Other Barks & Bites for Friday, September 25: Anonymous Precedential Decision Nominations at the PTAB, CAFC Rules on IPR Prior Art Estoppel in District Court and DOJ Issues Section 230 Proposals

This week in Other Barks & Bites: China’s IP administration releases draft provisions on the protection of geographical indications; Chief APJ Scott Boalick announces a new form for PTAB practitioners to anonymously nominate PTAB decisions for precedential status; Shira Perlmutter is announced as the 14th Register of Copyrights; the Federal Circuit finds that Hewlett-Packard’s IPR joinder doesn’t trigger Section 315(e)(2) prior art estoppel during civil actions in district court; the European Commission says it will appeal Apple’s favorable tax ruling by the European General Court in July; the U.S. Department of Justice issues proposed amendments to Section 230’s online platform liability shield; U.S. District Judge Alan Albright issues revised guidelines for Western Texas patent cases; and WIPO launches a free database offering access to judicial rulings on intellectual property law from countries around the globe.

Bites 

USPTO Announces That PTAB Precedential Decisions Can Be Anonymously Nominated – On Thursday, September 24, Bloomberg Law reported that Scott Boalick, Chief Judge of the Patent Trial and Appeal Board (PTAB), announced the introduction of a new form that allows PTAB practitioners to anonymously nominate a particular PTAB decision to be declared precedential, making it binding authority in other PTAB cases. 

CAFC Says IPR Joinder Doesn’t Trigger Section 315(e)(2) Prior Art Estoppel – On Thursday, September 24, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Network-1 Technologies, Inc. v. Hewlett-Packard Company in which the appellate court vacated-in-part a ruling from the Eastern District of Texas denying judgment as a matter of law (JMOL) to Network-1 on the jury verdict’s findings of no infringement and patent invalidity. Along with certain errors in claim construction, the Federal Circuit also determined that HP was not estopped under 35 U.S.C. § 315(e)(2) from raising a certain prior art reference which was not raised in an inter partes review (IPR) proceeding on the patent-in-issue to which HP was joined as a party.

CNIPA Issues Draft of Geographical Indication Protection Provisions – On Thursday, September 24, China’s National Intellectual Property Administration (CNIPA) issued draft provisions on the protection of geographical indications (GI) for identifying the regional origins of certain sourced goods. CNIPA released the draft provisions 10 days after China and the European Union entered into an agreement to protect certain GIs in the Chinese and EU marketplaces.

DOJ Releases Proposed Amendments to Section 230 Liability Shield for Online Platforms – On Wednesday, September 23, the U.S. Department of Justice issued proposed amendments to Section 230 of the Communications Decency Act. The amendments would increase liability for online platforms which arbitrarily censor free speech and would carve out federal civil enforcement actions from the Section 230 liability shield.

Sixth Circuit Says Training Manual’s Copyright Valid Despite Inclusion of Copyrighted Content – On Wednesday, September 23, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Hiller, LLC v. Success Group International Learning Alliance, LLC in which the appellate court affirmed the district court’s denial of JMOL over an intervening party’s argument that the copyright to the HVAC training manual at issue in this case was invalid because the training manual includes material that is itself copyrighted.

Fifth Circuit Affirms Summary Judgment Nixing Copyright Claims Against Macklemore & Ryan Lewis – On Tuesday, September 22, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Batiste v. Lewis in which the appellate court affirmed a lower court’s grant of summary judgment on copyright infringement claims filed by a jazz musician against the hip-hop duo Macklemore & Ryan Lewis. The Fifth Circuit found no error in the district court’s finding that Batiste’s theory that Macklemore and Lewis sampled his copyrighted works wasn’t supported by any factual evidence of copying.

Shira Perlmutter Appointed to Serve as Next Register of Copyrights – On Monday, September 21, the U.S. Patent and Trademark Office announced that Shira Perlmutter, currently the USPTO’s Chief Policy Officer and Director for International Affairs, has been selected by Librarian of Congress Carla Hayden to serve as the nation’s 14th Register of Copyrights at the U.S. Copyright Office.

Fifth Circuit Affirms Summary Judgment Nixing “Don’t Pay More” Trademark, Copyright Claims – On Thursday, September 17, the Fifth Circuit issued a decision in Off Lease Only, Inc. v. Lakeland Motors, LLC in which the appellate court affirmed a lower court’s grant of summary judgment finding that Off Lease Only did not raise a genuine issue of material fact over a rival used car dealership’s potential infringement of copyright or trademark stemming from the use of the phrase “Don’t Pay More” on billboard advertising.

Barks 

WIPO Launches Lex-Judgments Database for Free Access to Global IP Rulings – On Thursday, September 24, the World Intellectual Property Organization (WIPO) announced that it had established a database called WIPO Lex-Judgments which is designed to provide global free access to major judicial decisions on intellectual property law from around the world. At launch, the database had collected 400 decisions from a total of 10 countries.

PTAB Finds Spin Master’s Magnetic Rolling Toy Claims Invalid for Obviousness – On Wednesday, September 23, the PTAB issued a final written decision in an IPR proceeding petitioned by Choirock Contents Factory finding that Choirock had proven that patent claims owned by Canadian toy company Spin Master, covering magnetically-responsive rolling toys like those sold under the company’s Bakugan brand, were invalid for obviousness in light of the asserted prior art.

Zoom Faces Patent Suit Over Cloud Storage of Recorded Meetings – On Tuesday, September 22, Rothschild Broadcast Distribution Systems filed a lawsuit in the District of Colorado alleging claims of patent infringement by Zoom Video Communications over the video conferencing giant’s use of cloud storage systems for recorded media content, including systems for recording Zoom meetings or webinars and making those recordings available for viewing via the cloud.

Judge Albright Issues Revised Guidelines on Western Texas Patent Cases – On Tuesday, September 22, U.S. District Judge Alan D. Albright of the Western District of Texas issued revised guidelines regarding patent cases proceeding on his docket. The guidelines cover limitations to discovery, issues with protective orders, claim construction proceedings and other general issues.

Judge Benitez Issues $550K Attorney’s Fee Award in Water Ride Patent Case – On Tuesday, September 22, Senior U.S. District Judge Roger T. Benitez of the Southern District of California issued a ruling awarding $550,000 in attorney’s fees to Pacific Surf Designs to reimburse that firm for defending against an “exceptionally weak” patent lawsuit over Pacific Surf’s operation of a surf simulator water ride.

Philips Files Section 337 Complaint Against Dell, LG Electronics at ITC – On Monday, September 21, the U.S. International Trade Commission (ITC) announced that Koninklijke Philips filed a complaint alleging Section 337 violations caused by the importation of certain digital video-capable devices for sale by companies including Dell and LG Electronics in violation of Philips’ patent claims.

Copyright Suit Alleges Apple’s Emoji Palette Copies iDiversicon Emojis – On Friday, September 18, Cub Club Investment filed a copyright infringement suit in the Western District of Texas alleging that Apple’s use of an emoji palette, which renders many popular hand emojis in a variety of skin tones, infringes upon CCI’s iDiversicon diversity emojis.

Invent Together Campaign Announced to Increase Inventor Diversity – On Thursday, September 17, a group of nonprofits, universities, private companies and other invention economy stakeholders announced the launch of the Invent Together campaign which is aimed at increasing participation among women, ethnic minorities and other groups that are underrepresented among U.S. inventorship.

Boeing Trade Secret Case Appealed to Eleventh Circuit on Choice of Law Issue – On Thursday, September 17, Alabama Aircraft Industries filed an appellate brief with the U.S. Court of Appeals for the Eleventh Circuit asking the appellate court to find that the district court erred in applying an Alabama statute of limitations on trade secret claims against Boeing rather than the longer statute that applied under Missouri law.

This Week in Wall Street

EU Appeals $15 Billion Tax Ruling for Apple to the CJEU – On Friday, September 25, the European Commission announced that it would be appealing a July ruling of the European General Court, which found that American consumer tech giant Apple hadn’t taken unfair advantage of Irish tax laws, to the Court of Justice of the European Union (CJEU) asking the EU’s highest court to rule that Apple owes $15 billion in unpaid taxes.

Nike Shares Improve 8% After Posting First Quarter Net Income Beat – On Tuesday, September 22, shares of Nike stock were up about 8 percent in after hours trading after the company posted net incomes of $1.52 billion, well above analyst estimates of $1.37 billion, thanks in large part to increased online sales for the shoemaker.

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

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