Other Barks & Bites for Friday, August 14: Arthrex Files Reply at Supreme Court, Skidmore Appeals to SCOTUS in “Stairway to Heaven” Case, and Texas Jury Awards $506 Million Verdict Against Apple

This week in Other Barks & Bites: Arthrex files a reply in its Supreme Court case regarding the constitutionality of PTAB appointments, while another SCOTUS petition was filed to appeal the Ninth Circuit’s ruling in the “Stairway to Heaven” copyright case; the Federal Circuit affirms an examiner’s obviousness rejection of monotype printing patent claims and also upholds sanctions against a pair of doctors for procedural issues stemming from more than 300 patent complaints filed in district court; the D.C. Circuit remands part of a royalty rate setting proceeding on streaming music distribution to the Copyright Royalty Board; a jury verdict in Eastern Texas awards $506 million to PanOptis for Apple’s willful infringement of patent claims; the TTAB sustains an opposition against “gruyere” for genericness; and the Federal Reserve announces that it has undertaken several initiatives related to central bank digital currencies.

Bites

CAFC Affirms Sanctions Entered Against Overly Litigious Doctors – On Thursday, August 13, the U.S. Court of Appeals for the Federal Circuit issued a decision in Khan v. Hemosphere Inc. in which the appellate court upheld sanctions of more than $95,000 entered by the Northern District of Illinois against Drs. Nazir Khan and Iftikhar Khan as a result of a long series of procedural issues stemming from more than 300 patent infringement complaints they filed as plaintiffs.

Ninth Circuit Affirms Trio of FCC Orders on Wireless, Wireline Broadband Deployment – On Wednesday, August 12, the U.S. Court of Appeals for the Ninth Circuit issued a decision in City of Portland v. United States in which the appellate court upheld the majority of a trio of Federal Communication Commission (FCC) orders entered in 2018, finding that the FCC reasonably interpreted its authority under the Telecommunications Act of 1996 to issue the orders for accelerating wireless and wireline broadband infrastructure.

CAFC Affirms Examiner’s Obviousness Rejection of Monotype Printing Patent Claims – On Tuesday, August 11, the Federal Circuit issued a decision in In re: Kross which affirmed the rejection of patent claims covering non-gelatin viscoelastic printing plates and their use in monotype printing, dismissing the patent applicant’s arguments that the PTAB erred on its determination that there was a motivation to combine prior art references as well as its use of what Kross argued was an impermissible “obvious to try” reasoning.

Arthrex Files Reply in SCOTUS Appeal on Severance Remedy – On Tuesday, August 11, Arthrex filed a reply in one of its cases currently before the U.S. Supreme Court to appeal the Federal Circuit’s decision regarding the constitutionality of administrative patent judge (APJ) appointments at the Patent Trial and Appeal Board (PTAB).

Ninth Circuit Overturns Problematic Judge Koh Antitrust Ruling Against Qualcomm – On Tuesday, August 11, the Ninth Circuit issued a decision in Federal Trade Commission v. Qualcomm in which the appellate court vacated a ruling by U.S. District Judge Lucy Koh after finding that Judge Koh erred in applying the Aspen Skiing test to determine that Qualcomm owed an antitrust duty to license chip technologies to its competitors and enter an injunction severely impacting Qualcomm’s global licensing business.

Tenth Circuit Affirms Summary Judgment Dismissal of LifePlanner Copyright, Trade Dress Claims – On Tuesday, August 11, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Craft Smith, LLC v. EC Design, LLC affirming a ruling on summary judgment issued by the District of Utah dismissing copyright and trade dress claims filed by EC Design over infringement of its LifePlanner personal organizer. In affirming dismissal of the copyright claims, the Tenth Circuit disagreed with the lower court’s framing of the issue but found that no reasonable jury could find substantial similarity between asserted elements of the LifePlanner product and Craft Smith’s allegedly infringing organizer.

D.C. Circuit Vacates Part of CRB Royalty Rate Setting Decision for Streaming Music – On Friday, August 7, the U.S. Court of Appeals for the D.C. Circuit issued a decision in Johnson v. Copyright Royalty Board in which the appellate court vacated portions of a Copyright Royalty Board (CRB) rate setting decision for streaming music royalties after determining that the CRB erred in failing to provide adequate notice of the rate structure it adopted as well as failing to explain its rejection of a past settlement agreement as a benchmark for royalty rates going forward.

Petition Filed in “Stairway to Heaven” Copyright Case – On Thursday, August 6, Michael Skidmore, trustee for the estate of the late Spirit guitarist Randy “California” (Wolfe), filed a petition for writ of certiorari with the U.S. Supreme Court seeking the nation’s highest court to take up the estate’s copyright case against Led Zeppelin from the Ninth Circuit. The petition asks the Court whether the Ninth Circuit erred in determining that copyright protections under the Copyright Act of 1909 are limited to sheet music deposits and not to songs as created and fixed in a tangible medium.

Barks 

Sonos Files Motion to Dismiss Three of Five Patent Infringement Claims by Google – On Wednesday, August 12, Sonos filed a motion to dismiss in the Northern District of California asking the court to set aside three of five patent infringement claims asserted by Google for either invalidity of the patent claims or insufficient allegations of infringement.

Counterclaim Against Penn State Dismissed From Trademark Case – On Wednesday, August 12, U.S. District Judge Yvette Kane of the Middle District of Pennsylvania issued a ruling dismissing a tortious interference counterclaim filed by Keystone Alternatives, an RV sales firm and owner of a GoPSUrv.com domain name at the center of a trademark infringement case filed by Penn State University.

Eastern Texas Jury Awards $506 Million in Patent Case Against Apple – On Tuesday, August 11, a jury verdict entered in the Eastern District of Texas awarded $506 million in patent infringement damages to PanOptis after determining that Apple had willfully infringed a series of five patents that cover wireless communication technologies that are essential to the 4G LTE wireless standard.

Facebook Hit With Trademark Complaint Over New “Reels” Feature on Instagram – On Tuesday, August 11, Hubbard Media Group and ReelzChannel filed a trademark infringement complaint in the District of Minnesota against Facebook subsidiary Instagram over that company’s recent introduction of a “Reels” short video service, which allegedly infringes on the plaintiff’s trademark rights to its Reelz cable TV network.

Dozens of Respondents Named in Section 337 ITC Investigation Filed by Juul – On Monday, August 10, the U.S. International Trade Commission issued a notice of institution of a Section 337 proceeding based on a complaint by Juul Labs alleging infringement of four design patents covering vaporizer cartridges and components thereof. The notice lists 49 companies, including e-cigarette and vaporizer companies across the U.S. and China, as respondents in the investigation.

Judge Brodie Dismisses Contract Claims Against Google as Preempted by Copyright Law – On Monday, August 10, U.S. District Judge Margo K. Brodie of the Eastern District of New York dismissed a lawsuit including various contractual and unfair competition claims by song lyric website operator Genius, finding that its claims against Google’s copying of lyrics are preempted by U.S. copyright law.

Moderna “Cannot Be Certain” That it Holds Patent Rights to Coronavirus Vaccine – On Thursday, August 6, Moderna filed a Form 10-Q with the U.S. Securities and Exchange Commission which disclosed that the company “cannot be certain” that it was the first party to file patent applications covering mRNA-1273, a vaccine which is currently in clinical trials for its potential use in preventing transmission of SARS-CoV-2, the coronavirus causing the COVID-19 pandemic.

TTAB Sustains Opposition to “Gruyere” Mark for Genericness – On Wednesday, August 5, the Trademark Trial and Appeal Board (TTAB) issued a precedential decision sustaining an opposition to a trademark registration for “Gruyere” after determining that the designation was understood by both purchasers and consumers to refer to cheese that can be made anywhere.

This Week in Wall Street

Federal Reserve Announces Efforts on Developing Digital Currency – On Thursday, August 13, the Board of Governors of the Federal Reserve System announced that it has undertaken a series of initiatives mainly headed by the Board’s Technology Lab which are designed to enhance the Board’s understanding of risks and opportunities associated with central bank digital currencies. 

Cisco Shares Drop After Disappointing Guidance in Most Recent Quarterly Report – On Wednesday, August 12, shares of Cisco stock dropped by about 6 percent in extended trading after the company issued its fourth quarter earnings report, the third straight quarter in which the company reported a year-over-year drop in revenues. The company also issued guidance showing that it would face heavy competition in the enterprise and commercial computer hardware sector due to expanding cloud offerings from companies like Amazon, Microsoft and Google.

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: HTC Corp. (t-283rd)
• Tuesday: None
• Wednesday: Analog Devices, Inc. (178th); NVIDIA Corp. (t-261st); Synopsys Inc. (t-283rd)
• Thursday: None
• Friday: Deere & Co. (118th)

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