In this week’s edition of Other Barks: The highest federal court in the United States declines to hear an appeal from tech giants on applying common sense to patent validity challenge proceedings. A group of pharmaceutical giants duke it out in a patent battle over a topical ointment for treating acne. The capital’s district court hears arguments in a case about compulsory copyright licenses. Also, President Trump signs a bill authorizing billions in funding for the nation’s space agency.
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- This Week on Capitol Hill – It’s another busy week on Capitol Hill and over in the U.S. Senate, this week’s schedule got underway on Tuesday with a 9:30 AM hearing of the U.S. Senate Committee on the Judiciary to examine the nomination of Neil Gorsuch to sit on the bench of the U.S. Supreme Court. At 10 AM Tuesday, the U.S. Senate Committee on Health, Education, Labor & Pensions convened a full committee hearing to improve medical product regulation and innovation for patients. Today, the Senate’s hearing schedule kicks off with a 10 AM hearing of the U.S. Senate Committee on Commerce, Science, & Transportation which will examine the promises and perils of emerging technologies for cybersecurity. Also at 10 AM, the U.S. Senate Committee on Environment & Public Works will meet to consider S.512, the Nuclear Energy Innovation and Modernization Act. At 3:30 PM, the airland subcommittee of the U.S. Senate Committee on Armed Services will convene a hearing to examine the modernization of the U.S. Army. At 9:30 AM Thursday, the U.S. Senate Committee on Banking, Housing, & Urban Affairs will meet to consider the nomination of Jan Clayton to serve as a member of the Securities and Exchange Commission (SEC). Over in the U.S. House of Representatives, a few hearings were scheduled on Monday, including a 5 PM hearing of the House Committee on Rules to consider bills directed at competitive health insurance reform and small business health fairness. Tuesday morning was exceptionally busy in the House, starting with a 10 AM hearing of the research and technology subcommittee of the House Committee on Science, Space, and Technology to look at future challenges and opportunities for science in the context of the National Science Foundation (NSF). Also at 10 AM Tuesday, the communications and technologies subcommittee of the House Energy and Commerce Committee on broadband and deploying America’s 21st century infrastructure. At 10:30 AM, the full House Committee on Transportation and Infrastructure held a roundtable on emerging railroad technologies. Today, the House Committee on Oversight and Government Reform will hold a 9 AM hearing to review law enforcement’s policies on the use of facial recognition technology. At 10 AM, the space subcommittee of the House Committee on Science, Space, and Technology will meet to discuss options and their impacts for the International Space Station (ISS) after 2024. Also at 10 AM, the House Committee on Homeland Security will hold a hearing to look at defending against cyber threats. At 9 AM Thursday morning, the regulatory reform subcommittee of the House Committee on the Judiciary will hold a hearing to consider the Financial Institution Bankruptcy Act of 2017.
- SCOTUS Denies Writ to Apple, Google in Case on “Common Sense” Patent Invalidity – In a list of orders released by the U.S. Supreme Court on Monday, March 20th, a petition for writ of certiorari was denied in a case appealed by a trio of tech giants seeking the invalidation of a patent covering a data recognition technology. The order leaves in place a decision by the U.S. Court of Appeals for the Federal Circuit (Fed. Cir.) in Arendi S.A.R.L. v. Apple Inc. et. al. which reversed the Patent Trial and Appeal Board’s (PTAB) determination of invalidity of the patent after finding that PTAB erred in misapplying law on the use of common sense in an analysis of obviousness. (Link to Supreme Court orders released on March 20th) (Link to Supreme Court docket for Arendi S.A.R.L. v. Apple Inc. et. al.)
- Fed. Cir. Upholds Noninfringement Finding in Patent Suit Targeting Nintendo 3DS – On Friday, March 17th, the Fed. Cir. released a decision in a case finding that a handheld portable gaming console sold by Japanese consumer electronics company Nintendo (TYO:7974) did not infringe a patent asserted by Japanese tech firm Tomita Technologies. Fed. Cir. affirmed the finding of a lower court that the Nintendo 3DS did not infringe a patent claim based on the proper construction of the term “offset presetting means.” The ruling follows an earlier decision by the Fed. Cir. to reverse and remand the first jury decision in this case which found infringement of the patent based on what Fed. Cir. decided was an improper construction of “offset presetting means.” (Link to Fed. Cir.’s decision in Tomita Technologies USA, LLC et. al. v. Nintendo Co., Ltd. et. al.)
- Dow, Valeant File Patent Suit Against Actavis Over Topical Acne Gel – On Tuesday, March 14th, American drugmaker Dow Pharmaceutical Sciences and Canadian pharmaceutical company Valeant (NYSE:VRX) filed a patent suit against Utah-based Actavis Laboratories UT. The case, filed in the U.S. District Court for the District of New Jersey (D.N.J.), stems from Actavis’s filing of an abbreviated new drug application (ANDA) for a generic version of the acne treatment Onexton; the ANDA did not allege non-infringement of two patents asserted by the plaintiffs in the district court case. (Link to official complaint in Dow Pharmaceutical Sciences, Inc. et. al. v. Actavis Laboratories UT, Inc. et. al.)
- ITC Institutes Section 337 Investigation Into Graphics Systems and Components – On Friday, March 17th, the U.S. International Trade Commission (ITC) instituted a Section 337 investigation into graphics systems, components thereof and consumer products including the same based on a complaint filed by Sunnyvale, CA-based semiconductor firm Advanced Micro Devices (NASDAQ:AMD) and Canadian chipset developer ATI Technologies ULC. The ITC will investigate integrated circuits, graphics processors, smartphones, tablets, wearable devices and television produced by a series of consumer electronics firms including South Korea’s LG Electronics (KRX:066570), Vizio Inc. of Irvine, CA, and Taiwanese fabless semiconductor developer MediaTek Inc. (TPE:2454). (Link to ITC press release announcing Section 337 investigation of graphics systems, components thereof and consumer products including the same)
- Coachella Sues Urban Outfitters Over Trademark Infringing Apparel – On Tuesday, March 14th, Coachella Music Festival filed a trademark suit in the U.S. District Court for the Central District of California (C.D. Cal.) charging Urban Outfitters with the unauthorized marketing of apparel branded with Coachella trademarks. Coachella alleges that a speciality women’s clothing brand subsidiary of Urban Outfitters offers four products featuring the Coachella marks and uses the marks in online advertising activities to promote the infringing goods. (Link to official complaint in Coachella Music Festival, LLC et. al. v. Urban Outfitters, Inc. et. al.)
- TTAB Denies Marijuanaville Mark, Makes No Mention of Controlled Substances Act – On Thursday, March 16th, the Trademark Trial and Appeal Board (TTAB) entered a decision in an opposition proceeding finding that the standard character mark “MARIJUANAVILLE” was likely to be confused with “MARGARITAVILLE”, a standard character mark held by Jimmy Buffett. Interestingly, TTAB’s decision made no mention of the use of the mark for sale on products which are illegal under the Controlled Substances Act, an issue which has derailed other trademarks at TTAB. (Link to TTAB decision in Margaritaville Enterprises, LLC v. Rachel A. Bevis)
- Georgia Supreme Court Grants Win to iHeart Radio in Copyright Case Over Pre-1972 Recordings – On Monday, March 20th, Macon, GA-area newspaper The Telegraph reported that the Georgia Supreme Court had found unanimously that iHeart Radio’s broadcast services exempted it from a state law against the transfer of sound recordings without the owner’s consent. The suit was brought by musicians Arthur and Barbara Sheridan who alleged that iHeart Radio had been streaming music recorded prior to 1972, when Congress passed federal legislation governing copyrights on music recorded that year and thereafter, in violation of the Georgia state statute. (Link to The Telegraph report on Georgia Supreme Court’s decision in case) (Link to Georgia Supreme Court case summary of iHeartMedia, Inc. v. Sheridan et. al.)
- D.C. Cir. Hears Oral Arguments in Copyright Case on Blanket Compulsory Licenses – On Friday, March 17th, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Cir.) heard oral arguments in a case appealed by an over-the-air broadcast provider who is arguing that its multiple channels of communication, including Internet transmissions, qualifies the provider for a statutory copyright license under Copyright Act Section 111. The case will decide whether or not the Internet-based retransmission service FilmOn X is a cable company under the definition of Section 111 which would give it the right to enter into a compulsory license with content providers like Fox Television Stations, which had sued FilmOn X for copyright infringement. (Link to appellant brief to D.C. Cir. in FilmOn X, LLC, et. al. v. Fox Television Stations, Inc., et. al.) (Link to oral arguments heard by D.C. Cir. in FilmOn case)
- EU Asks Social Media Giants to Reconsider Terms and Conditions, Approaches to Fraud – On Friday, March 17th, the European Commission released a press release in which it announced that it was asking a trio of U.S.-based social media providers to adjust certain business practices to comply with European Union (EU) law. The social media companies named include Facebook (NASDAQ:FB), Twitter (NYSE:TWTR) and Google+, a property of Alphabet (NASDAQ:GOOGL). The social media companies are being asked to, among other things, change their terms of service to protect a consumer’s mandatory right to withdraw from online purchases and remove the social network provider’s ability to remove content without discretion. The Commission also wants the providers to establish procedures for the removal of illegal content like payment scams or subscription traps. (Link to European Commission press release on the social media rules)
- President Trump Signs Bill Authorizing Funds for NASA’s Mission to Mars – On Tuesday, March 21st, D.C. political blog The Hill reported that President Donald Trump signed into law S.442, the NASA Transition Authorization Act of 2017. The law, sponsored by Sen. Ted Cruz (R-TX) along with seven other co-sponsors, reportedly secures $19.5 billion in funding for NASA during the 2018 fiscal year and empowers the agency to focus on developing the Space Launch System and the Orion spacecraft for use in a crewed mission to Mars during the 2030s. (Link to Congress.gov summary of S.442, the NASA Transition Authorization Act of 2017)
- This Week on Wall Street – It’s another very light week in terms of major tech developers announcing earnings. On Tuesday, American athletic footwear and apparel Nike Inc. (NYSE:NKE) reported 2017 third quarter financials, beating adjusted earnings per share predictions by 15 cents while missing its revenue call by $70 million. Nike was 110th in 2015 among companies earning U.S. patents, taking in 330 U.S. patents that year according to statistics published by the Intellectual Property Owners Association (IPO). Irish professional services company Accenture PLC (NYSE:ACN) will announce 2017 second quarter earnings on Thursday; Accenture’s subsidiary Accenture Global Services earned 114 U.S. patents in 2015 to place 280th overall that year. American semiconductor developer Micron Technology (NASDAQ:MU) will also report 2017 second quarter financials on Thursday. Last year, Micron placed 41st overall among companies obtaining U.S. patents with 863 U.S. patent grants, according to IFI CLAIMS.
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