Other Barks & Bites for Friday, December 18: WIPO Report Shows Drop in Global Patent App Filings, Ninth Circuit Affirms Dismissal of RICO Claims Against Google, and CNIPA Issues First Batch of Guiding Administrative Cases

This week in Other Barks & Bites: China’s IP administration issues a first batch of guiding administrative cases for IP enforcement; the EU’s highest court finds that EU law prohibits copying the shape of protected designations of origin products when that copying misleads consumers; the Ninth Circuit affirms the dismissal of racketeering charges filed against Google over that company’s appropriation of an inventor’s architecture software platform; WIPO’s annual IP indicators report shows that global patent application filings are down owing in large part to fewer filings from Chinese residents; the USPTO delays its trademark fee adjustment for international applications under the Madrid Protocol until late February; and a German court rules that YouTube does not have to give identifying information of individuals allegedly uploading copyright-protected content to its video platform.

Bites

CJEU Ruling Finds That EU Law Prohibits Copying Shape of PDO-Protected Products – On Thursday, December 17, the Court of Justice for the European Union (CJEU) issued a ruling in which the EU’s highest court held that EU law prohibits copying the shape of products with protected designations of origin (PDO) when that copying misleads consumers. The CJEU’s ruling involved a producer of Morbier cheese that doesn’t produce the cheese within the PDO region within the Jura Mountains in the French Alps.

CAFC Affirms PTAB Claim Construction in Finjan IPR – On Wednesday, December 16, the U.S. Court of Appeals for the Federal Circuit issued a decision in Palo Alto Networks, Inc. v. Finjan, Inc. in which the appellate court found that the Patent Trial and Appeal Board (PTAB) did not err in construing a claim term leading it to find that a computer antivirus patent owned by Finjan was not invalid for obviousness.

Ninth Circuit Affirms Dismissal of Trade Secret, RICO Claims Against Google – On Wednesday, December 16, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Attia v. Google, LLC in which the appellate court affirmed a district court’s dismissal of Defend Trade Secrets Act (DTSA) and the Racketeering Influenced and Corrupt Organizations (RICO) Act filed against Google by the inventor of Engineered Architecture technology that had been appropriated by Google to form the company’s Flux Factory architecture software platform.

USITC Issues LEO, CDO After Finding Section 337 Violation of Certain Botox Products – On Wednesday, December 16, the U.S. International Trade Commission issued a notice finding a violation of Section 337 by certain botulinum toxin products imported by Daewoong Pharmaceuticals of South Korea and Evolus, Inc., of Irvine, CA, based on allegations of patent infringement filed by Medytox Inc. of South Korea and Ireland-based Allergan Limited.

CNIPA Issues First Batch of Guiding Administrative Cases – On Tuesday, December 15, China’s National Intellectual Property Administration (CNIPA) released a first batch of guiding cases for the administrative enforcement of intellectual property rights including patent, trademark and integrated circuit layout design rights.

Fifth Circuit Affirms No Secondary Meaning for Unified Buddhist Church of Vietnam Marks – On Monday, December 14, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Unified Buddhist Church of Vietnam v. Unified Buddhist Church of Vietnam affirming a lower court’s grant of summary judgment for the defendants in the case after finding that the plaintiff failed to show that its asserted marks had developed a secondary meaning such that the public only thought of the Unified Church when viewing the marks.

Former Nationwide Children’s Hospital Researcher Pleads Guilty to Trade Secret Theft – On Friday, December 11, the U.S. Department of Justice announced that a former researcher at the Nationwide Children’s Hospital’s Research Institute in Columbus, OH, had pleaded guilty to trade secret charges related to the sale of exosome isolation kits in China for the treatment of pediatric diseases.

WIPO Reports Decline in Global Patent Applications Due to Lower Chinese Filings – On Monday, December 7, the World Intellectual Property Organization (WIPO) issued findings from its annual IP indicators report for 2019 showing that global patent application filings were down 3 percent in 2019, which was due in large part to a 10.8 percent reduction in Chinese domestic patent applications. Trademark and industrial design filing activity had increased worldwide by 5.9 percent and 1.3 percent, respectively.

Barks 

USPTO Launches Info Collection for Patent and Trademark Resource Center Metrics – On Thursday, December 17, the U.S. Patent and Trademark Office issued a request for comments in the Federal Register soliciting public responses related to the agency’s network of Patent and Trademark Resource Centers (PTRCs), including services rendered by those centers and how those PTRCs are being used by the public.

UK Court of Appeal Upholds Trademark Infringement Ruling Against Bentley Motors – On Wednesday, December 16, a judicial panel at the UK Court of Appeals dismissed an appeal filed by British automaker Bentley Motors, leaving in place a lower court’s ruling finding that the automaker’s sale of Bentley-branded clothing infringed trademarks owned by Manchester-based Bentley Clothing.

Lupin Faces Patent Suit Over ANDA Filing for Generic Plenvu – On Wednesday, December 16, Bausch Health, Salix Pharmaceuticals and Norgine filed a lawsuit in the District of New Jersey alleging claims of patent infringement against Lupin Pharmaceuticals over that firm’s filing of an Abbreviated New Drug Application (ANDA) with the U.S. Food & Drug Administration (FDA) to market a generic version of the bowel cleanser treatment Plenvu.

Ninth Circuit Affirms Dismissal of Lanham Act Claims Over Dietary Supplements – On Tuesday, December 15, the Ninth Circuit issued a ruling in ThermoLife International, LLC v. American Fitness Wholesalers, L.L.C. in which the appellate court affirmed a lower court’s dismissal of illegal advertising claims under the Lanham Act after finding that plaintiff ThermoLife failed to plausibly connect a drop in sales for its component ingredients to American Fitness’s sale of allegedly illegal products containing the ingredients.

WIPO’s Tamper-Proof Evidence System Receives Trust Service Provider Certifications – On Tuesday, December 15, the World Intellectual Property Organization (WIPO) announced that its WIPO PROOF system launched earlier this year to generate tamper-proof digital file evidence has been audited and found to have met relevant policy, security and technical standards promulgated by major standards-setting organizations ETSI and ISO.

USPTO Delays Trademark Fee Adjustment for International Applicants Under Madrid Protocol – On Tuesday, December 15, the USPTO issued a final rule in the Federal Register delaying the effective date of a trademark fee adjustment for international applicants because of terms of WIPO’s Madrid Protocol governing such applications which requires three months advance notice of such fee adjustments so WIPO can inform international applicants. This fee adjustment will now go into effect on February 18, 2021.

Copyright Office Creates Pilot Program for New Public System Portal – On Tuesday, December 15, the U.S. Copyright Office announced that it was launching a new Copyright Public Records System (CPRS) pilot, offering a portal for copyright records searches with enhanced capabilities and improved interface for the entire public; a first CPRS module had been previously made available to a limited audience.

German Court Says YouTube Does Not Need to Give Info of Illegal Uploaders – On Thursday, December 11, the First Civil Senate of Germany’s Federal Court of Justice issued a ruling in which the court found that operators of online video platforms, in this case YouTube, does not have to provide email addresses, IP address or phone numbers of platform users who have allegedly uploaded copyright-protected content to plaintiffs asserting copyright claims over such uploads in court.

This Week on Wall Street 

Tencent Leads Consortium Buying 10% Stake in Universal Music Group – On Friday, December 18, The Wall Street Journal reported that Chinese Internet company Tencent was leading a consortium purchasing a 10 percent stake in Universal Music Group, doubling Tencent’s current stake in Universal and increasing its presence in the music recording industry.

Google Faces New Antitrust Suit in U.S. While EU Regulators Approve Fitbit Acquisition – On Thursday, December 17, a lawsuit was filed by 38 state attorneys general, led by AGs from Colorado and Nebraska, alleging antitrust claims against Google surrounding its anticompetitive behaviors in protecting its online search monopoly. On the same day, antitrust regulators in the European Union approved Google’s $2.1 billion acquisition of health tech firm Fitbit after Google promised to silo Fitbit data so that it isn’t used for advertising purposes in Europe.

Walmart Announces First Shoppable Livestream on TikTok – On Thursday, December 17, a post on Walmart’s official blog authored by Chief Marketing Officer William White announced that the major American retailer will partner with social media giant TikTok to create shoppable livestreams featuring major TikTok content creators and enabling customers to shop for clothing and apparel displayed during the livestreams.

 

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