Other Barks & Bites for Friday, April 9: Supreme Court Issues Major Win for Google, Brazil Suspends Patent Term Extensions During COVID-19 and CAFC Finds No Standing for Apple to Appeal PTAB Decisions for Qualcomm

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Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/6113467/stock-photo-shar-pei-dog-with-newspapers.htmlThis week in Other Barks & Bites: the Federal Circuit finds that Apple had no standing to appeal two PTAB decisions for Qualcomm; the Second Circuit hears oral arguments in copyright lawyer Richard Liebowitz’s sanctions appeal as well as an appeal of antitrust claims against Takeda over improper extensions of Food and Drug Administration exclusivity for Actos; the Supreme Court rules that Google’s copying of Oracle’s Java API was fair use; Brazil’s highest court enters a preliminary ruling eliminating patent term extensions for drug patents during the COVID-19 pandemic; German automakers BMW and Mercedes-Benz see record quarters of sales while GM announces plans to shutter more factories due to the global chip shortage; and Nokia and Lenovo enter into a cross-licensing agreement ending worldwide patent litigation between those two companies.


First Circuit Affirms No Assignment of Patent Rights for Breach of Employment Agreement – On Thursday, April 8, the U.S. Court of Appeals for the First Circuit issued a ruling in Covidien LP v. Esch in which the appellate court found that the district court did not abuse its discretion in denying a motion for declaratory judgment seeking the assignment of patent rights to endovenous medical devices after following the jury’s verdict which found the defendant liable for nearly $800,000 in damages for breaching confidentiality duties to Covidien, his former employer, but not liable for breaching his duty to disclose inventions to the company.

CAFC Says Apple Has No Standing to Appeal PTAB Decisions for Qualcomm – On Wednesday, April 7, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Apple Inc. v. Qualcomm Inc. in which the appellate court found that Apple lacked standing to appeal a pair of Final Written Decisions from the Patent Trial and Appeal Board (PTAB) after entering into a licensing agreement with Qualcomm involving the challenged patents.

Second Circuit Hears Oral Arguments in Copyright Lawyer Sanctions Appeal – On Wednesday, April 7, the U.S. Court of Appeals for the Second Circuit heard oral arguments in an appeal of a $20,000 fine entered as sanctions against notorious copyright lawyer Richard Liebowitz based on testimony from a mediator that Liebowitz lied about receiving permission for a client to remotely attend mediation proceedings.

Second Circuit Hears Oral Arguments in Diabetes Drug Exclusivity Antitrust Case – On Wednesday, April 7, a judicial panel at the Second Circuit heard oral arguments in an appeal involving antitrust claims brought by purchasers of the diabetes drug Actos involving allegations that Takeda Pharmaceuticals secured drug combination patent claims in order to improperly increase its period of market exclusivity with the U.S. Food and Drug Administration.

CAFC Affirms Delaware Ruling Nixing Admissibility of Source Code Printouts in Wi-LAN Case – On Tuesday, April 6, the Federal Circuit issued a precedential decision in Wi-LAN Inc. v. Sharp Electronics Corp. in which the appellate court affirmed a ruling from the District of Delaware holding that source code printouts, which showed that Sharp smart televisions practiced a patented method of deinterlacing video data streams, entered into evidence by Wi-LAN were inadmissible.

Supreme Court Rules Google’s Copying of Oracle’s Java API Was Fair Use – On Monday, April 5, the U.S. Supreme Court issued a ruling in Google LLC v. Oracle America, Inc. in which the nation’s highest court ruled that Google’s copying of 11,500 lines of declaring code from Oracle’s Java application programming interface (API), which Google copied in order to create its incredibly commercially successful Android smartphone platform, was a fair use of Oracle’s copyrighted computer code.

Supreme Court Denies Petition Seeking Review of Federal Circuit Mandamus Order on Transfer – On Monday, April 5, the Supreme Court’s order list showed that the nation’s highest court had denied a petition for writ of certiorari filed by SynKloud Technologies seeking review of the Federal Circuit’s decision to issue a writ of mandamus overruling the Western District of Texas’ decision to deny a motion to transfer venue to the Northern District of California.

Second Circuit Rules That Met’s Website Made Fair Use of Van Halen “Frankenstein” Photo – On Friday, April 2, the U.S. Court of Appeals for the Second Circuit issued a summary order in Marano v. The Metropolitan Museum of Art in which the appellate court affirmed a district court’s ruling that the Met’s use of a 1982 picture of Eddie Van Halen playing his “Frankenstein” guitar on its website to illustrate a museum exhibit was transformative, meeting the fair use exception to copyright infringement.


Brazil’s Supreme Court Issues Preliminary Ruling Suspending Drug Patent Extensions – On Wednesday, April 7, Brazil’s Supreme Federal Court issued a preliminary ruling suspending a statute that guarantees a minimum term of ten years of patent protection from the grant date in part to reduce liability for generic drug manufacturers during the COVID-19 pandemic.

USITC Institutes Pair of Section 337 Investigations Into Toner Containers – On Wednesday, April 7, the U.S. International Trade Commission announced that it was instituting a pair of Section 337 investigations based on complaints for patent infringement filed at the agency by Japanese tech firm Canon against more than 30 firms located mainly in China and California over the importation for sale of certain toner supply containers. 

Nokia, Lenovo Settle Worldwide Patent Infringement Claims – On Wednesday, April 7, Finnish telecom firm Nokia and Chinese PC maker Lenovo announced that the two companies had entered into a cross-licensing agreement to settle all outstanding patent infringement claims across courts in the U.S., Brazil, India and Germany. The agreement reportedly includes a net balancing payment from Lenovo to Nokia, the amount of which was undisclosed.

Judge Albright Enters Sanctions Striking Defenses, Counterclaims in Oil Fracturing Trailer Patent Case – On Tuesday, April 6, U.S. District Judge Alan D. Albright of the Western District of Texas granted a motion for sanctions, striking non-infringement defenses and invalidity counterclaims raised by True Chemical Solutions as well as entering a preliminary injunction preventing True Chem from selling various oil fracturing and water treatment trailers over allegations that True Chem hid relevant evidence from patent owner Performance Chemical Company.

Judge Durkin Only Trims Abuse of Process Counterclaim From “Slap Chop” Trademark Case – On Monday, April 5, U.S. District Judge Thomas M. Durkin of the Northern District of Illinois issued an order dismissing an abuse of process counterclaim raised by defendants in a trademark case involving the “Slap Chop” food preparation product, but denied plaintiff Square One Entertainment’s motion to strike invalidity and noninfringement counterclaims as well as affirmative defenses raised in defendants’ answers.

Mobile Gaming Firm Faces Patent Suit Over Peer-to-Peer Wagering, Gaming Platforms – On Monday, April 5, mobile gaming firm Skillz Platform filed a lawsuit in the Northern District of California alleging that AviaGames’ gaming apps, including Pocket7Games, Bingo Clash and Solitaire Clash, infringes upon patent claims covering wagering platforms for tournaments and location-based peer-to-peer digital gaming platforms.

Apple Files Opposition to Trademark Application for Water Bottle Logo – On Monday, April 5, consumer tech giant Apple filed a notice of opposition at the Trademark Trial and Appeal Board (TTAB) asking the Board to deny registration to a trademark application filed by Georgette, LLC which would cover the use of an apple-shaped logo on purified drinking water and bottled water.

USPTO Announces New COVID-19 Category for Patents for Humanity Program – On Monday, April 5, the U.S. Patent and Trademark Office announced that the agency was creating a new award category for its Patents for Humanity Program providing public recognition and expedited patent application examination proceedings for inventions related to addressing the COVID-19 pandemic. 

This Week on Wall Street

Increased Chinese Auto Demand Drives Record Sales for BMW, Mercedes – On Thursday, April 8, German automaker BMW announced that it had sold 636,606 cars in the first quarter of 2020, the greatest sales volume for a single quarter in BMW’s history. Rival carmaker Mercedes-Benz recently also announced a record sales figure of 581,270 cars sold in the first quarter with both companies seeing increased demand from China as a major reason behind the sales increases. 

GM Announces Additional Plant Closures Due to Chip Shortage – On Thursday, April 8, news reports indicated that American automaker General Motors would be shuttering production at factories in Spring Hill, TN, and Lansing Delta Township, MI, in addition to other facilities that will remain closed while the company suffers from a lack of computer chips due to the global chip shortage.

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: None
  • Wednesday: Wells Fargo & Co. (t-173rd)
  • Thursday: Bank of America Corp. (108th); Taiwan Semiconductor Manufacturing Co. (9th)
  • Friday: None


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