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 issues precedential decisions regarding its authority to remand to the PTAB, patent prosecution history estoppel and expert testimony on motivation to combine for obviousness findings; China nominates its choice for WIPO Director while pledging to reach “social satisfaction” on IP protections by 2025; INTA announces Ayala Deutsch as the organization’s new president; the USPTO seeks public comments on information collection related to national security concerns; the TTAB applies Federal Rules of Civil Procedure to discovery requests; Hewlett Packard shares drop after quarterly revenues fall short of analyst expectations; and the PTAB allows additional briefing in a case after the possibility of Administrative Procedure Act violations were raised by a patent owner.
China Pledges to Reach “Social Satisfaction” on IP Protection By 2025 – On Sunday, November 24, the Chinese State Council and the Communist Party Central Committee issued policy guidelines for improved IP rights enforcement mechanisms, including a faster rollout of a new compensation system for patent and copyright owners whose IP has been infringed, in order to achieve a high level of “social satisfaction” on IP protection within China by the year 2025.
CAFC Vacates PTAB Judgment After ZTE Waives Chance to Remand – On Friday, November 22, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re: IPR Licensing in which the appellate court found that the Patent Trial and Appeal Board’s (PTAB) obviousness invalidation of a patent claim owned by IPR Licensing wasn’t supported by record evidence. The CAFC also found that, although it had the authority to remand the case despite ZTE’s failure to file a cross-appeal, remand wasn’t appropriate because ZTE withdrew from the appeal, thus waiving its ability to request institution of inter partes review (IPR) on the patent claim on non-instituted grounds.
Beijing Controversially Proposes Candidate to Lead WIPO – In recent days, news reports have indicated that China has nominated a candidate to lead the World Intellectual Property Organization (WIPO), an action that has raised some controversy given China’s track record of poor recognition and enforcement of intellectual property rights.
PTAB Obviousness Finding Overturned as Unsupported By Substantial Evidence – On Friday, November 22, the Federal Circuit issued a precedential decision in TQ Delta, LLC v. Cisco Systems, Inc. in which the appellate court overturned an obviousness determination by the PTAB after finding that the PTAB relied on conclusory statements and unspecific expert testimony which didn’t support the Board’s factfinding regarding motivation to combine.
USPTO Seeks Public Comments on Secrecy Orders, Foreign Filing Licenses – On Monday, November 25, the U.S. Patent and Trademark Office published a notice of renewal of information collection and a request for comment in the Federal Register regarding the kind of information that the agency needs to collect in order to properly review national security issues impacted by petitions regarding secrecy orders and foreign filing licenses.
CAFC Affirms Noninfringement Finding as Estopped by Prosecution History – On Friday, November 22, the Federal Circuit issued a precedential decision in Pharma Tech Solutions, Inc. v. LifeScan, Inc. in which the appellate court upheld a finding of noninfringement from the District of Nevada after determining that Pharma Tech Solutions’ claims of infringement under the doctrine of equivalents were estopped by the patent’s prosecution history, in which the inventor surrendered claims that covered the same territory as the asserted equivalent.
CAFC Refuses En Banc Rehearing in E. Coli Patent Squabble – On Monday, November 25, the U.S. Court of Appeals for the Federal Circuit turned down requests from both Ajinomoto Co. and CJ ChielJedang Corp. for an en banc rehearing of an August 6 Federal Circuit panel decision affirming a finding from the U.S. International Trade Commission that animal feed imports from CJ ChielJedang infringe upon patent claims owned by Ajinomoto.
Federal Circuit Partially Reverses Infringement Verdict, Vacates and Remands Damages Award in VirnetX-Apple Case – On Friday, November 22, the Federal Circuit issued a decision in VirnetX Inc. v. Apple Inc. in which the appellate court vacated a $503 million jury verdict for VirnetX after partially reversing the Eastern District of Texas verdict as to infringement of two VirnetX patents, finding that the district court erred in its construction of the claim term “domain name service system.” The case has been remanded to the Eastern District of Texas to determine whether the district court should enter a revised award or hold a new trial on damages.
TTAB Says Federal Rules of Civil Procedure Apply to Discovery Requests – On Wednesday, November 26, the Trademark Trial and Appeal Board (TTAB) issued an order telling parties in a trademark challenge that they must apply the Federal Rules of Civil Procedure to discovery requests after finding that there was no basis for Chix Gear LLC’s implied request for metadata.
Music Group Alleges Spotify Failed to Pay Royalties on 550M Music Streams – On Monday, November 25, public performance rights organization Pro Music Rights LLC filed a copyright infringement suit in the Middle District of Florida against streaming music provider Spotify which alleges that Spotify failed to pay music royalties on 550 million music streams stemming from a contested removal of content going back to May 2017.
Delaware Jury Enters $137M Infringement Verdict Against Roche – On Monday, November 25, a jury verdict entered in the District of Delaware awarded $137.3 million in patent infringement damages to medical diagnostic firm Meso Scale Diagnostics after finding that Roche Diagnostics had willfully infringed upon claims of three lab testing system patents.
Nevro Avoids Eight of Nine Infringement Claims in Boston Scientific Patent Case – On Monday, November 25, a ruling entered in the District of Delaware dismissed eight of nine patent infringement claims asserted by Boston Scientific in a case against Nevro over the sale of spinal cord stimulation treatment systems for chronic back pain.
Second Circuit Affirms Dismissal of Copyright Case Against Buffalo News – On Monday, November 25, the U.S. Court of Appeals for the Federal Circuit issued a summary order in Joseph v. Buffalo News, Inc. in which the appellate court affirmed the dismissal of copyright infringement claims filed against The Buffalo News for failure to state a claim after determining that the appellant, who wrote an article and authorized its publication by The Buffalo News in September 2015, never requested compensation until after the article was published.
INTA Announces Ayala Deutsch as New President – On Monday, November 25, the International Trademark Association (INTA) announced that Ayala Deutsch, the Executive Vice President and Deputy General Counsel for NBA Properties, Inc., has been elected to serve as the President of INTA for a one-year term that will begin on January 1, 2020.
PTAB Allows Additional Briefing to Reconsider Invalidation of Aker BioMarine Patent – On Friday, November 22, the PTAB issued an order allowing additional briefing in an IPR proceeding after patent owner Aker BioMarine Antarctic AS raised a potential Administrative Procedure Act (APA) violation based on the PTAB’s adoption of an invalidity argument based on prior art that wasn’t raised by petitioner Rimfrost AS.
This Week on Wall Street
U.S. GDP Revised Upward to 2.1 Percent for 2019’s Third Quarter – On Wednesday, November 27, the U.S. Department of Commerce issued revised figures showing that U.S. gross domestic product (GDP) increased by 2.1 percent during the third quarter of 2019, a slight uptick from the 1.9 percent increase initially reported in October.
HPE Shares Drop After Posting Miss on Quarterly Revenues – On Monday, November 25, shares of Hewlett Packard Enterprise dropped about 4 percent in extended-hours trading after the company posted its fourth quarter earnings which showed that the company earned revenues of $7.22 billion, missing analyst expectations of $7.4 billion in revenues for the quarter thanks in part to declining server sales.
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: Marvell Technology Group (t-197th); Salesforce.com, Inc. (155th)
- Wednesday: None
- Thursday: None
- Friday: None
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