Other Barks & Bites for Friday, December 13: U.S. and China Move Towards Trade Deal, Register Temple Leaves Copyright Office, and Tillis Sends Letters on Copyright Issues

This week in Other Barks & Bites: Senator Thom Tillis (R-NC) gets active on copyright matters, signing a trio of letters related to piracy and Copyright Office matters; Karyn Temple leaves her post as Register of Copyrights at the Copyright Office; the Supreme Court decides Peters v. NantKwest, finding that the USPTO can’t recover legal personnel fees in district court proceedings; Facebook shares drop due to a potential Federal Trade Commission injunction against messaging services integration; the Federal Circuit denies a rehearing petition on Capital One’s antitrust claims against Intellectual Ventures; House Democrats allow the USCMA free trade agreement to move towards ratification; news reports indicate that the U.S. and China have a limited trade deal in place; and the EU rules that marijuana-related trademarks are contrary to public policy. 

Bites

Tillis, Other Senators Send Letters on Copyright Issues – This week, Senator Thom Tillis (R-NC) has been included as a signatory on a trio of letters regarding various issues related to copyright. On Thursday, December 12, Senators Tillis, Patrick Leahy (D-VT), John Cornyn (R-TX) and Mazie Hirono (D-HI) sent a letter addressed to Librarian of Congress Carla Hayden asking the Copyright Office to establish a Copyright Modernization Executive Committee that would support the Copyright Office’s modernization efforts. On Tuesday, December 10, Senators Tillis and Chris Coons (D-DE), respectively the Chair and Ranking Member of the Senate IP Subcommittee, sent a letter to Librarian Hayden requesting that she promptly appoint a new Register of Copyrights after Karyn Temple left that post earlier this week. That same day, Senators Tillis and Hirono and Representative Ted Deutch (D-FL) sent a letter to Federal Trade Commission (FTC) Chair Joseph Simmons asking for information on risks related to illicit streaming of copyrighted content and any resources the FTC needs to increase its enforcement efforts against piracy.

CAFC Reverses ITC on Claim Construction and Infringement Findings – On Thursday, December 12, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Techtronic Industries Co. v. International Trade Commission in which the appellate court reversed infringement findings in a Section 337 investigation of garage door opener products conducted by the ITC after determining that the agency erred in its construction of the claim term “wall console.”

SCOTUS Finds USPTO Cannot Recover Legal Personnel Salaries in District Court Actions – On Wednesday, December 11, the U.S. Supreme Court rendered a decision in Peters v. NantKwest in which the nation’s highest court held that Section 145 of the Patent Act, which states that patent applicants shall pay for the agency’s expenses in civil actions, doesn’t overcome the presumption of the American Rule against the shifting of attorney’s fees.

CAFC Denies Panel, En Banc Rehearing Petitions from Capital One – On Wednesday, December 11, the Federal Circuit denied both a petition for panel rehearing and a petition for en banc rehearing filed by Capital One, leaving in place the Federal Circuit’s decision this September which affirmed a district court’s grant of summary judgment dismissing antitrust claims filed by Capital One in patent infringement litigation brought by Intellectual Ventures.

GoPro Files Voluntary Dismissal at CAFC Ending PTAB Appeal – On Wednesday, December 11, GoPro filed a motion for voluntary dismissal at the Federal Circuit , leaving in place a decision by the Patent Trial and Appeal Board’s (PTAB) Precedential Opinion Panel (POP) which dismissed inter partes review (IPR) proceedings that had been instituted against 360Heroes following a petition from GoPro after the POP determined that the petition was filed after the Section 315(b) one-year time bar for IPR petitions.

House Democrats, White House Move Forward With USMCA – On Tuesday, December 10, the White House and the Democratic leadership of the House of Representatives came to an agreement which allowed the United States-Mexico-Canada (USMCA) agreement to move forwards towards ratification. The agreement, which would replace the North American Free Trade Agreement (NAFTA), doesn’t include expanded IP protections for biologics, which will have reduced periods of exclusivity in both Mexico and Canada compared to the exclusivity period allowed in the U.S. 

Copyright Office Announces Departure of Register Temple – On Monday, December 9, the U.S. Copyright Office announced that Register of Copyrights Karyn Temple will be leaving the agency to serve in a new position with the Motion Picture Association. Temple has worked at the Copyright Office since 2011 and was appointed to serve as Register of Copyrights this past March.

Ninth Circuit Hears Oral Arguments in “The Shape of Water” Appeal – On Monday, December 9, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in an appeal of a copyright infringement case brought by the estate of a playwright which contends that the 2017 Academy Award-winning film “The Shape of Water” was based upon the same premise of a 1969 play entitled “Let Me Hear You Whisper.”

Barks

USPTO Clarifies Rule on Mandatory Electronic Trademark Filings – On Friday, December 13, the U.S. Patent and Trademark Office published in the Federal Register a correction to its final rule on mandatory electronic trademark filings which clarifies requirements on receiving filings by a certain date as well as requirements for Trademark Electronic Application System (TEAS) Plus applications.

EU Court Rules That Marijuana Trademarks are Contrary to Public Policy – On Thursday, December 12, the European Union General Court issued a decision upholding a decision by the EU Intellectual Property Office to deny a trademark application for a “Cannabis Store Amsterdam” sign with green cannabis leaves because the public would perceive that the trademark references the use of narcotics, which is against public policy.

Kodak Moments Settles Patent Infringement Litigation Through Licensing Agreement – On Thursday, December 12, photo product provider Kodak Moments, a subsidiary of Kodak Alaris, announced that it had settled patent infringement proceedings it filed in the District of Delaware against Citizen Systems, DNP Imagingcomm and Dai Nippon after those three firms agreed to license Kodak’s portfolio of panoramic imaging patents.

Texas Inventor Files Legal Malpractice Suit Over Patent Licensing Fraud – On Wednesday, December 11, Texas-based inventor Loren Hatle filed a legal malpractice suit in Texas state court alleging that a former partner from Chicago-based law firm Seyfarth Shaw engaged in a fraudulent scheme to try to “highjack” Hatle’s rights to patent protection after seeking consulting services from the lawyer while he was a partner at Seyfarth Shaw.

Nike Asks Court to Dismiss Injunction in Patent Case – On Tuesday, December 10, shoemaker Nike filed a reply brief in the Middle District of North Carolina asking the federal district court to overturn an injunction recently entered by the court in a trademark infringement case brought by shoe rival Fleet Feet. The injunction prevents Nike from running an advertising campaign based on the slogan “Sport Changes Everything.”

USPTO Honors Nobel Prize Laureates – On Tuesday, December 10, the USPTO’s official blog published a post penned by Director Andrei Iancu which honored the three winners of the 2019 Nobel Prize in Chemistry award: John B. Goodenough, M. Stanley Wittingham and Akira Yoshino. The trio, which received their Nobel Prize awards that same day, contributed to developments in electro-chemisty enabling the development of lithium-ion batteries.

Disney Files Copyright Infringement Suit Against Unauthorized Online Apparel Seller – On Monday, December 9, Disney Enterprises filed a lawsuit in the Middle District of Florida against Mouseprint Media, an online retailer selling T-shirts and other apparel which feature the iconic Mickey Mouse head silhouette as well as the Disney script logo.

Nokia Offers Mediation to Resolve Patent Litigation Against Daimler – On Monday, December 9, a Nokia spokesman announced that the Finnish telecom firm had presented German automaker Daimler with an offer to resolve through mediation a patent dispute regarding technologies involved with vehicle communication and navigation systems.

This Week on Wall Street

Limited U.S.-China Trade Deal Reportedly in Place to Prevent New Tariffs – On Thursday, December 12, The Wall Street Journal reported that the White House had agreed to a limited trade deal with China that would reduce existing tariffs on Chinese goods and prevent new tariffs from being enforced beginning on Sunday in exchange for certain concessions such as increased Chinese purchases of U.S. farm goods.

Facebook Shares Drop on News of Potential FTC Injunction – On Thursday, December 12, shares of Facebook stock fell by about 4 percent in intraday trading amid news reports that the Federal Trade Commission (FTC) might pursue an injunction against Facebook that would prevent the social media giant’s plans to further integrate messaging features of the company’s WhatsApp, Instagram and Facebook services.

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: None
• Wednesday: Blackberry Ltd. (105th); Micron Technology, Inc. (37th)
• Thursday: Accenture PLC (t-258th); Nike, Inc. (96th)
• Friday: None

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