Other Barks & Bites for Friday, June 26: SCOTUS Denies Cert to PTAB Challenges, CAFC Issues Three New Precedential Patent Decisions, and Ninth Circuit Revives The Shape of Water Copyright Case

This week in Other Barks & Bites: the House of Representatives approves a bill by voice vote which would enable the sale of acceleration certificates for patent applications in the Patents for Humanity Program; the Supreme Court denies cert to a trio of petitions challenging the Patent Trial and Appeal Board as unconstitutional under the Fifth Amendment’s Takings Clause; the Copyright Office begins accepting petitions for temporary exemptions to Section 1201 of the DMCA; the CAFC issues three new precedential decisions; the Ninth Circuit reverses the dismissal of copyright claims over The Shape of Water and also reverses a lower court for an erroneous jury instruction modeled after the Ninth Circuit’s own model instructions on functionality in trademark law; Gilead’s remdesivir is endorsed as the first antiviral treatment for use against COVID-19 in Europe; and the USPTO requests comments from past participants in its GIPA Training Programs.

Bites

Supreme Court Denies Cert to Cases Challenging PTAB Constitutionality – On Monday, June 22, the U.S. Supreme Court issued an order list denying certiorari to three cases which had challenged the patent validity trials conducted at the PTAB as an unconstitutional government taking under the Fifth Amendment’s Takings Clause: Celgene Corp. v. Peter, Enzo Life Sciences v. Becton, Dickinson & Co., and Collabo Innovations v. Sony Corp.

House Passes Bill Making Acceleration Certificates for Fast-Track Patents Transferable – On Thursday, June 25, the U.S. House of Representatives passed H.R. 7259, the Patents for Humanity Program Improvement Act, by a voice vote. The bill would allow patent applicants who have obtained acceleration certificates for fast-track patent examination under the Patents for Humanity Program to transfer those certificates through sale.

Ninth Circuit Reverses Central California for Erroneous Jury Instruction – On Thursday, June 25, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Blumenthal Distributing v. Herman Miller, Inc. in which the appellate court reversed-in-part a ruling from the Central District of California which had dismissed trademark claims filed by Herman Miller due to functionality. The Ninth Circuit found that the jury instruction on functionality, which followed the Ninth Circuit’s model civil jury instructions, misstated the law on functionality and therefore was erroneous. 

USPTO is Still Seeking Nominations for PPAC, TPAC Members – On June 26, the USPTO issued a press release about its request for nominations in the Federal Register seeking nominations for up to three members to sit on either the Patent Public Advisory Committee (PPAC) or the Trademark Public Advisory Committee (TPAC), each serving a term of three years, to begin this December.

CAFC Affirms PTAB Win for Stride Rite in Illuminated Footwear Case – On Thursday, June 25, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Shoes by Firebug v. Stride Rite Children’s Group, affirming a decision by the Patent Trial and Appeal Board invalidating Firebug patent claims covering illumination systems for footwear as obvious.

CAFC Finds No Error in PTAB Nonobviousness Finding for Nike – On Thursday, June 25, the Federal Circuit issued a precedential decision in Adidas v. Nike in which the appellate court, while it affirmed Adidas’ Article III standing to bring its appeal from the PTAB, found that the PTAB didn’t err in upholding the validity of patent claims covering a method of forming a cylindrical textile structure in the upper of an article of footwear.

Federal Circuit Affirms PTAB Finding of Obviousness – On Friday, June 26, the Federal Circuit affirmed a decision of the Patent Trial and Appeal Board finding certain claims of B/E’s aircraft lavatory-related patents obvious.

Copyright Office Begins Petition Process for Section 1201 Temporary Exemptions – On Monday, June 22, the U.S. Copyright Office published a request for petitions in the Federal Register, officially beginning the eighth triennial rulemaking process for establishing temporary exemptions to prohibitions against the circumvention of technological protection measures (TPMs) under Section 1201 of the Digital Millennium Copyright Act (DMCA).

Copyright Office Creates New Group Registration for Short Online Literary Works – On Monday, June 22, the Copyright Office published a final rule in the Federal Register establishing a new group registration option allowing authors to submit up to 50 short online literary works published online within a three-month period, accommodating works distributed online by writers which wouldn’t qualify as contributions to periodicals.

Ninth Circuit Revives The Shape of Water Copyright Case – On Monday, June 22, the Ninth Circuit issued a decision in Zindel v. Fox Searchlight Pictures in which the appellate court reversed the district court’s dismissal of a copyright case filed against the producers of the 2017 motion picture The Shape of Water. The Ninth Circuit found that the district court erred in ruling that the 1969 play Let Me Hear You Whisper was not substantially similar to the 2017 film as a matter of law at the pleadings stage.

Barks

CRB Requires Electronic Filings for Compulsory License Royalty Claims – On Wednesday, June 24, the Copyright Royalty Board (CRB) published a final rule in the Federal Register requiring that all claims to royalty fees collected under compulsory licenses be filed through the CRB’s electronic filing system, eliminating paper filings after diminishing numbers of such filings during recent claims filing periods.

Copyright Office Extends Deadlines for State Sovereign Immunity Study – On Wednesday, June 24, the Copyright Office published a notice in the Federal Register announcing that the agency was extending the deadline for the submission of written comments to the agency’s state sovereign immunity study to September 2. The policy study seeks information on state sovereign immunity from copyright infringement suits, the degree to which copyright owners face infringement by state actors and remedies available under state law. 

Arthur Conan Doyle Estate Files Copyright, Trademark Suit Over Enola Holmes Series – On Tuesday, June 23, the estate of author Sir Arthur Conan Doyle filed a lawsuit in the District of New Mexico alleging trademark and copyright claims against Nancy Springer, author of an Enola Holmes series adapted into a motion picture by Netflix, over the use of copyright protected elements of Doyle’s stories involving the famed detective Sherlock Holmes.

Copyright Office Updates Online Edition of Title 17 of U.S. Code – On Tuesday, June 23, the Copyright Office released an updated version of Circular 92, which contains the entire text of Title 17 of U.S. Code covering all of U.S. copyright law, including all amendments enacted by Congress through March 27, 2020, including the Music Modernization Act and the Coronavirus Aid, Relief, and Economic Security Act.

Trax Records Faces Copyright Suit Over Unpaid House Music Royalties – On Tuesday, June 23, Larry Heard, a disc jockey performing under the name of Mr Fingers, and Richard Owens filed a lawsuit in the Northern District of Illinois alleging copyright infringement claims against Trax Records for its failure to pay royalties under business agreements between the publisher and musicians performing the electronic genre known as house music.

USPTO Issues Request for Comment on GIPA Training Programs – On Monday, June 22, the U.S. Patent and Trademark Office published a request for comment in the Federal Register seeking to obtain feedback from participants regarding the effectiveness of training programs offered by the USPTO’s Global Intellectual Property Academy (GIPA).

Amazon Faces Patent Suit Over Echo, Fire Products – On Monday, June 22, Flexiworld Technologies filed a lawsuit in the Western District of Texas alleging that various devices sold by Amazon, including its Echo Buds, Echo Show, Fire tablets and Fire TV devices, infringe patent claims owned by Flexiworld Technologies and covering wireless applications and embedded solutions for short-range wireless and mobile devices.

Ninth Circuit Affirms Dismissal of Copyright Case for Lack of Personal Jurisdiction – On Friday, June 19, the Ninth Circuit issued a decision in Werner v. Dowlatsingh in which the appellate court affirmed the Central District of California’s dismissal of a copyright case for lack of personal jurisdiction and found no abuse of discretion in denying a motion to transfer venue. The Ninth Circuit found that the suit-related conduct of displaying copyright-protected photos on YouTube videos uploaded from Toronto didn’t create a substantial connection with California and that the defendant’s only relevant connection to the venue proposed for transfer was being served with the complaint there.

This Week on Wall Street

EMA Endorses Gilead’s Remdesivir as First COVID-19 Treatment in Europe – On Thursday, June 25, the European Medicines Agency (EMA) officially endorsed Gilead Sciences’ antiviral agent remdesivir to be prescribed to COVID-19 patients suffering from pneumonia and requiring oxygen support once the European Commission formally approves the drug next week.

Local Authority in UK Approves £1B Chip Factory for Huawei – On Thursday, June 25, a board of district councillors in South Cambridgeshire, UK, approved a proposal by Chinese telecom giant Huawei to build a £1 billion ($1.24 billion USD) factory for chip research and manufacturing, prompting calls regarding national security from the U.S. State Department.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2019 are announcing quarterly earnings next week (2019 rank in parentheses):

• Monday: Micron Technology (37th)
• Tuesday: None
• Wednesday: None
• Thursday: None
• Friday: None

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