Other Barks & Bites for Friday, May 21: Congress Attacks AbbVie’s Humira Patent Practices, SCOTUS Denies Cert in Enbrel Patent Case and Germany’s Bundestag Passes Controversial ‘Minor Use’ Copyright Provision

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https://depositphotos.com/6113467/stock-photo-shar-pei-dog-with-newspapers.htmlThis week in Other Barks & Bites: the House Oversight Committee takes action against AbbVie’s patent practices regarding its blockbuster drug Humira; TSMC increases microcontroller output by 60% to address the global chip shortage; the Ninth Circuit affirms that USPTO communications with patent applicants are not information collections under the Paperwork Reduction Act; the U.S. Supreme Court denies cert to a Sandoz appeal on issues of double patenting involving the autoimmune disorder treatment Enbrel; Germany’s federal parliament passed a bill implementing the EU Copyright Directive including a controversial “minor use” provision; China joins the EUIPO’s TMview database; the USPTO issues proposed rules to implement the Trademark Modernization Act; and the USITC institutes a Section 337 patent infringement investigation against Apple’s wearable ECG devices.


Germany’s Bundestag Implements EU Copyright Directive With Controversial “Minor Use” Provision – On Thursday, May 20, the Bundestag, Germany’s federal parliament, passed into law a draft bill designed to implement the provisions of the EU’s 2019 Copyright Directive. The bill includes a “minor use” provision exempting de minimis uses of copyrighted music under 15 seconds in length which EU copyright groups have argued will prevent musicians from collecting royalties on songs used for short video clips on TikTok, Instagram and other digital platforms.

Ninth Circuit Affirms MPEP Rules Don’t Constitute Info Collections Under PRA – On Thursday, May 20, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Hyatt v. Office of Management and Budget in which the appellate court affirmed a district court’s ruling that communications between the U.S. Patent and Trademark Office and patent applicants pursuant to the Manual of Patent Examining Procedure (MPEP) do not constitute information collections requiring approval from the Office and Management and Budget under the terms of the Paperwork Reduction Act. 

USPTO Issues NPRM to Implement Provisions of the Trademark Modernization Act – On Tuesday, May 18, the U.S. Patent and Trademark Office issued a notice of proposed rulemaking in the Federal Register to implement provisions of the Trademark Modernization Act passed late last year by Congress, including the establishment of ex parte expungement and reexamination proceedings for cancelling marks unused in commerce, as well as new procedures for addressing court orders regarding cancellation or affecting registrations.

Congress Turns Up the Heat on AbbVie Over Humira Patent Practices – On Tuesday, May 18, members of the House Committee on Oversight and Reform grilled AbbVie CEO Richard Gonzalez on the company’s patent practices regarding its rheumatoid arthritis blockbuster Humira, accusing the company of preventing consumer access to lower priced biosimilars. The hearing follows the release of a report from the House Oversight Committee tying increases in pricing for Humira to AbbVie’s patent-related activities.

Sixth Circuit Affirms Trademark Infringement Ruling Over “ATLAS” Transportation Services – On Tuesday, May 18, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in AWGI, LLC v. Atlas Trucking Company, LLC in which the appellate court affirmed the district court’s application of the Frisch factors (the Sixth Circuit’s version of the Sleekcraft factors on likelihood of consumer confusion) leading to its finding that companies owned by Eaton Steel developing “ATLAS”-branded transportation services infringed upon trademark rights for AWGI’s Atlas Movers transportation services.

Second Circuit Affirms Dismissal of Copyright Suits Over “Fish Sticks n’ Tater Tots” – On Tuesday, May 18, the U.S. Court of Appeals for the Second Circuit issued a summary order in Brown v. Netflix, Inc. in which the appellate court affirmed the district court’s granting motions to dismiss claims filed against Netflix and Apple, as well as a judgment on the pleadings in favor of Amazon, over copyright claims filed by the songwriters of “Fish Sticks n’ Tater Tots” over the allegedly unauthorized use of that song in a movie available on streaming media services made available by those three companies.

Ninth Circuit Affirms No Class Action Certification in Warner Music Streaming Royalties Suit – On Monday, May 17, the Ninth Circuit issued an unpublished decision in Williams v. Warner Music Group Corp. in which the appellate court affirmed the district court’s denial of a class action certification in a copyright case filed over Warner Music’s streaming royalties practices, finding no abuse of discretion in the district court’s ruling that Williams failed the typicality requirement of Federal Rule of Civil Procedure 23(a)(3) nor any abuse in the district court’s decision not to extend the pre-certification class discovery period.

SCOTUS Denies Cert in Sandoz Patent Case Over Enbrel Biosimilar – On Monday, May 17, the U.S. Supreme Court issued an order list showing that the nation’s highest court had denied a petition of writ for certiorari filed by pharmaceutical firm Sandoz, which had asked SCOTUS to rule that Immunex’s purchase of substantial rights to a patent covering its autoimmune disorder treatment Enbrel should fall within patent law’s prohibition against double patenting.


 USPTO Announces Information Collection on National Summer Teacher Institute – On Thursday, May 20, the USPTO announced in the Federal Register that it would be soliciting public comments regarding the agency’s National Summer Teacher Institute (NSTI), specifically to ensure that applications for teachers who want to take part in NSTI are certifying the proper individuals for the program.

USITC Institutes Section 337 Investigation Against Apple’s Wearable ECG Devices – On Thursday, May 20, the U.S. International Trade Commission announced that it had decided to institute a Section 337 investigation into certain wearable electronic devices with electrocardiogram (ECG) functionality imported into the U.S. for sale by consumer tech giant Apple based on a complaint for patent infringement filed by AliveCor, Inc. of Mountain View, CA.

USPTO Issues Latest Update to Trademark Assignment, Case Files Dataset – On Thursday, May 20, the USPTO released updated datasets for the agency’s trademark application and registration assignments through January 2021 as well as prosecution events, third-party oppositions and renewal histories for trademark applications and registrations through February 2021.

China Joins EUIPO’s TMview, Increases Trademark Database By 32 Million Marks – On Wednesday, May 19, the European Union Intellectual Property Office (EUIPO) announced that China’s National Intellectual Property Administration (CNIPA) will make information on 32 million trademarks registered in China available for research through the EUIPO’s TMview database, increasing that trademark database to more than 90 million marks from 75 participating IP offices.

USPTO Announces Fast-Track Program for COVID-19 Ex Parte Trademark Appeals – On Wednesday, May 19, the USPTO announced that it would initiate a Pilot Prioritized Review Program for Appeals Related to COVID-19 to expedite the review of ex parte appeals of COVID-19-related trademark applications that were examined in the COVID-19 Prioritized Trademark Examination Program with the goal of speeding the commercialization of medical products and services related to the pandemic.

Atari Files Voluntary Dismissal of Trademark Suit Against Joystick Makers – On Tuesday, May 18, video game company Atari Interactive filed a notice of voluntary dismissal in the Central District of California in a case against a pair of video game controller makers which Atari accused of infringing upon trademark rights to Atari classic joystick controllers.

USPTO Updates China IPR Toolkit for U.S. Businesses and Practitioners – On Tuesday, May 18, the USPTO announced that it had updated the China Intellectual Property Rights (IPR) toolkit, originally published in October 2019, to reflect recent changes made by the Chinese government to IP-related laws and government structure in that nation.

Epic Games Files Trademark Suit Against Makers of “NREAL” AR Glasses – On Friday, May 14, videogame developer Epic Games filed a lawsuit in the Eastern District of North Carolina alleging claims of trademark infringement against Chinese firm Shenzhen Tairuo Technology over that company’s Nreal-branded augmented reality glasses, which Epic argues is confusingly similar to its Unreal Engine, a software suite for developers who want to create three-dimensional immersive digital environments with high-quality graphics.

This Week on Wall Street

TSMC’s 2021 Output for Microcontrollers Up 60% to Combat Global Chip Shortage – On Friday, May 21, Taiwan Semiconductor Manufacturing Co., the world’s largest contract chipmaker, announced that it had reallocated manufacturing capacity to increase microcontroller output by 60% throughout 2021 in order to ramp up production of a key semiconductor component for the automotive industry to address the global chip shortage.

Cisco Shares Flag After Company Lowers Revenue Forecast for Fourth Quarter – On Wednesday, May 19, shares of Cisco stock were down by about 6%  in after-hours trading after the company reported a slight beat on revenues for the third quarter, earning $12.8 billion compared to analyst expectations of $12.56 billion, but revised fourth quarter guidance on earnings per share (EPS) at 81 to 83 cents versus analyst expectations of 85 cents EPS due to higher costs for freight shipping and per unit costs for chip production.

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: Intuit Inc. (238th); Xiaomi Inc. (213th)
  • Wednesday: NVIDIA Corp. (t-192nd)
  • Thursday: Dell Technologies (12th); HP Inc. (46th); Lenovo Group Ltd. (80th); Medtronic plc (28th); Salesforce.com, Inc. (94th)

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