Bites (noun): more meaty news to sink your teeth into.
Barks (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: the Federal Circuit enters a noninfringement ruling for uCloudlink after reversing the district court on claim construction and moots ABS’ appeal of IPR proceedings for which it petitioned, over a dissent from Chief Judge Prost; the USPTO announces its first National Council for Expanding American Innovation meeting; the U.S. Copyright Office issues an interim rule on categories of information and other usage issues regarding the MMA’s public musical works database; a Chinese court rules that Amazon cannot use its AWS logo to advertise cloud services in China; amicus filings in U.S. v. Arthrex note due process issues and other concerns at the Patent Trial and Appeal Board (PTAB); Acacia Communications tries to nix its acquisition agreement with Cisco after Chinese antitrust regulators delay approval; and Ericsson challenges Samsung with a Section 337 complaint at the ITC over the sale of electronic devices with wireless connectivity.
USPTO to Host First NCEAI Innovation Chat Next Tuesday After Public Comments on National Innovation Strategy – On Friday, January 8, the U.S. Patent and Trademark Office announced that the agency would host its first National Council for Expanding American Innovation (NCEAI) chat next Tuesday, January 12, at noon Eastern Time. Previously, on Wednesday, December 23, the USPTO had published a request for comments in the Federal Register soliciting public input on the National Strategy for Expanding American Innovation implemented under the agency’s authority granted by the Study of Underrepresented Classes Chasing Engineering and Science Success (SUCCESS) Act of 2018.
CAFC Moots IPR Appeal by Petitioner on Voluntary Cessation Doctrine, Prost Dissents in Part – On Wednesday, January 6, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in ABS Global, Inc. v. Cytonome/ST, LLC in which the appellate court denied as moot ABS’ appeal of an inter partes review (IPR) invalidating some claims of Cytonome’s patent after Cytonome disclaimed any intent to appeal a district court’s finding of noninfringement for ABS. Chief Judge Sharon Prost wrote a dissent arguing that vacatur of the PTAB proceedings to “clear the path for future relitigation” was the proper remedy in the case.
CAFC Reverses Claim Construction, Enters Summary Judgment of Noninfringement for uCloudlink – On Tuesday, January 5, the Federal Circuit issued a precedential decision in SIMO Holdings Inc. v. Hong Kong uCloudlink Network Technology Limited in which the appellate court reversed a claim construction finding entered in the Southern District of New York. Under the proper construction for the claim term “non-local calls database,” the Federal Circuit found that uCloudlink was entitled to summary judgment of noninfringement.
CRB Announces Rate Proceedings for Distributing Phonorecords, Public Broadcasting – On Tuesday, January 5, the Copyright Royalty Board (CRB) announced that it was commencing a pair of rate proceedings for determining statutory licensing rates for distributing phonorecords under Section 115 and for public broadcasting under Section 118.
Copyright Office Issues Interim Rule on Public Musical Works Database – On Thursday, December 31, the U.S. Copyright Office published an interim rule in the Federal Register prescribing categories of information to be included in the public musical works database enacted by the Music Modernization Act (MMA), as well as rules regarding usability, interoperability and usage restrictions of the database.
Chinese High Court Block’s Amazon’s Use of AWS Logo in China – On Wednesday, December 30, the Beijing Municipal High People’s Court issued a decision finding that American e-commerce giant Amazon.com cannot use the term “AWS” or any logos depicting that acronym for the company’s cloud computing services after finding that Amazon’s logos infringe upon a Chinese trademark owned by Chinese software and data services firm ActionSoft Science & Technology Development Co.
Amici File Briefs in U.S. v. Arthrex Argue Due Process Shenanigans at PTAB – On Tuesday, December 29, and Wednesday, December 30, several parties filed amicus briefs at the U.S. Supreme Court on the Appointments Clause issues in U.S. v. Arthrex including B.E. Technology, 39 aggrieved inventors, Josh Malone and US Inventor. Among other things, amici argue that severance of tenure provisions for administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB) increase the risk of due process shenanigans and that the PTAB is incentivized to invalidate patents that are upheld as valid in district court.
CAFC Affirms Denial of Motion to Amend on Section 101 Invalidation on Pleadings – On Tuesday, December 29, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Simio, LLC v. FlexSim Software Products, Inc. in which the appellate court affirmed the District of Utah’s denial of a motion to amend complaint after Simio’s patent was invalidated under Section 101 on a Rule 12(b)(6) motion to dismiss. The Federal Circuit found that language reserving the right to amend under Aatrix Software v. Green Shades Software in Simio’s response to the motion to dismiss did not provide authority to amend its complaint.
CRB Announces Intent to Audit Music Choice, Pandora, Rockbot Royalty Payments – On Friday, January 8, the Copyright Royalty Board issued public notices in the Federal Register announcing the CRB’s intent to audit royalty payments made under statutory licenses and paid by various music streaming services including Music Choice, Pandora and Rockbot.
USPTO Appoints Vavonese as Deputy Commissioner of Trademarks – On Wednesday, January 6, the U.S. Patent and Trademark Office announced that longtime agency employee Dan Vavonese has been appointed to serve as Deputy Commissioner for Trademark Operations, replacing Mary Hershkowitz who retired at the end of 2020.
Copyright Office Issues Notice of Inquiry on Post-STELAR Expiration Study – On Wednesday, January 6, the U.S. Copyright Office issued a notice of inquiry in the Federal Register seeking public input from unserved household subscribers that had received distant network retransmissions from satellite providers under Section 119 statutory licenses that were eliminated with the expiration of the Satellite Television Extension and Localism Act Reauthorization (STELAR) program..
Seattle Seahawks Avoid Contract, Antitrust Claims on Trademark Restrictions – On Tuesday, January 5, Chief U.S. District Judge Ricardo S. Martinez of the Western District of Washington granted in part a motion to dismiss filed by Football Northwest LLC, the entity that owns the NFL’s Seattle Seahawks, dismissing contract and antitrust claims filed against the team by PBTM, the designer of “Volume 12” merchandise related to the Seahawks.
Hipgnosis Songs Buys 50% of Copyright to Neil Young’s Song Catalog – On Tuesday, January 5, news reports indicated that Hipgnosis Songs purchased 50% of the copyright interest in the song catalog of Canadian singer/songwriter Neil Young in a deal that Variety reported was worth approximately $50 million, although other news sources reported figures as high as $150 million.
Ericsson Files Section 337 Complaint at ITC Against Samsung – On Monday, January 4, the U.S. International Trade Commission (ITC) announced that Swedish telecom firm Ericsson had filed a Section 337 complaint over Samsung Electronics’ importation and sale of certain electronic devices with wireless connectivity.
USPTO Announces Nearly 400 Prioritized COVID-19-Related Applications – On Monday, December 28, the USPTO announced year-end results for prioritization pilots for COVID-19-related patent and trademark filings, including 129 trademark applications and 251 patent applications, 33 of which have already led to issued patents.
USPTO to Phase Out First Action Interview Pilot on January 15 – On Wednesday, December 23, a post on the USPTO’s official blog authored by Director Andrei Iancu announced that the first action interview pilot program would be terminated by the agency on January 15 after limited use. Over the 12 years that the pilot program was active, applicants only requested interviews for 0.2 percent of eligible patent applications.
This Week on Wall Street
Cisco May Dispute Acacia’s Termination of $2.6B Acquisition Agreement – On Friday, January 8, cloud service provider Acacia Communications announced that it was terminating an agreement to sell itself to Cisco Systems in a deal worth $2.6 billion because Chinese antitrust regulators have not yet approved the deal, although news reports indicate that Cisco may take legal action to oppose Acacia’s decision to terminate the acquisition.
Micron Shares Rise on Strong Guidance Following Q1 Earnings – On Thursday, January 7, shares of Micron stock rose by 2.6 percent to $79.11 by close of regular trading after the company announced earnings for 2021’s first quarter as well as strong guidance for the second quarter thanks to cloud data center sales.
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: None
- Thursday: Taiwan Semiconductor Manufacturing Company (18th)
- Friday: Wells Fargo & Co. (t-274th)
Image Source: Deposit Photos
Image ID: 58643025