Other Barks & Bites for Friday, July 16: Tiffany Cunningham Advances in 63-34 Cloture Vote, EPO Enlarged Board of Appeal OKs Remote Proceedings Without Consent During Emergencies, and Cotton and Tillis Revive Questions on ‘Disastrous’ TRIPS Waiver

This week in Other Barks & Bites: The U.S. Senate holds a cloture vote on Tiffany Cunningham, who is expected to be confirmed to the bench of the Federal Circuit next week; the Federal Circuit clarifies the particularity with which patent infringement claims must be plausibly alleged to survive a motion to dismiss; the European Patent Office Enlarged Board of Appeal says videoconference may be used for oral proceedings even without the parties’ consent during “a general emergency”; an Advocate General at the CJEU finds that copyright monitoring obligations within the Digital Single Market do not infringe rights to freedom of expression and information; Senators Tom Cotton and Thom Tillis renew a call for the U.S. Department of Commerce to answer questions regarding President Biden’s support of the TRIPS patent waiver for COVID-19 vaccines; Huawei and Verizon reach a settlement of mobile communications patent litigation; Google is served with a $593 million fine from French regulators after violating the terms of a copyright agreement with news publishers; and the Canadian government issued a set of national security guidelines designed to protect university research and intellectual property from foreign theft.

Bites

Cunningham Cloture Vote Approved 63-34 by Senate– On Thursday, July 15, the U.S. Senate voted 63-34 in cloture to confirm Tiffany Cunningham to serve as Circuit Judge on the U.S. Court of Appeals for the Federal Circuit, replacing retiring Circuit Judge Evan J. Wallach. Cunningham, who has two decades of experience as an IP litigator, is a widely heralded nominee for the appellate court responsible for hearing appeals of patent cases from U.S. district courts and the Patent Trial and Appeal Board. “Cunningham won by one of the strongest votes of all the Biden judicial nominees,” said Carl Tobias, Williams Chair in Law at the University of Richmond School of Law. “Cunningham, who will be the first black member of the Federal Circuit, is a highly qualified, very experienced, mainstream nominee who had a strong hearing and committee vote, and she promises to be an excellent judge,” Tobias added. Cunnigham’s full confirmation is expected early next week.

EPO Enlarged Board of Appeal Says Oral Proceedings May be Held by Video Even Without Consent of Parties in Emergencies – The Enlarged Board of Appeal of the European Patent Office (EPO) issued an order relating to case G 1/21, in which it ruled that “oral proceedings before the Boards of Appeal can, during a period of general emergency impairing the parties’ possibilities to attend in-person oral proceedings at the EPO premises, be held by videoconference even without the consent of the parties.” However, the order did not address whether videoconference may be held without the consent of the parties in the absence of a period of general emergency or without consent in examination or opposition proceedings before the EPO’s departments of first instance.

AG Saugmandsgaard Says Copyright Monitoring is Compatible With Free Expression Rights – On Thursday, July 15, Advocate General Henrik Saugmandsgaard Øe issued an opinion to the Court of Justice for the European Union (CJEU) proposing that the CJEU should dismiss an action brought by the Republic of Poland arguing that the copyright monitoring obligations of online sharing service providers under provisions of the recently implemented EU Copyright Directive infringes upon the freedom of expression and information guaranteed by the Charter of Fundamental Rights of the European Union.

Sens. Cotton, Tillis Renew Request for Info on “Disastrous” TRIPS Waiver – On Wednesday, July 14, Senators Tom Cotton (R-AR) and Thom Tillis (R-NC) sent a letter addressed to Secretary of Commerce Gina Raimondo and U.S. Trade Representative Katherine Tai renewing a request for information  regarding “President Biden’s disastrous decision to support” the waiver of international patent obligations under the TRIPS Agreement after a May letter signed by 16 Senators seeking answers to a series of questions regarding negotiations and evidentiary support for the TRIPS waiver.

CJEU Annuls EUIPO Rejection of Trademark Departing from Lipstick “Norms and Customs” – On Wednesday, July 14, the CJEU issued a decision annulling the European Union Intellectual Property Office’s (EUIPO) rejection of a trademark application for a three-dimensional mark consisting of the shape of a lipstick, finding that the mark has distinctive character “because it departs significantly from the norm and customs of the lipstick sector” as the image “is reminiscent of that of a boat hull or a baby carriage” and it contains the presence of a small oval embossed shape.

CAFC Clarifies Pleading Standard for Patent Infringement Suits in Partial Reversal – On Tuesday, July 13, the Federal Circuit issued a precedential decision in Bot M8 LLC v. Sony Corporation of America in which the appellate court issued a partial reversal of the Northern District of California’s dismissal of patent infringement claims filed by Bot M8 after “address[ing] the stringency of pleading requirements in cases alleging patent infringement.” The Federal Circuit agreed that some allegations made by Bot M8 in an amended complaint asserting patent claims covering authentication programs for video games argued away from the requirements of the claims themselves, but ruled that Bot M8’s allegations regarding the execution of a fault inspection program plausibly alleged that the program executed prior to the start of a game as required by the asserted patent claims.

Ninth Circuit Affirms SJ for Apple After Finding No Bona Fide Use of “MEMOJI” Trademark – On Tuesday, July 13, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Social Technologies LLC v. Apple Inc. in which the appellate court affirmed a district court’s grant of summary judgment in favor of Apple after finding that there was no genuine issue of material fact as to whether Social Technologies made bona fide use of the “MEMOJI” trademark in commerce in connection with mobile phone application software.

Fifth Circuit Finds Egregious Conduct for Attorneys’ Fees in San Antonio HOA Trademark Case – On Tuesday, July 13, the U.S. Court of Appeals for the Fifth Circuit issued a decision in Spectrum Association Management of Texas, L.L.C. v. Lifetime HOA Management L.L.C. in which the appellate court affirmed a statutory damages award but reversed the lower court’s denial of attorneys’ fees after finding that Lifetime, a company formed by a former Spectrum employee who used a domain name infringing on Spectrum’s trademark rights to direct browsers to his competing homeowners’ association (HOA) management services firm, engaged in egregious conduct by registering the domain name and never offering to transfer it to Spectrum even after the infringement suit was filed.

Canada Introduces National Security Guidelines for University Research Partnerships – On Monday, July 12, the government of Canada released a set of national security guidelines for university research partnerships designed to protect Canadian research and intellectual property against foreign theft by promoting transparency and review of national security considerations specific to various research areas. The guidelines are mandatory upon any entity receiving federal research funding through the National Sciences and Engineering Research Council of Canada’s Alliance Grants program for any project involving private partner firms. 

Barks

USPTO Changes Agency Contact for Patent Eligibility Jurisprudence Study – On Thursday, July 15, the U.S. Patent and Trademark Office issued a correction in the Federal Register updating the agency contact for informational requests regarding the USPTO’s patent eligibility jurisprudence study to Courtney Stopp within the Office of Policy and International Affairs.

Copyright Office Announces Registration Modernization Webinar – On Thursday, July 15, the U.S. Copyright Office announced that the agency will host a public webinar at noon on July 26 regarding modernization efforts currently underway for the Office’s copyright registration systems, including the development of a Standard Application prototype that the agency is testing in order to obtain feedback from the public.

Biden Administration Announces $153M Investment in Public-Private Biopharmaceutical R&D – On Wednesday, July 14, Secretary of Commerce Gina Raimondo announced that the National Institute of Standards and Technology (NIST) awarded a total of $153 million to the National Institute for Innovation in Manufacturing Biopharmaceuticals to accelerate innovation in the U.S. biopharmaceutical industry through partnerships with private developers of novel vaccines and therapeutics.

USITC Institutes Section 337 Investigation Into Photovoltaic Cells With Nanostructures – On Wednesday, July 14, the U.S. International Trade Commission announced that the agency had instituted a Section 337 investigation into certain silicon photovoltaic cells and modules with nanostructures based on a complaint for patent infringement by Advanced Silicon Group Technologies of Lowell, MA, naming a series of 28 companies as respondents including Canadian Solar, Recurrent Energy, Hanwha Q Cells and Boviet Solar.

Purdue University Sues STMicroelectronics in Western Texas Over Renewable Energy Chip Tech – On Wednesday, July 13, Purdue University filed a lawsuit in the Western District of Texas against Swiss-based semiconductor firm STMicroelectronics alleging claims of patent infringement over the sale of metal-oxide semiconductor field-effect transistors (MOSFETs) for applications in renewable energy tech including solar heating and air conditioning systems as well as car charging stations.

Crocs Files Series of Trademark Infringement Suits Against Casual Shoe Knockoffs – On Wednesday, July 13, casual footwear firm Crocs announced that it had filed a series of trademark infringement suits across several U.S. district courts alleging claims of trademark infringement against 21 companies, many of which are also named as respondents in a Section 337 investigation recently instituted by the USITC. All proceedings are based on claims that the defendants are infringing Crocs’ three-dimensional trademarks covering casual footwear products.

Huawei, Verizon Settle Patent Suits Over Mobile Communications Tech – On Monday, July 12, telecommunications firm Verizon Communications announced that it had agreed to settle patent infringement litigation filed by Chinese telecom giant Huawei. Terms of the settlement agreement were undisclosed.

USPTO Extends Fast-Track Appeals Pilot Program to July 2022 – On Monday, July 12, the USPTO published a notice in the Federal Register announcing that the agency would be extending the Fast-Track Appeals Pilot Program for expediting ex parte appeals out-of-turn at the Patent Trial and Appeal Board (PTAB). The program will now be extended until at least July 2, 2022.

This Week on Wall Street

TSMC CEO Sees End to Global Auto Chip Shortage During Q3 2021 – On Thursday, July 15, Taiwan Semiconductor Manufacturing Company, the world’s largest contract semiconductor manufacturer, reported earnings for the second quarter of 2021, during which the company earned revenues of $13.3 billion. Although auto chip sales only accounted for 4 percent of TSMC’s total quarterly revenues, CEO C.C. Wei said in an earnings call with investors that the company’s increased production of auto chips should start easing the global automobile chip shortage during this year’s third quarter.

French Competition Regulators Fine Google $593M Over Copyright Violations – On Tuesday, July 13, France’s Competition Authority issued a 500 million euro ($593 million USD) fine to Internet giant Google after that company released a news gathering service operating in violation of an agreement struck this January between Google and French news publishers, the largest ever such fine handed out by French competition regulators.

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: Halliburton Co. (57th)
• Wednesday: ASML Holding N.V. (t-151st); Baker Hughes Company (86th); Citrix Systems, Inc. (227th); Johnson & Johnson (24th); Nidec Corp. (t-153rd); Novartis AG (180th); SAP SE (63rd); Seagate Technology Holdings plc (147th); Verizon Communications Inc. (67th); Whirlpool Corp. (t-153rd)
• Thursday: Abbott Laboratories (127th); AT&T Inc. (27th); Capital One Financial Corp. (60th); Dow Inc. (103rd); Intel Corp. (5th); Snap Inc. (t-241st)
• Friday: Schlumberger Ltd. (79th); Signify N.V. (137th)