Other Barks & Bites, Friday, November 8: SCOTUS Hears Allen v. Cooper Copyright Case, U.S. Government Sues Gilead, Amici Submit Briefs to CAFC in Chrimar

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

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/68772623/stock-photo-young-border-collie-dog-playing.htmlThis week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; five amici have filed briefs supporting Chrimar Systems’ petition for en banc review in Chrimar Systems, Inc. v. ALE USA, Inc. FKA Alcatel-Lucent Enterprise USA, Inc.; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions on PTAB evidence admissibility and limitation in patent claim preamble; the Copyright Office says that its digital recordation pilot project is on track for Spring 2020; the PTAB Precedential Opinion Panel (POP) will review the Board’s rejection of substitute patent claims in a motion to amend; “This Is Spinal Tap” creators settle copyright suit; and T-Mobile announces December launch for nationwide 5G network.


HHS Files Patent Infringement Suit Against Gilead Over PrEP HIV Treatments – On Wednesday, November 6, the U.S. Department of Health and Human Services (HHS) filed a patent infringement suit against Gilead Sciences in the District of Delaware. The suit alleges that Gilead has induced infringement of HHS patents covering the use of pre-exposure prophylaxis (PrEP) treatments for HIV prevention by marketing Truvada and Descovy.

Amicus Briefs Filed in Chrimar v. ALE Supporting En Banc Review: A total of five amici representing 41 parties have filed amicus briefs supporting en banc review in Chrimar Systems, Inc. v. ALE USA, Inc. FKA Alcatel-Lucent Enterprise USA, Inc. Chrimar’s petition asks the full Court to review the so-called Fresenius-Simmons preclusion principle and questions the constitutionality of allowing an administrative agency “to nullify a court judgment that has otherwise resolved the merits and damages of a patent infringement suit.” IPWatchdog will publish analysis and perspective on some of the briefs soon.

CAFC Affirms PTAB Obviousness Finding Based on Contested Prior Art Reference – On Thursday, November 7, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Telefonaktiebolaget LM Ericsson v. TCL Corp. in which the appellate court upheld the Patent Trial and Appeal Board’s (PTAB) invalidation of an Ericsson patent on obviousness grounds. The CAFC found that the PTAB didn’t abuse its discretion in admitting a declaration on the date of public availability of a prior art reference asserted by TCL, even though the evidence in that declaration wasn’t submitted at the petition stage of the inter partes review (IPR) proceeding.

SCOTUS Hears Arguments in Allen v. Cooper, Appears to Favor Copyright Owner – On Tuesday, November 5, the U.S. Supreme Court heard oral arguments in Allen v. Cooper in which the nation’s highest court appeared to disfavor North Carolina’s arguments that the U.S. Constitution preserves state sovereign immunity against copyright infringement claims asserted by videographer Frederick Allen. 

https://depositphotos.com/13561580/stock-illustration-beware-of-dog.htmlPTAB POP Will Review Case on Rejecting Substitute Claims in Motions to Amend – On Thursday, November 7, the PTAB’s Precedential Opinion Panel (POP) granted patent owner DynaEnergetics’ request for POP rehearing on a motion to amend denied by its original PTAB panel. The POP will determine when it’s appropriate for the Board to raise unpatentability grounds against substitute claims when those grounds weren’t raised by petitioners and whether the Board must give patent owners an opportunity to respond to those grounds for unpatentability.

Register Temple Confirms Spring 2020 Rollout for Digital Recordation Pilot – On Thursday, November 7, Register of Copyrights Karyn Temple told the Senate Rules Committee that the U.S. Copyright Office’s modernization efforts were on track for a Spring 2020 release of a digital pilot program to replace the Office’s traditional paper-based system for recording copyright ownership changes.

Sens. Inhofe, Wicker Urge Trump to Hold China Accountable on IP Theft – On Wednesday, November 6, Senators James Inhofe (R-OK) and Roger Wicker (R-MS), respectively the Chairman of the Senate Armed Services Committee and the Senate Commerce Committee, sent a letter addressed to President Trump asking the President to refrain from extending the Temporary General License to Chinese companies or removing any from the Entity List during U.S. trade negotiations with China.

Tenth Circuit Reverses Injunction Terminating Mrs. Fields Popcorn Trademark Licenses – On Thursday, November 7, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Mrs. Fields Franchising v. MFGPC which reversed a district court’s injunction ordering Mrs. Fields to terminate trademark licensing agreements with companies other than MFGPC. The appellate court found that the lower court erred in determining that Mrs. Fields’ agreement with MFGPC conferred a perpetual license, infecting the analysis that led to the grant of injunctive relief.

CAFC Finds Examiner, PTAB Erred in Determining Claim Preamble Wasn’t a Limitation – On Monday, November 4, the Federal Circuit issued a precedential decision in In re: Fought reversing the PTAB’s affirmance of a patent examiner’s anticipation rejection. While the PTAB determined that the preamble term “travel trailer” was a non-limiting statement of intended use, the CAFC held that the preamble was limiting as it served as an antecedent to a term appearing in the claim’s body.


ARTS Act Introduced, Would Waive Copyright Fees for Student Contestants – On Thursday, November 7, the Artistic Recognition for Talented Students (ARTS) Act was introduced into both houses of Congress by members of both major political parties including Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) as well as Representatives Martha Roby (R-AL) and Hakeem Jeffries (D-NY). The bill would give the Register of Copyrights authority to waive copyright registration fees to students winning either the Congressional Art Competition or the Congressional App Competition.

CISAC Report Shows Global Digital Royalties for Creators Increased 29% Last Year – On Thursday, November 7, the International Confederation of Societies of Authors and Composers (CISAC) reported that global royalties for music, audiovisual, visual arts, drama and literature creators reached a record €9.65 billion ($10.66 billion USD) in 2018. This record total was supported by a 29 percent increase in digital royalties due to global expansion of subscription services for music and video-on-demand.

Bridgestone Receives Favorable Ruling in Chinese Trademark Suit – On Thursday, November 7, Bridgestone announced that it had received a favorable ruling from China’s Suzhou Intellectual Property Court regarding the alleged infringement of Bridgestone’s branding by Chinese tire manufacturer firm Liangshan Water Margin Tire.

https://depositphotos.com/10882248/stock-photo-cross-breed-dog-4-years.htmlUnified Patents, Richardson Oliver Release Patent Transaction Database – On Thursday, November 7, Unified Patents announced that it had partnered with Richardson Oliver and IAM Market to release a database including information on patent transaction data for more than 25,000 patent families.

Eastern Texas Jury Awards $200M Patent Infringement Verdict to USAA – On Wednesday, November 6, a jury verdict entered in the Eastern District of Texas awarded $200 million in patent infringement damages to United Services Automobile Association (USAA) after the jury found that Wells Fargo’s remote mobile deposit services infringed upon patent claims owned by USAA.

Innovation Alliance Sends Letter to Senate IP Leadership Urging Caution on Patent Quality Crisis – On Wednesday, November 6, the Innovation Alliance addressed a letter to Senators Thom Tillis and Chris Coons (D-DE), respectively the Chairman and Ranking Member of the Senate Intellectual Property Committee, expressing concerns that the debate on patent quality is used to promote the interests of those who want to use patented technology without taking a license.

Copyright Suit Over “This Is Spinal Tap” Soundtrack Settled – On Tuesday, November 5, Variety reported that the creators of the 1984 mockumentary This Is Spinal Tap settled a copyright dispute with Universal Music Group (UMG) over allegations that UMG’s parent company Vivendi underreported income from the sales of the film’s soundtrack recordings and related merchandise.

PTAB Nixes Apple’s Attempt to Invalidate ID System Patent – On Tuesday, November 5, the PTAB issued a final written decision determining that Apple didn’t prove obviousness of Universal Secure Registry’s patent claims covering a system of identifying users authorized to access a person’s financial information. These patent claims are involved in district court patent infringement litigation between Apple and Universal.

NIH Announces Exclusive Patent Licenses for Macular Degeneration, Ulcerated Nerve Treatments – On Monday, November 4, the National Institutes of Health (NIH) published a pair of notices in the Federal Register regarding prospective exclusive patent licenses to TeamedOn International for patents covering treatments for macular degeneration as well as treatments for ulcerated arteries and nerves.

This Week on Wall Street 

T-Mobile to Launch Nationwide 5G Network in December – On Thursday, November 7, T-Mobile CEO John Legere announced that the company was planning to create a nationwide 5G network on the 600 megahertz (MHz) spectrum band that will start operations on December 6. By 2024, the network is expected to serve 200 million customers at speeds up to 450 megabytes per second (Mbps).

Xerox In Talks to Purchase HP – On Tuesday, November 5, The Wall Street Journal reported that Xerox is currently in the planning stages to acquire HP Inc. in a cash-and-stock offer to buy the tech firm.

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: Foxconn Technology Co. Ltd. (t-247th); LG Corp. (7th)
  • Tuesday: Continental AG (161st); Fujifilm Corp. (55th); Infineon Technologies AG (62nd); Nissan Motor Co., Ltd. (t-123rd); Rockwell Automation Inc. (t-217th); Semiconductor Manufacturing International Corp. (245th); Wistron Corp. (t-266th)
  • Wednesday: Applied Materials, Inc. (t-69th); Cisco Systems Inc. (40th); Japan Display Inc. (64th); NetApp, Inc. (t-292nd); Tencent Holdings Ltd. (110th); Toshiba Corp. (30th)
  • Thursday: Dolby Laboratories, Inc. (119th); Merck Kgaa (t-178th); Nvidia Corp. (t-156th)
  • Friday: None

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