Other Barks & Bites for Friday, October 9: SCOTUS Discusses Industry Effects of Oracle v. Google, USPTO Issues AI Report and CRISPR Inventors Win Nobel Prize in Chemistry

This week in Other Barks & Bites: the Federal Circuit remands a “frustrating” patent case proceeding on an “impermissible theory of liability;” the Supreme Court questions counsel on the industry effects of copyright protections for software interfaces during oral arguments in Oracle v. Google; CRISPR gene editing inventors Jennifer Doudna and Emmanuelle Charpentier awarded Nobel Prize; IBM announces that it will separate its managed infrastructure services unit to focus on its hybrid cloud business; Minerva Surgicial files a petition for writ asking the Supreme Court to overturn the Federal Circuit’s application of assignor estoppel in patent cases; and Regeneron seeks emergency approval for its COVID-19 therapy but also faces patent infringement charges over its use of a reagent used in vaccine testing assays.

Bites

CAFC Remands “Frustrating” Case With “Impermissible Theory” of Infringement – On Wednesday, October 7, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in AntennaSys, Inc. v. AQYR Technologies, Inc., remanding a case to the District of New Hampshire in which the plaintiff’s sole federal count of patent infringement is “likely… predicated on an impermissible theory of liability.” The appellate court directed the district court to develop a more complete record for resolving threshold issues on claim construction and infringement.

CRISPR Inventors Awarded Nobel Prize for Chemistry – Biologist Jennifer Doudna of the University of California, Berkeley and microbiologist Emmanuelle Charpentier from Umeå University in Sweden and the Max Planck Institute for Infection Biology in Berlin were awarded the Nobel Prize in Chemistry on Wednesday, October 7, for their groundbreaking work on the CRISPR (“clusters regularly interspaced palindromic repeats”) gene editing technology, which has been the subject of a heated patent debate over simultaneous inventorship.

SCOTUS Mulls Industry Effects of Copyrightable Software Interface in Oracle v. Google – On Wednesday, October 7, the U.S. Supreme Court heard oral arguments in Oracle v. Google, which asks the nation’s highest court to decide issues related to copyright protections for Oracle’s software interface used by Google in its Android mobile OS. Coverage of the arguments published on IPWatchdog indicates that the Supreme Court will likely affirm a ruling that Oracle’s software interface is protectable by copyright.

Copyright Office to Host Modernization Webinar on New Deposit Copy Warehouse – On Wednesday, October 7, the U.S. Copyright Office announced that it would host the agency’s tenth modernization webinar on October 28. This webinar will focus on the planning and development of a 40,000 square foot warehouse that will open this month and will store 90,000 boxes worth of deposit copy material currently hosted at the Office’s facility in Landover, MD.

USPTO Report Finds “Human Beings Remain Integral” to Tech Developed by AI – On Tuesday, October 6, the U.S. Patent and Trademark Office issued a report on public comments received by the agency regarding the impact of artificial intelligence (AI) technologies on the intellectual property law landscape. Among the report’s general takeaways is the USPTO’s observation that “human beings remain integral to the operation of AI” as an important consideration for evaluating IP law under the current state of AI technology.

SCOTUS Denies Cert to “Stairway to Heaven” Copyright Case – On Monday, October 5, the Supreme Court issued an order list indicating that the Court had denied a petition for writ of certiorari to take up Skidmore v. Led Zeppelin on appeal, leaving in place the U.S. Court of Appeals for the Ninth Circuit’s ruling that nixed copyright claims over the band’s iconic song “Stairway to Heaven.” The Court did, however, grant motions for leave to file amicus briefs in the case by The Pullman Group, LLC and the California Society of Entertainment Lawyers.

Barks

Second Circuit Affirms Civil Contempt Order for Use of Infringing Trademarks – On Wednesday, October 7, the U.S. Court of Appeals for the Second Circuit issued a summary order in Waterkeeper Alliance, Inc. v. Salt in which the appellate court affirmed a civil contempt order issued in October 2017 after Salt violated a default judgment by using Waterkeeper trademarks after Salt’s license and membership with Waterkeeper was revoked.

European Publishing Group Sends Letter to Apple Over App Store Terms of Service – On Wednesday, October 7, the Alliance de la Presse d’Information Générale, a conglomeration representing European publishing groups, sent a letter addressed to Apple CEO Tim Cook voicing concerns over the anticompetitive nature of the company’s 30% commission on App Store sales and its impact on content publishers.

Amazon Faces Western Texas Patent Suit Over Prime Video VOD Platform – On Tuesday, October 6, Broadband iTV filed a lawsuit in the Western District of Texas asserting claims from six patents which it argues are infringed by Amazon through the e-commerce giant’s use of video-on-demand (VOD) technologies in the Prime Video streaming media platform available via set top box and mobile app technologies.

USPTO Highlights American Inventors for “Made in America Week” – On Tuesday, October 6, the USPTO announced that it would be using the agency’s social media channels, including Facebook, Instagram, LinkedIn and Twitter, throughout October to highlight American inventors who have developed innovations increasing quality of life globally to celebrate “Made in America Week,” which was recently designated by the Trump Administration for the week of October 4.

Judge Morgan Ruling on Cisco’s Willful Infringement Could Increase Damages to $3.2 Billion – On Monday, October 5, U.S. District Judge Henry Coke Morgan, Jr. of the Eastern District of Virginia issued a ruling enhancing a jury verdict against Cisco to $1.9 billion for the company’s willful infringement of cybersecurity technology developed by Centripetal Networks. Judge Morgan also awarded a running royalty which could increase the total award to $3.25 billion, according to a press release from Centripetal.

Second Circuit Affirms Dismissal of Copyright Claims Over Children of Blood And Bone – On Monday, October 5, the Second Circuit issued a summary order in Amanze v. Adeyemi affirming a lower court’s dismissal of a copyright complaint after finding that the plaintiff’s self-published book had no substantial similarities with the 2018 bestseller Children of Blood and Bone and that any apparent similarities are unprotectable scenes a faire.

Regeneron, Pfizer Face Patent Suits Over Reagent Used for Vaccine Testing – On Monday, October 5, Allele Biotechnology and Pharmaceuticals filed lawsuits in separate U.S. district courts alleging claims of patent infringement against Pfizer and Regeneron over either firm’s use of a fluorescent protein reagent patented by Allele and useful in assays for testing vaccine candidates. Both companies have allegedly used the technology while developing vaccine candidates for COVID-19.

This Week on Wall Street 

IBM Spinning Off Managed Infrastructures Unit to Focus on Hybrid Cloud – On Thursday, October 8, IBM announced that it will separate the company’s managed infrastructure services unit of its global technology services division into a new public company, allowing IBM to focus more on Red Hat and the rest of the tech giant’s hybrid cloud business.

Regeneron Seeks Emergency Authorization for COVID-19 Therapeutic – On Wednesday, October 7, Regeneron announced that the company is petitioning the U.S. Food and Drug Administration for an emergency use authorization covering an investigational antibody combination known as REGN-COV2 which, under an agreement with the U.S. government, would allow the pharmaceutical firm to deliver an estimated 300,000 doses of treatment for COVID-19 patients within a few months at no cost to the American people.

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: Johnson & Johnson (26th)
• Wednesday: ASML Holding NV (152nd); Bank of America Corp. (114th); Wells Fargo & Co. (t-274th)
• Thursday: Honeywell International, Inc. (35th); Intuitive Surgical, Inc. (245th); Taiwan Semiconductor Manufacturing Co. (18th)
• Friday: Schlumberger NV (51st)

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