U.S. Market Entry Top 10

Posted in investments, Start-up, Technology, Workforce

uSAOver the last few months I have had the chance to speak to entrepreneurs from Brazil, China, Estonia, France, Germany, Guatemala, Israel, Norway, Singapore and Ukraine seeking to operate and solicit investment here in the U.S.  As an attorney, I’m expected to focus on best legal practices.  They’re indeed important, but perhaps not worth quite so much energy if the company isn’t on a course to succeed as a business.

Among my first questions, I’m curious to know what a company has, why it’s great, who’s willing to pay, and how much.  Then, I explore other challenges facing the business.

For start-up companies that still want to talk, here’s my simplified rundown of business and legal items (for information purposes only, not legal advice):

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USCIS Proposes International Entrepreneur Rule to Spur Innovation and Job Creation

Posted in Entrepreneurship, Visas

On Aug. 26, 2016, U.S. Citizenship and Immigration Services (USCIS) announced a notice of proposed rulemaking for an International Entrepreneur Rule, and provided an advance version of the proposed rule for public review.

According to an announcement from USCIS, the proposed rule will allow the Department of Homeland Security (DHS) to exercise discretion, on a case-by-case basis, to provide parole for foreign entrepreneurs who are directing the development of a startup business entity in the United States and whose involvement in the startup would provide a significant public benefit.  USCIS proposes to amend its regulations in connection with Section 212(d)(5) of the INA to provide a “transparent framework” for the exercise of agency discretion and the case-by-case adjudication of parole requests for start-up entrepreneurs.

In order to be considered for parole under the proposed rule, an immigrant entrepreneur would be required to:

  • Own at least 15 percent of the startup and be actively involved in its operation
  • Have formed the business in the United States within the previous three years.

The entrepreneur must also demonstrate that his or her business the potential for job creation and growth by showing:

  • Investment of a minimum of $345,000 from qualified U.S. investors with success in prior investments
  • The receipt of grants or awards from federal, state, or local government entities.

The proposed rule also provides flexibility for an entrepreneur who may only partially satisfy one or both of the above criteria, by permitting the entrepreneur to provide evidence of the start-up’s potential for growth and job creation.

Under the proposed rule, a qualifying entrepreneur may receive parole for a two-year period, and may be eligible for renewal based upon the success of the start-up.

When finalized, the proposed rule may hold potential for immigrants who find themselves caught in current immigrant visa backlogs, as well as individuals who seek to emigrate from countries that do not have E-1 or E-2 visa status.

Upon publication of the rule in the Federal Register, the public will have 45 days during which to provide comment on the rule.

As we review the text of the proposed rule thoroughly, we will provide additional insights and discussion about the potential opportunities it could present to immigrants in different contexts.

Greenberg Traurig partners with leading internet conference NOAH in Berlin and London

Posted in Cybersecurity, Events, Technology

Greenberg Traurig sponsors the leading internet conference NOAH 2016. In June, over 3,000 attendees including entrepreneurs, investors, corporate executives, networkers and journalists met in Berlin to discuss disruptive trends across industries.

Among the speakers was Rudolph W. Giuliani, who delivered a keynote on cybersecurity together with Bill Morrow, CEO of Quarri Technologies.

The conference was well received, see a summary and impressions of NOAH Berlin.

Our German team also hosted a post-conference reception at their rooftop terrace. More than 250 guests embraced the opportunity to enjoy fantastic views, food and drinks while networking with other investors and technology entrepreneurs.

On Nov. 10 and 11, 2016, NOAH will take place in London. Shareholders and associates of both our German and London office will attend and actively support the conference. Read on for further details about NOAH London.

For further information, please contact Henrik Armah (Shareholder, Corporate/M&A) or Sarah Koch (Events Coordinator).

Cloud Migration Demystified

Posted in Cloud Computing, Cybersecurity, Privacy and Data Security, Technology

Migration is already underway, but some of the world’s largest organizations are still reluctant. They handle proprietary data and a staggering volume of transactions.  They want to marshal information and deliver nuanced results.  But a lack of appreciation for the Cloud’s promise, together with questions surrounding security and cost, make many CTOs and COOs cling to legacy systems.


At the surface, the Cloud is seemingly straightforward even for occasional users; using encryption and/or password protection, individuals log on to a website, smartphone app, or similar “thin” interface. They may send an email, manage ‘Internet-of-things’ controls, reserve a seat, store a document, access a data base, or subscribe to an online tool for accounting or lead tracking.  While it’s clear that the “back office” intelligence sits someplace else, users probably don’t appreciate the architecture.

Understanding the Cloud’s capabilities and shortcomings is key to a thoughtful migration strategy. Can organizations really save money by replacing their on-premise solutions?  How do they comply with regulations around the world addressing the collection, use and transfer of personal data?  When migrating, do they retain control of their systems?  What about cyber security?  Here’s a simplified description for non-technologists!

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Greenberg Traurig Shareholder Trevor Chaplick to Present The Basics of Cap Tables

Posted in Entrepreneurship, Technology

Chaplick_TrevorAn important part of any angel or venture financing is the pro forma capitalization table (referred to as the “Cap Table”). On Wednesday, Sept. 14 from 12:00 pm -1:00pm EDT, Greenberg Traurig shareholder Trevor Chaplick will present “The Basics of Cap Tables,” a webinar hosted by the Angel Capital Association.  A Cap Table is typically prepared as an excel spreadsheet, and while it can be daunting for new angels and entrepreneurs to understand, the Cap Table plays a critical role in such financings. This highly informative webinar provides an overview of a standard Cap Table, its purpose, and how it is used.  Learn what a Cap Table generally looks like at various stages of company growth, the investor conventions used in creating Cap Tables, what happens when new money comes into the company and the impact of dilution on various classes of stock. This webinar will provide a primer for new angels and a refresher for those more experienced. Registration for The Basics of Cap Tables webinar is open.

Greenberg Traurig is an annual partner of the Angel Capital Association. This webinar is part of ACA’s Rising Tide Education Program which was created to increase diversity of the angel community by educating under-represented groups. 


Patent Eligibility After ‘Alice’

Posted in Patent, Patent Strategy

Nearly every patent practitioner has been impacted by the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank International, 134 S.Ct. 2347 (2014). Alice applied the two-part eligibility test set forth in Mayo Collaborative Services v. Prometheus Labs, 132 S.Ct. 1289 (2014), i.e., is the claim directed to ineligible subject matter and, if so, is there an inventive concept in the claim that amounts to something significantly more than the mere ineligible subject matter? In Alice, the answer was no on both counts. GT attorneys James DeCarlo, Nicholas Martin, and James Ryerson discuss this and other recent decisions as well as strategies patent litigators and prosecutors should consider in dealing with eligibility challenges in their recent article “Patent Eligibility After ‘Alice.’

USPTO Issues Subject Matter Eligibility Update with Examples for Life Sciences

Posted in GT Alert, Patent, Patent Strategy, USPTO

Following the recent Supreme Court decisions in Alice Corp., Myriad, and Mayo which invalidated an array of claims under 35 U.S.C. § 101, patent subject matter eligibility has become a closely watched and debated issue. In its most recent attempt to decipher these decisions and apply them in patent examination, on May 4, 2016, the U.S. Patent and Trademark Office (“USPTO”) issued a Subject Matter Eligibility Update (“May 2016 Update”) May 4, 2016. The May 2016 Update provides a memorandum to the Patent Examining Corps on best practices in formulating a subject matter eligibility rejection and evaluating the applicant’s response, along with additional subject matter eligibility examples in the life sciences area.

The Memorandum

In formulating a § 101 rejection, examiners should, according to the memorandum:

(1) identify the judicial exception (i.e., abstract idea, law of nature, or natural product) by referring to what is recited (i.e., set forth or described) in the claim and explain why it is considered an exception;

(2) identify any additional elements (specifically point to claim features/limitations/steps) recited in the claim beyond the identified judicial exception; and

(3) explain the reason(s) that the additional elements taken individually, and also taken as a combination, do not result in the claim as a whole amounting to significantly more than the judicial exception.

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Food for thought: Florida, Israel can lead the way in agtech

Posted in Agricultural Technology

By 2050, the global population is expected to increase to 9 billion people — a dramatic increase of more than 35 percent. Given scarce natural resources and the uncertainties of climate change, feeding that growing population means food production will need to increase by 70 percent, according to the Food and Agriculture Organization.

Florida, where agriculture ranks as the second-largest industry, is perfectly positioned to take the lead in combating world hunger through investments in agricultural research. One strategy for doing so involves attracting innovative agricultural technology companies to the market. There is no better ally to enlist in such an effort than the state of Israel, which is known for its innovation in this area. Many of these Israeli food and agricultural technology companies are actively seeking opportunities for U.S. expansion.

Israel has been investing in food and agriculture innovation since its inception 68 years ago. The result: the country is a leader in this area, despite the fact that the geography of Israel is not naturally conducive to agriculture. Israel’s climate, geography and lack of water resources, provide many parallels that would be relevant to Florida. Those success stories include leading Israeli Agtech companies like Kaiima, a genetics and breeding company that utilizes technology to enhance crop productivity. The work of Netafim, a leader in smart drip and micro irrigation solutions, helps to reduce water usage and increase yields. And, Afimilk provides technology that helps dairy farmers increase yields and profitability.

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Incubator or Accelerator Program: Which Is Right for Your Business?

Posted in Start-up, Technology, Venture Capital

The past few years have seen an uptick in new accelerator and incubator programs that are focused on helping startups launch and grow. Participating in one of these programs can be advantageous for an emerging business looking for expert insight, seed money, venture capital, or market exposure. But not all are created equal. While most programs provide benefits such as funding, mentorship, and access to potential investors, they are not a guarantee of success. A positive experience depends on setting realistic expectations and understanding what these programs can and cannot do.

Choosing an incubator or an accelerator program depends entirely on you, your business, and what you want out of the experience. An entrepreneur should do proper research into the broad range of options to determine what program is the right fit and consult with counsel to ensure that an appropriate program is chosen.

Difference Between Accelerators and Incubators

Incubators and accelerators both prepare companies for growth. As a result, the terms “accelerator” and “incubator” can sometimes be used interchangeably. They both help companies grow by providing guidance and mentorship, but in slightly different ways, and there are subtle but important differences between these types of programs.


As the term implies, the purpose of an incubator program is to “incubate” or nurture a startup from a very early stage, providing the young company with the necessary tools to develop, such as office space, business skills training, access to financing and professional networks, and advice. The goal is to help the company develop to a point that it can stand on its own feet. Incubators are typically sponsored or run by VC firms, government entities, or major corporations. Incubators can sometimes take equity in the venture, and if they do, it is usually a small amount, since they typically do not provide upfront capital.

According to the National Business Incubation Association (NBIA), “The most common goals of incubation programs are creating jobs in a community, enhancing a community’s entrepreneurial climate, retaining businesses in a community, building or accelerating growth in a local industry, and diversifying local economies.” An incubator program typically does not have a predetermined end or a competition element, and tends to be less structured than accelerators. Overall, incubators are a longer-term proposition and take their portfolio businesses through all stages of their lifecycles. In most cases, startups accepted into incubator programs work with other companies in a co-working environment and may have a monthly lease program.


Accelerator programs usually focus on helping a business that may be beyond the incubator stage, and that may be ready for sustained growth. The accelerator program is usually set up to “accelerate” a business with an intense program (i.e., one to six months), through which many resources are available. The entrepreneur may receive a small amount of capital, office space, mentorship, and access to business and legal advisors in exchange for some equity in the company. The ultimate goal of an accelerator is to support the startup to the point of attracting venture capital and angel investment in a short period of time. Some common and increasingly popular accelerator programs include MassChallenge, TechStars, and Y-Combinators.

One of the best ways to find an accelerator is to explore platforms for startups such as AngelList. And, for a closer look at the data on each accelerator program, visit www.seed-DB.com, an online database which tracks over 200 accelerators worldwide and nearly 6,000 startups that have emerged from them. Among the listings you will find figures for dollars in funding, dollars in exits, and jobs created by each company.

Both accelerators and incubators want your company to succeed. For accelerators, this is especially important since they take a percentage of your business, and only make money if you make money.

Finding the Right Match

Finding the appropriate program can depend on what stage you are in your business. You should carefully consider where you are in your company’s evolution and do your due diligence before applying to any program. Consider the following questions:

  • What are your goals?

Consider why you are applying to an accelerator or incubator. Are you most interested in the mentorship, advice, and coaching, or the seed capital and access to follow-on investment? Does working in a community of fellow entrepreneurs appeal to you, or maybe you need more privacy? Understanding these primary drivers will help you choose the right program and get the most out of your experience.

  • Record of success

Research the program’s team. Who is running the program and who is backing it? You will want to know that the program has a successful track record in your industry sector. Additionally, you should consider looking for a program that has effectively helped similar businesses launch, secure funding, or ensure success.

  • Understand the niche area for the accelerator or incubator

Today, many programs focus on a particular sector, such as health care, biotech, or interactive media. Be sure the accelerator or incubator mission aligns with your business goals.

  • Do you need mentors?

Some programs offer a high level of oversight and mentorship, while others are less involved. If you are looking for access to business and legal advisors, then you should look for a program that has a strong mentorship element. And, don’t forget that advice and mentorship can come from other entrepreneurs, which is partly why you want to get into the best accelerators.

  • Are you willing to give up equity in the company?

An entrepreneur considering an incubator versus an accelerator should weigh the pros and cons of giving up equity in the company in exchange for the program’s services and support.‎

  • Geography

Consider the location of the accelerator/incubator in the context of where you want to build your business. If you are developing video gaming software, for example, you may want to explore programs in regions that are rich in interactive media innovation such as Austin, Texas, or Boston. Keep in mind that some programs have very specific “place of business” requirements.

Accelerator and incubator programs can give you much needed financial assistance, office space or equipment, and expert mentorship. In the end, whichever path you choose, it is important to remain committed to the program in order to reap the utmost benefit.

EU General Data Protection Regulation: What Impact for Businesses Established Outside the EU

Posted in Data Protection, Privacy and Data Security

The 261-page final draft of the EU General Data Protection Regulation (GDPR), which replaces Directive 95/46/EC (Directive), was formally approved by the EU Parliament on April 14, 2016. The document is expected to be published in the Official Journal of the European Union (EU) in June, and to enter into force 20 days thereafter. The GDPR will apply, and enforcement will commence, two years from the date of entry into force, i.e., approximately in early July 2018. The repeal of the Directive will take effect as of the date when the GDPR begins to apply.

The GDPR is not just an update of a 20-year old directive that was designed at the dawn of the Internet era, and that was based on privacy principles published by the Organization for Economic Co-operation and Development (OECD) in the early 1980s. The approval of the GDPR is a significant development in the shaping of the law of privacy and data protection in the European Union as a cohesive, homogeneous whole, where one single law becomes the primary vehicle to govern the activities of very diverse countries in a particular domain.

It is time for companies that fall within the scope of the new GDPR to start preparing for the transition. This GT Alert focuses primarily on the obligations faced by companies whose principal business establishment is located outside the EU and the European Economic Area (EEA).

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