Other Barks & Bites for Friday, October 2: CBS Files Opposition Brief With SCOTUS, USPTO Issues ePCT Final Rule and Third Circuit Says No Disgorgement to FTC Over Sham Patent Suits

This week in Other Barks & Bites: the USPTO issues a final rule to facilitate its role as a receiving office for international patent applications in the ePCT system; the Third Circuit overturns a disgorgement award to the Federal Trade Commission (FTC) after ruling that Section 13(b) of the FTC Act provides no such remedy; the Ninth Circuit decides an issue of first impression, requiring the showing of likelihood of confusion to establish trademark counterfeit claims; Sonos files a new lawsuit in its growing patent skirmish with Google over wireless speaker technologies; CBS Corp. files an opposition brief at the Supreme Court arguing that Personal Audio has waived collateral estoppel and constitutional arguments related to PTAB proceedings; and Daren Tang officially assumes his duties as Director General of WIPO.

Bites

CAFC Reverses District Court’s JMOL, Reinstating Jury Verdict for GSK
On Friday, October 2, the U.S. Court of Appeals for the Federal Circuit held that a jury verdict finding GlaxoSmithKline’s patent for the congestive heart failure drug carvedilol infringed was supported by substantial evidence and should be reinstated. The ruling reversed the United States District Court for the District of Delaware’s grant of Teva’s motion for judgment of non-infringement as a matter of law and remanded the case to the district court for further proceedings.

Ninth Circuit Says No Trademark Counterfeit Claims Without Likelihood of Confusion – On Thursday, October 1, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Arcona, Inc. v. Farmacy Beauty, LLC in which the appellate court, interpreting its own precedent on 15 U.S.C. § 1114 and 15 U.S.C. § 1117 governing recovery for trademark counterfeiting claims, decided to join other circuits in requiring a showing of likelihood of confusion to establish a claim for trademark counterfeiting.

CBS Tells SCOTUS That Personal Audio Waived Collateral Estoppel, Constitutionality Arguments – On Thursday, October 1, CBS Corporation filed its brief in opposition to a petition for writ of certiorari filed by Personal Audio, arguing that the petitioner waived its challenges to underlying patent litigation in district court and the Patent Trial and Appeal Board (PTAB) based on arguments of collateral estoppel and violations of the Appointments Clause and the Seventh Amendment’s Reexamination Clause because those challenges weren’t properly raised in the lower proceedings. 

USPTO Issues Final Rule to Facilitate ePCT Filings – On Wednesday, September 30, the U.S. Patent and Trademark Office published a final rule in the Federal Register to amend provisions of the Code of Federal Regulations to facilitate the use of the ePCT online system operated by the World Intellectual Property Organization (WIPO) to prepare international patent applications for filing with the USPTO as a receiving office under the Patent Cooperation Treaty (PCT).

Third Circuit Overturns Disgorgement Award to FTC Over Sham Patent Lawsuits – On Wednesday, September 30, the U.S. Court of Appeals for the Third Circuit issued a decision in Federal Trade Commission v. AbbVie, Inc. in which the appellate court overturned the Eastern District of Pennsylvania’s decision to direct AbbVie and Besins Healthcare to pay $448 million to the FTC after the Third Circuit found that Section 13(b) of the Federal Trade Commission Act doesn’t provide a disgorgement remedy for the agency.

USPTO Issues Notices of Information Collection on Patent, Trademark Practices – On Tuesday, September 29, the USPTO published a series of notices in the Federal Register indicating that the agency was inviting comments related to information collections on several agency practices including initial review of patent applications, processing of patent applications, international design applications under the Hague Agreement, responses to office actions and submissions on trademark attorney representation. Then on Thursday, October 1, the USPTO published a notice of information collection in the Federal Register regarding fees for petitions filed in patent application and reexamination proceedings.

ITC Institutes Section 337 Investigation Against GE, Home Depot Over LED Lighting Patents – On Tuesday, September 29, the U.S. International Trade Commission published a notice of institution of a Section 337 investigation based on a complaint filed by the University of California asserting a series of five patents covering filament LED technology against General Electric, Home Depot and IKEA.

CAFC Reinstates Jury Verdict Finding Biogen’s MS Treatment Anticipated – On Monday, September 28, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Biogen MA, Inc. v. EMD Serono, Inc. in which the appellate court overturned the District of New Jersey’s grant of judgment as a matter of law, reinstating the jury verdict finding that Biogen’s patent claims were invalid for anticipation after the Federal Circuit found the district court was wrong to exclude a product-by-process analysis on a nested claim limitation.

CAFC Shoots Down Appeal Appeal of PTAB Obviousness, Sanctions Rulings for Voip-Pal – On Friday, September 25, the Federal Circuit issued a precedential decision in Apple, Inc. v. Voip-Pal.com, Inc. in which the appellate court affirmed a ruling from the Patent Trial and Appeal Board (PTAB) which found that 15 challenged claims owned by Voip-Pal were not invalid for obviousness and entered sanctions against Voip-Pal for improper ex parte communications.

Barks

Daren Tang Officially Begins Tenure as WIPO Director – On Thursday, September 1, Daren Tang, formerly the Chief Executive of the Intellectual Property Office of Singapore (IPOS), officially assumed his duties as Director General of the World Intellectual Property Organization (WIPO) beginning his six-year tenure as head of the UN agency dedicated to global intellectual property matters. 

Teva, Collegium Settle Patent Litigation Over Extended Release Pain Relief Medication – On Wednesday, September 30, Teva Pharmaceutical and Collegium Pharmaceutical announced that the two companies had entered into an agreement to settle patent infringement litigation related to Teva’s abbreviated new drug application (ANDA) filing with the U.S. Food and Drug Administration to market a generic version of Collegium’s Xtampza ER pain relief medication.

Copyright Office Publishes Informational Webpage on the DMCA – On Wednesday, September 30, the U.S. Copyright Office announced that it had launched an informational webpage related to the Digital Millennium Copyright Act (DMCA) which consolidates various sources of information about the DMCA including resources related to Section 512 safe harbor, Section 1201 anticircumvention and Section 1202 copyright information protection provisions.

Sonos Increases Patent Battle Against Google With New Western Texas Filing – On Tuesday, September 29, Sonos filed a complaint in the Western District of Texas asserting a series of five patents against Google, increasing the scope of the patent infringement battle being waged by those companies over wireless speaker technologies. The recent Western Texas suit alleges that the company’s marketing of Chromecast-enabled devices for controlling media playback infringes claims of the asserted patents.

Huawei Faces Western Texas Patent Suit Over Network Congestion Management Tech – On Tuesday, September 29, patent owner WSOU Investments, doing business as Brazos, filed a lawsuit in the Western District of Texas alleging claims of patent infringement against Chinese telecom giant Huawei over that firm’s use of fully managed switches for regulating network traffic flow.

ITC Declines Review of Decision to Let Google Intervene in Nokia Section 337 Case – On Tuesday, September 29, the ITC issued a notice of a commission determination to not review an initial determination by an ITC administrative law judge (ALJ) to grant a motion to intervene filed by Google, which had asserted its interest in the infringement and invalidity issues related to a Nokia patent asserted in a Section 337 investigation into certain computers and tablet computers imported into the U.S. for sale by Lenovo.

USPTO Issues RFI on Artificial Intelligence Technologies for Design Patent Image Searches – On Monday, September 28, the USPTO issued a request for information (RFI) seeking data relevant to market research on the maturity of artificial intelligence technologies, specifically as they relate to image searching for use during the prosecution of design patents.

Microsoft Faces Western Texas Patent Suit Over Minecraft Multiplayer Mode – On Friday, September 25, Worlds Inc. filed a lawsuit alleging claims of patent infringement in the Western District of Texas against Microsoft over the software giant’s operation of online multiplayer modes for its popular Minecraft game.

This Week on Wall Street

Google’s Pichai Announces $1B Investment in News Publisher Initiative – On Thursday, October 1, a post on Google’s official blog authored by CEO Sundar Pichai announced a $1 billion initiative to expand a feature known as News Showcase by partnering with news publications across the globe for the creation of news content to be displayed on Android and Google News.

Big Tech CEOs Subpoenaed by Senate Commerce Committee for Section 230 Hearing – On Thursday, October 1, the Senate Commerce Committee unanimously voted to authorize subpoenas directing the CEOs of Google, Facebook and Twitter to attend a committee hearing to discuss concerns related to Section 230 limited liability shields for online platforms under the Communications Decency Act.

Boeing Consolidates Dreamliner 787 Production Amid Pandemic Downturn – On Thursday, October 1, Boeing announced that it would be shuttering the company’s Dreamliner 787 production activities in Everett, WA, by mid-2021, consolidating production for that aircraft at the company’s manufacturing facilities in Charlestown, SC, in response to reduced aircraft production schedules during the COVID-19 pandemic.

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