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On January 20, the Senate Committee on the Judiciary voted 16-6 to advance S. 2992, the American Innovation and Choice Online Act, out of committee and toward a full vote on the floor of the U.S. Senate. If passed, the bill would give the Federal Trade Commission (FTC), the U.S. Attorney General and state attorneys general new powers to bring antitrust enforcement actions against major online platforms that are alleged to be engaging in discriminatory conduct by preferencing their own products and services over competing products and services that are also available on those platforms.
On January 19, Qualcomm filed a brief in opposition to Apple’s petition for certiorari to the U.S. Supreme Court, arguing Apple failed to make the requisite evidentiary showing to obtain Article III standing. In 2017, Qualcomm filed suit against Apple, alleging Apple’s mobile devices infringed five of its patents, two of which are at issue here, U.S. Patent No. 7,844,037 (the ‘037 patent) and U.S. Patent No. 8,683,362 (the ‘362 patent). Apple counterclaimed, urging the court to invalidate those five patents. Additionally, Apple filed a simultaneous challenge to two of the patents through inter partes reviews (IPRs).
The first panel of Tuesday’s PTAB Masters™ 2022, titled “Discretionary Denials: Has the WDTX Been Neutered?”, presented data that reveals the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) seemingly stopped citing Fintiv as a reason to discretionarily deny inter partes review (IPR) proceedings for cases with parallel litigation in the Western or Eastern Districts of Texas (WD of TX/ ED of TX) during the last four months of 2021. While the PTAB issued a larger number of institution decisions overall in those months compared with previous months, and a larger number of cases citing Fintiv, there was also a relatively low number of cases across all jurisdictions in which discretion to deny was applied based on the Fintiv analysis.
A new crime drama, The Billion Dollar Code, is a fascinating breakthrough mini-series that illustrates the legal challenges of inventions and inventors in a world where technology giants can refuse to acknowledge the source of ideas they do not control. The popular four-part Netflix mini-series achieves uncanny success not only in depicting an epic legal battle but doing it over four plus hours in German with subtitles and an abundance of algorithm detail and trial preparation. It is reminiscent of Chernobyl, HBO’s award-winning series that turned the complex series of events and failures, both technical and human, leading to a nuclear core meltdown into award-winning entertainment.
From the “one hand doesn’t know what the other hand is doing” category, believe it or not, the Food and Drug Administration (FDA) is effectively refusing to release documents it possesses relating to the approval of the Pfizer-BioNTech COVID-19 vaccine. More precisely, Public Health and Medical Professionals for Transparency (PHMPT), a group of doctors and scientists, submitted a Freedom of Information Act (FOIA) request for documents relating to the approval of the Pfizer COVID-19 vaccine. After the FDA denied a request by the PHMPT to expedite release of the documents, a lawsuit was filed. In response to that lawsuit, the FDA proposed to release 500 pages per month, which would allow the agency time to redact material as necessary. Given that there are 329,000 pages responsive to the PHMPT request, at the proposed FDA rate of 500 pages per month it would take 55 years for the FDA to fully release the Pfizer COVID-19 vaccine documents.
On November 2, Senator Thom Tillis (R-NC) sent a pair of letters regarding issues in district court patent litigation—one addressed to Drew Hirshfeld, performing the functions and duties of the Director of the U.S. Patent and Trademark Office (USPTO), and another letter co-written with Senator Patrick Leahy (D-VT) addressed to Chief Justice John Roberts of the U.S. Supreme Court. While never mentioned by name, U.S. District Judge Alan D. Albright is unmistakably the subject of both letters, which expressed serious concerns about “unrealistic trial dates” and “open solicit[ation]” of patent cases from a single judge in the Waco Division of the Western District of Texas.
Is patent litigation out of control? Has patent litigation ever been out of control? The answers to these questions largely depend upon your point of view, and as with most complex topics, the truth is nuanced. What is not nuanced are the numbers reported in the annual reports from the Administrative Office of the United States Courts, which shows that the number of patent cases that reach trial are extremely few. In fact, the number of cases that make it to the final pre-trial conference represents a small subset of the number of cases that are filed. I initially started this research in 1997, while working on my Master’s thesis, which dealt with patent litigation and the use of alternative dispute resolution. The real growth in patent litigation over the last 40 years has taken place before trial. Between 1980 and 2020, the number of patent cases reaching trial ranged between a low of 63 (in the COVID-19 affect FY 2020) but was otherwise at a low o 64 (in FY 2019) and a high of 164 (in FY 2016). All are a remarkably low number of cases that proceed to trial given the number of patent lawsuits commenced.
On January 21, 2022, the U.S. Court of Appeals for the Federal Circuit held that the term “lifter member” invokes means plus function (MPF) claiming. The case is Kyocera Senco Indus. Tools Inc. v. ITC, Appeal Nos. 2020-1046 and 2020-2050 (Fed. Cir. 2022). The Federal Circuit panel for the case consisted of Chief Judge Moore along with Judges Dyk and Cunningham. Chief Judge Moore wrote the opinion for the panel. To summarize, in 2017, Kyocera filed a complaint with the International Trade Commission (ITC). Kyocera alleged that a company named Koki violated 19 U.S.C. § 1337 (Section 337) by importing gas spring nailer products that infringe, or were made using methods that infringe, certain claims in five Kyocera patents. Those patents generally relate to linear fastener driving tools, like portable tools that drive staples, nails, or other linearly-driven fasteners.
The safe harbor provision set forth in 35 U.S.C. § 271(e)(1) immunizes many types of activities in pursuit of a Food and Drug Administration (FDA) submission from patent infringement claims. Research tools are frequently used in pursuit of an FDA submission, such as drug development, testing and screening. But research tools themselves generally are not subject to FDA or other regulatory approval. Depending on the circumstances, using research tools to submit data to the FDA may not be protected by the safe harbor provision and thus may expose companies to patent infringement claims.
Edell, Shapiro & Finnan, LLC (“ESF”), an Intellectual Property Boutique, is seeking a Patent Attorney or Agent specialing in ME/EE or Life Sciences to join the patent prosecution team. This is a full-time, permanent, immediate position located in Gaithersburg, MD.
On October 27, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the Trademark Trial and Appeal Board’s (TTAB) cancellation of Brooklyn Brew Shop, LLC’s (BBS) standard character mark and dismissed in part, affirmed in part and remanded the TTAB’s decision regarding the opposition of BBS’s mark. For over 30 years, The Brooklyn Brewery Corporation (Brewery) has used the marks BROOKLYN and BROOKLYN BREWERY in connection with the advertising, promotion, and sale of Brewery’s beer and beer-related merchandise. In 2006, Brewery registered BROOKLYN BREWERY as a federal trademark for beer in class 32.
The U.S. Supreme Court heard oral argument today in Unicolors v. H&M. The case asks the Court to decide whether the Ninth Circuit properly construed the language of 17 U.S.C. § 411 relating to whether courts must have evidence of intent to defraud before referring copyright registration validity questions to the Copyright Office. While the questioning seemed to favor Unicolors overall, at least one Justice today asked why a change in the question presented at the merits stage of the briefing shouldn’t result in the case being dismissed as having been “improvidently granted.”
The full Senate Judiciary Committee convened today for a hearing titled, “Cleaning Up Online Marketplaces: Protecting Against Stolen, Counterfeit, and Unsafe Goods,” in which witnesses explained the continuing challenges of policing stolen and counterfeit products in online marketplaces. The panelists included small business owners, internet platform advocates, academics and retail store representatives.
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