Other Barks & Bites, Friday August 30: CAFC Dismisses Appeals of PTAB Institution Denials, Levandowski Indicted on Trade Secrets Theft

Bites (noun): more meaty news to sink your teeth into.

Barks (noun): peripheral noise worth your attention.


Happy Labor Day weekend!

This week in Other Barks & Bites: the PTAB institutes IPRs despite arguments that the Chinese government was an unnamed real party-in-interest; the Federal Circuit dismisses appeals of the PTAB’s decisions denying institution on three IPRs; USPTO seeks public comments on examination guidance for artificial intelligence inventions, announces a public hearing on proposed trademark fee adjustments, and is facing backlash for seeking proof of citizenship for trademark applications; Tesla avoids a 10% tax on auto sales in China; the Department of Defense gets closer to establishing an IP protection team; former Google engineer Anthony Levandowski is charged with trade secret theft; trademark protection cases in Dubai have risen 63%; the Copyright Royalty Board announces an intent to audit Sirius XM Radio; and Amazon’s Audible faces copyright infringement suit over text captioning feature.


CAFC Dismisses Appeals of PTAB Decisions Denying Institution of Three IPRs – On Thursday, August 29, the U.S. Court of Appeals for the Federal Circuit granted a motion to dismiss filed by Aquestive Therapeutics, thereby tossing out BioDelivery’s appeals of the Patent Trial and Appeal Board’s (PTAB’s) decisions not to institute three inter partes review (IPR) proceedings. The PTAB had denied BioDelivery’s petitions to institute IPRs of U.S. Patent No. 8,765,167 under its 35 U.S.C. § 314(a) discretion. The Board exercised that discretion after the Federal Circuit had remanded the IPRs, which were only instituted on some challenged claims and not all, back to the PTAB to follow the Supreme Court’s standard in SAS Institute v. Iancu.

USPTO Facing Immigration Backlash on Trademark Attorney Rules – On Tuesday, August 27, Boston-based public radio station WGBH reported that USPTO trademark examiners have been pushing back against the USPTO’s implementation of its recent rule requiring U.S.-licensed counsel to represent foreign-domiciled trademark applicants at the agency. Guidance issued to examiners has asked them to request proof of lawful permanent residence from foreign trademark applicants claiming a U.S. address as their domicile.

Department of Justice Charges Levandowski With Trade Secret Theft – On Tuesday, August 27, the U.S. Department of Justice announced that it had filed 33 charges of theft and attempted theft of trade secrets against former Google engineer Anthony Levandowski for his role in the improper transfer of trade secrets from Google’s Waymo self-driving car company to his own startup that was later acquired by Uber.

Copyright Royalty Board Announces Intent to Audit Sirius XM Royalty Payments – On Wednesday, August 28, the Copyright Royalty Board published a public notice in the Federal Register indicating its receipt of a notice of intent to audit royalty payments made by Sirius XM Radio under a pair of statutory licenses governing various transmission services operated by the satellite radio provider. 

USPTO Seeks Comments on Patenting AI Inventions – On Tuesday, August 27, the U.S. Patent and Trademark Office published a request for comments in the Federal Register seeking public answers to questions related to examination guidance for patenting artificial intelligence inventions, including: What are elements of an AI invention?; and, Are there any patent eligibility considerations unique to AI inventions?

ASEAN IP Offices Introduce Pilot Program to Expedite Industry 4.0 Patent Applications – On Wednesday, August 28, the Intellectual Property Office of Singapore (IPOS) announced a two-year pilot program in cooperation with eight other ASEAN IP Offices to prioritize and expedite examinations of patent applications in key sectors such as robotics, cybersecurity and fintech. IPOS also announced that it had granted a patent on an AI invention within three months, a world record, through its expedited AI application-to-patent program.

Senator Tillis Asks Copyright Office to Speed Up Modernization Process – On Tuesday, August 27, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, sent a letter to the leadership of the U.S. Copyright Office expressing his concerns over proposed timelines for the Office’s IT modernization and asking the agency to “speed up the modernization process so that users of the copyright system can get the service they deserve without having to wait years.”

USPTO Announces Public Hearing on Proposed Trademark Fees – On Thursday, August 29, the U.S. Patent and Trademark Office published a notice of public hearing in the Federal Register announcing that the Trademark Public Advisory Committee (TPAC) will hold a hearing on September 23 to discuss proposed adjustments to existing trademark fees or setting of new trademark fees, including proposed new trademark processing fees for letters of protest and requests for reconsideration prior to appeal.

Tenth Circuit Revives Apparel Firm’s Trademark Case Over Fleur De Lis Logo – On Tuesday, August 27, the U.S. Court of Appeals for the Tenth Circuit reversed a district court’s decision to grant a motion for summary judgment entered in favor of e-cig company Utah Vap or Smoke after the appellate determined that a genuine issue of material fact existed over its use of a fleur de lis logo similar to a mark used on Affliction’s clothing.

PTAB Institutes IPRs Despite Arguments that Chinese Government is Real Party-in-Interest – On Monday, August 26, the PTAB instituted a pair of IPR proceedings petitioned by SZ DJI Technology despite arguments made by patent owner Dareltech that petitioner failed to identify the Chinese government, which has provided the petitioner with favorable treatment and government subsidies, as a real party-in-interest to the IPRs.


Department of Defense to Establish IP Protection Team – On Thursday, August 29, IPPro Magazine reported that the U.S. Department of Defense is expecting to establish an intellectual property protection team by October of this year to comply with the department’s obligations under the National Defense Authorization Act of 2018.

Judge Tosses Jury Verdict to Invalidate Amgen’s Repatha Patent Claims – On Wednesday, August 28, U.S. District Judge Richard Andrews of the District of Delaware set aside a jury verdict from February and invalidated patent claims covering Amgen’s Repatha high cholesterol treatment because the claims didn’t sufficiently disclose the invention.

Record Labels Sue RCN for Knowingly Enabling Sound Recording Downloads – On Tuesday, August 27, record label firms including Universal Music Group and Sony Music filed a lawsuit in the District of New Jersey against Internet service provider RCN alleging that the company did nothing to stop its customers’ copyright infringement despite more than 5 million notices of illegal downloads.

Grand Jury Indicts Unauthorized Streaming Operators for Copyright Law Violations – On Tuesday, August 27, the Department of Justice announced that eight individuals responsible for operating the illegal content streaming website Jetflicks, which offered subscribers access to more than 183,200 copyrighted television episodes, were indicted by a federal grand jury with conspiring to violate federal criminal copyright law.

https://depositphotos.com/75370073/stock-photo-happy-dog-playing-outside-and.htmlSquare Sued for Patent Infringement Over Methods for Processing Transactions – On Monday, August 26, AnywhereCommerce filed a suit for patent infringement in the Northern District of California against financial services firm Square Inc., asserting a portfolio of patents covering technologies for connecting a financial card reader to communication devices such as smartphones or tablets.

Trademark Protection Cases in Dubai Increase by 63% in First Half of 2019 – On Sunday, August 25, Gulf News Business reported that trademark protection cases filed on the online portal for Dubai’s Department of Economic Development increased by 63% during the first six months of 2019 compared to the same period of time during 2018.

Major Book Publishers Sue Amazon’s Audible Over Text Caption Feature – On Friday, August 23, seven members of the Association of American Publishers filed a copyright infringement suit in the Southern District of New York against Amazon’s audiobook subsidiary Audible over its plans to include a text captioning feature with its audiobooks.

This Week on Wall Street

Tesla Shares Jump After Avoiding Chinese Auto Tax – On Friday, August 30, shares of Tesla stock were up 4.8 percent in early day trading after China’s Ministry of Industry and Information Technology announced that the company’s cars will be exempted from the nation’s 10 percent tax applied to sales from foreign auto firms.

Comments on China-U.S. Trade Talks Spur Tech Stocks – On Thursday, August 29, stocks in the technology sector rose 1.73 percent for their best trading day in two weeks thanks to comments from President Donald Trump and China’s commerce ministry indicating that both sides were moving closer to their next round of trade discussions.


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