Other Barks & Bites for Friday, December 4: FTC Issues Hatch-Waxman Patent Settlement Report, Germany Approves Unified Patent Court and Bipartisan Entrepreneurship Bill Introduced in Congress

This week in Other Barks & Bites: the Federal Circuit affirms the PTAB’s finding that a prior art reference was publicly available before the filing date of a patent deemed obvious in light of that prior art; the Next Generation Entrepreneurship Corps Act is introduced into Congress to create a competitive fellowship program for U.S. entrepreneurs; the USPTO and India’s IP department sign a memorandum of understanding on collaborative examination and protection activities; the Federal Trade Commission’s Hatch-Waxman patent settlement report finds a low number of anticompetitive settlement agreements; Germany’s legislature approves a draft ratification bill for the Unified Patent Court; Amazon expands its IP Accelerator program for small- and medium-sized businesses throughout Europe; Chinese patent filing statistics show that Baidu owns the most AI patents of any Chinese company; and Hewlett Packard Enterprise announces plans to relocate its global headquarters from San Jose to Spring, Texas, near Houston.

Bites 

Sen. Coons Bill Would Invest $368 Million in Competitive Fellowship for Entrepreneurs – On Thursday, December 3, Senators Chris Coons (D-DE) and Tim Scott (R-SC), as well as Representatives Jason Crow (D-CO) and Troy Balderson (R-OH), introduced the Next Generation Entrepreneurship Corps Act into Congress. If passed, the bill would invest $368 million over five years into a competitive fellowship program that would fund 320 entrepreneur fellows selected each year by a panel of industry experts.

FTC Hatch-Waxman Settlement Study Finds Low Number of Anticompetitive Reverse Payments – On Thursday, December 3, the Federal Trade Commission (FTC) issued a staff report on Hatch-Waxman patent litigation settlements for fiscal year 2017 finding that, although the number of such settlements in 2017 was close to the record high from 2016, there were a low number of settlement agreements including anticompetitive reverse payments and no agreements with a no authorized generic (no-AG) provision for the first time since 2004.

CJEU Says Taxi Hailing App is Information Society Service Under EU E-Commerce Law – On Thursday, December 3, the Court of Justice for the European Union (CJEU) issued a ruling in Star Taxi App SRL v. Unitatea Administrativ Teritorial? Municipiul Bucure?ti in which the EU’s highest court found that a Romanian firm providing an smartphone app for hailing taxi rides offered an “information society service” under the EU’s directive on electronic commerce for purposes of determining whether the app’s operators are obliged to obtain prior authorization for providing dispatching services.

Fifth Circuit Affirms Denial of Preliminary Injunction on Molson Coors’ Seltzers – On Thursday, December 3, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Future Proof Brands, L.L.C. v. Molson Coors Beverage Company in which the Fifth Circuit affirmed a district court’s denial of preliminary injunction after finding that Future Proof, which sells “Brizzy”-branded seltzer drinks, did not show a substantial likelihood of success on the merits regarding trademark infringement claims filed against Molson Coors’ “Vizzy” seltzer drinks.

AIPLA Director Lisa Jorgenson Approved as WIPO Deputy Director General – On Thursday, December 3, the World Intellectual Property Organization (WIPO) announced that member states had approved the appointment of four Deputy Directors General and four Assistant Directors General to serve the organization under the leadership of WIPO Director Daren Tang. Included among the appointees is Lisa Jorgenson, formerly the Executive Director of the American Intellectual Property Law Association (AIPLA) who will serve WIPO as Deputy Director General for the Patents and Technology Sector.

Fifth Circuit Affirms Texas Trade Secret State Law Preemption of Fraud, Quantum Meruit Claims – On Tuesday, December 1, the Fifth Circuit issued a per curiam ruling in Richter v. Carnival Corp. in which the Fifth Circuit affirmed findings from the district court that Richter’s claims of fraud and quantum meruit stemming from Carnival’s alleged unauthorized use of Richter’s reality TV show concept were preempted by the Texas Uniform Trade Secret Act. 

German Bundestag Clears Way for 2022 Start Date for Unified Patent Court – On Thursday, November 26, the German Bundestag adopted a draft ratification bill to become the 13th country in the EU to consent to the Unified Patent Court, which the European Patent Office (EPO) indicates could allow it to issue unitary patents to inventors from 25 participating EU member states.

CAFC Nixes PTAB Appeal Over Publication Date of Prior Art – On Wednesday, November 25, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in VidStream LLC v. Twitter, Inc. in which the appellate court upheld the Patent Trial and Appeal Board’s (PTAB) obviousness determination in an inter partes review (IPR) over VidStream’s arguments that prior art submitted by Twitter was published in 2015 and that Twitter hadn’t proved that the particular pages submitted in its petitions were publicly available before the patent’s filing date.

Barks 

USPTO, India’s IP Department Sign 10-Year MOU on IP Examination Cooperation – On Wednesday, December 2, U.S. Patent and Trademark Office Director Andrei Iancu and Secretary Dr. Guruprasad Mohapatra of India’s Department for Promotion of Industry and Internal Trade (DPIIT) signed a memorandum of understanding establishing a 10-year commitment to cooperate on examination and protection activities related to intellectual property rights.

Baidu Leads Chinese Firms in AI Patent Application Filings – On Tuesday, December 1, Chinese Internet search provider Baidu announced findings from a recent study by China’s Ministry of Industry and Information Technology (MIIT) which found that Baidu owns 2,682 AI-related patents, the highest total for any Chinese company, and that it has filed the largest number of AI-related patent applications with 9,364 such filings as of October 2020.

ITC Institutes Section 337 Investigation in Optical Cables Against Facebook – On Monday, November 30, the U.S. International Trade Commission (ITC) issued a notice of institution of a Section 337 investigation into certain active optical cables and products containing those cables based on allegations of patent infringement filed at the ITC by Cosemi Technologies of Irvine, CA, against four respondents including social media giant Facebook.

Lyft Faces Patent Suit Over Electronic Windshield Display Vehicle ID Device – On Monday, November 30, ridesharing tech developer RideShare Displays filed a lawsuit in the District of Delaware alleging claims of patent infringement against rideshare app firm Lyft focusing on Lyft’s use of the Amp electronic device placed in Lyft driver windshields to identify their vehicles for ride-hailing customers.

WIPO Announces 50,000th Cybersquatting Case Filed Under UDRP – On Monday, November 30, WIPO announced that its Arbitration and Mediation Center had registered its 50,000th cybersquatting case under the international agency’s Uniform Domain Name Dispute Resolution Policy (UDRP) since that dispute resolution mechanism was first established by WIPO in 1999.

No DMCA Safe Harbor From Infringement Liability for Streaming Platform Spinrilla – On Monday, November 30, U.S. District Judge Amy Totenberg of the Northern District of Georgia issued a ruling on summary judgment striking down a fair use defense advanced by hip-hop music streaming platform provider Spinrilla, finding that the defendant had no repeat infringer policy or other safeguard mechanisms for handling claims under the Digital Millennium Copyright Act (DMCA) that would have qualified Spinrilla for the DMCA’s safe harbor limited liability provisions on infringing activities of platform users.

Carnival Drops Trademark Application After Opposition Filing by LeBron James – On Thursday, November 26, cruise ship firm Carnival filed a withdrawal of trademark application with prejudice ending its bid to register the trademark “King James” after an opposition to its trademark application was filed by LBJ Trademarks, an intellectual property holding company for NBA superstar LeBron James.

Amazon’s IP Accelerator Program Launched in Series of European Countries – On Wednesday, November 25, e-commerce giant Amazon.com announced that it had expanded its Intellectual Property Accelerator program so that its brand registry and other anti-counterfeiting tools designed for small- and medium-sized businesses are available to entities in the United Kingdom, Germany, France, Italy, Spain and the Netherlands.

This Week on Wall Street 

HPE to Relocate Global Headquarters from Silicon Valley to Texas – On Tuesday, December 1, Texas Governor Greg Abbott announced that global enterprise information technology firm Hewlett Packard Enterprise will be relocating its corporate headquarters from San Jose, CA, to a new campus being built in Spring, TX, which is expected to begin operations in early 2022.

Salesforce to Acquire Slack in $27.7 Billion Deal – On Tuesday, December 1, customer relationship management (CRM) provider Salesforce announced that it had agreed to acquire enterprise communications provider Slack Technologies in a primarily cash transaction valued at $27.7 billion.

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: None
• Wednesday: Adobe Inc. (105th)
• Thursday: Broadcom Inc. (84th); Oracle Corp. (52nd)
• Friday: None

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