Bite (noun): more meaty news to sink your teeth into.
Bark (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: the Federal Circuit affirms a Section 101 invalidation of diagnostic patent claims in favor of Mayo Collaborative Services and Judge Newman dissents; Apple wins an order to limit damages in Qualcomm patent case; Google frets over proposed European Union copyright rules; India proposes jail time for film piracy; patent validity challenges drag down the stock of a major pharmaceutical firm; and a snag in the U.S.-China trade talks throws Wall Street for a loop.
Federal Circuit Invalidates Athena Diagnostics’ Patent Claims Under 101 – In Athena Diagnostics v. Mayo Collaborative Servs, the Federal Circuit affirmed the U.S. District Court for the District of Massachusetts’ finding that, because the patent claims in question “recite only a natural law together with conventional steps to detect that law, they are ineligible under § 101.” The patent (7,267,820) covered “methods for diagnosing neurological disorders by detecting antibodies to a protein called musclespecific tyrosine kinase.” Judge Newman dissented, arguing that:
The judicial obligation is to provide stable, consistent application of statute and precedent, to implement the legislative purpose. With all respect to my colleagues on this panel, they misapply precedent and misinterpret the statute, adding discrepancies and disincentives to this important area of biomedicine. Claims 7–9 meet the Section 101 eligibility rules, for the claims are to a new and useful method. Applying the statute correctly, diagnostic claims should be evaluated for novelty and unobviousness, specificity and enablement. A method that meets these statutory criteria is within the system of patents, whether the diagnosed event occurs in the human body or in an extraneous device.
Senate Subcommittee on Intellectual Property – The rumored creation of a Subcommittee of the Senate Judiciary Committee to focus on intellectual property issues has become a reality in the 116th Congress. The Senate Subcommittee on Intellectual Property is Chaired by Senator Thom Tillis (R-NC) and the Ranking Member is Senator Chris Coons (D-DE). The Republican Members are Senators Lindsey Graham (R-SC), John Cornyn (R-TX), Ben Sasse (R-NE), Marsha Blackburn (R-TN), Chuck Grassley (R-IA), Mike Lee (R-UT), Mike Crapo (R-ID). The Democrat Members are Senators Patrick Leahy (D-VT), Sheldon Whitehouse (D-RI), Mazie Hirono (D-HI), Dick Durbin (D-IL), Richard Blumenthal (D-CT) and Kamala Harris (D-CA). The Subcommittee will have jurisdiction over: (1) The United States Patent and Trademark Office; (2) The United States Copyright Office; (3) Oversight of the functions of the federal government as they relate to intellectual property; (4) Patents; (5) Copyrights; (6) Trademarks; and Trade Secrets.
U.S. Patent System Jumps to Tie for 2d Place Worldwide – The United States’ move to a tie for second place in the U.S. Chamber’s IP Index’s patent rankings is certainly welcome news but the nation’s patents and related rights score is 7.5, only 0.25 points ahead of thirteenth-place Italy and putting the country’s patent ranking in a seemingly tenuous position. For full coverage please see our detailed coverage of the report release from yesterday. Additional coverage to follow.
Copyright Owners’ Win Against Apple, Google, Amazon, Spotify and Pandora Finalized – Last year, the Copyright Royalty Board delivered the largest ever rate increase to music publishers and songwriters. On February 5, a Federal Register Notice made that Determination of Royalty Rates and Terms for Making and Distributing Phonorecords (Phonorecords III) effective and went even further, according to the law firm acting for the Copyright Owners, Pryor Cashman. “The Judges clarified an important definition during the rehearing motion phase, providing additional protection against streaming services using product bundling to exclude revenues from the royalty pool,” said Pryor Cashman’s Benjamin Semel. He added: “The new royalty rate structure offers more protection against royalty dilution. The royalty pool will now be the greatest of three different metrics: (1) an annually rising percentage of revenue, (2) an uncapped and annually rising percentage of the amounts paid by the services to record labels in the free market for the same streaming activity, and (3) fixed per-user royalty floors that vary among the different streaming models.”
Proposed EU Copyright Rules Could Drastically Impact Google’s News Traffic – On Thursday, February 7th, Google’s Senior VP of Global Affairs Kent Walker authored a post on Google’s official blog which reported that the European Union’s proposed changes to Article 11 of the European Copyright Directive could reduce Google’s traffic to news publishers by 45 percent.
Federal Circuit Hears Oral Arguments on Novel Copyright Infringement Theory – On Friday, February 8, the Federal Circuit hears oral arguments in an appeal of a copyright infringement case brought by agrochemical firm Syngenta against a smaller rival accused of copyright infringement for copying fungicide product labels.
Patent Damages are Narrowed in Qualcomm’s Infringement Case Against Apple – On Tuesday, February 5th, U.S. District Judge Dana Sabraw of the Southern District of California issued a partial grant of summary judgment to Apple which prevents Qualcomm from seeking damages for patent infringement prior to the filing of the case in July 2017.
Bayer Earns $155 Million Reasonable Royalty for Infringing Hemophilia Treatment Patent – On Tuesday, February 5th, a jury verdict entered in the District of Delaware awarded German drugmaker Bayer $155 million in reasonable royalties for Baxalta’s infringement of a patent covering recombinant technology for treating hemophilia.
German Antitrust Regulators Limit Facebook’s User Data Collection Activities – On Thursday, February 7th, Germany’s Federal Cartel Office imposed restrictions on Facebook’s collection of user data, ruling that the American social media giant must obtain user consent before collecting data from Facebook services and third-party websites.
India’s Government Proposes Monetary Fines, Imprisonment for Film Piracy – On Wednesday, February 6, India’s Union Council of Ministers approved amendments to the country’s Cinematograph Act that would impose maximum fines of Rs 10 lakh ($14,000 USD) and up to three years in prison for the unauthorized copying or transmission of films.
Federal Circuit Denies Google Petition for En Banc Rehearing on Venue Issue – On Tuesday, February 5th, a Federal Circuit majority denied a petition for either panel rehearing or rehearing en banc over Google’s arguments that the presence of Google servers in Eastern Texas doesn’t constitute a regular and established place of business for determining venue.
Copyright Royalty Board Publishes Notices on Distribution of Cable, Satellite Royalties – On Friday, February 8th, the Copyright Royalty Board published notices announcing the commencement of proceedings for distributing royalties accrued between 2014 and 2017 for secondary transmissions of copyright-protected material via cable systems and via satellite television services.
USITC Institutes Investigation Over Infringing Pocket Lighters – On Thursday, February 7th, the U.S. International Trade Commission instituted a Section 337 infringement investigation based on BIC Corporation’s allegation that certain pocket lighters being imported into the U.S. infringe upon BIC’s trademarked lighter designs.
Angel Investors Prevail in Copyright, Trade Secret Misappropriation Appeal – The New York Appellate Division, First Department unanimously affirmed the New York Supreme Court, Commercial Division’s 2017 decision in the matter of Theodore F. Schroeder et al. v. Brian S. Cohen et al., granting summary judgment to Cohen and NYA. The case alleged a theft of website ideas and trade secrets. Schroeder sued Cohen, Pinterest and NYA, claiming that Cohen had misappropriated his confidential trade secrets and other ideas from Schroeder’s websites, and provided them to the founders of Pinterest.com Pinterest won an early motion to dismiss the claims against them.
J.C. Penney Distressed by Patent Lawsuit Over Worn-Style Jeans – On Tuesday, February 5th, department store chain J.C. Penney was named as a defendant in a patent infringement suit filed in Eastern Texas by laser technology firm RevoLaze. The infringement claims target denim jeans sold by J.C. Penney which have a distressed look created by laser treating the fabric.
Amazon Receives Patent for Package Delivery System Via Public Buses – On Tuesday, January 29th, the U.S. Patent and Trademark Office granted a patent to e-commerce giant Amazon covering a delivery system that utilizes public buses as mobile pickup locations for packages.
Ariana Grande Faces Copyright Infringement Suit Over Music Video – On Thursday, January 31st, Las Vegas-based artist Vladimir Kush filed a copyright infringement suit in Nevada district court alleging that Ariana Grande’s music video for “God is a Woman” uses an image identical to a painting Kush created two decades earlier.
S.D.N.Y. Enters $150,000 Default Judgment Against Creator of Grand Theft Auto V Cheat – On Tuesday, February 5th, U.S. District Judge P. Kevin Castel of the Southern District of New York granted a motion on summary judgment filed by Take-Two Interactive Software, creator of the video game Grand Theft Auto V, which levied $150,000 in statutory copyright infringement damages plus attorney’s fees against the maker of a cheat allowing unauthorized interference with GTA V’s online gameplay.
Golf Club Makers Settle Patent Infringement Claims With Cross-License – On Saturday, February 2nd, Parsons Xtreme Golf (PXG) and TaylorMade announced that they had settled cases tied to alleged infringement of golf club designs by entering into a cross-licensing agreement.
Fear the Walking Dead Copyright Suit Avoids the Grave – On Thursday, January 31st, U.S. District Judge Lucy Koh of the Northern District of California denied a motion to dismiss a complaint alleging that the television series Fear the Walking Dead copied protected elements of a zombie-themed comic book.
Louboutin Red Sole Trademark Upheld by Hague Court – On Wednesday, February 6th, the District Court of the Hague ruled that Christian Louboutin’s trademark covering the use of a red sole on its footwear is valid and has been infringed by Dutch shoemaker Van Haren.
Sprint Sues AT&T for False 5G Branding – On Thursday, February 7th, Sprint filed a lawsuit in the Southern District of New York alleging violations of the Lanham Act by AT&T for false advertising and deceptive acts surrounding AT&T’s rollout of supposed “5G” services.
This Week on Wall Street
Biogen Stock Tumbles After PTAB Institutes IPR on Tecfidera Patent – On Wednesday, February 6th, the Patent Trial and Appeal Board (PTAB) instituted an inter partes review (IPR) proceeding on a patent covering Biogen’s Tecfidera multiple sclerosis drug. Biogen stock declined 1.1 percent on Wednesday and fell an additional 2.8 percent in after-hour trading.
Wall Street Buckles as U.S.-China Trade Talks Hits the Skids – On Thursday, February 7th, the Dow Jones Industrial Average, S&P 500 and NASDAQ all fell by about one percentage point after U.S. President Donald Trump said that he didn’t plan on meeting with Chinese President Xi Jinping prior to an important March 1st deadline in trade negotiations between the two countries.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2017 are announcing quarterly earnings next week (2017 rank in parentheses):
- Monday: Lenovo Group Ltd. (190th)
- Tuesday: Applied Materials Inc. (70th); Arris International PLC (t-286th); Nissan Motor Co. (101st); Shimano Inc. (t-240th); Toshiba Corp. (16th); Yamaha Motor Co., Ltd. (t-271st)
- Wednesday: Cisco Systems Inc. (38th); Daikin Industries Ltd. (221st); NetApp, Inc. (t-142nd); Sumitomo Rubber Industries, Ltd. (t-291st)
- Thursday: Airbus SE (t-172nd); Borgwarner Inc. (t-250th); Japan Display Inc. (75th); Nvidia Corp. (t-130th); Semiconductor Manufacturing International Corp. (189th)
- Friday: Bridgestone Corp. (t-199th); Deere & Co. (111th)
Image Source: Deposit Photos
Image ID: 48267109
Second Image ID: 13561580
Third Image ID: 30633387