Other Barks & Bites, Friday, January 17: IP Provisions in Partial U.S.-China Trade Deal Are a Boon for Pharma, IBM Joins LOT Network, and Alphabet Hits $1 Trillion Market Cap

By IPWatchdog
January 17, 2020

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

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/68397603/stock-photo-dog-reading-newspaper.htmlThis week in Other Barks & Bites: The new China-U.S Trade Deal offers stronger patent dispute mechanism for drug companies; IBM joins LOT Network and tops the list of top U.S. patent recipients for a 27th straight year; the U.S. Supreme Court hears a pair of appeals in trademark cases and seems eager to overturn lower court rulings in both; Federal Circuit Judge Pauline Newman dissents on a pair of precedential decisions issued by the CAFC; tech giant Alphabet is the fourth U.S. tech company to hit a $1 trillion market capitalization; China announces that it received 1.401 million invention patent applications during 2019; Ed Sheeran loses a motion to compel and must disclose concert revenue information in “Thinking Out Loud” copyright case; USAA wins a second nine-figure judgment in a patent infringement case against Wells Fargo; and CompuMark reports that 85% of global brands were infringed during 2019.

Bites

China, U.S. Sign Partial Trade Deal Including Provisions That Could Boost Protection for Brand Drugs – On Wednesday, January 15, a ceremony at the White House featured the signing of the first phase of a trade deal between the nations of China and the U.S. Phase one of the economic and trade agreement between the U.S. and China includes several provisions on intellectual property, including agreements on trade secret protection, pharmaceutical-related IP, patents and e-commerce counterfeiting.

IBM Joins LOT Network – On January 14, IBM announced that it has joined the License on Transfer (LOT) Network, a move the company described as “a major step in its dedication to open innovation and responsible stewardship of technology.” LOT Network is a non-profit consortium that offers members a legal mechanism affording them protection from patent assertion entities (PAEs), immunizing them against patent suits from non-operating entities. IBM’s membership adds 80,000 patents and patent applications to LOT’s community of 600-plus companies. “What makes this particular membership announcement interesting is that IBM, a top holder of blockchain patents, is a leading monetizer of their patent portfolio — meaning, that they make a substantial part of their revenue selling to operating companies and NPEs alike,” said a LOT Network spokesperson in an email sent to IPWatchdog last week.

https://depositphotos.com/13561580/stock-illustration-beware-of-dog.htmlFifth Circuit Finds Failure to Mitigate is Not Complete Defense to Copyright Claims – On Wednesday, January 15, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Energy Intelligence Group, Inc. v. Kayne Anderson Capital Advisors, L.P. The Fifth Circuit’s decision addressed an issue of first impression in determining that Energy Intelligence Group’s failure to mitigate damages was not a complete defense to liability for statutory damages under the Copyright Act and the Digital Millennium Copyright Act (DMCA).

SCOTUS Looks Poised to Overturn Circuit Courts After Hearing Trademark Cases – This week, the U.S. Supreme Court heard oral arguments in two trademark infringement cases and the line of questioning taken by the nation’s highest court made it seem likely that SCOTUS will overturn the Circuit Court holdings in both cases. On Monday, January 13, the Supreme Court heard arguments in Lucky Brand Dungarees v. Marcel Fashion Group, an appeal from the Second Circuit’s finding that federal preclusion principles can prevent a defendant from raising a defense in a second suit involving new claims but based on the same cause of action as a first suit where the defense could have been but wasn’t litigated. On Tuesday, January 14, SCOTUS heard oral arguments in Romag Fasteners v. Fossil, an appeal from the Federal Circuit’s decision that a finding of willfulness is a prerequisite to a court award of infringer’s profits to a party proving trademark infringement. 

IBM Takes Top Spot Among U.S. Patent Owners for 27th Straight Year – On Tuesday, January 14, patent services firm IFI CLAIMS published data showing that information technology giant IBM earned 9,262 U.S. patent grants in 2019, making this the 27th straight year that IBM has placed first among all U.S. patent recipients. The data also shows that the U.S. Patent and Trademark Office issued a record 333,530 patents last year, a 15% increase from the number of patents granted in 2018.

CNIPA Announces 2019 Statistics for Chinese Patent Filings and Grants – On Tuesday, January 14, the Chinese National Intellectual Property Administration (CNIPA) held a press conference in which it announced that the CNIPA received 1.401 million invention patent applications in 2019 and that there are currently 1.862 million invention patents in force within the country.

CAFC Denies BioDelivery Sciences Rehearing Petition Over Newman Dissent – On Monday, January 13, the U.S. Court of Appeals for the Federal Circuit issued a decision denying a petition for rehearing en banc in BioDelivery Sciences International, Inc. v. Aquestive Therapeutics, Inc. Circuit Judge Pauline Newman penned a dissent to the rehearing denial where she argued that the PTAB decision to disobey a remand order that asked the agency to comply with SAS Institute v. Iancu required review to protect the balance of agency and judicial authority.

CAFC Majority Affirms Patent Invalidation Over Newman Dissent – On Friday, January 10, the Federal Circuit issued a precedential opinion in Genentech, Inc. v. Hospira, Inc. in which the appellate court majority affirmed a Patent Trial and Appeal Board (PTAB) decision to invalidate patent claims owned by Genentech and covering methods of purifying antibodies and other proteins. Circuit Judge Pauline Newman wrote a dissent arguing that no prior art showed the claimed method nor suggests that the method might be successful.

Geophysical Services Files SCOTUS Petition on Implied Copyright License Defense – On Friday, January 10, Geophysical Services, Inc. filed a petition for writ with the Supreme Court asking the nation’s highest court to determine aspects of the implied license defense in the copyright infringement context, including whether a showing of an implied license requires proof of a meeting of the minds and if the burden of proof regarding whether an implied license covered an alleged infringing use should shift from the defendant to the plaintiff.

Barks

USPTO Updates Patent Litigation Database – On Thursday, January 16, the USPTO announced that it has updated its Patent Litigation Dataset, which now includes information on patents asserted in district court proceedings between 2003 and 2016. This brings the agency’s litigation database to more than 81,000 district court cases filed as far back as 1963. 

Judge Stanton Grants Motion to Compel Ed Sheeran Concert Revenue Discovery – On Wednesday, January 15, U.S. District Judge Louis Stanton of the Southern District of New York issued an order granting a motion to compel the production of financial information including concert revenue earned by singer/songwriter Ed Sheeran in the copyright case alleging that Sheeran’s “Thinking Out Loud” infringes upon the Marvin Gaye hit “Let’s Get It On.”

PTAB Institutes Validity Trial on Patent Claims Asserted Against YouTube – On Wednesday, January 15, the PTAB decided to institute an inter partes review (IPR) proceeding petitioned by Google against patent claims owned by Virentem Ventures LLC that cover methods of rendering time data related to video files. The patent claims were previously asserted by Virentem against Google subsidiary YouTube in a patent infringement case filed in the District of Delaware.

https://depositphotos.com/10882248/stock-photo-cross-breed-dog-4-years.htmlEinthusan Wins Motion to Dismiss Copyright Case for Forum Non Conveniens – On Wednesday, January 15, U.S. District Judge Edward Chen of the Northern District of California granted a motion to dismiss a copyright infringement case  after determining that Canada was a more appropriate forum for copyright infringement claims brought by Tamil-language film distributors against Canadian-based operators of a South Asian streaming content website.

CompuMark Report Shows 85% of Brands Were Infringed During 2019 – On Tuesday, January 14, trademark research firm CompuMark published a trademark ecosystem report including statistics showing that 85% of global brands experienced some form of infringement during 2019, up from 81% of brands in 2018 and 74% of brands in 2017.

Amazon, Book Publishers Settle Copyright Dispute Over Audible Text Feature – On Tuesday, January 14, the Southern District of New York dismissed a copyright case brought by members of the Association of American Publishers after the plaintiffs settled their copyright infringement claims against Amazon regarding a text captioning feature made available through Amazon’s Audible audiobook platform.

Trade Secret Case Against Illumina Fails on Statute of Limitations – On Tuesday, January 14, the Southern District of New York dismissed a trade secret case brought by genetics researchers from Cornell University against genetic analysis firm Illumina after the researchers failed to bring a suit based on their claims within three years of the time by which they were on notice of the trade secret misappropriation.

USAA Wins $102M Against Wells Fargo in Latest Patent Infringement Verdict – On Friday, January 10, a jury verdict entered in the Eastern District of Texas awarded $102.8 million in damages to financial services firm USAA after finding that Wells Fargo wilfully infringed upon remote check deposit patent claims asserted by USAA. Last November, a jury in a separate trial awarded $200 million to USAA for other patent infringements committed by Wells Fargo. 

This Week on Wall Street 

Alphabet Hits $1 Trillion Market Cap – On Thursday, January 16, the market capitalization of tech conglomerate Alphabet Inc. surpassed $1 trillion, making it the fourth U.S. company to achieve that level of valuation after the same milestone was reached by fellow tech giants Apple, Microsoft and Amazon. 

Microsoft Announces Goal to Eliminate Carbon Footprint By 2050 – On Thursday, January 16, computing tech giant Microsoft announced plans to become carbon-negative by the year 2030 and then, by 2050, to remove all carbon emitted by the company since its founding in 1975. The initiative, which targets the company’s entire supply and value chain, will be supported through the creation of a climate innovation fund which will devote $1 billion to the acceleration of carbon capture and removal technologies.

Quarterly Earnings – The following firms identified among the IPO’s it has updated its Patent Litigation Dataset are announcing quarterly earnings next week (2018 rank in parentheses):

  • Monday: Samsung SDI Co., Ltd. (106th)
  • Tuesday: Capital One Financial Corp. (194th); Halliburton Co. (44th); IBM (1st)
  • Wednesday: ASML Holding N.V. (144th); Citrix Systems, Inc. (t-287th); Hyundai Motor Co. (22nd); Johnson & Johnson (t-34th); Texas Instruments, Inc. (46th)
  • Thursday: Colgate-Palmolive Co. (t-262nd); Comcast Corp. (223rd); Intel Corp. (5th); Procter & Gamble Co. (82nd); Skyworks Solutions, Inc. (t-156th); STMicroelectronics, Inc. (54th)
  • Friday: Telefonaktiebolaget LM Ericsson (23rd)

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Discuss this

There are currently 11 Comments comments. Join the discussion.

  1. angry dude January 17, 2020 4:04 pm

    “Alphabet Hits $1 Trillion Market Cap ”

    On our backs…

  2. Pro Say January 17, 2020 4:31 pm

    “Alphabet (Google) Hits $1 Trillion Market Cap”

    . . . doing so in material part on the backs of untold number of inventors and patent owners who’s inventions they’ve stolen.

    The year is 2020 . . . . and, despite their promise to restore our patent system to its formerly world-leading status, Congress is nowhere in sight.

    Welcome to the dark ages of American innovation.

  3. concerned January 18, 2020 2:47 am

    I am still holding hope for America despite Congress even though it may or may not be too late for us. I believe there will be a triggering event that forces Congress to do the right thing.

    Interesting…Apple, Microsoft and Amazon and Google all hit $1 trillion market caps. All companies started by one or two individuals.

    Who will be, or who could be, those one or two individuals that will bring those disruptive new future ideas in this patent environment? Why would those future superstars even bother just to get ripped off? We know these truths to be self-evident.

    My wife was at a community event last year when an average person tells her that patents are a ripoff. We do not know what his status as an inventor would be or even if he is an inventor, and he does not know my status as an inventor. The remark was apparently random.

    So eventually the word will get out and it be common knowledge as to the real deal with patents.

  4. angry dude January 18, 2020 9:30 am

    concerned @3

    Congress is very busy now impeaching Trump for some bs business in some small god-forsaken country overseas which presents absolutely no threat and has no real value to the US

    US inventors and hi-tech startups in the meanwhile are filing hi-tech patent applications in China and not in the USPTO … for obvious reasons…

    The reality check will come at some point .. but things have to get much worse before they can get better

    This Congress looks completely brain dead and corrupt to me

  5. MaxDrei January 19, 2020 9:20 am

    As far as I know, the rise of all of MS, Apple, Google and Amazon owed nothing to patents. That was back in the day when investors were more savvy than to base their investment decisions purely on how big a pile of patents any particular prospect has. Same with eBay, Facebook, TenCent, Baidu, Alibaba, is it not?

    That said, in chem/bio, with its far longer reimbursement periods, patents always did play a decisive role for investors. Rightly so. That’s the patent system merely “doing its job” (and not functioning as it increasingly does today, as a “rip-off”). Proponents of a strong patent system would do well to concentrate their efforts on convincing a sceptical public of the worth, to it, of a strong patent system that speedily enforces good patents while just as speedily taking down those patents which should never have been granted.

    I speak as a patent attorney, one who prefers not to be told that I’m part of a “rip-off” system..

  6. angry dude January 19, 2020 2:19 pm

    MaxDrei @5

    Dude, I was always saying that 95% of patents (mostly) held by BIG TECH are total crap (on mostly insignificant incremental improvements) and should never have been granted
    Those are the same companies your mentioned and complaining the most about patent trolls tearing them apart while crossing 1 Trillion (!!!) in (fake) valuation built upon thousands of patented technologies stolen from little guys (“little guy” definition has now shifted from “garage inventor” to billion dollar corporation like Sonos or even Quallcomm)
    True, they started in different lines of business without patents – MS by shear luck with IBM, Google as a search engine on a servers side (impossible to steal code), Amazon as an online book store nothing more, Apple.. hm. Apple is (was) really special because of Jobs and Woznyak etc
    But nowadays those companies are real patent trolls, IP pirates and biggest patent system abusers.
    Not little guys, Them – BIG TECH

    SO the next time you take your BIG TECH client ask them if they are not ashamed to patent total crap and clog US patent system … Will you ???

  7. Pro Say January 19, 2020 2:27 pm

    Max — always appreciate your input (even when I disagree), but you’re missing the point on this one.

    It’s not that companies like Apple, Google, Amazon, MS, and Facebook became the behemoths that they are today because of their patents. Instead, it’s that a material, valuable portion of the innovations their great successes are built and based on . . . are in fact the patented innovations of others . . . whom they fight tooth and nail over . . . rather than paying reasonable royalties for.

    Of which the Virnetx v Apple war is just one of the many examples of.

    And for the record, I don’t believe that patent attorneys are part of a rip-off system. Indeed, some of my closest friends are patent attorneys; and they all want an end to the section 101 / eligibility quagmire . . . and our patent system being returned to its former world-leading status.

    I do wish, however, that more patent attys would stand up publicly and say (and fight for) that they do in fact believe in and support a strong American patent system.

  8. MaxDrei January 20, 2020 10:40 am

    Under the law, it is the primary even exclusive duty of corporate officers, in all their doings, to maximise return to the shareholders. Accordingly, it is futile to rail against the iniquities committed by corporations within the workings of a patent system. In milking the patent system for all it is worth, corporations are doing nothing more than staying true to their established purpose and duty, imposed on them by the law of the land.

    What can one do? Cease getting mad. That’s just self-harm. Get even? How? Best recognise the reality, perhaps, and become a shareholder.

    Or else campaign at the level of the legislature, to impose on corporations some obligation (enforceable by the State) to promote the progress of the general welfare of society (not just the welfare of their own shareholders). But, as ever, be careful what you wish for. Who wants to end up like in China?

  9. Anon January 20, 2020 11:51 am

    MaxDrei,

    You offer a cogent reply here, to which I would respond that the State itself should ever be on guard against persons (especially juristic persons) who may be ‘gaming’ a system for ends that betray the avowed purposes of that system.

    With that in mind, may I also remind you that patent law was, is, and ever shall be a Sovereign-centric law (no analogy need be made to China for this point to carry).

    A tidbit: in this country, we (the Royal We) have allowed the juristic person of the corporation to obtain a FAR too powerful voice. THAT is something that does need be changed.

  10. Concerned January 20, 2020 11:56 am

    Really? Within the workings of the law?

    I think it is worth repeating over and over: If the law is really on their side, why the undefined terms and the unsubstantiated arguments? Not only am I receiving unsubstantiated arguments, the arguments are illogical on the surface. My attorney politely calls the arguments non-responsive.

    The above kinds of questions were evident on the playground in kindergarten at recess. Why did the rules keeping changing to effect “no tag” on the targeted person? First the tag had to be one hand, then two hands, then two hands below the waist. then two hands below the ankles while eating an apple.

    Sure, the system can be gamed. I seriously doubt it can be gamed forever without consequence.

    I may be “in” it, I do not want to be “of” it.

  11. angry dude January 20, 2020 1:07 pm

    MaxDrei @8

    Dude,

    You have no clue as usual

    I am not talking about corporations in general, in particular not about small to mid size R&D-intensive PRIVATE tech companies – all negatively affected by the current patent system or rather lack of it.
    I am talking about a handful of the largest PUBLIC multinationals which brought 230-year old US Patent System down over the last 13 years

    Do you realize the difference between these two categories ?
    The Law of the land was drastically different 14 years ago before Ebay
    And now it’s suddenly new Law of the Land ?
    Dude, you can’t change Law of the Land like that – in any other area like, for example, guns control, it would cause a public revolt or revolution, no less

    And BTW China is gonna eat USA for breakfast and soon – not that I want to go live there but might have to go there to make a living

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