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This week in Other Barks & Bites: the U.S. Patent and Trademark Office issues an updated AIA Trial Practice Guide following SAS Institute v. Iancu; the AM-FM Act is introduced into Congress to update copyright law for terrestrial radio stations; VoIP-Pal.com defeats remaining IPRs challenging its patents at the institution phase; the Copyright Royalty Board announces cost of living adjustments in certain royalty rates; a Senate report shows that U.S. law enforcement didn’t adequately respond to Chinese IP theft for 20 years; China outpaces the rest of the world in terms of blockchain patent filing activities; and Apple joins Intel’s antitrust actions against Fortress Investment Group’s patent assertions.
USPTO Issues Updated AIA Patent Trial Practice Guide – On Thursday, November 21, the U.S. Patent and Trademark Office published a notice in the Federal Register announcing that the agency was issuing an updated Consolidated Trial Practice Guide for America Invents Act (AIA) post-grant trials held before the Patent Trial and Appeal Board (PTAB). The updated guide includes revisions related to trial institutions after SAS Institute v. Iancu and how parties can contact the PTAB to request an initial conference call.
China Outpaces Rest of World on Patent Filing Activity for Blockchain Inventions – On Thursday, November 21, Nikkei Asian Review reported the findings of a study from Japanese research firm Astamuse which found that Chinese firms filed a total of 7,600 patent applications related to blockchain technologies between 2009 and 2018, 60% of the total number of applications from five countries including the U.S., South Korea, Japan and Germany.
AM-FM Act Introduced in Congress, Would Modernize Copyright Law for Terrestrial Radio – On Thursday, November 21, Senator Marsha Blackburn (R-TN) and Representative Jerrold Nadler (D-NY) introduced the Ask Musicians for Music (AM-FM) Act into their respective houses of Congress. The bill would update copyright law to give music creators more control over obtaining royalties from and negotiating royalty rates with terrestrial radio stations that play their songs.
VoIP-Pal.com Fends Off Last Four Apple IPRs Against Its Patents – On Monday, November 18, Voice-over-Internet protocol developer VoIP-Pal.com announced that the PTAB had denied institution to four IPRs requested by Apple—the last of 12 IPRs challenging the validity of the company’s patent claims. The company is still fighting in the courts, however; it awaits a ruling in one appeal by spring 2020 and is pursuing a second appeal against Apple and Amazon with the Federal Circuit.
Tillis Asks Librarian of Congress to Increase Transparency – Senator Thom Tillis (R-NC) sent a letter to Librarian of Congress Carla Hayden on November 21 following up from a recent roundtable discussion on copyright modernization efforts. Tillis asked Hayden to provide more information on data security concerns that were raised during the roundtable and to follow through on plans to publish a “backlog” list of planned Copyright Office IT modernization items.
Japan, India Sign Bilateral Patent Prosecution Highway Agreement – On Wednesday, November 20, India’s Union Council of Ministers approved a proposal allowing the Indian Patent Office to enter a three-year pilot version of the Patent Prosecution Highway (PPH) with the Japan Patent Office, allowing inventors from either country the ability to obtain expedited patent examination in certain technical fields.
CAFC Affirms PTAB Invalidation After Finding Section 315(b) Time Bar Didn’t Apply – On Tuesday, November 19, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Game and Technology Co. v. Wargaming Group Ltd. in which the appellate court upheld the PTAB’s invalidation of patent claims owned by Game and Technology Co. after determining that the one-year time bar under Section 315(b) didn’t apply because Game and Technology Co. didn’t serve a proper summons for a UK complaint filed more than one year before the date that Wargaming Group filed a petition for inter partes review (IPR) proceedings.
Senate Report Shows U.S. Agencies 20 Years Behind in Responding to Chinese IP Theft – On Monday, November 18, the U.S. Senate’s Permanent Subcommittee on Investigations released a report finding that U.S. law enforcement agencies didn’t adequately respond for 20 years to Chinese theft of taxpayer-funded research and development from university laboratories and other R&D institutions.
Copyright Royalty Board Announces Cost of Living Adjustments in Royalty Rates – On Thursday, November 21, the Copyright Royalty Board published a trio of notices in the Federal Register announcing cost of living adjustments to royalty rates paid by noncommercial radio stations at educational institutions to broadcast music compositions, noninteractive webcasters to broadcast public performances and ephemeral sound recordings, and satellite carriers to broadcast retransmissions of television programming under a Section 119 compulsory license.
Apple, Intel Sue Fortress on Antitrust Claims Related to Patent Activities – On Wednesday, November 20, tech giants Apple and Intel filed an antitrust case in the Northern District of California against Fortress Investment Group for patent stockpiling activities leading to patent lawsuits alleging billions of dollars in damages against Apple and Intel. The suit comes after Intel withdrew a similar case against Fortress that was filed in October.
Ninth Circuit Restores Full $460K Copyright Award Against Zazzle – On Wednesday, November 20, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Greg Young Publishing, Inc. v. Zazzle, Inc. in which the appellate court restored more than $100K to a copyright infringement award against online retailer Zazzle after determining that a reasonable jury could find willfulness against Zazzle based on the evidence in the case.
Photographer Sues Pinterest for Promoting Copyright Infringement – On Wednesday, November 20, photographer Harold Davis filed a copyright infringement suit in the Northern District of California against social media platform Pinterest alleging that the website encourages the wholesale and unauthorized sharing of photographs in a way that promotes copyright infringement.
Mary Kay Files Trademark Suit Against Ulta Beauty – On Tuesday, November 19, Mary Kay filed a trademark infringement suit in the Northern District of Texas against Ulta Beauty over the latter’s use of “Lash Love,” which is covered by a trademark registered by Mary Kay, on a line of mascara products.
Beatles Entity Files Trademark Suit Against “Yellow Submarine” Counterfeiters – On Monday, November 18, a pair of entities owned by the former members of the British rock band The Beatles filed a lawsuit in the Southern District of Florida alleging claims of trademark infringement against a group of defendants accused of selling unauthorized goods that feature “Beatles” and “Yellow Submarine” trademarks.
China’s IP Court Releases Update on Singles’ Day Trademark Case – On Friday, November 15, China’s Beijing Intellectual Property Court published arguments from an oral hearing held the previous day in a case brought by Chinese retailer JD.com, which is suing China’s National Intellectual Property Administration (CNIPA) to overturn the invalidation of trademarks related to the country’s major retail holiday known as Singles’ Day. JD.com argues that its “Double Eleven” trademark doesn’t violate Article 30 of China’s Trademark Law as it doesn’t create consumer confusion with Singles’ Day trademarks owned by Alibaba Company.
This Week on Wall Street
U.S. Government Grants License for Microsoft Exports to Huawei – On Wednesday, November 20, computer software giant Microsoft announced that the U.S. government had issued a license enabling it to export mass-market software to Chinese telecom firm Huawei, which has been blacklisted from receiving exports from U.S. suppliers for about six months.
Intel Reaffirms Quarterly Earnings Guidance Despite CPU Shipment Issues – On Wednesday, November 20, Intel published an open letter to customers that announced it was taking steps to respond to a shortage of central processing units (CPU) which has made it hard for the tech firm to keep up with demand. The company also published a separate investors’ note which reaffirmed the company’s earnings guidance previously issued in October.
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: Hewlett Packard Enterprise (80th)
- Tuesday: HP Inc. (48th)
- Wednesday: Deere & Co. (t-123rd)
- Thursday: None
- Friday: None
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