Bites (noun): more meaty news to sink your teeth into.
Barks (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: The Federal Circuit issues several precedential decisions, including one reviving the patent claims in VirnetX and another determining that America Invents Act (AIA) validity trials don’t violate the Fifth Amendment’s Takings Clause in Celgene; the USPTO proposes fee increases to patent examination and AIA trials and issues a final rule on e-filing in trademark registrations; Katy Perry is ordered to pay $2.7 million for copyright infringement; free OTA TV service Locast is targeted in a copyright suit filed by Disney and other major broadcasters; Pfizer and Mylan consider creating a global giant in off-patent drugs; the University of California files patent suits against major retailers over LED light bulb technology; and patent applications listing artificial intelligence machine inventor are filed in patent offices across the world.
Federal Circuit Determines That AIA Trials Don’t Create Unconstitutional Takings – On Tuesday, July 30, the Federal Circuit issued a precedential decision in Celgene Corporation v. Peter where the appellate court affirmed an obviousness finding in a PTAB IPR and also determined that validity trials under the America Invents Act (AIA) do not violate the Takings Clause of the Fifth Amendment when those trials invalidate patent claims issued prior to passage of the AIA.
Federal Circuit Revives VirnetX Patent Claims – On Thursday, August 1, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in VirnetX Inc. v. Apple Inc. which reversed some invalidity findings at the Patent Trial and Appeal Board (PTAB) after determining that Apple had previously failed on proving the invalidity of those same claims in the past. Bloomberg reports that the Federal Circuit also denied a request by Apple to overturn a ruling from this January upholding a $1 billion infringement verdict in favor of VirnetX.
Federal Circuit Tosses Trademark Appeal Based on Waived Arguments – On Thursday, August 1, the Federal Circuit issued a precedential decision in Hylete LLC v. Hybrid Athletics, LLC, dismissing an appeal of a trademark registration rejected at the Trademark Trial and Appeal Board (TTAB) after determining that Hylete had waived certain arguments on appeal because they could have been raised in the below proceedings.
Katy Perry Infringes Christian Rap Single, Ordered to Pay $2.7M – On Monday, July 29, a jury in the Central District of California found that the 2013 hit “Dark Horse” released by American pop star Katy Perry copied elements of the 2008 Christian rap single “Joyful Noise” released by Flame. On Thursday, the district court awarded damages of $2.7 million against Perry and the other defendants for infringing rapper Marcus Gray’s work.
USPTO Issues Proposed Fee Increase for Patent Examination, AIA Trials – On Wednesday, July 31, the U.S. Patent and Trademark Office issued a notice of proposed rulemaking in the Federal Register to seek public comment on adjustment of fees collected by the agency, including increases to fees for patent examination and a $4,500 increase in fees for businesses looking to petition the PTAB for inter partes review (IPR) proceedings.
USPTO Issues Rule Requiring E-Filing in Trademark Applications – On Wednesday, July 31, the USPTO issued a final rule in the Federal Register which mandates electronic filing for trademark registration applications and all associated submissions to achieve end-to-end electronic processing of trademark submissions and improve administrative efficiency. Only 144 trademark applications filed in 2018 were on paper but 12 percent of trademark applications that year involved some paper processing that the agency is looking to eliminate.
Law Professors, Judge Michel and Former USPTO Directors Rebut ACLU – On Tuesday, July 30, 24 law professors, retired Federal Circuit Chief Judge Paul Michel and former USPTO Directors David Kappos and Todd Dickinson sent a letter to the leadership of the Senate IP Subcommittee and the House Judiciary Committee to rebut misleading claims made by the American Civil Liberties Union that the proposed amendments to Section 101 of U.S. patent law would harm innovation.
Iancu, Denison Op-Ed Discusses Efforts to Protect Trademark Register – On Tuesday, July 23, World Trademark Review published an op-ed authored by USPTO Director Andrei Iancu and Commissioner for Trademarks Mary Boney Denison discussing efforts to dissuade bad-faith trademark applications, including the creation of a task force to identify improper activity and refusing registration for submitting suspicious specimens of use. which Denison referred to in a recent House hearing.
Debbie Cohn to Retire From International Trademark Association – the International Trademark Association (INTA) has announced that former USPTO Commissioner for Trademarks Debbie Cohn, who has served as the Association’s Senior Director of Government Relations for the last four years, will retire as of August 2. Jennifer M. McDowell will join INTA’s Washington, DC office as Director, Government Relations. McDowell has held positions at the Office of the U.S. Trade Representative and the USPTO.
Third Circuit Upholds Injunction Against Banana Costume – On Thursday, August 1, the Court of Appeals for the Third Circuit issued a decision in Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., deciding an issue of first impression in the Third Circuit by determining that the non-utilitarian, sculptural features of a banana costume are copyrightable and upholding a district court injunction preventing Kangaroo from selling an infringing banana costume.
Major Broadcasters File Copyright Suit Against Free OTA Service – On Wednesday, July 31, Disney, ABC, Fox, NBC and Universal filed a copyright infringement lawsuit in the Southern District of New York against the operators of a free online over-the-air digital TV service known as Locast which rebroadcasts content from those networks to its subscribers.
Meat Loaf Settles Copyright Dispute Over “I’ll Do Anything For Love” – On Wednesday, July 31, copyright infringement charges filed in the Central District of California against Michael Aday, aka Meat Loaf, were dismissed, exonerating him from allegations that he infringed upon copyright protecting a song written by British keyboardist Jon Dunmore Sinclair when he released “I’d Do Anything For Love” in 1993.
U.S., EU Patent Applications From AI Inventor Filed This Week – On Wednesday, July 31, Financial Times reported that the USPTO and EUIPO were among intellectual property offices receiving patent applications this week which listed the inventor as Dabus, an artificial intelligence machine developed by AI expert Stephen Thaler.
Kylie Jenner Trademarks Suspended Over Chinese Applications for “Kylie” – On Wednesday, July 31, RadarOnline.com reported that three trademark applications filed by reality TV star Kylie Jenner for “Kylie Skin” cosmetic products and retail services were suspended by the USPTO because of a March 2017 trademark application from a Chinese entity covering “Kylie” for use on cosmetic products, although that trademark application was abandoned in late July of this year.
University of California Sues Big Retailers Over Light Bulb Patents – On Tuesday, July 30, the University of California filed lawsuits in the Central District of California against major retailers Amazon, Walmart, Target, Ikea and Bed Bath & Beyond alleging that those companies are infringing claims of four patents covering filament LED light bulb technologies.
Street Artist Sues Walmart, Ellen Degeneres for Copyright Infringement – On Monday, July 29, street artist Julian Rivera filed a copyright lawsuit in the Central District of California over the EV1 Collection clothing line which allegedly incorporates elements of Rivera’s work.
Lego Wins U.S. Copyright Suit Against British Rival – On Thursday, July 25, U.S. District Judge Charles Haight Jr. issued a ruling in the District of Connecticut finding that British toymaker Best-Lock Construction Toys sold figurines which infringed on copyrights owned by Danish firm Lego.
This Week on Wall Street
Wireless Growth Helps Verizon Beat Quarterly Earnings Estimates – On Thursday, August 1, telecom company Verizon Communications posted its earnings report for 2019’s second quarter, beating analyst estimates on earnings per share by 3 cents based in large part to the addition of 451,000 retail postpaid wireless customers.
Pfizer, Mylan Considering Sale of Off-Patent Drugs Unit – On Sunday, July 28, The Wall Street Journal reported that drugmakers Pfizer and Mylan were exploring options to create an off-patent drugs company in response to declining prices for generics as well as Pfizer’s loss of patent exclusivity for several major pharmaceuticals.
Quarterly Earnings– The following firms identified among the IPO’s Top 300 Patent Recipients for 2018 are announcing quarterly earnings next week (2018 rank in parentheses):
- Monday: HTC Corporation (t-233rd); KLA Corp. (t-178th)
- Tuesday: Daikin Industries Ltd. (221st); Nikon Corp. (141st); Renesas Electronics Corp. (71st); Schaeffler AG (130th); Shimadzu Corp. (t-251st); Walt Disney Co. (t-136th)
- Wednesday: Continental AG (161st); Japan Display Inc. (64th); Skyworks Solutions, Inc. (t-156th); Sonos, Inc. (t-163rd); Sumitomo Rubber Industries, Ltd. (t-173rd); Toshiba Corp. (30th)
- Thursday: Fujifilm Corporation (55th); Merck KGaA (t-178th); Semiconductor Manufacturing International Corp. (245th); Symantec Corp. (t-219th); Synaptics, Inc. (183rd); Terumo Corp. (t-251st)
- Friday: Bridgestone Corp. (t-181st)
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