Other Barks & Bites for Friday, March 19: Sen. Tillis Urges No Section 512 Safe Harbors in Future FTAs, Federal Circuit Finds Authority to Issue Mandamus for PTAB Institution Denials, and House Antitrust Subcommittee Addresses SEPs

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Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/13561580/stock-illustration-beware-of-dog.htmlThis week in Other Barks & Bites: the Federal Circuit issues an order on motion finding that it has authority under the All Writs Act to issue mandamus relief for PTAB institution denials; China’s national IP agency announces plans to crack down on “irregular patent applications” filed for bad faith purposes; Sen. Tillis writes a letter to newly confirmed USTR Tai urging strong data exclusivity protection for biologics and no language mirroring Section 512 safe harbors under the DMCA in any future free trade agreements; the Fourth Circuit joins the Seventh and Ninth Circuits in finding that appellants seeking review of a second TTAB decision after Federal Circuit remand may proceed to appeal in federal district court; Google CEO Pichai announces that the Internet services giant plans to invest $7 billion in facility expenditures through 2021; and the Copyright Office increases the number of public roundtables for its MMA unclaimed royalties study due to high volume demand for participation.


House Antitrust Subcommittee Addresses Intersection of Antitrust and SEPs – During a hearing of the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law yesterday, Representative Darrell Issa (R-CA-50) asked Acting Federal Trade Commission (FTC) Chairwoman Rebecca Kelly Slaughter whether the FTC needs legislative help to curb misuse of SEPs by “perpetuating dominance”. Slaughter responded in part:

“We want to make sure that that market power isn’t abused and that when your patent gets included in a standard, that you follow through on the commitment to license that patent at a fair, reasonable, and non-discriminatory rate so that your market power from your inclusion in a standard on which many implementers read doesn’t allow you to exclude competitors from the market. And that’s different from the way we traditionally think about patents, which are really rights to exclude. So, I think there is a role for antitrust law to play and there are many ways in which I think we could be better enabled to address competition problems and I have outlined them in my testimony, but I think this is an important issue for us to continue to focus on.”

Tillis Letter to USTR Tai Urges Strong Biologic Data Exclusivity, No Section 512 Safe Harbors in Future FTAs – On Thursday, March 18, Senator Thom Tillis (R-NC), Ranking Member of the Senate IP Subcommittee, sent a letter addressed to Katherine Tai, recently confirmed as President Biden’s selection for U.S. Trade Representative, asking USTR Tai to use negotiations on free trade agreements (FTAs) to secure strong data exclusivity protections for biologics but to avoid the inclusion of language in such FTAs that mirrors safe harbor protections under Section 512 of the Digital Millennium Copyright Act (DMCA). 

Fourth Circuit Joins Seventh, Ninth in Allowing Second TTAB Review in District Court – On Wednesday, March 17, the U.S. Court of Appeal for the Fourth Circuit issued a decision in Snyder’s-Lance, Inc. v. Frito-Lay North America, Inc. in which the appellate court found that a party to a trademark dispute seeking review of a second decision by the Trademark Trial and Appeal Board (TTAB), after a previous TTAB decision in the dispute had already been heard by and remanded from the U.S. Court of Appeals for the Federal Circuit, may seek review of that decision in federal district court, joining the Seventh and Ninth Circuits in recognizing this right of appeal.

EPO Patent Index 2020 Shows 9.9% Growth in Patent Filings from China – On Tuesday, March 16, the European Patent Office (EPO) released its annual Patent Index for 2020 which showed that, while Chinese telecom giant Huawei had dropped from its first-place position among all entities filing patent applications at the EPO, patent applications from China had increased by 9.9 percent over 2019’s totals, underscoring the positive efforts made to increase patenting activities in that country.

EUIPO, Eurojust Sign Agreement to Cooperate on Anti-Counterfeiting Enforcement – On Monday, March 15, the European Union Intellectual Property Office (EUIPO) and the European Union Agency for Criminal Justice Cooperation (Eurojust) announced that the two agencies had entered into a service level agreement which will provide additional funding to Eurojust through 2024 to help build capacities to enforce intellectual property rights against entities engaging in counterfeiting and online piracy.

CAFC Finds It Has Authority to Issue Mandamus on PTAB Institution Denials – On Friday, March 12, the Federal Circuit issued a precedential order on motion in Mylan Laboratories Ltd. v. Janssen Pharmaceutica, N.V. in which the appellate court found that it had authority to grant mandamus relief under the All Writs Act to a petitioner appealing a denial of inter partes review (IPR) institution from the Patent Trial and Appeal Board (PTAB), notwithstanding the Federal Circuit’s inability to entertain direct appeals of such denials from the PTAB.

CNIPA Announces Crackdown on “Irregular Patent Applications” in China – On Friday, March 12, China’s National Intellectual Property Administration (CNIPA) announced that, effective immediately, the nation’s IP administration would be implementing special examination working groups and other procedures to curtail “irregular patent applications” that are not based on real invention, include any fraudulent information or seek interests not in accordance with the legislative intent of China’s Patent Law.

Medtronic Files Petition for Writ on District Court Abstention in Patent Case Based on State Court Case – On Friday, March 12, Warsaw Orthopedics and its parent company, medical device firm Medtronic, filed a petition for writ of certiorari with the U.S. Supreme Court asking the nation’s highest court to take up an appeal from the Federal Circuit, which affirmed a federal district court’s abstention from a declaratory judgment action filed by Warsaw and Medtronic due to parallel state court proceedings begun by patent owner Rick Sasso involving infringement claims, notwithstanding exclusive jurisdiction under 28 U.S.C. § 1338(a) for federal courts to hear all cases arising under federal patent law.

CAFC Finds No Abuse of Discretion in Middle Florida’s Decision to Unseal Amended Complaint – On Friday, March 12, the Federal Circuit issued a precedential decision in DePuy Synthes Products, Inc. v. Veterinary Orthopedic Implants, Inc. in which the appellate court affirmed a decision by the Middle District of Florida to unseal an amended complaint filed in a patent infringement case after finding that the disclosure of manufacturer identities and other information on business relationship included in the complaint did not constitute trade secrets requiring confidentiality over the court’s obligation to ensure public access to court documents.



Qualcomm Technologies’ Dr. Wanshi Chen to chair 3GPP TSG RAN Plenary – On Friday, March 19, Qualcomm announced that Dr. Wanshi Chen, senior director of technology at Qualcomm Technologies, was elected by 3GPP members as the next chairman of 3GPP RAN Plenary. Up to now, Wanshi has been serving as the Chair for RAN1 Working Group — one of the most prestigious leadership positions in 3GPP that focuses on the physical layer of the radio interface. For the next two years, after this election, he will take on the expanded role of 3GPP TSG RAN Chair.

JPO Study Shows High Satisfaction With Examiners for Japan Patent Applicants – On Friday, March 19, the Japan Patent Office (JPO) released the findings of a survey of Japanese patent applicants showing that 97.3 percent of respondents reported that their satisfaction with the overall quality of patent examination at the JPO was neutral or higher, with 64.3 percent of respondents replying that they were at least somewhat satisfied. Rates of respondents reporting dissatisfaction have dropped from 11.8 percent in 2012 down to only 2.7 percent in 2020. 

Copyright Office Increases MMA Public Roundtables Due to Demand – On Thursday, March 18, the U.S. Copyright Office announced that it had decided to add a half-day’s worth of public roundtables for a study to develop best practices by the Mechanical Licensing Directive (MLC) to identify and locate copyright owners for distributing unclaimed royalties collected by the MLC under blanket licenses enacted by the Music Modernization Act (MMA) owing to a high volume of parties seeking to participate in the public roundtables.

FCC Begins Implementing Beat CHINA for 5G Act By Starting Mid-Band Spectrum Auction – On Thursday, March 18, the Federal Communications Commission (FCC) announced that it was taking steps to initiate a public auction for licenses to mid-band wireless spectrum frequencies in the 3450 megahertz (MHz) to 3550 MHz range by the end of 2021 as part of the agency’s duties under the Beat China by Harnessing Important, National Airwaves (CHINA) for 5G Act of 2020.

USITC Institutes Section 337 Investigation Filed by NOCO Against Battery Jump Starter Retailers – On Wednesday, March 17, the U.S. International Trade Commission announced that it had instituted a Section 337 investigation into claims of patent and trademark infringement filed at the agency by The NOCO Company involving the importation for sale of certain portable battery jump starters and components thereof involving various Chinese entities and American auto parts retailers including Advance Auto Parts, AutoZone, Walmart, Lowe’s and Best Buy.

FDA Reopens Public Comment Period on Orange Book Patent Information – On Tuesday, March 16, the U.S. Food and Drug Administration (FDA) announced in the Federal Register that it was reopening a public comment period regarding the listing of patent information related to FDA-approved drugs in the agency’s Orange Book pursuant to the agency’s duties under the recently signed Orange Book Transparency Act of 2020. The public comment period will last 30 days until April 15.

Settlement Reached in SDNY Copyright Case Over Ariana Grande’s “7 Rings” – On Tuesday, March 16, U.S. District Judge Naomi Reice Buchwald of the Southern District of New York entered an order dismissing without prejudice a copyright case filed by hip-hop artist Josh Stone, who performs under the name “DOT,” against Ariana Grande after reports indicated that the two sides had settled Stone’s claims that Grande’s 2019 single “7 Rings” included copyrightable elements from Stone’s own work that he allegedly played for a co-writer of “7 Rings.”

Ninth Circuit Affirms That “THE HERBAL CHEF” Is Not Inherently Distinctive – On Tuesday, March 16, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished opinion in Herbal Chef, LLC v. AFG Distribution, Inc. in which the appellate court affirmed a ruling on summary judgment that the plaintiff’s trademark for “THE HERBAL CHEF” was at most descriptive of the plaintiff’s catering, educational and advocacy services involving cooking with infused cannabis, leading to the dismissal of unfair competition and trademark infringement claims filed by Herbal Chef.

Ninth Circuit Affirms Lack of Personal Jurisdiction, Says Saudi Arabia is Proper Forum for Trade Secret Claims – On Monday, March 15, the Ninth Circuit issued an unpublished opinion in Hungerstation LLC v. Fast Choice LLC in which the appellate court affirmed a district court’s dismissal of trade secret misappropriation claims for lack of personal jurisdiction after analysis of the defendant’s minimum contacts in the U.S. showed that its transfer of copied information to servers located in the U.S. was fortuitous and that Saudi Arabia, where the parties and witnesses are located, was not an inappropriate forum for resolving the claims.

This Week on Wall Street

Google Expected to Spend $7B on Office Space, Data Centers During 2021 – On Thursday, March 18, a post on Google’s official blog authored by company CEO Sundar Pichai announced that the Internet services giant plans to spend $7 billion through 2021 to purchase facilities for use as office spaces and data centers, including $1 billion in planned expenditures in the company’s home state of California. 

Fujifilm Diosynth to Build $2B Drug Manufacturing Plant in Suburb of Raleigh, NC – On Thursday, March 18, news reports indicated that drug development firm Fujifilm Diosynth Biotechnologies had agreed to invest $2 billion into building a drug development and manufacturing facility in Holly Springs, NC, a suburb of Raleigh, which will be the largest cell culture contract development and management facility in North America.

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: Adobe Inc. (99th)
  • Wednesday: None
  • Thursday: None
  • Friday: None

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