Other Barks & Bites for Friday, April 10: China Passes U.S. in PCT Applications, SCOTUS Denies Another 101 Appeal and Copyright Office Expands Electronic Submissions

This week in Other Barks & Bites: the U.S. Supreme Court denies yet another petition  asking the court to clarify patent-eligibility under Section 101; the Federal Circuit vacates various rulings due to erroneous lower court findings on claim construction, Section 102 on-sale bar and distinctiveness of multi-color trademark; the U.S. Copyright Office relaxes regulations on electronic submissions to facilitate public access to agency services; France’s competition regulator demands that Google pays copyright fees for online news snippets; the Consumer Price Index sees its largest one-month drop in more than five years; Roku fails to extend trial date in streaming media patent case in the Western District of Texas; and WIPO reports that China’s 2019 Patent Cooperation Treaty filings surpassed similar findings from the United States.

Bites 

CAFC Vacates Invalidity Ruling Based on Erroneous Construction – On Thursday, April 9, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Nevro Corp. v. Boston Scientific Corp. in which the appellate court vacated a summary judgment entered in the Northern District of California after finding that the district court’s invalidation of patent claims covering a spinal cord stimulation treatment for inhibiting pain was based on erroneous claim construction.

French Competition Regulator Demands Google Pay Copyright Fees – On Thursday, April 9, France’s Autorité de la Concurrence, the country’s competition regulatory agency, issued a ruling which demands that Google pay copyright fees to French news and publishing companies for the online use of news snippets under the European Copyright Directive.

Copyright Office Expands Electronic Submissions During Pandemic – On Wednesday, April 8, the U.S. Copyright Office published a final rule in the Federal Register adopting technical amendments to agency regulations allowing for the electronic submission of certain documentation which usually require physical delivery to facilitate the public’s ability to access services during the COVID-19 pandemic.

CAFC Overturns TTAB Refusal to Register Multi-Color Trademark – On Wednesday, April 8, the Federal Circuit issued a precedential decision in In re: Forney Industries, Inc. in which the appellate court found that the Trademark Trial and Appeal Board (TTAB) erred in determining that a multi-color mark can never be inherently distinctive and that product packaging marks employing color cannot be inherently distinctive without a well-defined peripheral shape or border.

CAFC Reverses Judgment After Finding No On-Sale Bar – On Wednesday, April 8, the Federal Circuit issued a precedential decision in BASF Corporation v. SNF Holding Company in which the appellate court reversed the Southern District of Georgia’s ruling that patent claims covering a process for preparing polymers were invalidated. The CAFC found that the district court erred in finding that a polymer process developed by a third party triggered the on-sale bar provision of 35 U.S.C. § 102.

China Surpasses U.S. as Top Filer of PCT Patent Applications – On Monday, April 7, the World Intellectual Property Organization (WIPO) announced that China filed 58,990 Patent Cooperation Treaty (PCT) applications in 2019, overtaking the U.S. as the top filer of PCT patent applications, a position the U.S. had held in every year since 1978.

Greece Calls for EU Patent Pool for COVID-19 Vaccines – On Sunday, April 6, German newspaper Frankfurter Allgemeine Zeitung published an article including comments from Greek Prime Minister Kyriakos Mitsotakis calling upon other European Union member countries to jointly buy patent rights to vaccines with potential use against COVID-19 to improve the distribution of vaccines across the EU.

Supreme Court Denies Cert to Section 101 Validity Question – On Monday, April 6, the U.S. Supreme Court denied a petition for writ of certiorari in INO Therapeutics LLC v. Praxair Distribution Inc. The petition had asked the nation’s highest court to determine if a method of treatment involving the selective administration of drugs to enhance patient outcomes was eligible for patent protection under Section 101.

Barks 

British American Tobacco Sues Philip Morris for Patent Infringement – On Thursday, April 9, British American Tobacco announced that it had filed patent infringement suits in the U.S. and Germany against Philip Morris over the use of a heating blade technology in Philip Morris’ IQOS tobacco heating system.

Botanic Garden Files Motion to Dismiss Copyright Suit Over Lighting Exhibition – On Thursday, April 9, Florida-based Fairchild Tropical Botanic Garden filed a motion to dismiss a copyright suit filed by lighting design artist Bruce Munro who sued the botanic garden in the Southern District of Florida over a lighting exhibition which allegedly infringes on Munro’s previous works.

Kentucky Governor Calls on 3M to Release Respirator Patent – On Wednesday, April 8, Kentucky Governor Andy Beshear made public remarks in which he called upon multinational company 3M to forgo enforcement of patent claims covering the company’s N95 respirator so that more manufacturers can make the protective gear in response to increased need by health care workers. 

TAI Diagnostics Faces Patent Suit Over Heart Transplant Rejection Test – On Wednesday, April 8, CareDx and Stanford University filed a patent lawsuit in the District of Delaware against TAI Diagnostics alleging that a heart transplant rejection test marketed by TAI infringes upon patent claims covering a method of non-invasive diagnosis of transplant rejection.

Judge Albright Won’t Postpone Roku Patent Trial – On Wednesday, April 8, U.S. District Judge Alan Albright of the Western District of Texas denied a request to postpone a June 1 trial date set for a patent infringement case between MV3 Partners and Roku after Roku told the court that its attorneys may not be able to travel because of stay-at-home orders issued in response to the COVID-19 outbreak.

Lawyer, Scientist Group Calls for Open COVID Pledge on IP – On Tuesday, April 7, a group of lawyers and scientists officially announced an Open COVID Pledge initiative which seeks patent owners to pledge to make intellectual property related to the COVID-19 outbreak freely available for others to practice.

eScholar Files Copyright Suit Against Nebraska Department of Education – On Monday, April 6, education software company eScholar filed a lawsuit in the District of Nebraska against the Nebraska Department of Education alleging that the state department stopped contracting with eScholar and then began using a student data collection system incorporating unique design elements and features of eScholar’s system.

Copyright Suit Against Josh Groban Dismissed for Unreliable Expert Findings – On Friday, April 3, U.S. District Judge André Birotte of the Central District of California dismissed a lawsuit alleging copyright infringement over Josh Groban’s 2003 single “You Raise Me Up” after Judge Birotte determined that findings from the plaintiff’s expert musicologist were unreliable.

This Week on Wall Street 

Consumer Price Index Sees Largest Drop in Five Years – On Friday, April 10, the U.S. Department of Labor issued the Consumer Price Index (CPI) for March showed a drop of 0.4 percent, the largest one-month decline in the CPI since January 2015, caused in large part by decreased demand for goods and services caused by the COVID-19 pandemic.

Boeing Could Cut Its Workforce By 10 Percent – On Thursday, April 9, The Wall Street Journal reported that Boeing could reduce its labor force by up to 10 percent through layoffs, early retirements and buyouts in response to financial pressures posed by the COVID-19 pandemic.

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: Johnson & Johnson (t-34th)
• Wednesday: ASML Netherlands NV (144th); Bank of America Corp. (111th)
• Thursday: Honeywell International Inc. (36th); Intuitive Surgical Operations, Inc. (t-247th); Taiwan Semiconductor Manufacturing Co., Ltd. (8th)
• Friday: Schlumberger NV (59th)