Other Barks & Bites for Friday, March 5: China Leads World in 2020 PCT Filings, Copyright Office Issues Rules on Music Modernization Act, and USIJ Urges President Biden to Pick Patent-Friendly USPTO Director

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

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/58564665/stock-photo-french-bulldog-reading-newspaper.htmlThis week in Other Barks & Bites: USIJ’s letter to President Biden urges him to select a USPTO Director who understands the important role of IP in driving the U.S. economy; the Federal Circuit affirms the dismissal of breach of contract claims against the U.S. Army over its disapproval of requests to use its trademarks; the Supreme Court hears oral arguments in Arthrex regarding the unusual nature of the Patent Trial and Appeal Board; WIPO releases statistics showing that China led the world in international Patent Cooperation Treaty filings for 2020; Delaware’s Supreme Court tosses a $57 million damages award for GSK after finding an implied covenant not to collect royalties for disclaimed patents; the Copyright Office issues supplemental rules regarding certain reporting requirements under the Music Modernization Act; and General Motors and LG Chem are reportedly exploring plans to build a second EV battery factory in the United States.


Copyright Office Issues Further Rules on Data Collection Under Music Modernization Act – On Friday, March 5, the U.S. Copyright Office published a supplemental interim rule in the Federal Register amending regulations on certain reporting requirements under the Music Modernization Act (MMA) regarding permanent download passthrough licenses in light of unopposed requests from the MMA’s digital licensee coordinator asking for accommodations to avoid potential market disruption. 

CAFC Affirms Summary Judgment Dismissal of Trademark Claims Against U.S. Army – On Thursday, March 4, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Authentic Apparel Group, LLC v. United States in which the appellate court affirmed the Court of Federal Claims’ dismissal on summary judgment of breach of contract claims filed by Authentic, who had challenged the U.S. Army’s disapproval of requests to use Army trademarks under a nonexclusive license allowing Authentic to use those marks on clothing.

Eleventh Circuit Affirms Copyright Win for Blog Despite Narrow Definition of Implied License – On Wednesday, March 3, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in MidlevelU, Inc. v. ACI Information Group in which the appellate court found that, although the district court employed a definition for “implied license” that was too narrow, the jury could not have reasonably inferred that the operator of a blog for mid-level healthcare providers impliedly granted a license to a wholesale aggregator of news publications to republish copyrighted blog content.

Intel Nailed With $2.175 Billion Patent Infringement Verdict by Western Texas Jury – On Tuesday, March 2, a jury verdict entered in the Western District of Texas awarded $2.175 billion in damages for patent infringement to VLSI Technologies after finding that tech giant Intel Corporation had infringed upon claims of two patents asserted by VLSI and covering technologies related to computer processor products.

China Beats U.S. for Top Spot Among PCT International Patent Filings – On Tuesday, March 2, the World Intellectual Property Organization (WIPO) released statistics for Patent Cooperation Treaty (PCT) international patent application filings during 2020 showing that China accounted for 68,720 such applications last year, a 16.1 percent increase over China’s 2019 PCT application totals and nearly 10,000 filings greater than the number of international patent applications filed under the PCT system and originating from the United States (59,230 PCT applications).

CAFC Affirms Enablement, Infringement, No Willfulness in Hemophilia Treatment Patent Case – On Monday, March 1, the Federal Circuit issued a precedential decision in Bayer Healthcare LLC v. Baxalta Inc. in which the appellate court affirmed rulings from the District of Delaware which found that Baxalta’s hemophilia treatment Adynovate infringes patent claims owned by Bayer, that the asserted claims were enabled, and that Baxalta did not commit willful infringement as a matter of law.

SCOTUS Focuses on Unusual Nature of PTAB During Arthrex Oral Arguments – On Monday, March 1, the U.S. Supreme Court heard oral arguments in Arthrex v. Smith & Nephew in which the Justices of the nation’s highest court discussed various aspects of the Patent Trial and Appeal Board (PTAB) that make the Article I tribunal a “rare bird,” including the lack of final review of decisions by the head of the U.S. Patent and Trademark Office and the Chief Administrative Patent Judge’s ability to convene a Precedential Opinion Panel.

USIJ Letter Urges President Biden to Select USPTO Director Who Upholds Strong Patent Rights – On Wednesday, February 24, the Alliance of U.S. Startups & Inventors for Jobs (USIJ) sent a letter addressed to President Joe Biden  urging the President to consider several criteria in deciding his eventual pick for Director of the USPTO, including both that individual’s commitment to the core principle that strong intellectual property rights drive the U.S. economy and his or her objective views regarding promoting the interests of a wide variety of stakeholders in the U.S. intellectual property system.



Delaware Supreme Court Nixes $57 Million Damages Award for Unpaid GSK Royalties – On Wednesday, March 3, a panel decision issued by the Delaware Supreme Court found that a trial court had erred by refusing to grant a post-trial motion for judgment as a matter of law (JMOL) filed by pharmaceutical firm GlaxoSmithKline, ruling that a damages award for $57 million in unpaid patent royalties was negated by an implied covenant between GSK and Drit LP to not collect royalties for patents that were disclaimed in 2016.

PTAB Institutes IPR Challenging Peloton Computer System Patent – On Wednesday, March 3, a panel of administrative patent judges (APJs) at the PTAB voted to institute inter partes review (IPR) proceedings petitioned by Echelon Fitness challenging the validity of patent claims owned by streaming exercise company Peloton covering computerized systems of offering online competitive exercise classes.

Second Circuit Affirms Summary Judgment Dismissal for Getty in Photo Copyright Case – On Wednesday, March 3, the U.S. Court of Appeals for the Second Circuit issued a decision in Zuma Press, Inc. v. Getty Images (US), Inc. in which the appellate court affirmed a district court’s grant of summary judgment for Getty Images on claims of copyright infringement and altering copyright management information related to allegations that Getty Images republished 47,000 images associated with Zuma Press without Zuma’s consent.

USITC Institutes Section 337 Investigation Into LTE-Compliant Devices Against Samsung, Motorola – On Tuesday, March 2, the U.S. International Trade Commission announced that it had instituted a Section 337 investigation into certain LTE-compliant cellular communication devices imported into the U.S. for sale by Samsung Electronics and Motorola Mobility based on a complaint for patent infringement filed by Evolved Wireless of Austin, TX.

Judge Keeley Finds AstraZeneca’s Symbicort Patent Claims Not Invalid – On Tuesday, March 2, U.S. District Judge Irene M. Keeley of the Northern District of West Virginia issued an order granting judgment in favor of AstraZeneca finding that Mylan did not prove obviousness of AstraZeneca patent claims asserted in infringement proceedings regarding an Abbreviated New Drug Application (ANDA) filed at the U.S. Food and Drug Administration by Mylan to market a generic version of AstraZeneca’s asthma treatment Symbicort. 

Kuwait Refuses Registration to Trademark Application for Masonic Symbol – On Tuesday, March 2, Kuwait’s Ministry of Industry and Trade announced that it had refused registration to a trademark application for a mark including Masonic symbols for violating public morals.

Netflix Files Motion to Dismiss Copyright Suit Over “Outer Banks” – On Monday, March 1, streaming video service Netflix filed a motion to dismiss in the Northern District of Georgia asking the district court to toss copyright infringement claims filed by Kevin Wooten, a high school teacher in North Carolina, over similarities on key character and plot elements between a book written by Wooten and Netflix’s original television series “Outer Banks.”

New York Times Trademark Suit Against TIME Magazine Event Series Voluntarily Dismissed – On Friday, February 26, a notice of voluntary dismissal was entered in the Southern District of New York terminating a trademark lawsuit filed by The New York Times against Time Magazine over that publication’s Time 100 Talks virtual event series, which The New York Times argued was confusingly similar to its own Times Talks event series.

This Week on Wall Street

Tesla, New Caledonia Government Reach Agreement on Nickel Mining for Batteries – On Thursday, March 4, electric vehicle maker Tesla entered into an agreement with the government of New Caledonia, a Pacific island under French administration, giving the automaker long-term access to supplies of nickel which the company plans to use for manufacturing lithium-ion batteries.

GM, LG Chem Exploring Second Battery Factory for Electric Vehicles in U.S. – On Thursday, March 4, The Wall Street Journal reported that American automaker General Motors and South Korean chemical firm LG Chem were exploring possibilities to build a second battery-cell plant in the U.S. for electric vehicle (EV) batteries in addition to a $2.3-billion facility being built by those companies in northeast Ohio.

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

  • Monday: None
  • Tuesday: Continental AG (98th)
  • Wednesday: Oracle Corp. (56th)
  • Thursday: None
  • Friday: Sharp Corp. (44th)


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One comment so far.

  • [Avatar for Anon]
    March 5, 2021 07:25 pm

    Without coming out and being MORE direct (in my view, a mistake), I found this snippet under the second point to be of interest:

    The USPTO Director is in many ways the chief advocate for intellectual property, and as such, nominees should not have a history that criticizes American IP rights or come from a company or an industry known for such criticisms.

    I would have used the actual words, “should not come from or be seen to represent the interests of any Efficient Infringer.”

    I would have also stressed the point that it is the potential of disruptive innovation which is OFTEN by those whom Efficient Infringers most fear that drives the LARGEST potential for innovation leverage (with ensuing industry, jobs and US capitol as rewards for the nation).

    I would also have added that the power of juristic persons should be curbed, as these entities are less inclined to put the interests of the US as a priority, are more likely to view innovation of others as a priority TO STOP, and have shown a propensity to stifle actual innovation protection reforms, which have been stymied in Congress.

    Not that Puppet Biden would be inclined to actual act upon….