Other Barks & Bites for Friday, May 8: CAFC Denies PTAB Appeals Under Arthrex, USPTO Launches COVID-19 Priority Pilot and SCOTUS Hears Booking.com Arguments

This week in Other Barks & Bites: the U.S. Patent and Trademark Office launches COVID-19-related initiatives, including a prioritized examination pilot program and an online licensing platform; the U.S. Supreme Court weighs legal arguments in U.S. Patent and Trademark Office v. Booking.com in an historic teleconference hearing; the Copyright Office issues rules on secure test registrations and electronic filing of compulsory license royalty claims; an SEC filing by Peloton shows nearly $50 million in litigation expenses after settling a major music copyright case; Thomson Reuters files copyright lawsuit over legal research copying; the TTAB enters a precedential decision affirming an examiner’s rejection of a mark including a simulation of the U.S. flag; and global stock markets show some life on optimism of easing COVID-19-related restrictions while the U.S. reports its worst-ever month of job losses.

Bites 

USPTO Launches Prioritized Examination Pilot for COVID-19 Patents – On Friday, May 8, the U.S. Patent and Trademark Office announced a pilot program initiative to grant requests for prioritized examination of patent applications related to COVID-19 treatments or prevention. The program will offer prioritized examination without extra fees for such status to qualifying small and micro entities. 

Copyright Office Issues Interim Rules on Registering Secure Tests Administered Online – On Friday, May 8, the U.S. Copyright Office published an interim rule in the Federal Register qualifying certain tests being administered online as eligible for registration as secure tests, addressing a disruption caused by the COVID-19 pandemic which has forced many tests to be administered remotely and not at specified testing centers. 

CAFC Denies a Pair of PTAB Appeals Seeking Remand Under Arthrex – On Wednesday, May 6, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision on motion in Caterpillar Paving Products v. Wirtgen America in which the appellate court denied Caterpillar’s motion to vacate a decision of the Patent Trial and Appeal Board (PTAB) under the Federal Circuit’s Arthrex decision. The Federal Circuit determined that Arthrex didn’t apply because the PTAB issued a final decision after Arthrex was decided. One day earlier on Tuesday, May 5, the Federal Circuit issued a denial of a motion to remand under Arthrex in Ciena Corporation v. Oyster Optics. There, the appellate court found that appellant Ciena had waived its Appointments Clause challenge because it was the petitioning party at the PTAB and thus it had affirmatively sought a PTAB ruling despite the appointment status of PTAB administrative patent judges (APJs).

Copyright Office Proposes to Make All Compulsory License Royalty Claims Electronic – On Wednesday, May 6, the U.S. Copyright Office published a proposed rule in the Federal Register which would amend the Code of Federal Regulations so that all claims to royalty fees collected under compulsory licenses would be filed electronically to the Copyright Royalty Board.

CAFC Finds PTAB Relied on Improper Legal Principles in Non-Obviousness Finding – On Tuesday, May 5, the Federal Circuit issued a precedential decision in Uber Technologies v. X One in which the appellate court reversed a nonobviousness determination by the PTAB after finding that the Board improperly analyzed whether a person of ordinary skill in the art would have been motivated to combine asserted prior art references.

Supreme Court Weighs Whether “BOOKING.COM” Should Have Trademark Protections – On Monday, May 4, the U.S. Supreme Court heard oral arguments in U.S. Patent and Trademark Office v. Booking.com, in which both sides debated whether the primary significance test or the Federal Circuit’s ruling in Goodyear Co. v. Goodyear Rubber Co. should guide the court’s analysis of whether “BOOKING.COM” is generic or is a registrable trademark.

USPTO Launches Platform for COVID-19 Patent Licensing – On Monday, May 4, the U.S. Patent and Trademark Office announced that it was launching a web-based IP marketplace platform called Patents 4 Partnerships which will provide a public searchable database of patents and patent applications related to the COVID-19 pandemic which are available for licensing to improve the pace of commercializing those technologies.

Sixth Circuit Remands Everly Brothers Copyright Case Back to Middle Tennessee – On Monday, May 4, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Everly v. Everly in which the appellate court reversed a grant of summary judgment in the Middle District of Tennessee after finding a genuine issue of material fact as to whether Don Everly expressly repudiated the authorship interest of his brother Phil Everly to the 1960 Everly Brothers hit “Cathy’s Clown.”

Barks 

Second Circuit Affirms Copyright Ruling in Favor of Jerry Seinfeld – On Thursday, May 7, the U.S. Court of Appeals for the Second Circuit issued a summary judgment in Charles v. Seinfeld in which the appellate court affirmed a ruling from the Southern District of New York dismissing a copyright case filed against comedian Jerry Seinfeld after finding that authorship claims to the television series “Comedians in Cars Getting Coffee” were time-barred. 

NY Appellate Division Affirms $120 Million Award Over Trademark Licensing Dispute – On Thursday, May 7, the Appellate Division of New York State’s Supreme Court, First Department, issued a judgment affirming a lower court’s ruling  awarding $120 million in damages for breach of fiduciary duty related to an intellectual property licensing dispute between members of the family who own and operate The Palm Restaurant locations. 

USPTO Enables Electronic Filing of Plant Patent Applications – On Wednesday, May 6, the USPTO announced that during the COVID-19 pandemic, the agency would temporarily permit the filing of plant patent applications through the USPTO’s electronic filing systems until further notice. 

Thomson Reuters Files Copyright Suit Over Westlaw Content Copying – On Wednesday, May 6, legal research firm Thomson Reuters filed a complaint in the District of Delaware accusing ROSS Intelligence of infringing its copyright by copying Westlaw content through the use of a Westlaw licensee for use on ROSS’ own legal research platform.

Peloton Discloses $49.3 Million in Litigation Expenses From Copyright Case – On Wednesday, May 6, streaming exercise provider Peloton filed a Form 10-Q with the U.S. Securities and Exchange Commission in which the company disclosed $49.3 million in litigation and settlement expenses during the first quarter of 2020, during which it settled a major copyright case with music publishers. 

TTAB Strikes Down Trademark Registration for Simulation of U.S. Flag – On Wednesday, May 6, the Trademark Trial and Appeal Board (TTAB) issued a precedential decision in In re Alabama Tourism Department in which the TTAB affirmed an examiner’s refusal to register a trademark because the U.S. Civil Rights Trail logo in the mark includes a simulation of the U.S. flag.

Southern Ohio Tosses Trademark Damages for Lack of Evidence of Consumer Confusion – On Tuesday, May 5, U.S. District Judge Algenon Marbley of the Southern District of Ohio vacated a $1 million compensatory damages award after finding that fitness equipment firm Max Rack presented no evidence of actual consumer confusion to support the damages award.

Copyright Office Makes AI Symposium Recordings Available Online – On Monday, May 4, the Copyright Office announced that it had made video recordings of its February 2020 symposium on artificial intelligence issues in copyright, which was co-sponsored by the World Intellectual Property Organization, available online through the Copyright Office’s website and its official YouTube channel.

This Week on Wall Street 

Stocks Show Some Bounce-back Despite Record Job Losses – On Friday, the U.S. Bureau of Labor Statistics reported national economic figures for April which showed that the country lost 20.5 million jobs during April while the unemployment rate rose to 14.7 percent. However, global stock indices including the S&P 500, Japan’s Nikkei and European markets were up by a percentage point or more owing to optimism that the COVID-19 pandemic may be weakening. 

Uber Leads Funding Round for Electric Scooter Rental Company – Recent news reports indicate that ride sharing firm Uber led a $170 million round of funding into electric scooter and bike rental company Lime, which will integrate with Uber’s own Jump bike and scooter division as part of the deal.

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: Foxconn Technology Co. Ltd. (t-247th); Shimadzu Corp. (t-251st); Weatherford International PLC (t-282nd)
• Tuesday: Daikin Industries Ltd. (221st); Honda Motor Co., Ltd. (43rd); Konica Minolta, Inc. (t-67th); NEC Corp. (49th); Toyota Motor Corp. (13th)
• Wednesday: Cisco Systems Inc. (40th); Semiconductor Manufacturing International Corp. (245th); Sony Corp. (18th); Tencent Holdings Ltd. (110th)
• Thursday: Fujitsu Ltd. (t-34th); Mazda Motor Corp. (t-212th)
• Friday: Sumitomo Chemical Co., Ltd. (t-186th); TDK Corp. (t-167th)

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