Other Barks & Bites for Friday, June 4: EU Plans Alternative to Vaccine Patent Waiver Proposal, CAFC Finds Prosecution Laches as Section 145 Defense for USPTO, and Antitrust Investigations into Facebook Marketplace Launched in EU and UK

This week in Other Barks & Bites: Officials in the European Union are developing an alternative proposal to the waiver of international patent rights under TRIPS for COVID-19 vaccines; GM revises second quarter profit guidance upward after shifting production to truck models; the Federal Circuit holds that the defense of prosecution laches is available to the USPTO in Section 145 civil suits over patent claims; a Lex Machina IP litigation report shows that copyright and trademark lawsuit filings have been down throughout the COVID-19 pandemic; antitrust regulators in the EU and the UK announce separate investigations into Facebook’s cross-promotion of its Marketplace e-commerce platform; Chinese IP officials call for domestic patent firms to stop filing irregular patent applications; and the EUIPO reports that 21 percent fewer fake goods were detained within the EU’s internal market, although the value of counterfeit goods seized did not fall from 2018 to 2019.

Bites

EU Commission Clarifies Online Platforms Governed by Article 17 of Copyright Directive – On Friday, June 4, the European Commission released a policy paper clarifying online platforms that will need to incorporate copyright filters under the terms of Article 17 of the EU’s Copyright Directive. Reports indicated that online service providers as well as streaming media providers making money from copyrighted works would have to install filters under the EU Commission’s guidance while nonprofit institutions, open source platforms and online marketplaces would be exempt.

CAFC Affirms District Court’s Claim Construction Limited By Prosecution Disclaimer – On Thursday, June 3, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in SpeedTrack, Inc. v. Amazon.com, Inc. in which the appellate court affirmed a claim construction ruling issued by the Northern District of California, agreeing with the district court that arguments and amendments made by SpeedTrack during patent prosecution at the U.S. Patent and Trademark Office limited the scope of patent claims covering a computer filing system for accessing files and data according to user-designated criteria.

EU Alternative to TRIPS Patent Waiver Would Include Vaccine Patent Safeguards – On Thursday, June 3, The Wall Street Journal reported that the European Union was preparing an alternative to the U.S.-backed proposal at the World Trade Organization to waive international patent rights related to COVID-19 vaccines which would include stronger safeguards for pharmaceutical patents while also lifting export restrictions on vaccine materials and expanding international vaccine manufacturing capacity. This week has also included news reports that pharmaceutical industry groups have created a digital ad campaign to push back against President Biden’s support of the COVID-19 patent waiver.

SCOTUS Grants Cert in Case Over Inaccurate Information in Copyright Registration – On Tuesday, June 1, the U.S. Supreme Court granted a petition for writ of certiorari to take up on appeal Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., a case that will ask the nation’s highest court to determine if Section 411, which directs U.S. district courts to refer to the U.S. Copyright Office questions on whether inaccurate information contained within a copyright registration invalidates that registration, includes an intent-to-defraud requirement or if the plain language of Section 411 only requires knowledge of the inaccuracy.

CAFC Finds Prosecution Laches is Defense Available to USPTO in Section 145 Actions – On Tuesday, June 1, the Federal Circuit issued a precedential decision in Hyatt v. Hirshfeld in which the appellate court held that the defense of prosecution laches is available to the USPTO in U.S. district court lawsuits filed to obtain patent claims under 35 U.S.C. § 145 and remanded for further proceedings in the U.S. District Court for the District of Columbia.

Eleventh Circuit Finds No Abuse of Discretion in Rejecting New Evidence in “Gorilla Playsets” Case – On Tuesday, June 1, the U.S. Court of Appeals for the Eleventh Circuit issued a per curiam decision in PlayNation Play Systems, Inc. v. Velex Corp. in which the appellate court affirmed a profits award issued by the district court to PlayNation for Velex’s use of Google AdWords to market “Gorilla Gym” playground equipment, infringing PlayNation’s trademarks for its “Gorilla Playsets” equipment. The Eleventh Circuit also found no abuse of discretion in the district court’s rejection of a motion by Velex to enter new evidence in the record to reflect legal compliance and costs incurred by injunction.

CAFC Says PTAB Nonobviousness Finding of Remote Pharmacy Claims Not Supported By Evidence – On Friday, May 28, the Federal Circuit issued a precedential decision in Becton, Dickinson and Co. v. Baxter Corp. Englewood in which the appellate court overturned a decision by the Patent Trial and Appeal Board (PTAB) finding nonobviousness in Baxter’s patent claims covering telepharmacy systems for preparing patient-specific doses. The Federal Circuit found that the PTAB’s determinations that certain claim limitations were not taught by prior art asserted by Becton, Dickinson and Co. were not supported by substantial evidence.

CAFC Affirms ITC’s Determinations of Indirect Infringement by 10X’s Microfluidic Devices – On Friday, May 28, the Federal Circuit issued a precedential decision in Bio-Rad Laboratories, Inc. v. International Trade Commission in which the appellate court affirmed the USITC’s determination of patent infringement in a Section 337 investigation of 10X Genomics’ microfluidic devices for DNA sequencing over appeals on claim construction filed by both Bio-Rad and 10X Genomics.

Barks 

Lex Machina IP Litigation Report Shows Pandemic Dip in Copyright, Trademark Filings – On Thursday, June 3, legal analytics firm Lex Machina released a copyright and trademark litigation report for 2018 through 2020, which showed a decline in both copyright and trademark lawsuit filings in U.S. district courts during the COVID-19 pandemic as well as a dropoff in filings from the Leibowitz Law Firm.

Molson Settles Vizzy Trademark Case After Future Proof Agrees to Stop Selling Brizzy – On Wednesday, June 2, a final judgment entered in the Western District of Texas officially ended a trademark suit originally filed by Texas-based brewery Future Proof after the plaintiff settled its claims against Molson Coors’ Vizzy hard seltzers and agreed to stop selling its own Brizzy-branded seltzer.

USPTO Announces Transition to System Supporting Structured Text DOCX Submissions – On Wednesday, June 2, the USPTO issued a notice in the Federal Register announcing that the agency would be transitioning to a new system for patent application filings that supports submissions of specifications, claims and abstracts in the DOCX structured text format to eliminate the need for applicants to convert applications into PDF format prior to submission.

Arista, Cisco, Dell Named as Respondents in Patent Complaint Filed at ITC – On Tuesday, June 1, the U.S. International Trade Commission announced that a Section 337 complaint for patent infringement had been filed at the agency by Proven Networks asking for an investigation into certain networking devices and computers imported into the U.S. for sale by several respondents including Arista Networks, Cisco Systems, Dell Technologies, Juniper Networks and Palo Alto Networks.

Daimler, Nokia Enter Into Settlement Agreement Over Vehicular Computer Technologies – On Tuesday, June 1, Finnish telecommunications firm Nokia and German automaker Daimler announced that the two companies had entered into an agreement settling all patent litigation ongoing between those two companies involving computer technologies covered by Nokia patents and incorporated into Daimler vehicles.

EUIPO Announces 21% Reduction in Fake Items Detained in 2019, No Reduction in Value – On Tuesday, June 1, the European Union Intellectual Property Office (EUIPO) issued a report on the enforcement of intellectual property rights across the EU during 2019, which showed that nearly 72 million fake items were detained in the EU during 2019, a 21 percent reduction over the total number of fake items detained the previous year, although there was no reduction in the value of fake items seized due largely in part to a shift in EU internal market detainments from cheaper goods to luxury goods.

USPTO Extends Deadline for Law School Clinic Certification Program Submissions – On Tuesday, June 1, the USPTO announced that it was extending its deadline for submissions from law school clinics interested in being admitted into the agency’s Law School Clinic Certification Program. The program, which currently includes 60 law school clinics offering pro bono patent and trademark applicant services, will accept submissions on a rolling basis through December 31, 2022.

CNIPA Requests Crackdown on Agencies Filing Irregular Patent Applications – On Friday, May 28, officials of China’s National Intellectual Property Administration (CNIPA) held an administrative guidance meeting to discuss issues related to irregular patent applications that are filed for purposes other than protecting innovation, many of which have been filed through 1,400 patent firms operating within China.

This Week on Wall Street

Antitrust Investigations Into Facebook Marketplace Launched by EU, UK – On Friday, June 4, antitrust officials in the European Union and the United Kingdom announced that they would launch separate investigations into the Facebook Marketplace e-commerce platform based on allegations that the social media giant is improperly cross-promoting its e-commerce platform to its social media users in a way that gives Facebook an unfair advantage over competitors.

GM Shifts Manufacturing Focus to Trucks, Raises Profit Outlook Amid Global Chip Shortage – On Wednesday, June 2, American automaker General Motors announced that it planned to increase production of Chevrolet Silverado and GMC Sierra truck models by 1,000 vehicles per month, a move that allowed the Detroit-based auto industry stalwart to revise its second quarter pretax profit guidance upward to $1.1 billion despite slowdowns in production caused by 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: Marvell Technology Group Ltd. (207th)
• Tuesday: None
• Wednesday: None
• Thursday: None
• Friday: None