Other Barks & Bites for Friday, February 12: USPTO Expects 3% Drop in Patent Application Filings During Pandemic, Federal Circuit Issues Three Precedential Decisions, China Releases Draft Drug Patent Linkage Rules

By IPWatchdog
February 12, 2021

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

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/68397603/stock-photo-dog-reading-newspaper.htmlThis week in Other Barks & Bites: China’s IP agency releases a public draft of drug patent linkage measures for public comment; Acting USPTO Director Hirshfeld tells the Patent Public Advisory Committee that the agency expects a 3% decline in patent application filings during the pandemic; the EU’s highest court rejects a trademark appeal from one of the continent’s largest retailers; Singapore releases a discussion draft of copyright law amendments that will go into effect later this year; an Eastern Texas magistrate judge recommends that Gree’s city-building video game patent claims should survive summary judgment over a collateral estoppel argument by Supercell; the Copyright Office announces an interim rule on the treatment of confidential information by the Music Modernization Act’s mechanical licensing collective; Volkswagen and Microsoft announce a partnership to collaborate on cloud-based automated driving solutions; and the Federal Circuit nixes patent claims covering methods of maintaining a customer loyalty program which were previously allowed by the PTAB under Section 101. 

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Bites 

CAFC Affirms Lack of Enablement Ruling on Amgen’s Repatha Patent Claims – On Thursday, February 11, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Amgen Inc. v. Sanofi in which the appellate court affirmed the District of Delaware’s grant of judgment as a matter of law (JMOL) that Amgen patent claims covering its Repatha cholesterol treatment were invalid for lack of enablement. The Federal Circuit found that Amgen’s composition claims were defined by meeting functional limitations rather than by structure and that the patent specifications didn’t enable the preparation of the full scope of the claims without undue experimentation.

USPTO Expects 3% Decrease in Patent Applications Due to COVID-19 Pandemic – On Thursday, February 11, Drew Hirshfeld, who is performing the duties of the Director of the U.S. Patent and Trademark Office since the resignation of Andrei Iancu, gave remarks at the agency’s most recent Patent Public Advisory Committee (PPAC) meeting indicating that the USPTO was expecting a 3% decrease in patent application filings owing to the effects of the COVID-19 pandemic.

CAFC Affirms Indefiniteness Rulings Based on Conflicting “Passive Link” Constructions – On Wednesday, February 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Infinity Computer Products v. Oki Data Americas, Inc. affirming a ruling from the District of Delaware invalidating patent claims covering a method of creating a scanning capability from a fax machine to a computer under Section 112. The Federal Circuit agreed that Infinity had taken conflicting positions on the claim term “passive link” to overcome rejections over the prior art during prosecution and ex parte reexamination at the U.S. Patent and Trademark Office.

CJEU Affirms Dismissal of Trademark Challenge Brought by El Corte Inglés – On Wednesday, February 10, the Court of Justice for the European Union (CJEU) issued a decision dismissing an appeal from Spanish retail store El Corte Inglés after agreeing with the EU Intellectual Property Office (EUIPO) that there was no likelihood of consumer confusion between El Corte Inglés’ “PANTHER” trademark and a “PANTHÉ” mark which the EUIPO found was dissimilar in appearance and meaning.

CNIPA Issues Early Draft on Drug Patent Linkage Measures for Public Comment – On Tuesday, February 9, China’s National Intellectual Property Administration (CNIPA) issued draft measures for the administration of a drug patent linkage system regarding disputes involving patent claims covering pharmaceutical products that are also the focus of Chinese regulatory approval for market sale. The CNIPA will receive comments on the draft measures through March 27.

Second Circuit Reverses Part of SJ Ruling Nixing Liability for Using Model Likenesses in Advertisements – On Tuesday, February 9, the U.S. Court of Appeals for the Second Circuit issued a decision in Electra v. 59 Murray Enterprises, Inc. that reversed-in-part a district court’s grant of summary judgment in favor of a strip club operator after finding that two of the models included as plaintiffs had raised a genuine issue of material fact regarding release agreements covering photographs used in the strip club advertisements.

CAFC Strikes Down Substitute Claims Upheld by PTAB as Unpatentable Under Section 101 – On Monday, February 8, the Federal Circuit issued a precedential decision in cxLoyalty, Inc. v. Maritz Holdings Inc. in which the appellate court affirmed the Patent Trial and Appeal Board’s (PTAB) ruling that patent claims owned by Maritz and covering a method for maintaining a customer loyalty program were invalid under Section 101. The Federal Circuit also struck down Maritz’s substitute claims which were upheld as valid by the PTAB because, as the court reasoned, “our cases are clear that a patent claim is not eligible under [Section] 101 merely because it recites novel subject matter.”

Singapore Releases Draft Text of New Copyright Bill – On Friday, February 5, Singapore’s Ministry of Law and the Intellectual Property Office of Singapore jointly released a draft version of a copyright bill to be passed into law later this year that would amend Singapore’s copyright statutes so that creators and performers will have the right to be identified when their works or performances are used publicly and retain ownership in their works that have been commissioned unless rights to those works are transferred via contract.

Barks 

Copyright Office Issues Interim Rule on MLC, DLC Treatment of Confidential Information – On Thursday, February 11, the U.S. Copyright Office published an interim rule in the Federal Register regarding the protection of confidential information submitted to the mechanical licensing collective (MLC) and digital licensee coordinator (DLC) for the administration of royalties collected through blanket licenses under the Music Modernization Act (MMA). 

Magistrate Judge Payne Says Gree Patents in Clash of Clans Case Should Survive SJ – On Wednesday, February 10, U.S. Magistrate Judge Roy S. Payne of the Eastern District of Texas issued a report recommending that patent claims asserted by Gree and covering city-building game technology allegedly infringed by Supercell’s Clash of Clans game should not be invalidated under the doctrine of collateral estoppel for being related to other Gree patent claims previously invalidated by the Federal Circuit under the Alice/Mayo framework. 

Instacart Buys 250+ Patents, Enters Into Cross-License With IBM – On Tuesday, February 9, online grocery platform Instacart and information technology giant IBM announced that IBM had agreed to sell more than 250 patents to Instacart. The two companies also entered into a mutual cross-license giving Instacart freedom of action to use technologies covered by IBM patents in the future growth of its business. 

Prepare Settles Trademark Dispute With Apple By Changing Leaf Image in Logo – On Tuesday, February 9, online blog iPhone in Canada reported comments from Prepear Co-Founder and COO Russ Monson indicating that the company had amicably settled a trademark dispute filed by Apple. Revised logos provided to the blog by Prepear show that the settlement involved the company changing the shape of the leaf on its logo.

Dwight Yoakam Sues Warner Music to Enforce Termination Notices – On Tuesday, February 9, singer-songwriter and country musician Dwight Yoakam filed a lawsuit in the Central District of California seeking a declaratory judgment to enforce copyright termination rights under the Copyright Act of 1976 pursuant to termination notices sent by Yoakam to Warner Music Group.

Copyright Office Announces Section 1201 Exemption Hearings, Unclaimed Royalty Roundtables – On Monday, February 8, the Copyright Office issued a notice of public hearings in the Federal Register concerning possible exemptions for circumventing technological protection measures (TPM) under Section 1201 of the Digital Millennium Copyright Act. That same day, the Copyright Office also issued a notice of public roundtables as part of the agency’s study into best practices for identifying and locating musical work copyright owners to distribute royalties collected under Music Modernization Act blanket licenses. 

Photographer Files Copyright Suit Against Kat Von D Over Miles Davis Tattoo – On Sunday, February 7, California-based photographer Jeffrey B. Sedlik filed a lawsuit in the Central District of California against Katherine Von Drachenberg, better known as the tattoo artist Kat Von D, for making unauthorized reproductions of a famous photograph of jazz musician Miles Davis that Sedlik originally captured in 1989.

Punchbowl News Network Faces Trademark Suit From Online Greeting Card Company – On Friday, February 5, online celebration and greeting card provider Punchbowl filed a lawsuit in the Eastern District of Virginia alleging claims of federal trademark infringement against AJ Press, the entity operating the Punchbowl News network recently established by a trio of former reporters from Politico.

This Week on Wall Street

Disney Earnings Report Includes Massive Number of Disney+ Subscribers– On Thursday, February 11, The Walt Disney Company reported earnings for the fiscal quarter ending January 2 in which the family entertainment company announced that it had 94.9 million subscribers for its Disney+ streaming service, a level of subscribers that Disney believed it would hit in 2024 when it first released Disney+ 15 months ago.

Volkswagen, Microsoft Announce Partnership on Automated Driving Solutions – On Thursday, February 11, German automaker Volkswagen and American tech giant Microsoft announced that the firms had agreed to collaborate on developing a cloud-based automated driving platform for delivering advanced driver assisted systems and automated driving solutions for Volkswagen passenger cars.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2020 are announcing quarterly earnings next week (2019 rank in parentheses):

  • Monday: Ingersoll Rand Inc. (190th); Sharp Corp. (44th)
  • Tuesday: Bridgestone Corp. (t-214th)
  • Wednesday: Analog Devices, Inc. (160th); Baidu, Inc. (117th)
  • Thursday: Airbus SE (89th); Applied Materials, Inc. (62nd); Interdigital Inc. (t-140th); Walmart Inc. (125th)
  • Friday: Deere & Co. (t-104th); Magna International Inc. (139th)

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