Other Barks & Bites for Friday, January 29: China Announces End to Patent Application Subsidies By 2025, Fourth Circuit Moots Nike Trademark Appeal and Facebook Mulls Antitrust Suit Against Apple

Bites (noun): more meaty news to sink your teeth into.

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/13561580/stock-illustration-beware-of-dog.htmlThis week in Other Barks & Bites: The New York Times reports that Facebook may be contemplating pursuing legal actions against Apple’s anticompetitive app store behaviors; China announces increased utility model patent grants and PCT patent application filings during 2020 and announces an end to government subsidies for patent filings by 2025; UK’s IP enforcement court finds that Amazon.com listings are not directed to UK or EU consumers; Huawei’s announces fourth quarter earnings showing a steep decline in global smartphone shipments; the Fourth Circuit moots Nike’s appeal of a preliminary injunction after the athletic apparel maker ended a trademark infringing ad campaign; and the Federal Circuit reverses part of a Delaware district court’s summary judgment ruling over a question as to whether a patent license agreement barring infringement claims had been terminated.


Chinese Utility Model Patent Grants, PCT Filings Increased in 2020 – On Thursday, January 28, China’s National Intellectual Property Administration (CNIPA) released intellectual property filing statistics for 2020 that showed a 50 percent increase in utility model patent grants issued by the CNIPA over 2019’s totals as well as an 18 percent year-over-year increase in the number of Patent Cooperation Treaty (PCT) international patent applications filed by Chinese entities in 2020.

Ninth Circuit Tells Axon to Wait Until FTC Proceeding Ends to Challenge IP Transfer – On Thursday, January 28, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Axon Enterprise, Inc. v. Federal Trade Commission in which the appellate court affirmed a district court’s dismissal for lack of jurisdiction of a complaint filed by Axon challenging the FTC’s enforcement measures requiring it to spin-off a newly acquired company and transfer intellectual property holdings to it. The Ninth Circuit found that the FTC Act specifically bars jurisdiction over the suit from Axon, which can still bring a constitutional challenge to federal court after the FTC’s administrative proceeding ends.

USITC Institutes Section 337 Investigation Against Samsung Active Matrix OLED Displays – On Wednesday, January 27, the U.S. International Trade Commission (USITC) announced that it had instituted a Section 337 investigation based on a complaint of patent infringement filed by Solas OLED of Ireland against certain active matrix OLED display devices and components thereof imported into the U.S. for sale by BOE Technology and Samsung Electronics.

UK IPEC Rules Amazon.com Listings Not Targeted to UK/EU Consumers – On Wednesday, January 27, the UK Intellectual Property Enterprise Court (IPEC) issued a ruling in Lifestyle Equities C.V. v. Amazon UK Services Ltd. in which the court ruled that Beverly Hills Polo Club-branded goods listed for sale on Amazon.com with the authorization of the U.S. rights holder doesn’t infringe upon UK/EU trademark rights to the same brand because the Amazon.com site markets primarily to U.S. consumers and not UK/EU consumers.

CNIPA Announces End to Subsidies for Chinese Patent Application Filings – On Wednesday, January 27, the CNIPA issued a notice to all intellectual property offices in China announcing various regulations on behaviors surrounding patent application filing activities, including the elimination of subsidies for patent application filings by all Chinese local government entities by the end of 2025.

CAFC Reverses Delaware SJ Ruling Over Question on License Termination – On Tuesday, January 26, the U.S. Court of Appeals for the Federal Circuit issued a decision in Evolved Wireless, LLC v. HTC Corporation in which the appellate court reversed and vacated part of a summary judgment ruling entered by the District of Delaware after finding that, although the district court properly concluded that a licensing agreement barred Evolved Wireless’ patent infringement claims, the ruling didn’t address the question of whether that license agreement had been terminated.

Fourth Circuit Moots Nike’s Appeal Over Preliminary Injunction Against Ad Campaign – On Tuesday, January 26, the U.S. Court of Appeals for the Fourth Circuit issued a decision in Fleet Feet, Inc. v. Nike, Inc. in which the appellate court dismissed Nike’s appeal of a preliminary injunction against its “Sport Changes Everything” ad campaign after Nike disavowed its intent to continue using the tagline mooted the appeal.

Eleventh Circuit Reverses District Court on Misappropriation of Flooring Resin Trade Secret – On Tuesday, January 26, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in AcryliCon USA, LLC v. Silikal GmbH in which the appellate court reversed a district court’s denial of a post-trial motion for judgment as a matter of law (JMOL) on misappropriation of shared trade secrets as the Eleventh Circuit found that the plaintiff AcryliCon did not exist at the time that the flooring resin formula was created in 1987 and thus could not have given prior written consent for the manufacture and sale of the formula.

Former FTC General Counsel Joins Mercatus Center – On January 25, former Federal Trade Commission General Counsel Alden Abbott announced that he has joined the the Mercatus Center at George Mason University as a Senior Research Fellow. Abbott “will lead a new project on competition and antitrust issues, including the ongoing debate surrounding large tech firms.” Abbott served as General Counsel at the FTC from 2018 to early 2021 and has also worked at the Heritage Foundation and BlackBerry Ltd.


iRobot Brings Patent Battle Against SharkNinja to USITC – On Thursday, January 28, iRobot announced that it had filed a Section 337 complaint for patent infringement against Shark Ninja, asserting claims from five patents covering robotic room mapping and vacuuming technologies that are also involved in a lawsuit filed by iRobot against SharkNinja in the District of Massachusetts over the sale of Shark IQ robotic vacuums.

Bunker IP Files Patent Suits Against DISH, T-Mobile Over Cellular Network Tech – On Wednesday, January 27, Bunker IP LLC filed a pair of lawsuits in the Northern District of Illinois against DISH Wireless and T-Mobile USA alleging claims of patent infringement over their sale of devices incorporating cellular network switching technology capable of supporting Wi-Fi calling or portable hotspot functionality.

Judge Rogers Says Vineyard House Can’t Trace History to Origins of To Kalon Wine Brand – On Wednesday, January 27, U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California issued a ruling finding that Oakville, CA-based winery The Vineyard House could not claim a connection to the 19th century To Kalon wine brand and granting an injunction to Robert Mondavi-owned Constellation Brands preventing Vineyard House from selling wine under the To Kalon brand. 

Judge Pauley Trims Trade Dress Claims From Shoe Trademark Case Against Skechers – On Tuesday, January 26, U.S. District Judge William H. Pauley III of the Southern District of New York issued a ruling dismissing trade dress claims filed by womens shoe maker Easy Spirit against Skechers after finding that the trade dress to Easy Spirit’s Traveltime shoes hadn’t acquired a secondary meaning among consumers. Easy Spirit’s trademark claims under federal and New York state law survived summary judgment.

Continental Files Delaware Chancery Suit Over Nokia FRAND Licensing Obligations – On Tuesday, January 26, German automaker Continental announced that it had filed a complaint in the Delaware Court of Chancery alleging that Finnish telecom firm Nokia isn’t meeting its contractual obligations to offer licenses to the company’s standard-essential patents (SEPs) covering automotive communications technologies on fair, reasonable and non-discriminatory (FRAND) terms.

PTAB Invalidates Tela Patent After Intel Wins Non-Infringement at District Court, USITC – On Monday, January 25, the Patent Trial and Appeal Board (PTAB) issued a ruling finding that challenged patent claims covering circuit architecture were invalid as obvious based on prior art asserted by Intel. Intel had previously won rulings of non-infringement of Tela’s patent both in U.S. district court as well as at the International Trade Commission.

Judge Hellerstein Tosses Microsoft Post-Trial Motions in Database Patent Infringement Case – On Monday, January 25, U.S. District Judge Alvin K. Hellerstein of the Southern District of New York issued an order denying a motion for judgment as a matter of law (JMOL) filed by Microsoft, leaving in place a $7 million jury verdict for patent infringement over a scaffolding feature in Microsoft’s Dynamic Data application. Judge Hellerstein also denied a motion for JMOL filed by plaintiff Michael Philip Kaufman seeking to add prejudgment interest accruing from the patent’s issue date in February 2011.

Tesla Files Suit Against Former Employee Over Automated Business Process Trade Secrets – On Friday, January 22, Tesla filed a lawsuit in the Northern District of California alleging claims of trade secret misappropriation against Alex Khatilov, a software engineer and former Tesla employee which the company has accused of stealing files from a proprietary back-end system for automating business processes related to manufacturing and selling its vehicles which could give competitors “a roadmap to copy Tesla’s innovation.”

This Week on Wall Street

Huawei Earnings Report Shows Sharp Drop in Smartphone Sales Following Sanctions – On Thursday, January 28, Chinese telecom giant Huawei announced its earnings for the fourth quarter of 2020 and reported that it shipped a total of 32 million smartphones during the quarter, placing the company sixth among global smartphone manufacturers; Huawei had ranked in the top five smartphone makers in each quarter for the past six years.

Facebook Reportedly Mulling Antitrust Suit Against Apple’s App Store Practices – On Thursday, January 28, The New York Times reported information from unnamed sources regarding conversations among Facebook executives regarding the possibility that the social media giant could file a lawsuit against Apple over that company’s anticompetitive behaviors related to its app store.

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: Aisin Seiki Co., Ltd. (164th); Cirrus Logic Inc. (266th); Denso Corp. (39th); Kyocera Corp. (43rd); NXP Semiconductors N.V. (77th); ON Semiconductor Corp. (t-142nd); Rambus Inc. (t-221st); Thermo Fisher Scientific Inc. (137th)
  • Tuesday: Alphabet Inc. (12th); Amazon.com, Inc. (15th); Eaton Corp. (110th); Jtekt Corp. (t-225th); Konica Minolta Inc. (74th); Marvell Technology Group Ltd. (156th); Mitsubishi Chemical Holdings Corp. (t-271st); Mitsubishi Electric Corp. (33rd); Panasonic Corp. (20th); Sharp Corp. (54th)
  • Wednesday: Boston Scientific Corp. (t-88th); eBay Inc. (t-179th); Mitsubishi Heavy Industries Ltd. (104th); Paypal Holdings Inc. (171st); Qorvo Inc. (t-289th); Qualcomm Inc. (17th); Siemens AG (21st); Sony Corp. (11th)
  • Thursday: Ford Motor Co. (13th); Infineon Technologies AG (55th); Mazda Motor Corp. (t-221st); Merck & Co. (t-253rd); Microchip Technology Inc. (t-263rd); Nikon Corp. (173rd); Nokia Oyj (49th); Ricoh Co., Ltd. (46th)
  • Friday: Nippon Steel Corp. (t-179th); Sanofi S.A. (165th); Shimadzu Corp. (t-202nd); Zimmer Biomet Holdings Inc. (194th)


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Join the Discussion

4 comments so far.

  • [Avatar for Anon]
    February 1, 2021 04:51 pm

    … it may help to remember that the Fed Con provides a floor for citizen rights and a ceiling against limitations to citizen rights.

  • [Avatar for Anon]
    February 1, 2021 03:22 pm


    Heard this from a friend (so I am not sure of its veracity): many of the First Amendment arguments that would be in play were FaceBook (Twitter, etc) were acting in a capacity that the Government could not (and the Government sanctioned a legal license to them to so act), are actually actionable under the broader First Amendment rights afforded to citizens of California, as California’s Constitutional FA is broader and carries affirmative rights of expression – as opposed to ‘make no law abridging’ at the Federal level.

    Any California Constitutional scholars out there to weigh in?

  • [Avatar for B]
    February 1, 2021 12:16 pm

    @ Pro Say “Hypocrisy run amok.”

    I love Apple products but have issues with Apple’s policies to the extent I chose to replace my 10yo MacBook Air with a non-Apple laptop. I also shut down my FB account long ago, and I encourage every last FB user to FBexit. I keep no social media app on my phone.

    I was also banned on Twitter in an account I NEVER once posted on as I used it ONLY as a news source. I suspect that team Dorsey decided that I followed the wrong people and “liked” the wrong stories.

    I guess that my point is that most, if not all, of the tech tyrants have overstepped, and eventually enough people will vote with their dollars and time that FB, Apple, et al. will fire the reprobates as respective market shares plummet and shareholders panic.

  • [Avatar for Pro Say]
    Pro Say
    January 29, 2021 05:05 pm

    “Facebook . . . could file a lawsuit against Apple over that company’s anticompetitive behaviors”

    Hypocrisy run amok.