Other Barks & Bites for Friday, October 16: Federal Circuit Makes Claim Construction Rulings, Copyright Office Issues Section 1201 Proposed Rulemaking, China’s Legislature Discusses Enhanced Patent Protections

This week in Other Barks & Bites: the Copyright Office issues a notice of proposed rulemaking on 17 proposed classes of use to be included in the eighth triennial round of exemptions to Section 1201 of the DMCA; the Federal Circuit partially reverses a Patent Trial and Appeal Board (PTAB) decision for erroneous claim construction and affirms a district court decision to abstain from a patent case due to a related state court proceeding; China’s national legislature considers long-term enforcement mechanisms for patent rights in a draft amendment to the country’s patent law; the District Court of the Hague finds AstraZeneca liable for extra costs incurred by health insurance providers over the wrongful enforcement of invalid patents; Canada’s Federal Court of Appeals says that Waldorf-Astoria mark for “hotel services” isn’t invalid for lack of a brick-and-mortar hotel in the country; and Boeing shares pop after positive signs from a key EU aviation regulatory director about the 737 MAX returning to European airspace by the end of 2020. 

Bites

CAFC Partially Reverses PTAB Anticipation Findings Over Erroneous Claim Construction – On Thursday, October 15, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in St. Jude Medical, LLC v. Snyders Heart Valve LLC in which the appellate court affirmed one decision by the Patent Trial and Appeal Board (PTAB) finding no invalidity of the challenged Snyders’ patent claims covering artificial heart valves. The Federal Circuit also partially reversed a related PTAB decision after determining that the Board’s erroneous construction of the claim term “sized and shaped” led to an improper finding that some of Snyders’ patent claims were anticipated.

Ninth Circuit Reverses SJ Ruling, Finding a Triable Issue of Fact on Alleged Trade Secrets – On Thursday, October 15, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in InteliClear LLC v. ETC Global Holdings Inc. in which the appellate court reversed a district court’s grant of summary judgment to ETC dismissing InteliClear’s trade secret claims for not identifying its trade secrets with sufficient particularity. In overturning the ruling, the Ninth Circuit found that InteliClear had raised a triable issue of fact regarding trade secrets incorporated into its securities tracking database, and that the district court abused its discretion by granting a motion for summary judgment filed just one day after discovery opened in the case.

Copyright Office Issues NPRM for Eighth Triennial Section 1201 Exemption Rulemaking – On Thursday, October 15, the U.S. Copyright Office published a notice of proposed rulemaking in the Federal Register regarding the agency’s eighth triennial rulemaking proceeding for certain use exemptions to the prohibition against circumventing technological protection measures for protecting copyrighted material in Section 1201 of the Digital Millennium Copyright Act (DMCA). The agency’s NPRM indicates that it is considering readoption of all existing Section 1201 exemptions as well as an additional seventeen proposed classes of exemptions.

CAFC Finds No Abuse of Discretion in District Court Abstention From Patent Case – On Wednesday, October 14, the Federal Circuit issued a precedential decision in Warsaw Orthopedic, Inc. v. Sasso in which the appellate court affirmed the Northern District of Indiana’s decision to dismiss a declaratory judgment action filed by Warsaw under the federal court abstention doctrine. The Federal Circuit found that the district court acted within its discretion in abstaining due to an Indiana state court action involving contract claims brought by Sasso against Warsaw for payment for patent rights.

China’s Legislature Mulls Long-Term Patent Enforcement Mechanism in Draft Amendment – On Wednesday, October 14, China’s National People’s Congress (NPC) held several deliberative panel discussions on a draft amendment to the country’s patent law submitted to the NPC the prior day. Chinese state-owned media reports of the deliberations indicate that Chinese officials are considering long-term enforcement mechanisms to combat patent infringement and other measures meant to address concerns by patent owners about high litigation costs and low infringement damages.

CAFC Affirms PTAB Invalidation Despite Appeal on Claim Construction – On Tuesday, October 13, the Federal Circuit issued a precedential decision in Immunex Corporation v. Sanofi-Aventis U.S. LLC in which the appellate court upheld decisions by the PTAB to invalidate Immunex patent claims covering antibodies for treating inflammatory disorders. The Federal Circuit dismissed Immunex arguments that the appellate court should apply the Phillips’ “broadest reasonable interpretation” standard in construing claim terms because Immunex’s patent term expired after the PTAB’s decision when the company filed a terminal disclaimer with the U.S. Patent and Trademark Office.

Canada’s Federal Court of Appeal Says Method of Distribution for “Hotel Services” Has Changed – On Friday, October 9, Canada’s Federal Court of Appeal entered a ruling in Miller Thompson LLP v. Hilton Worldwide Holding LLP which found that the trademark “WALDORF-ASTORIA” for “hotel services” was not invalid for lack of a brick-and-mortar hotel in Canada because evidence showed that the trademark was used in website, email and booking services accessed by Canadians in booking reservations at Waldorf-Astoria hotels outside of Canada.

Third Circuit Says Pocky Cookie Design is Functional, No Trade Dress Protection – On Thursday, October 8, the U.S. Court of Appeals for the Third Circuit entered a ruling in Kaisha v. Lotte International America Corp. in which the appellate court affirmed a district court’s ruling on summary judgment that the design of Pocky cookies sold by a Japanese confectionary company does not have a protectable trade dress because of the design’s functionality increasing the usefulness of the cookie as a snack.

Barks 

NordicTrack Bike Makers File Latest Salvo in Patent Battle With Peloton – On Thursday, October 15, Icon Health & Fitness, a fitness equipment manager known for making NordicTrack bikes, filed a patent lawsuit in the District of Delaware against Peloton accusing that firm of infringing patent claims covering a swiveling touchscreen and automatic resistance level changes. The suit follows months after a Peloton complaint filed in May against Icon alleging infringement of patent claims covering technologies for making prerecorded exercise classes appear to be live.

AstraZeneca Loses Case in Hague District Court Involving Novel Wrongful Enforcement Claim – On Wednesday, October 14, the District Court of the Hague issued a ruling finding multinational pharmaceutical firm AstraZeneca liable for extra costs incurred by health insurance providers for what the court found was the wrongful enforcement of patent claims covering AstraZeneca’s antipsychotic drug Seroquel which prevented generic competition after the patent claims were invalidated.

ITC Institutes Section 337 Investigation Into Samsung, LG and TCL Smart TVs – On Wednesday, October 14, the U.S. International Trade Commission announced that it had instituted a Section 337 investigation into certain video processing devices, components thereof and digital smart televisions containing the same. The investigation follows an ITC complaint alleging patent infringement filed by DivX and names as respondents Samsung Electronics, LG Electronics and TCL Corporation.

WIPO’s First Creative Economy Note Discusses Most Used Franchise Fictional Characters – On Wednesday, October 14, the World Intellectual Property Organization (WIPO) launched a Creative Economy Notes series to provide empirical analysis on topics important to the creative economy. The first note on copyright and trademark frameworks related to franchising characters in movies and video games found that Batman, Dracula and Spiderman are the top three most-used franchise characters for the past 40 years.

Western Texas Jury Says Roku Didn’t Infringe Mobile Streaming Technology – On Wednesday, October 14, a jury verdict entered in the Western District of Texas found that TV streaming firm Roku did not infringe patent claims asserted by MV3 Partners, which had alleged that Roku’s screen mirroring feature allowing users to replicate a mobile screen on a TV display infringed upon its claims.

TD Bank Sues Plaid for Trademark Infringement, False Advertising – On Wednesday, October 14, financial institution TD Bank announced that it had filed a lawsuit in the District of New Jersey alleging claims of trademark infringement and false advertising against data aggregator Plaid for that fintech firm’s creation of a user interface on its software applications that misleads consumers into thinking that they are storing personal financial information with TD Bank instead of Plaid’s servers.

Dell Faces Western Texas Patent Suit Over Laptop Power Saving Feature – On Monday, October 12, Liberty Patents, LLC filed a lawsuit in the Western District of Texas against Dell Technologies accusing the computer company of infringing patent claims covering power distribution and management technologies through power-saving functions like PowerShare incorporated into Dell laptops.

Teledoc Files Delaware Patent Suit Over Remote Health Care Technologies – On Monday, October 12, telemedicine firm Teledoc filed a lawsuit in the District of Delaware alleging claims of patent infringement against rival firm Amwell over its use of telemedicine cart, multi-lens digital scope and digital stethoscope technologies used for the remote health care of patients.

This Week on Wall Street

Boeing Shares Up After Positive Signs From EU Aviation Regulators – On Friday, October 16, shares of Boeing stock were up about 5.6 percent in premarket trading after publicly reported comments from Patrick Ky, Executive Director of the European Union Aviation Safety Agency, indicated that safety upgrades made to Boeing’s 737 MAX aircraft could allow it to begin flying in European airspace by the end of 2020.

Zoom Video Shares Jump to Record High After Positive Zoomtopia Event – On Thursday, October 15, shares of Zoom Video Communications stock rose as high as $536.85 per share, well above the company’s previous high intraday trading stock price of $529.74, in large part due to positive responses by financial analysts to the company’s annual Zoomtopia event featuring new product releases and enhanced capability features for the company’s video conferencing platform.

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: Halliburton Co. (41st); International Business Machines (1st); Koninklijke Philips N.V. (40th)
• Tuesday: Lockheed Martin Corp. (141st); Procter & Gamble Co. (93rd)
• Wednesday: Abbott Laboratories (99th); Lam Research Corp. (186th); LG Chemical Ltd. (59th); Paypal Holdings Inc. (t-171st); Telefonaktiebolaget LM Ericsson (22nd); Thermo Fisher Scientific Inc. (137th); Verizon Communications Inc. (76th); Whirlpool Corp. (160th); Xilinx Inc. (t-233rd)
• Thursday: AT&T Inc. (27th); Danaher Corp. (198th); Dow Inc. (90th); Intel Corp. (4th); LG Display Co., Ltd. (53rd); Northrop Grumman Corp. (256th); Samsung Electro-Mechanics (t-127th); Seagate Technology plc (125th); SK Hynix Inc. (58th); STMicroelectronics N.V. (61st)
• Friday: Signify N.V. (t-142n

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