Bites (noun): more meaty news to sink your teeth into.
Barks (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: Senator Thom Tillis announces he will co-chair the Senate Cybersecurity Caucus; a local business news outlet reports that the United States Patent and Trademark Office could be downsizing its office space footprint in Northern Virginia; a Lex Machina report shows that Judge Albright’s docket covered nearly 20% of all patent cases filed during 2020; Johnson & Johnson gets an important regulatory approval to sell its COVID-19 vaccine in the EU; Facebook moves to dismiss the Federal Trade Commission’s antitrust suit for failing to state a plausible claim under the Sherman Act; the IDEA Act is reintroduced into Congress to provide authority for the voluntary collection of demographic data from U.S. patent applicants; the EU’s highest court rules that copyright owners can prevent their works from being embedded on third-party websites by employing technological protective measures against framing; and the Federal Circuit affirms a patent examiner’s rejection of Stanford University patent claims covering personalized healthcare methods as unpatentable subject matter under Section 101.
Tillis Will Co-Chair Senate Cybersecurity Caucus – Senator Thom Tillis (R-NC) announced on March 12 that he will co-chair the bipartisan Senate Cybersecurity Caucus with Senator Mark R. Warner (D-VA) in the 117th Congress. The Caucus was launched in 2016 by Warner and then-Senator Cory Gardner (R-CO) to keep senators and staff informed on major policy issues and developments in cybersecurity. “The threat of cyberattacks by foreign adversaries such as China and Russia targeting American businesses, research institutions, hospitals, and federal agencies is one of the most pressing issues for Congress to address,” said Tillis in a statement.
CAFC Affirms Section 101 Ineligibility of Stanford’s Personalized Health Care Claims – On Thursday, March 11, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re: Board of Trustees of the Leland Stanford Junior University in which the Federal Circuit affirmed the rejection of claims by a patent examiner at the U.S. Patent and Trademark Office filed by Stanford University and covering methods and computing systems for determining haplotype phasing, ruling that the claims were directed to abstract ideas of mathematical calculations and statistical modeling.
Leahy and Tillis Send Letter to Merrick Garland on Protecting Lawful Streaming Act – On March 11, Senator Patrick Leahy, Chair of the Senate IP Subcommittee, and Senator Thom Tillis, Ranking Member of the Subcommittee, sent a letter to Attorney General Merrick Garland asking him to prioritize prosecutions under the Protecting Lawful Streaming Act (PLSA), which was enacted last year and “empowers the Department of Justice to pursue felony charges against criminal commercial piracy enterprises.” The senators asked Garland to address three questions by April 12, 2021: 1) “Will you commit to making prosecutions under the PLSA a priority?”; 2) “How quickly do you intend to update the U.S. Attorneys manual to indicate prosecutors should pursue actions under the PLSA?”; and 3) “What type of guidance do you intend to provide to make clear that prosecutions should only be pursued against commercial piracy services?”
Report Shows Judge Albright Oversaw Nearly 20% of U.S. Patent Litigation During 2020 – On Wednesday, March 10, a report issued by patent data analytics firm Lex Machina showed that U.S. District Judge Alan Albright had a docket of 793 patent cases assigned during the 2020 calendar year, a total representing 19.5 percent of all patent cases filed in U.S. district courts during 2020.
EPO Appeals Board Says Case Law on Computer-Implemented Inventions Applies to Simulations – On Wednesday, March 10, the European Patent Office’s (EPO) Enlarged Board of Appeals issued decision G/19 (Simulations) in which the Board found that established case law on determining the patentability of computer-implemented inventions by determining if any technical elements of the patent’s claim contribute to an inventive step to the technology, known as the COMVIK approach, applies to patent claims covering the computer-implemented simulation of a group of pedestrians moving through a building environment.
Facebook Moves to Dismiss FTC Antitrust Suit That “Ignores Reality” of High-Tech Industry – On Wednesday, March 10, social media giant Facebook filed a motion to dismiss an antitrust case filed in the District Court for the District of Columbia by the Federal Trade Commission (FTC), arguing that the FTC has not plausibly alleged a relevant market, monopoly power or unlawful exclusionary conduct to support its claims under the Sherman Act.
CJEU Rules Embedded Media on Website is Public Communication That Copyright Owners Can Restrict – On Tuesday, March 9, the Court of Justice for the European Union issued a ruling in VG Bild-Kunst v. SPK in which the EU’s highest court found that embedded media on a third-party website constitute a communication to the public such that parties owning the copyright to that media can employ technological protective measures to prevent third-parties from embedding media by framing.
CAFC Finds Authority to Review PTAB Decision That Petitioner Not Estopped – On Tuesday, March 9, the Federal Circuit issued a precedential decision in Uniloc 2017 LLC v. Facebook Inc. in which the court found that, despite the “no appeal” provision of 35 U.S.C. § 314(d), the unique circumstances of this case allowed it to review the Patent Trial and Appeal Board’s (PTAB) determination that LG Electronics should have been estopped from maintaining an inter partes review (IPR) proceeding after Facebook, another petitioner in the same IPR, was found to be estopped. The Federal Circuit affirmed the PTAB’s estoppel decision and the obviousness findings against Uniloc’s patent claims.
IDEA Act Reintroduced Into Congress to Collect Demographic Data from USPTO Patent Applicants – On Tuesday, March 9, the Inventor Diversity for Economic Advancement (IDEA) Act was reintroduced into Congress by a bipartisan, bicameral collection of federal lawmakers. If enacted, the bill would give the USPTO authority to collect demographic data, including gender, veteran status and income level, from patent applicants who volunteer such data to study the proportion of underrepresented groups in the patent community.
CAFC Vacates, Reverses SJ Ruling of Noninfringement in Central California Diaper Pail Case – On Tuesday, March 9, the Federal Circuit issued a precedential decision in Edgewell Personal Care Brands, LLC v. Munchkin, Inc. in which the appellate court vacated- and reversed-in-part a summary judgment ruling from the Central District of California after the Federal Circuit found the district court erred both in construing claim terms, and in ruling noninfringement of claims asserted under the doctrine of equivalents after improperly discounting Edgewell’s application of the function-way-result test to support its infringement theory.
Nokia Announces Patent Licensing Agreement With Samsung for Video SEPs – On Thursday, March 11, Finnish telecom firm Nokia announced that it had entered into a patent licensing agreement with South Korean tech giant Samsung Electronics covering various video technologies that have been integrated into technological standards for electronic devices. The terms of the licensing agreement are confidential.
Apple Sues Former Advanced Materials Lead Over Trade Secret Allegations – On Thursday, March 11, consumer tech giant Apple Inc. filed a lawsuit in the Northern District of California alleging state and federal claims of trade secret misappropriation as well as breach of contract claims against Simon Lancaster, a former advanced materials lead and product design architect at Apple whom Apple alleges leaked confidential information on future hardware products to a media correspondent in exchange for favorable coverage of a tech startup in which Lancaster was invested after he left Apple.
Judge Cole Denies Motion for Reconsideration Despite Conflict on Discovery Rule, Look-Back Period – On Wednesday, March 10, U.S. District Judge Douglas R. Cole of the Southern District of Ohio denied a motion for reconsideration filed by plaintiff Annette Navarro, a copyright owner suing Procter & Gamble, who had argued that despite the U.S. Supreme Court’s 2014 ruling in Petrella, the use of the discovery rule for copyright infringement cases within the Sixth Circuit should not limit her damages to a three-year look-back period under the Copyright Act.
Copyright Office Extends Statutory Deadlines Until May Under CARES Act Authority – On Tuesday, March 9, the U.S. Copyright Office announced that the agency was exercising its authority under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to extend statutory deadlines for certain registration claims and notices of termination for an additional 60 days from March 9 to May 10.
USPTO Requests Comment on Info Collection for National Summer Teacher Institute – On Tuesday, March 9, the USPTO published a request for public comment in the Federal Register regarding to determine whether a proposed collection of information from applications and surveys submitted by participants in the agency’s National Summer Teacher Institute on Innovation, STEM, and Intellectual Property will be useful in the agency’s evaluation of the program.
Cisco Files Trademark, Unfair Competition Lawsuit Against Memphis Area Companies – On Tuesday, March 9, network technology firm Cisco Systems filed a lawsuit in the Western District of Tennessee against a group of companies operating in the Memphis, TN area which Cisco alleges have violated federal trademark as well as state consumer protection and unfair competition law by offering counterfeit products marked with Cisco labels.
USPTO Possibly Downsizing Office Space in Alexandria, VA – On Monday, March 8, Washington Business Journal reported that the USPTO may be seeking to reduce its footprint on the agency’s main campus in Alexandria, VA, after the agency shifted to maximum telework protocols in response to the COVID-19 pandemic.
USITC Announces Receipt of Section 337 Complaint from Canon Over Toner Containers – On Monday, March 8, the U.S. International Trade Commission (USITC) announced that it had received a Section 337 complaint from Japanese tech conglomerate Canon regarding potential patent infringement posed by the importation for sale of certain toner supply containers and components thereof involving more than two dozen respondents who are mainly located throughout the U.S. and China.
This Week on Wall Street
Verizon Says Scale-Up in 5G Wireless Will Lead to 4% Revenue Growth by 2024 – On Thursday, March 11, American telecom giant Verizon Communications announced that the company’s $53 billion investment into 5G wireless spectrum and other network infrastructure will help the company reach 4 percent revenue growth by the year 2024.
Medical Regulators Authorize Approval for J&J COVID-19 Vaccine in EU – On Thursday, March 11, the European Medicines Agency issued a recommendation supporting the approval of market authorization for Johnson & Johnson’s single-dose COVID-19 vaccine, which would make it the fourth vaccine approved for use throughout the European Union.
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: Tencent Holdings Ltd. (81st)
- Wednesday: Bayerische Motoren Werke AG (t-129th)
- Thursday: Accenture plc (165th); Nike, Inc. (t-114th)
- Friday: None