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This week in Other Barks & Bites: U.S. Trade Representative Katherine Tai testifies before the Senate Finance Committee, where lawmakers express their concerns about waiving IP rights under the TRIPS Agreement; Federal Circuit remands New Vision Gaming for proceedings consistent with Arthrex, avoiding difficult questions on potential due process violations at the PTAB; a Sonos SEC filing reveals a preliminary injunction win against Google’s Cast technology in Germany; Australia’s 2021-22 federal budget includes a patent box that will reduce taxable income related to medical and biotech patents; Alvotech files a lawsuit accusing AbbVie of maintaining an unlawful monopoly over its blockbuster drug Humira; the UK High Court nixes alternative service to Huawei subsidiaries which could delay a 3G patent case by two to three years; consulting firm AlixPartners expects the automotive industry to lose $110 billion in revenues due to the chip shortage; and China announces nearly 20% growth in 2020 patent grants to Chinese entities from countries participating in China’s Belt and Road Initiative.
China Announces 20% Growth for Chinese Patents in Belt and Road Countries – On Friday, May 14, Chinese state-run media reported that in 2020, more than 4,200 patents were granted to Chinese companies from countries participating in China’s Belt and Road (B&R) Initiative, a 19.3% year-over-year increase in Chinese patenting in B&R countries according to China’s National Intellectual Property Administration (CNIPA).
CAFC Avoids Forum, Due Process Arguments, Remands New Vision Gaming Under Arthrex – On Thursday, May 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in New Vision Gaming & Development, Inc. v. SG Gaming, Inc. in which the appellate court remanded a pair of covered business method (CBM) reviews to the Patent Trial and Appeal Board (PTAB). Circuit Judge Pauline Newman dissented-in-part, arguing that the Federal Circuit should have found that the parties in the case had contractually agreed to resolving patent disputes in the District of Nevada, not the PTAB.
Tai Tells Finance Committee That United States Will Not Give Away IP – U.S. Trade Representative Katherine Tai on Wednesday testified before the Senate Finance Committee about the Administration’s support for waiver of intellectual property (IP) provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Chairman Ron Wyden (D-OR) opened by explaining that, while entering negotiations on IP waiver “was the right decision,” the waiver will not “unlock a vaccination miracle.” Committee Ranking Member Mike Crapo (R-ID) reminded Tai that TRIPS says Congress’ approval of the TRIPS Agreement can be withdrawn “if and only if Congress enacts a joint resolution to that effect.” Last summer, both houses of Congress decided against such a move, yet Tai announced via Tweet last week that the administration approves the proposal without consulting Congress. Tai reassured the lawmakers that “we’re not talking about giving away intellectual property” but said there’s precedent for IP waiver and that engaging in negotiations is important to avoid unintended consequences.
Sonos SEC Filing Reveals Court Victory on Injunction Against Google in Germany – On Wednesday, May 12, wireless speaker firm Sonos Inc. filed a 10-Q form with the U.S. Securities and Exchange Commission to report quarterly earnings. The SEC filing revealed that in late April, the Court of Hamburg issued a preliminary injunction preventing Google from making its Cast technology available in Germany for mobile devices and playback devices, an important early victory in Sonos’ global patent enforcement campaign against Google.
CAFC Rules Red Wing Does Not Preclude Personal Jurisdiction By Demand Letters – On Wednesday, May 12, the Federal Circuit issued a precedential decision in Trimble Inc. v. PerDiemCo LLC in which the appellate court reversed the Northern District of California’s dismissal of a declaratory judgment action for lack of personal jurisdiction. The Federal Circuit held that Red Wing Shoe Co. v. Hockerson-Halberstadt, Inc. (1998) did not preclude personal jurisdiction despite the district court’s holding that it was unreasonable to assert jurisdiction over PerDiemCo based on its demand letters on patent infringement to Trimble under the Red Wing standard.
CAFC Says Prosecution History Evidence Outweighs Dictionary Definition in Claim Construction – On Wednesday, May 12, the Federal Circuit issued a precedential decision in Uniloc 2017 LLC v. Apple Inc. in which the appellate court affirmed a mixed claim finding in an inter partes review (IPR) proceeding at the PTAB, ruling that intrinsic evidence including patent prosecution history outweighed dictionary definitions offered by Uniloc for the claim term “intercepting.”
Australia Federal Budget Includes Patent Box to Encourage Medical, Biotech Innovations – On Tuesday, May 11, Australia’s national government released its 2021-2022 budget which includes the introduction of a patent box scheme that will reduce taxes on income derived from Australian medical and biotech patents by as much as 13 percent for large corporations (8 percent for small- and medium-sized businesses) in an attempt to encourage R&D investment in medical and biotech sectors within Australia.
Eighth Circuit Reverses District on Initial Interest Confusion, False Advertising Claims – On Tuesday, May 11, the U.S. Court of Appeals for the Eighth Circuit issued a ruling in Select Comfort Corp. v. Baxter in which the appellate court reversed a mixed jury verdict in a trademark case over “SLEEP NUMBER” adjustable air mattresses after finding that the district court erred in finding that an initial interest confusion theory could not apply as a matter of law, and for impermissibly shifting the burden of proof on false advertising claims based on a finding of literal falsity.
CAFC Nixes Mobile Device Targeted Ad System Claims on Section 101 Cross-Appeal – On Tuesday, May 11, the Federal Circuit issued a precedential decision in Free Stream Media Corp. DBA Samba TV v. Alphonso Inc. in which the appellate court reversed the Northern District of California’s denial of Alphonso’s motion to dismiss the case, agreeing with arguments raised by Alphonso on cross-appeal that patent claims owned by Samba were invalid under Section 101 for being directed to the abstract idea of targeted advertising.
UK High Court Says No Alternative Service of 3G Patent Suit Against Huawei Subsidiaries – On Friday, May 14, Nicholas Caddick QC of the UK’s High Court entered a ruling setting aside permission to Japanese patent owner Godo Kaisha IP Bridge to serve a pair of China-based Huawei subsidiaries out of jurisdiction despite arguments that service under the Hague Service Convention could delay the beginning of Godo Kaisha’s 3G patent suit against Huawei subsidiaries by two to three years.
USITC Institutes Section 337 Investigation on Streaming Fitness Devices – On Thursday, May 13, the U.S. International Trade Commission announced that it was instituting a Section 337 investigation into fitness devices and streaming components thereof based on a patent infringement complaint filed by television providers DISH and Sling TV against several respondents including ICON Health & Fitness, FreeMotion Fitness, NordicTrack, lululemon, MIRROR and Peloton.
USPTO Seeks Public Comments on Trademark Communications Post Registration – On Wednesday, May 12, the U.S. Patent and Trademark Office announced an information collection in the Federal Register soliciting public comments on various communications submitted to the agency following the registration of a trademark, including requests to amend goods or services covered and continuing use declarations.
USPTO Issues Patent No. 11,000,000 For Stent Delivery Method – On Tuesday, May 11, the USPTO announced that the agency had reached the milestone of issuing patent number 11,000,000, which was granted to co-inventors Saravana B. Kumar and Jason S. Diedering, both of 4C Medical Technologies, and covers a method for delivering, positioning and/or repositioning a collapsible and expandable stent frame within a patient’s heart chamber.
USITC Institutes Section 337 Investigation on High-Potency Sweeteners – On Tuesday, May 11, the USITC announced that it was instituting a Section 337 investigation into certain high-potency sweeteners and processes for making the same based on a patent infringement complaint filed at the agency by Celanese International against a dozen respondents including Anhui Jinhe Industrial of Chuzhou, China, and various importers located across the United States.
Alvotech Seeks Declaration That AbbVie’s Humira Patents Are Unenforceable – On Tuesday, May 11, Iceland-based biopharmaceutical firm Alvotech filed a lawsuit in the Eastern District of Virginia against American rival AbbVie, arguing that Abbvie has maintained an unlawful monopoly over its rheumatoid arthritis drug Humira “[t]hrough the acquisition and threatened enforcement of an outrageous number of patents of dubious validity” and seeking a declaratory judgment that certain AbbVie patents are not infringed by Alvotech’s biosimilar version of Humira or that the patents are unenforceable for inequitable conduct.
Oracle Files Lawsuit Against Envisage for Unlicensed Use of Oracle Database – On Tuesday, May 11, software company Oracle filed a lawsuit in the Northern District of California alleging claims of copyright infringement against Envisage Technologies, accusing Envisage of operating its suite of public safety officer software apps in violation of its perpetual license with Oracle allowing Envisage to run Oracle Database software on at most two processors.
Copyright Office Extends Filing Deadlines During COVID-19 to July 9 – On Monday, May 10, the U.S. Copyright Office announced that it was again extending temporary adjustments to certain timing provisions under the Copyright Act for an additional 60 days to July 9 for persons affected by the COVID-19 pandemic pursuant to the agency’s authority under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
This Week on Wall Street
Disney’s Miss on Streaming Subscriber Growth Drops Stock By 4% – On Thursday, May 13, entertainment conglomerate The Walt Disney Company announced quarterly earnings in which the company reported 103.6 million subscriptions for its Disney+ service, missing analyst expectations of 109 million subscriptions and dropping Disney stock by about 4 percent in after-hours trading.
AlixPartners Forecasts $110B Loss in 2021 Revenue to Auto Industry Caused by Chip Shortage – On Friday, May 14, consulting firm AlixPartners issued industry forecasts for the automotive industry which nearly doubled a January estimate on revenues lost by the automotive industry due to the computer chip shortage up to $110 billion by preventing the production of 3.9 million vehicles this year.
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: Bridgestone Corp. (t-214th)
- Tuesday: Baidu, Inc. (117th)
- Wednesday: Analog Devices, Inc. (160th); Cisco Systems, Inc. (39th)
- Thursday: Applied Materials, Inc. (62nd); Robert Bosch GmbH (41st); Tencent Holdings Ltd. (81st)
- Friday: Deere & Co. (t-104th)
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