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 strikes down a district court’s finding of design patent infringement on summary judgment; the USPTO advises trademark attorneys to monitor filings to prevent against the unauthorized use of their names; the U.S. Copyright Office issues final rules eliminating options for physical material submissions for newspaper and serial registrations; the U.S. Supreme Court will take up Booking.com’s appeal of the rejection of its trademark application by the USPTO; AG Barr supports the FCC’s plan to restrict Huawei and ZTE equipment purchases through the Universal Service Fund; Nirvana’s copyright case against Marc Jacobs moves past a motion to dismiss; Biogen loses $3 billion in market value after PTAB hearing; and Amazon seeks an injunction against a patent owner asserting infringement claims against Amazon Fire product retailers.
AG Barr Tells FCC That Huawei, ZTE “Cannot Be Trusted” – On Wednesday, November 13, U.S. Attorney General William Barr sent a letter to Federal Communications Commission Chairman Ajit Pai supporting the FCC’s proposed rule that would bar U.S. subsidization of equipment purchases from Chinese telecom firms Huawei and ZTE through the Universal Service Fund. Trade secret theft and other illicit acts committed by those two companies “demonstrate that Huawei and ZTE cannot be trusted,” AG Barr wrote.
CAFC Overturns Summary Judgment of Design Patent Infringement Due to Disputed Facts – On Wednesday, November 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Columbia Sportswear v. Seirus Innovative Accessories in which the appellate court upheld the district court’s finding that patent claims asserted by Seirus were invalid as obvious but overturned the lower court’s finding of design patent infringement on summary judgment.
USPTO Advises Trademark Attorneys to Monitor Unauthorized Uses of Personal Information – On Wednesday, November 13, the U.S. Patent and Trademark Office issued a news brief advising attorneys who have submitted trademark filings to the agency to monitor the agency’s database for the potential unauthorized use of their names, signatures and contact information. The agency issued the advice after discovering a small number of filings affected by this issue.
USPTO Seeks Public Comments on Extending Pro Bono Survey, Issue Fee Payment Info Collection – On Wednesday, November 13, the USPTO published a pair of comment requests in the Federal Register seeking comment on extending the period of information collection for a survey on pro bono patent attorney programs as well as comments related to the agency’s collection of issue fee payments after issuing notices of allowance.
CAFC Affirms USPTO Rejection of “Beast Mode” Trademark – On Tuesday, November 12, the Federal Circuit issued a decision in In re: Copeland-Smith affirming a USPTO trademark examiner’s rejection of soccer coach David Copeland-Smith’s application to register “Beast Mode Soccer” for likelihood of confusion with “Beast Mode” marks registered by NFL running back Marshawn Lynch.
Copyright Office Eliminates Physical Material Submissions for Newspaper, Serial Registration – On Tuesday, November 12, the U.S. Copyright Office published two final rules in the Federal Register which will eliminate the option to submit microfilm materials for group registration of newspapers, effective December 30, and physical copies of issues for group registration of serials, effective January 1, 2020.
IP Law Professors Submit Amicus Brief in Charter Communications Copyright Case – On Monday, November 11, a collection of 23 intellectual property law professors, including Mark Lemley of Stanford Law School, filed an amicus brief with the District of Colorado asking the district court to overrule a magistrate judge’s recommendation against dismissing a copyright infringement case filed by Warner Bros. Records against Charter Communications. Amici argue that the magistrate misapplied the vicarious liability test in a way that will harm Internet service providers, Internet users and the public at large.
Supreme Court to Hear Appeal of USPTO Rejection of Booking.com Trademark – On Friday, November 8, the U.S. Supreme Court granted certiorari to take up United States Patent and Trademark Office v. Booking.com to hear Booking.com’s appeal of the USPTO’s rejection of a trademark application for “booking.com” as being generic.
Request for Internal Document Didn’t Violate Federal Trade Secret Law – On Thursday, November 14, U.S. District Judge J. Paul Oetken of the Southern District of New York denied a motion for injunction filed by insurance brokerage firm Integro USA after the judge determined that a request for an internal document made by a consultant on the day he resigned to join insurance rival Marsh USA didn’t violate federal trade secret misappropriation law.
Chinese National Could Face Two Years in Prison for Stealing Battery Trade Secrets – On Wednesday, November 13, Chinese national Hongjin Tan pleaded guilty in federal court to allegations that he stole trade secrets related to next-generation battery tech while working for Phillips 66. A plea agreement indicates that Tan could spend two years in prison and face fines of $150,000.
Migos Beats Copyright Lawsuit Filed Over “Walk It Talk It” – On Tuesday, November 12, U.S. District Judge Analisa Torres of the Southern District of New York dismissed a copyright case filed against hip hop group Migos after determining that the phrase “walk it like I talk it” was too commonplace to be afforded copyright protection.
Nirvana Copyright Case Against Marc Jacobs Avoids Motion to Dismiss – On Tuesday, November 12, U.S. District Judge John Kronstadt of the Central District of California issued a ruling denying a motion to dismiss a copyright and trademark infringement lawsuit filed by former rock band Nirvana after determining that Nirvana had a protectable interest in the “Happy Face” logo allegedly infringed by Marc Jacobs’ Bootleg Redux Grunge clothing line.
Chinese SOE Subsidiary Files U.S. Patent Suit Over Fungicide Products – On Tuesday, November 12, Syngenta Crop Protection, a subsidiary of Chinese state-owned entity ChemChina, filed a patent suit in the Eastern District of North Carolina against Atticus LLC over that company’s sale of allegedly infringing fungicide products.
Amazon Files Suit Against Firm Asserting Patent Against Best Buy – On Monday, November 11, e-commerce giant Amazon.com filed a complaint in the Western District of Texas against patent owner Corydoras Technologies accusing the firm of engaging in meritless patent litigation against Best Buy for its sale of Amazon Fire products. Amazon is seeking an injunction preventing Corydoras from asserting the patents against any retailers selling the allegedly infringing products.
Netflix Wins Summary Judgment Nixing Copyright Case Over “Narcos” – On Friday, November 8, U.S. District Judge Rodney Smith of the Southern District of Florida granted summary judgment to Netflix and other defendants in a copyright case brought by journalist Virginia Vallejo after Judge Smith found that common aspects of Vallejo’s memoir and allegedly infringing scenes in the television series “Narcos” don’t qualify for copyright protection.
SUNY Files Trademark Infringement Case Against Former Students – On Friday, November 8, the State University of New York (SUNY) filed a complaint for trademark infringement against three former students of SUNY Albany who operate a student and alumni event organizing company, which SUNY alleges creates a false impression of connection with the public university system.
This Week on Wall Street
Stock Futures Up on Kudlow Comments About U.S.-China Trade Agreement – On Friday, November 15, stock futures for the Dow, S&P 500 and Nasdaq 100 were up in pre-trading hours due in part to positive comments from National Economic Council Director Larry Kudlow the previous day indicating that U.S. and China were moving ahead on constructive discussions towards a trade deal between those two nations.
PTAB Hearing Leads to $3 Billion Market Value Loss for Biogen – On Wednesday, the Patent Trial and Appeal Board (PTAB) heard arguments in an inter partes review (IPR) proceeding regarding the validity of a Biogen patent covering the multiple sclerosis drug Tecfidera. On Thursday, Biogen shares dropped by 3.7 percent and the company lost $3 billion in market value in the two days after the PTAB hearing.
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: Sonos, Inc. (t-163rd); Intuit, Inc. (t-287th)
- Thursday: None
- Friday: None
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