Other Barks & Bites for Friday, June 11: EU Parliament Calls for TRIPS Patent Waiver, Innovation and Competition Act Passes Senate, and Foreign Lawyers Can Now Sit for China’s Patent Bar

This week in Other Barks & Bites: the Innovation and Competition Act passes Senate by a vote of 68-32; the Federal Circuit rules that it lacks jurisdiction to decide Walker Process antitrust claims that are now transferred to the proper regional circuit; the European Parliament adopts a resolution proposing a waiver of international patent rights days after the European Commission presented an alternative proposal to improve COVID-19 vaccine access without a patent waiver; Germany’s national legislature approves a statute requiring courts to balance undue hardships before ruling on injunctions in patent cases; the American Law Institute votes to adopt sections of a restatement on federal copyright law over prominent backlash; Apple hires a former BMW executive to help develop its electric car project; China’s national IP administration began implementing a pilot project allowing foreign lawyers to sit for the nation’s patent bar exam; and the Tenth Circuit rules that the exceptional case standard in the Lanham Act and the Patent Act are parallel.

Bites 

German Legislature Adopts Statute to Balance Injunctions With Undue Hardships – On Friday, June 11, members of Germany’s Bundestag voted to enact a new patent law statute that requires courts to determine that an injunction will not cause undue hardships to alleged infringers and third parties, a measure reportedly intended to aid major tech firms like Apple and Google facing lawsuits in Germany from patent owners whose rights could previously be enforced through speedy injunctive relief.

EU Parliament Calls for TRIPS Patent Waiver Despite European Commission’s Alternative Proposal – On Thursday, June 10, a majority of members of the European Parliament voted to adopt a resolution proposing negotiations for a temporary waiver of international patent rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) covering COVID-19 vaccines, in contrast to the European Commission’s alternative proposal to the World Trade Organization (WTO) last week calling for the use of compulsory licensing mechanisms that already exist under TRIPS. 

CAFC Lacks Jurisdiction for Walker Process Claims Transferred to Fifth Circuit – On Thursday, June 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential order in Chandler v. Phoenix Services LLC in which the appellate court ruled that it lacked jurisdiction to hear Chandler’s appeal of Walker Process antitrust claims regarding Phoenix’s enforcement of patent claims that were later declared unenforceable for inequitable conduct during a later case at the Federal Circuit, and transferred Chandler’s appeal to the U.S. Court of Appeals for the Fifth Circuit.

CNIPA Implements Rules Allowing Foreign Lawyers to Take Chinese Patent Bar – On Wednesday, June 9, China’s National Intellectual Property Administration (CNIPA) announced that China had officially begun implementing a pilot program allowing qualified foreign individuals to sit for China’s patent bar and represent inventors and entities at Chinese patent agencies within Beijing, Suzhou, Nanjing and Guangzhou.

ALI Votes to Approve Copyright Restatement Despite Prominent Backlash – On Wednesday, June 9, The Daily Docket by Reuters and Westlaw reported that members of the American Law Institute (ALI) voted the previous evening to approve a proposed draft of a restatement on copyright law despite urgent calls from several prominent copyright scholars, including Jane Ginsburg, Shyam Balganesh, Peter Mennell and David Nimmer, for the ALI to veto its first-ever attempt at drafting a restatement of a legal area governed by federal statute.

Judge Albright Issues Standing Orders on Fact Discovery, Limits to Jurisdictional Discovery – On Tuesday, June 8, U.S. District Judge Alan D. Albright of the Western District of Texas signed a pair of standing orders limiting jurisdictional discovery  in patent cases to five interrogatories, 10 requests for production and 10 hours of deposition testimony, and holding that fact discovery will open one day after Markman hearings are originally scheduled even if those hearings are postponed  for the court to rule on a motion to transfer venue.

Report Highlights Growing Importance of Trade Secrets to Global Companies – On June 8, the law firm CMS published a report finding that “global corporates fear cybercrime and employee leaks as biggest risks to protecting trade secrets.” The report was commissioned by CMS and conducted by The Economist Intelligence Unit and said that in “a global survey of 314 senior executives across a range of industries, the three most valuable types of proprietary information held by organisations are customer databases (42%), product technology (40%), and R&D information (23%).” The report is titled Open secrets? Guarding value in the intangible economy; it further found that 75% of respondents agrees that increasing financial investment was necessary to protect their trade secrets.

Innovation and Competition Act Passes U.S. Senate – a massive bill aimed at bolstering the United States’ ability to compete with China in various technology sectors passed out of the U.S. Senate on June 8 by a vote of 68-32. The bill began as the Endless Frontier Act but was broadened considerably and renamed. Recently, inventor groups expressed opposition to the bill in its present form due to Amendment No. 2093, which would impose penalties on patent owners who fail to properly record ownership transfer.

Tenth Circuit Says Exceptional Case Standard is Same for Patent, Trademark Suits – On Tuesday, June 8, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Derma Pen, LLC v. 4Everyoung Ltd. in which the appellate court held that the exceptional case standard in the Lanham Act parallels the standard for exceptional cases under the Patent Act as interpreted by the U.S. Supreme Court’s 2014 decision in Octane Fitness v. ICON Health & Fitness.

Eleventh Circuit Affirms No Arbitration in Taylor Group Trademark Case – On Tuesday, June 8, the U.S. Court of Appeals for the Eleventh Circuit issued a per curiam opinion in Taylor Group, Inc. v. Industrial Distributors International Co. in which the appellate court affirmed a district court’s denial of a motion to compel Taylor Group to bring its trademark infringement claims against Industrial Distributors to arbitration after finding that Taylor Group was not a party to the marketing agreement containing the asserted arbitration clause.

Barks

CRB Issues Final Rule Giving Judges Discretion on Location of Hearings – On Friday, June 11, the Copyright Royalty Board (CRB) issued a final rule in the Federal Register amending regulations to clarify that Copyright Royalty Judges have discretion to conduct hearings in-person at the Library of Congress, at an alternative location, or virtually via video conference. 

USPTO Delays Date for Implementing Mandatory Registration Statements, CLE Certifications – On Thursday, June 10, the U.S. Patent and Trademark Office issued a notice of revised implementation date in the Federal Register announcing that the agency would delay the implementation of mandatory biennial registration statements from registered practitioners and those granted limited recognition to practice at the USPTO until November 1, 2024. Beginning spring 2022, those individuals may begin voluntarily certifying that they have completed six hours of continuing legal education (CLE) within the preceding 24 months.

Copyright Office Extends Deadlines for Fixing Insufficient Payments, Pre-1972 Schedules – On Thursday, June 10, the U.S. Copyright Office announced that it was exercising its authority under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to extend certain timing requirements related to registration applications filed at the Office with insufficient fees from applicants, as well as the filing of schedules for pre-1972 sound recordings.

Music Publishers Seek $200 Million from Roblox for Copyright Infringement – On Wednesday, June 9, a group of 29 music publishers represented by the National Music Publishers’ Association (NMPA) filed a lawsuit in the Central District of California seeking monetary damages of at least $200 million from online gaming platform developer Roblox Corp. for providing a centralized synchronization library which Roblox players developing 3D worlds can use to incorporate copyrighted music into virtual reality environments.

USPTO Seeks Comments on Information Collected in Industrial Fastener Insignia Applications – On Tuesday, June 8, the USPTO announced in the Federal Register the submission of an information collection request to the Office of Management and Budget to solicit public comments on applications to register manufacturer insignia on industrial fasteners, as required under the Fastener Quality Act of 1999, and the data collected by the USPTO to record or renew insignias in the Fastener Insignia Register.

Crocs Files Section 337 Complaint at USITC Against Skechers, Hobby Lobby – On Tuesday, June 8, the U.S. International Trade Commission announced that it had received a complaint for a Section 337 investigation into claims of trademark infringement by footwear designer Crocs regarding casual footwear and packaging thereof imported for sale in the U.S. by 25 named respondents including Skechers and Hobby Lobby in response to a flood of alleged counterfeits entering the country after the expiration of design patent rights owned by Crocs.

Starz Files Trademark Suits Against Disney’s “Star+” Streaming Service in Latin America – On Monday, June 7, American television network Starz filed trademark suits in Argentina, Brazil and Mexico against Disney over the entertainment moguls efforts to launch a “Star+” streaming service in Latin America, which Starz argues is too similar to its own StarzPlay streaming service.

Joel Waldfogel to Serve Copyright Office as Kaminstein Scholar – On Monday, June 7, the Copyright Office announced that Joel Waldfogel, Chair of Applied Economics at the University of Minnesota Carlson School of Management whose research focuses on industrial organization and law and economics, will serve as the fourth Abraham L. Kaminstein Scholar at the U.S. Copyright Office and will help the Office develop an economic research program.

Call for Submissions: JPTOS Returns from Hiatus and is Seeking New Article Submissions – The Journal of the Patent and Trademark Office Society (JPTOS), this week announced an OPEN CALL FOR SUBMISSIONS on Scholastica. The journal is back after taking a publishing hiatus due to the pandemic and is on track to publish Volume 102 and beyond. According to a press release, JPTOS is “seeking articles involving intellectual property (patents, trademarks, copyrights, trade secrets, or hybrids between all such forms) or law & technology (blockchain, cryptocurrencies, NFTs, artificial intelligence, 3D printing, social media, privacy/surveillance, biotechnology, pharmaceuticals, COVID vaccine patents or patent policy and topics) and all related fields.” Submissions should be emailed to [email protected] and more information is available at the Scholastica website or http://jptos.org.

This Week on Wall Street

Former BMW Executive in Electric Vehicles is Hired By Apple – On Thursday, June 10, Bloomberg reported that consumer tech giant Apple hired Ulrich Kranz, formerly a senior executive in BMW’s electric vehicle division, in recent weeks to aid Apple in the development of its own electric vehicle project.

Amazon Could Face $425M Fine Recommended by Luxembourg Regulators for GDPR Violations – On Thursday, June 10, The Wall Street Journal reported that a data protection commission in the European country of Luxembourg proposed to the EU’s other national data privacy commissions a $425 million fine against e-commerce giant Amazon.com for violations of data privacy regulations under the General Data Protection Regime (GDPR).

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: Oracle Corp. (56th)
• Wednesday: None
• Thursday: Adobe Inc. (99th)
• Friday: None

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