Other Barks & Bites for Friday, April 2: GAO Report Shows No Federal Government Patent Rights in Remdesivir, Second Circuit’s Warhol/Prince Ruling Limits Fair Use Doctrine, and Ex-USPTO Director Iancu Rejoins Irell & Manella

This week in Other Barks & Bites: Senators Tillis and Leahy urge the appointment of several key IP officials, including USPTO Director, before World IP Day; former USPTO Director Andrei Iancu rejoins his former firm Irell & Manella in their IP litigation practice; a trademark trends report published by Dechert LLP shows China accounting for 25% of the record number of U.S. trademark applications filed in 2020; TSMC announces plans to invest $100 billion over three years to increase chip manufacturing; the Second Circuit issues a ruling finding that Andy Warhol’s silkscreen prints of music legend Prince was not a fair use of the copyrighted photo; the Fourth Circuit vacates a nearly $100 million trademark verdict against Walmart for an improper jury instruction on willfulness; and the GAO issues a report showing that $162 million in federal funding for clinical trials of remdesivir gave rise to no patentable inventions owned by the U.S. government.

Bites 

GAO Report Shows Federal Funding of Remdesivir Research Generated No New Inventions – On Wednesday, March 31, the U.S. Government Accountability Office (GAO) issued a study finding that, although the U.S. federal government contributed $162 million in public funding to preclinical studies and clinical trials involving Gilead Science’s antiviral compound remdesivir, federal contributions to those projects did not give rise to patentable inventions giving the federal government any rights to the compound.

Dechert Trademark Trends Report Shows China Accounts for 25% of U.S. Trademark Filings in 2020 – On Wednesday, March 31, international law firm Dechert LLP published its 2021 Trends in Trademarks report which showed that Chinese applicants contributed about one-quarter of the record number of 659,000 trademark applications filed during 2020 at the U.S. Patent and Trademark Office, which eclipsed the previous all-time high of 495,000 trademark applications in 2019. 

Sens. Leahy, Tillis Urge President Biden to Appoint USPTO Director Ahead of World IP Day – On Tuesday, March 30, a letter penned by Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) was sent to President Joe Biden asking him to prioritize the appointment of intellectual property officers within the Executive Branch, including the Director of the U.S. Patent and Trademark Office, ahead of World IP Day, which will take place on April 26.

TTAB Redesignates Coca-Cola “ZERO” Motion to Amend Ruling as Precedential – On Tuesday, March 30, the Trademark Trial and Appeal Board (TTAB) issued an order redesignating as precedential a May 2019 ruling by the TTAB that granted a motion to amend a series of pending trademark applications to disclaim the term “ZERO,” which mooted an opposition filed by Royal Crown Company and Dr. Pepper/Seven Up.

Fourth Circuit Vacates $95.5 Million Trademark Verdict Against Walmart For Improper Willfulness Instruction – On Monday, March 29, the U.S. Court of Appeals for the Fourth Circuit issued a decision in Variety Stores, Inc. v. Walmart Inc. in which the appellate court vacated a $95.5 million reasonable royalty and profit disgorgement award against Walmart for trademark infringement after finding that the district court did not properly instruct the jury on willfulness.

Coalition of Industry Groups Sends Letter to Executive Officials Opposing COVID-19 IP Waivers – On Monday, March 29, a coalition of business organizations including the U.S. Chamber of Commerce, the National Association of Manufacturers, BIO, PhRMA and the Small Business and Entrepreneurship Council sent a letter addressed to various officials within the Executive Branch, including Secretary of Commerce Gina Raimondo, urging their opposition to a proposal at the World Trade Organization (WTO) to waive global intellectual property protections for products and services related to COVID-19.

Second Circuit Rules Warhol’s Prince Prints Not Fair Use as Matter of Law – On Friday, March 26, the U.S. Court of Appeals for the Second Circuit issued a decision in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith in which the appellate court reversed a district court’s ruling that a series of silkscreen prints of pop music icon Prince created by the artist Andy Warhol was not a fair use of photographer Lynn Goldsmith’s work that she licensed in 1984 to Vanity Fair.

UK Court of Appeal Decides Not to Diverge From CJEU Copyright Jurisprudence – On Friday, March 26, the UK’s Court of Appeal issued a decision in TuneIn, Inc. v. Warner Music UK in which the court held that it would not diverge from EU case law on copyright law from the Court of Justice for the European Union (CJEU) absent several conditions, including no changes to post-Brexit copyright law by the British Parliament and the CJEU’s “unrivalled experience” in interpreting the concept of “communication to the public.” 

Barks

Ex-Director Iancu to Rejoin Irell & Manella as IP Litigation Partner – On Thursday, April 1, California-based law firm Irell & Manella announced that former USPTO Director Andrei Iancu, who resigned from his government post in January, would be returning to his former firm as a partner working in the firm’s intellectual property litigation practice. 

Ice Cube Files Suit Over Robinhood’s Use of Likeness in Ad – On Wednesday, March 31, O’Shea Jackson, Sr., more commonly known as the rap artist Ice Cube, filed a lawsuit in the Northern District of California accusing stock trading platform Robinhood of committing “an act of unmitigated gall and transparent retribution” by misappropriating Ice Cube’s image and likeness in the trading platform’s Robinhood Snacks newsletter.

USPTO Extends Public Comment Periods for National Medal Application, Representative and Address Provisions – On Wednesday, March 31, the U.S. Patent and Trademark Office announced in the Federal Register that the agency would be extending by 30 days a pair of information collections related to nomination applications for the National Medal of Technology and Innovation as well as representative and address provisions regarding parties authorized to take action in patent applications and where to send correspondence regarding proceedings. 

Xinuos Files Antitrust, Copyright Suit Against IBM and Red Hat – On Wednesday, March 31, software company Xinuos filed a lawsuit in the District Court of the Virgin Islands alleging that IBM and Red Hat had engaged in a scheme to steal software code for server operating systems and colluding to keep Xinuos from competing in the Unix and Linux server OS market. 

DoorDash Faces Patent Infringement Claims Over Wireless Device Tracking System – On Tuesday, March 30, Gridley IP LLC filed a lawsuit in the Northern District of Ohio alleging claims of patent infringement against food delivery provider DoorDash, asserting patent claims covering a method for mapping population activity involving the collection of location, speed and direction data from wireless mobile devices.

USITC Institutes Section 337 Investigation Into Smart Thermostats, HVAC Systems – On Tuesday, March 30, the U.S. International Trade Commission announced that it was instituting a Section 337 investigation based on a complaint filed by EcoFactor of Palo Alto, CA, alleging patent infringement by the importation for sale of smart thermostat, heating, ventilation and air-condition (HVAC) and HVAC control systems by several respondents including Google, Honeywell, Emerson Electric, Siemens AG, ecobee and Johnson Controls.

Judge Jordan Invalidates Smartphone System for Access Credentials Under Alice – On Tuesday, March 30, U.S. District Judge Sean D. Jordan of the Eastern District of Texas granted a motion to dismiss a patent infringement suit filed by medical credentialing solutions provider IntelliCentrics Inc. after ruling that IntelliCentrics’ patent claims covering a method of using a smartphone app to credential visitors for an access-controlled environment were directed to unpatentable subject matter under the Alice/Mayo Section 101 framework.

Copyright Office Extends Deadline for Web V Rate Setting Determination – On Monday, March 29, the U.S. Copyright Office announced that it was exercising its authority under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to extend the deadline for the Copyright Royalty Board’s initial determination in the Web V webcaster rate setting proceeding by 60 days to June 14 in light of a delay to the hearing process.

This Week on Wall Street 

TSMC Announces Plans to Invest $100B to Meet Skyrocketing Global Chip Demand – On Thursday, April 1, major semiconductor manufacturer Taiwan Semiconductor Manufacturing Co. announced that it was planning to invest $100 billion over the next three years into capital projects that would increase chip production for the company, already the largest contract chip producer in the world, to meet high demand from growth in 5G mobile and other industries requiring high computing capabilities. 

GE Announces Company’s Largest-Ever Onshore Wind Project – On Wednesday, March 31, GE Renewable Energy announced that it had been selected to provide turbines for a 1,485 megawatt (MW) renewable wind energy project in Oklahoma, which GE Renewable Energy CEO Tim White indicated is the largest combined onshore wind energy project in the company’s history.

BlackBerry Revenues Lower Due to Lower Patent Licensing Activities – On Tuesday, March 30, mobile tech developer BlackBerry Ltd. reported $210 million in fourth quarter revenues for 2020, a year-over-year decrease of $72 million which BlackBerry executives attributed mainly to reduced patent licensing activities as the company negotiates a patent sale with a currently unnamed company.

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