Other Barks & Bites for Friday, April 17: Congressional IP Leadership Asks USPTO About COVID-19 Response, Asia Accounts for 65% of 5G Patent Filings

This week in Other Barks & Bites: a new report shows that Asian countries are responsible for 65% of all patent filings in the 5G sector; the copyright infringement case against Katy Perry’s “Dark Horse” is appealed to the Ninth Circuit; the Federal Circuit issues precedential decisions invalidating Ericsson patent claims under Section 101 and affirming a denial of attorney’s fee award on a voluntary dismissal; Congressional leadership from IP subcommittees send a letter to USPTO Director Iancu seeking information on agency operations during the COVID-19 pandemic; the Southern District of New York finds that Mashable isn’t liable for copyright infringement after using a picture from a photographer’s public Instagram feed; and Gilead stock surges after a positive clinical trial involving the use of its antiviral agent remdesivir to treat COVID-19 patients.

Bites

Eleventh Circuit Affirms That Copyright Claims to Pantera Guitar Were Time-Barred – On Thursday, April 16, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Webster v. Dean Guitars in which the appellate court affirmed the Middle District of Florida’s grant of summary judgment dismissing copyright claims brought by Buddy Webster, who designed a well-known guitar played by Pantera’s Darrell Abbott, after finding that Webster’s copyright infringement claim was actually a copyright ownership claim and that it was time-barred.

Fracking Company Appeals Antitrust Claims Over Patent Assertion to Fifth Circuit – On Wednesday, April 15, Chandler Manufacturing filed a notice of appeal in the Northern District of Texas in its antitrust case against water heating system rival Phoenix Services with the U.S. Court of Appeals for the Fifth Circuit, after the district court denied Chandler’s motion for summary judgment, which had argued that patent claims asserted by Phoenix were invalid for violating the Section 102 on-sale bar.

Senate, House IP Leadership Seek USPTO Feedback on COVID-19 Impacts – On Tuesday, April 14, a bipartisan group of D.C. lawmakers including Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chairman and Ranking Member of the Senate IP Subcommittee, and Representatives Hank Johnson (D-GA) and Martha Roby (R-AL), Chairman and Ranking Member of the House IP Subcommittee, sent a letter addressed to U.S. Patent and Trademark Director Andrei Iancu which sought details regarding the agency’s virtual operations during the COVID-19 pandemic, including whether the Office has sufficient technological resources and whether patent and trademark filings have decreased significantly. 

CAFC Invalidates Ericsson Patent Claims Under Section 101 Despite Newman Dissent – On Tuesday, April 14, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Ericsson Inc. v. TCL Communication Technology Holdings Ltd. in which the appellate court majority reversed the Eastern District of Texas’ denial of TCL’s motion for summary judgment, holding that the patent claims were directed at ineligible subject matter under Section 101.

CAFC Affirms TTAB Denial of Trademark Registration for Consumer Confusion – On Tuesday, April 14, the Federal Circuit issued a precedential decision in Stratus Networks, Inc. v. UBTA-UBET Communications Inc. in which the appellate court held that the Trademark Trial and Appeal Board’s (TTAB) decision to uphold the refusal to register a trademark for telecommunications provider Stratus after finding that the TTAB’s determination of a likelihood of consumer confusion was supported by substantial evidence and wasn’t otherwise legally erroneous.

Asia Accounts for 65% of 5G Patent Filings – On Monday, April 13, financial analysis provider Finbold issued a report showing that Asian firms account for 65% of all 5G patent filings from across the world, led by Chinese telecom giant Huawei which has 3,147 such patent filings through the end of February 2020.

Katy Perry Copyright Case is Appealed to the Ninth Circuit – On Monday, April 13, Christian rapper Marcus Gray filed a notice of appeal in the Central District of California to inform the court that he was appealing the court’s decision to vacate a jury verdict which had awarded $2.8 million in damages after the jury found that Katy Perry’s single “Dark Horse” had infringed upon an earlier release by Gray.

CAFC Affirms District Court Ruling of No Attorney’s Fees Without Prevailing Party – On Monday, April 13, the Federal Circuit issued a precedential ruling in O.F. Mossberg & Sons, Inc. v. Timney Triggers, LLC in which the appellate court affirmed a District of Connecticut ruling dismissing a motion for attorney’s fees filed by Timney after determining that, while Timney successfully invalidated O.F. Mossberg’s patent claims in post-grant proceedings leading to voluntary dismissal of the district court case, Timney was not a prevailing party for purposes of the attorney’s fee award.

Barks 

Judge Oetken Dismisses Copyright Case Against Jay-Z for Failure to Serve – On Thursday, April 16, U.S. District Judge J. Paul Oetken of the Southern District of New York dismissed a copyright suit filed by soul musician Ernie Hines against rap producers Jay-Z and Timbaland after finding that Hines failed to serve process within 90 days as mandated by the Federal Rules of Civil Procedure. 

Music Publishers Extend Copyright Permissions to High Schools – On Wednesday, April 15, the National Federation of State High School Associations announced that both it and the National Association for Music Education had struck a deal with six major music publishing houses accounting for 95% of available educational music allowing music educators and students to create certain music recordings for the purpose of completing year-end assessments and classroom instruction during the COVID-19 pandemic.

Groupon Successful at Invalidating Computerized Incentive Program at PTAB – On Thursday, April 16, the Patent Trial and Appeal Board (PTAB) issued a pair of final written decisions ending inter partes review (IPR) proceedings in which the Board found that patent claims covering the use of incentive programs on a computer network which had been asserted against Groupon were invalid as obvious in light of asserted prior art.

Netflix Knocks Out More Realtime Adaptive Streaming Patent Claims at PTAB – On Wednesday, April 15, the PTAB issued a final written decision in an IPR proceeding finding that Netflix had proven the obviousness of data compression process patent claims owned by Realtime Adaptive Streaming LLC.

Southern New York Enters Copyright Infringement Ruling Against Damon Dash – On Monday, April 13, U.S. District Judge Jed Rakoff of the Southern District of New York entered a copyright damages award of $300,000 against film and record producer Damon Dash after finding that his 2016 film Mafietta: Rise of a Female Boss was adapted from a book series without first obtaining the author’s consent for the adaptation.

Mashable Not Liable for Copyright Infringement for Using Instagram Photo – On Monday, April 13, a ruling entered in the Southern District of New York held that digital media site Mashable is not liable for copyright infringement for its use of a picture publicly posted by the photographer to her Instagram account after finding that Mashable had a valid sublicense for the photo under Instagram’s terms of use.

Tesla Settles Trade Secret Suit Against Self-Driving Rival, Former Employees – On Monday, April 13, autonomous vehicle firms Tesla Inc. and Zoox Inc. filed a joint motion to dismiss a trade secret case brought by Tesla to the Northern District of California which had alleged that former Tesla employees had brought proprietary information with them after being hired by Zoox.

Georgia State Asks Court to Show Importance of Fair Use With Attorney’s Fees Award – On Monday, April 13, Georgia State University filed a memorandum in support of its request for attorney’s fees asking the Northern District of Georgia to enter an award of more than $3 million to show the importance of vindicating the college’s successful fair use defense in a long-standing copyright case brought against the school by college coursebook publishers.

This Week on Wall Street 

COVID-19 Consumer Spending Spree Lifts Procter & Gamble’s Quarterly Sales – On Friday, April 17, consumer staple conglomerate Procter & Gamble reported its most recently quarterly earnings in which the company disclosed a 10% increase in consumer sales, buoyed by excessive purchases of paper products, although the company revised its 2020 revenue forecast downwards due in large part to foreign currency issues. 

Gilead Shares Up After Positive Clinical Trial Results for Remdesivir Against COVID-19 – On Thursday, April 16, shares of Gilead Sciences stock were up by 16% in after-hours trading after news reports of a positive phase 3 drug trial showing that Gilead’s remdesivir antiviral agent was effective in treating patients infected with COVID-19. 

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: Halliburton Co. (44th); Koninklijke Philips N.V. (38th)
• Tuesday: Lockheed Martin Corp. (190th); SAP SE (79th); Texas Instruments, Inc. (46th)
• Wednesday: AT&T Corp. (26th); Hyundai Motor Corp. (22nd); STMicroelectronics, Inc. (54th); Telefonaktiebolaget LM Ericsson (23rd); Xilinx, Inc. (t-241st)
• Thursday: Canon Inc. (3rd); Citrix Systems, Inc. (t-287th); Intel Corp. (5th); LG Display Co., Ltd. (53rd); Omron Corp. (t-219th); SK Hynix Inc. (45th); T-Mobile, USA, Inc. (t-238th)
• Friday: Fanuc Corp. (95th); Hitachi, Ltd. (90th); Sanofi S.A. (t-186th); Sony Corp. (18th); Verizon Communications (76th)

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