Other Barks & Bites, Friday, August 16: Iancu to Brief CAFC on Precedential Opinion Panel Deference, China to Regulate Patent Agencies, and FCC Approves T-Mobile/Sprint Merger

This week in Other Barks & Bites: The Federal Circuit has asked USPTO Director Andrei Iancu to brief the appellate court on deference that should be paid to precedential PTAB opinions; China announced that it will create a credit rating mechanism for patent agents; Russ Slifer Op-Ed revives 101 debate; the FCC will approve the proposed T-Mobile/Sprint merger; amicus briefs filed at the Supreme Court support the abrogation of state sovereign immunity against copyright claims; Nintendo ramps up copyright campaign against YouTube accounts using video game music; Guns N’ Roses settles trademark dispute over craft beer brand; and copyright troll entity Malibu Media faces investor lawsuit.

Bites 

CAFC Asks Iancu to Brief on POP Deference – On Wednesday, August 14, World Intellectual Property Review reported that the Federal Circuit has invited USPTO Director Andrei Iancu to file a brief in Facebook v. Windy City Innovations, a case regarding the Patent Trial and Appeal Board’s (PTAB’s) statutory authority in granting joinder to validity trial petitions filed after the one-year bar date. The Federal Circuit reportedly wants Director Iancu’s input on what deference the appellate court should pay to decisions of the PTAB’s Precedential Opinion Panel (POP), which has found that such joinders may be permissible.

Slifer Op-Ed Calls on Congress to Fix Patent Law – On Wednesday, August 14, The Hill published an op-ed authored by former USPTO Deputy Director Russ Slifer which called on members of Congress to support proposed legislative reforms to Section 101 of the U.S. patent law in order to abrogate judicial exceptions to patentability which have “completely eroded patent law.” 

CAFC Affirms-in-Part, Reverses-in-Part in Nalpropion v. Actavis – On Thursday, August 15, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion in Nalpropion Pharmaceuticals v. Actavis Laboratories in which the appellate court determined that the district court did not err in finding one claim of one of the patents in question not invalid for lack of written description, but did err in finding that certain claims of two other patents would not have been obvious in view of the prior art. Chief Judge Sharon Prost filed a separate opinion dissenting-in-part on her belief that a patent claim upheld as valid by the majority should have been invalidated for lack of written description. we affirm-in-part and reverse-in-part.

China Creates Credit Rating Mechanism for Patent Agencies – On Thursday, August 15, Chinese state-run media announced that the country was starting a two-year project codenamed “Blue Sky” that will focus on regulating the nation’s patent agency sector, in part by establishing credit ratings for institutes and agents operating in that sector.

Copyright Groups File Amicus Briefs at Supreme Court in Allen v. Cooper – On Tuesday, August 13, 12 amicus briefs were filed at the U.S. Supreme Court in Allen v. Cooper, a case regarding the abrogation of state sovereign immunity under the Copyright Remedy Clarification Act. Most of the briefs support the position of the petitioner, a photographer suing the state of North Carolina over the unlicensed use of videos and still images taken during a project to salvage the Queen Anne’s Revenge.

Trading Technologies Files Another En Banc Rehearing Request at CAFC – Following its July 31 petition for rehearing, Trading Technologies International on August 15 filed a new rehearing request of the Federal Circuit’s decision on its patent number 7,725,382, which a CAFC panel found not obvious but ineligible under Section 101. The ‘382 patent is related to Trading Technologies’ patent number 7,693,768, which is the subject of the company’s July 31 petition.

Ninth Circuit Reverses on Antitrust Claims in NFL Broadcast Case – On Tuesday, August 13, the U.S. Court of Appeals for the Ninth Circuit issued a decision in In re NFL Sunday Ticket Antitrust Litigation in which the appellate court reversed the district court’s dismissal of antitrust claims brought by a putative class of residential and commercial subscribers to DirecTV’s NFLSundayTicket, concluding that the plaintiffs had “stated a cause of action for a violation of Sections 1 and 2 of the Sherman Act that survives a motion to dismiss.”

CAFC Vacates and Remands PTAB Decision on Erroneous Claim Construction – On Monday, August 12, the Federal Circuit issued a precedential decision in MTD Products v. Iancu in which the appellate court vacated the PTAB’s finding of obviousness after determining that the Board conflated corresponding structure in a patent’s specification with a structural definition for the claim term “mechanical control assembly,” which the CAFC said was a means-plus-function term under Section 112(f).

CAFC Affirms 101 Ineligibility of Claims for Dog Genetic Disease Diagnostics – On Friday, August 9, the Federal Circuit issued the unsealed public opinion in Genetic Veterinary Sciences v. LABOKLIN, which affirmed a district court’s finding of Section 101 invalidity for patent claims covering diagnostic methods for determining the presence of a genetic disease in dogs on a judgment as a matter of law motion over LABOKLIN’s appeal of jurisdictional issues and argument that the claims covered a particular application of a discovery.

Booking.com Files Brief in Opposition of Granting Cert in .COM Trademark Case – On Wednesday, August 7, travel website Booking.com filed a brief at the Supreme Court opposing the U.S. government’s petition for writ of certiorari to appeal the U.S. Court of Appeals for the Fourth Circuit’s affirmation that “BOOKING.COM” is not generic and potentially protectable as a trademark.

Barks 

Nintendo Sends Copyright Takedown Notices to YouTube Accounts – On Thursday, August 15, MCV reported that Nintendo has been issuing a series of copyright strikes against YouTube account owners who have been posting videos that include music from the soundtracks of the company’s video games. 

Malibu Media Faces Investor Lawsuit Over Copyright Litigation Funds – On Monday, August 12, the owners of Malibu Media, an adult erotic film entity renowned for its copyright litigation activities against John Doe defendants, were named as defendants in a suit filed in Los Angeles Superior Court by the firm’s investors who allege that the owners have failed to account for more than $26.5 million of investor funds used to finance the firm’s copyright suits.

Guns ‘N’ Rosé Trademark Infringement Case Reaches Settlement – On Monday, August 12, lawyers representing the rock group Guns N’ Roses filed documents indicating that the band has agreed to settle a Central District of California trademark case against Canarchy Craft Brewery Collective, the entity owning a Colorado brewery that sells a Guns ‘N’ Rosé ale and related merchandise.

Parker House Files Trademark Case Against Costco, Kuka Furniture – On Monday, August 12, furniture company Parker House filed a lawsuit in the Central District of California alleging claims of trademark infringement against wholesale retailer Costco and upholstery vendor Kuka Furniture over the marketing of a “Parker”-branded sectional sofa.

Lauper, Mardones Settle Copyright Infringement Suit Over Kinky Boots – On Friday, August 9, counsel representing songwriter Benny Mardones, co-writer of the 1980 hit “Into the Night,” filed documents in the Southern District of New York indicating that Mardones had agreed to settle his copyright suit against Cyndi Lauper, dropping allegations that the 1980s pop star had copied elements of “Into the Night” in the finale of the Tony Award-winning Broadway musical Kinky Boots.

Ohio State Files Trademark Application for “THE” Clothing – On Thursday, August 8, Ohio State University filed a trademark application at the USPTO seeking to register the world “THE” for use on articles of clothing, including t-shirts, hats and baseball caps.

This Week on Wall Street 

Nvidia Beats Analyst Estimates on EPS, Revenue – On Thursday, August 15, computer chipmaker Nvidia reported its earnings for 2019’s second quarter, beating expectations on both earnings per share and revenue despite revenue falling 17 percent from 2018’s second quarter totals due in large part to lower revenues in the company’s gaming and data center segments. Shares of Nvidia were up by 7 percent on news of the earnings beat.

FCC Chairman Pai Approves Proposed T-Mobile/Sprint Merger – On Wednesday, August 14, Federal Communications Commission Chairman Ajit Pai shared a draft order with other FCC Commissioners indicating that the agency will formally approve the proposed merger of wireless mobile firms T-Mobile and Sprint, in part because of the combined entity’s ability to improve 5G networking infrastructure throughout the U.S.

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: None
• Tuesday: Medtronic plc (25th)
• Wednesday: None
• Thursday: HP Inc. (48th); Intuit, Inc. (t-287th); Salesforce.com, Inc. (155th)
• Friday: AAC Technologies Holdings Inc. (t-212th)

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