rehearing by the director and the circumstances under which the director will consider granting extensions of the rehearing deadlines.

In addition, the PTO added a new section, section D, pertaining to the interim internal process for director review. In section D, the Q&As address:

What happens to a director review request when it is received by the PTO?
What criteria does the advisory committee use when evaluating director review requests?
How will the director identify decisions for sua sponte director review?

Regarding 1), the Q&As explain that requests for director review will be evaluated by an advisory committee established by the director. Regarding 2), the Q&As explain there is no exclusive list of criteria, but list criteria the advisory committee may consider. Regarding 3), the Q&As explain that the PTAB internal management review team will alert the director to decisions that may warrant director review.

Don’t Be So Dramatic: True Crime Docudrama Doesn’t Violate Right of Privacy

by Eleanor B. Atkins | Jul 29, 2021 | Uncategorized

Addressing the tension between the First Amendment and the right to privacy under New York law, the New York Supreme Court Appellate Division, Third Department, unanimously held that despite being partially fictionalized, a movie based on true events did not violate the privacy rights of the film’s subjects. Porco v. Lifetime Entertainment Services, LLC, Case No. 531681 NY Supr. Ct, Appellate Div. Third Judicial Dept, June 24, 2021) (Fitzgerald, J.)

Christopher Porco was tried and convicted for the murder of his father and attempted murder of his mother in 2011. Lifetime Entertainment created a movie inspired by the events titled, Romeo Killer: The Chris Porco Story. Porco and his mother sued to stop the broadcast, alleging that the film (and related promotional materials) violated their rights of privacy under New York law.

Both parties moved for summary judgment on liability, with Lifetime arguing that the movie did not violate the plaintiffs’ right to privacy “because it depicted newsworthy events to which the use of their names was reasonably related.” The New York Supreme Court denied both motions, finding that questions of fact remained as to whether the depiction of events was “so materially and substantially fictitious as to give rise to liability.” The parties cross-appealed.

New York’s statutory right of privacy (Civil Rights Law §§ 50 and 51) prohibits the unauthorized use of “a living person’s name, portrait or picture . . . for advertising or trade purposes.” On appeal, the Court recognized the tension with the First Amendment, as the right of privacy does not prohibit reporting on “newsworthy events or matters of public interest, even if the reports were produced with profit in mind.” This “newsworthiness exception” is inapplicable, however, in situations where the “newsworthy or public interest aspect . . . is merely incidental to its commercial purpose” or “where the purported aim of the work is to provide biographical information of obvious public interest, but the content is substantially fictionalized.”

Porco argued that the film, a docudrama, fell within the latter category. The New York Supreme Court noted that the events depicted were “indisputably” newsworthy, but Porco contended that the movie was an “invented biography” that had “no purpose at all beyond the actionable one of exploiting their names and likenesses for profits.” The Court held that the film did not violate Porco’s rights of privacy, despite containing some fictionalizations, for two reasons. First, based on a review of materials such as the real police and media interviews with Porco and excerpts from his criminal trial, the Court concluded that the film was “broadly accurate.” Second, the film did not mislead viewers or present itself as wholly truthful, because it included the statement “based on a true story” at the beginning of the film and stated at the end that it was a “dramatization in which some names have been changed, some characters are composites and certain other characters and events have been fictionalized.” Accordingly, the Court reversed the lower court’s denial of Lifetime’s motion for [...]

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A Goldilocks Dilemma: What is the “Right Amount” When Pleading Patent Infringement Cases?

by Christopher M. Bruno | Jul 22, 2021 | Patents

Addressing the issue of pleading requirements for patent infringement cases, the US Court of Appeals for the Federal Circuit clarified that patentees need not prove their case at the pleading stage on an element-by-element basis but can plead themselves out of court by presenting facts that are inconsistent with their infringement claims. Bot M8 LLC v. Sony Corp. of Am., Case No. 20-2218 (Fed. Cir. July 13, 2021) (O’Malley, J.)

Bot M8 filed suit against Sony and alleged that Sony’s PlayStation 4 and PlayStation network infringed Bot M8’s asserted patents, which are all generally directed to casino, arcade and video games. The asserted patents describe an “authentication mechanism to verify that a game program has not been manipulated,” a “gaming machine [that stores] gaming information and a mutual authentication program on the same medium,” a “gaming device with a fault inspection system,” and a “gaming machine that changes future game conditions based on players’ prior game results.”

The district court sua sponte instructed Bot M8 to file an amended complaint, “specifying ‘every element of every claim that [Bot M8] say[s] is infringed’” and to reverse engineer Sony’s products to prove its case. Bot M8 did not challenge the district court’s order and agreed to file claim charts. Following Bot M8’s service of the first amended complaint, Sony filed a motion to dismiss, which the district court granted. On an unrelated patent, both parties filed summary judgment motions. The district court entered final judgment in favor of Sony, and Bot M8 subsequently appealed both the dismissals and the grant of summary judgment.

On appeal, the Federal Circuit emphasized that “patentees need not prove their case at the pleading stage” and thus found that the district court had erred by misapplying Iqbal and Twombly. Apparently exasperated by the need to reiterate the proper pleading standard, the Court emphasized that “[a] plaintiff is not required to plead infringement on an element-by-element basis.”

While reaffirming a standard favorable to patentees, the Federal Circuit explained that for a complaint to pass muster under Iqbal and Twombly, it still must provide sufficient factual allegations to “articulate why it is plausible that the accused product infringes the patent claim.” Thus, “a patentee may subject its claims to early dismissal by pleading facts that are inconsistent with the requirements of its claims.” The Court explained that Bot M8’s allegations conflicted with claim 1 of Bot M8’s patent. Whereas that claim required a motherboard separate from the authentication and game programs, Bot M8’s claim charts expressly alleged that “[t]he authentication program for the PlayStation 4 hard drive, operating system, and games is stored on PlayStation 4 . . . Serial Flash Memory” and that “[t]he PlayStation 4 motherboard contains flash memory.” According to the Court, it was “not even possible, much less plausible” for Bot M8 to prevail because of this inconsistency between Bot M8’s allegations and its patent with respect to the location of the authentication and game programs relative to the motherboard. By pleading “too much rather [...]

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Don’t Count Your Lamborghinis Before Your Trademark is in Use

by Sarah Bro | Jul 22, 2021 | Trademarks

The US Court of Appeals for the Ninth Circuit affirmed a grant of summary judgment, finding that a trademark registrant had alleged infringement of its trademark without having engaged in bona fide use of the trademark in commerce, as required by the Lanham Act. The Court found no material issue of fact as to whether the registrant had used the mark in commerce in a manner to properly secure registration, and the alleged infringer therefore was entitled to cancellation of the registration. Social Technologies LLC v. Apple Inc., Case No. 320-15241 (9th Cir. July 13, 2021) (Restani, J., sitting by designation)

This dispute traces back to a 2016 intent-to-use US trademark application filed by Social Technologies for the mark MEMOJI in connection with a mobile phone software application. After filing its application, Social Technologies engaged in some early-stage activities to develop a business plan and seek investors. On June 4, 2018, Apple announced its own MEMOJI software, acquired from a third party, that allowed users to transform images of themselves into emoji-style characters. At that date, Social Technologies had not yet written any code for its own app and had engaged only in promotional activities for the planned software.

Apple’s MEMOJI announcement triggered Social Technologies to rush to develop its MEMOJI app, which it launched three weeks later (although system bugs caused the app to be removed promptly from the Google Play Store). Social Technologies then used that app launch to submit a statement of use for its trademark application in order to secure registration of the MEMOJI trademark. The record also showed that over the course of those three weeks, Social Technologies’ co-founder and president sent several internal emails urging acceleration of the software development in preparation to file a trademark infringement lawsuit against Apple, writing to the company’s developers that it was “[t]ime to get paid, gentlemen,” and to “[g]et your Lamborghini picked out!”

By September 2018, Apple had initiated a petition before the Trademark Trial & Appeal Board to cancel Social Technologies’ MEMOJI registration. Social Technologies responded by filing a lawsuit for trademark infringement and seeking a declaratory judgment of non-infringement and validity of its MEMOJI registration. When both parties moved for summary judgement, the district court determined that Social Technologies had not engaged in bona fide use of the MEMOJI trademark and held that Apple was entitled to cancellation of Social Technologies’ registration. Social Technologies appealed.

Reviewing the district court’s grant of summary judgment de novo, the Ninth Circuit framed its analysis under the Lanham Act’s use in commerce requirement, which requires bona fide use of a mark in the ordinary course of trade and “not merely to reserve a right” in the mark. The issue on appeal was whether Social Technologies used the MEMOJI mark in commerce in such a manner to render its trademark registration valid.

The Ninth Circuit then explained the Lanham Act’s use in commerce requirement, which requires “use of a genuine character” determined by the totality of the circumstances (including “non-sales [...]

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Unified at Last? Germany’s Constitutional Court Removes UPC Hurdle

by Dr. Henrik Holzapfel and Dr. Maximilian Kiemle, LLM | Jul 22, 2021 | EU Update, Patents

On July 9, 2021, Germany’s Federal Constitutional Court rejected a pair of applications for a preliminary injunction directed against the German Approval Act on the Agreement on a Unified Patent Court (UPC) (decision of June 23, 2021, 2 BvR 2216/20). Thus, German ratification of the Agreement now only requires a presidential signature of the Approval Act and the subsequent deposition of the ratification.

The Constitutional Court’s press release can be found here (in English and German). The text of the decision itself is available here (in German only).

BACKGROUND

So far, 15 EU Member States have ratified the 2013 Agreement on a UPC. In recent years, the ratification process has faced several unexpected hurdles and proved to be cumbersome. Last year, post-Brexit, the United Kingdom formally revoked its ratification (as of July 20, 2020). Since then, of the ratifications required for entry into force, only Germany’s remained pending.

Germany’s Federal Constitutional Court annulled a first national ratification Approval Act on February 13, 2020, after a successful constitutional complaint. Now, following an apparently unsuccessful second round of constitutional complaints, nothing remains to prevent the second Approval Act, which was redrafted and approved by the German legislator in fall 2020, from being formally signed by the German president.

GROUNDS FOR THE CONSTITUTIONAL COURT’S DECISION

The Constitutional Court stated that the constitutional complaints were inadmissible on the merits because the complainants had not sufficiently substantiated the possibility of a violation of their fundamental rights.

Under German constitutional law, national legal acts may only transfer sovereign rights to the European Union or EU-related institutions under certain conditions. In particular, in order for a national act to be deemed unconstitutional, it must be established that the transfer of rights would undermine the German constitution or, in the words of German constitutional law, would affect the integral core or identity of the German constitution. In its 2020 decision, the Federal Constitutional Court recognized that the first Approval Act lacked the two-thirds majority in parliament required for such a significant transfer of sovereign rights. The first Approval Act was adopted unanimously, but only 35 of the approximately 600 German members of parliament were present for the vote, which was found to be too few for such a far-reaching piece of legislation.

In principle, the hurdles for a successful constitutional complaint are high. The Approval Act represents a democratically legitimized majority decision by a constitutional body. Now 570 members of parliament have voted in favor of the second Approval Act. Therefore, in the present decision, the Federal Constitutional Court (for the first time) considered the merits of the law rather than the formalities of passage.

In the present case, the complainants argued that Articles 6 et seq. of the UPC Agreement violated the independence of judges established in the German constitution and the constitutionally guaranteed principle of the rule of law due to the appointment of the judges of the UPC for six years, their possible reappointment and the [...]

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Ninth Circuit Still Signals Shift in Arbitration Landscape for Non-Signatories

by Lisa M. Richman and Lauren H. Evans | Jul 15, 2021 | Trademarks

In a decision substantively the same as the now-withdrawn opinion entered on January 20, 2021, the US Court of Appeals for the Ninth Circuit once again affirmed denial of a non-signatory’s motion to compel arbitration. Setty v. Shrinivas Sugandhalaya LLP, Case No.18-35573 (9th Cir. July 7, 2021) (Nelson, J.) (Bea, J., dissenting).

Following the June 8, 2021, withdrawal of its original decision, the Ninth Circuit again found that federal rather than Indian law should apply, this time focusing on the New York Convention and its implementing legislation’s emphasis on “the need for uniformity in the application of international arbitration agreements.” The Court further reasoned that it applies “federal substantive law” in cases involving the New York Convention when determining the arbitrability of federal claims by or against non-signatories. The Ninth Circuit then pointed back to GE Energy, the decision that prompted the initial remand, stating that although the Supreme Court of the United States “specifically concluded” that “the New York Convention does not conflict with enforcement of arbitration agreements by non-signatories under domestic-law equitable estoppel doctrines,” the Supreme Court did not determine whether GE Energy could enforce the arbitration clauses under principles of equitable estoppel, nor did it determine which body of law governed.

The Ninth Circuit concluded that while “a non-signatory could compel arbitration in a New York Convention case,” the facts presented here did not implicate the agreement that contained the arbitration clause. Clarifying its prior holding, the Ninth Circuit stated explicitly that the claims here had “no relationship with the partnership deed containing the arbitration agreement at issue in this appeal.” Repeating its earlier ruling, the Court reasoned that the subject matter of the dispute was not intertwined and thus the doctrine of equitable estoppel was not applicable.

Judge Carlos Bea again dissented on the choice of law issue. Although most of his opinion was similar to his prior analysis, Judge Bea indicated that he disagreed with the majority’s notion that federal substantive law is applied in cases involving the arbitrability of federal claims by or against non-signatories under the New York Convention. Judge Bea argued that there was no basis to make such a choice of law analysis for a motion to compel dependent on whether the plaintiff’s claims sounded in federal or state law, and that whether an arbitration agreement is otherwise governed by the New York Convention is irrelevant to the choice of law for an equitable estoppel claim.

Practice Note: The Setty decision appears to demonstrate a shift in the US arbitration landscape, and parties may begin to see an increase in the use of equitable estoppel theories by non-signatories. Practitioners should keep in mind that non-signatories may use this theory affirmatively to attempt to compel arbitration, but it may open the door to enforcement of an obligation to arbitrate against non-signatories as well.

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