“Bite” (noun): more meaty news to sink your teeth into.
“Bark” (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: a German high court rules that Lindt’s gold foil-wrapped chocolate bunnies have trademark protections; Federal Circuit Judge Kathleen O’Malley announces her retirement; the Federal Circuit rules that the PTAB gave no meaningful opportunity to respond to a sua sponte claim construction order; InterDigital obtains a favorable infringement ruling in the UK against Lenovo ahead of proceedings to determine FRAND royalties; the Second Circuit affirms another sanctions order against infamous copyright lawyer Richard Liebowitz; the EU commission sends letters to national governments seeking compliance with copyright rules for the Digital Single Market; the Senate Judiciary Committee favorably reports a series of bills increasing scope of enforcement against pharmaceutical patent owners; and inventor Gilbert Hyatt receives another setback in his legal action against the USPTO over unreasonably heightened examination procedures.
Senate Judiciary Committee Moves Along Legislation Aimed at Pharma Patents – On Thursday, July 29, the full Senate Committee on the Judiciary convened a business meeting during which the committee favorably reported a series of four proposed bills that would target perceived abuses driving up prices for brand-name pharmaceuticals. These bills include S. 1425, the Stop STALLING Act; S. 1428, the Preserve Access to Affordable Generics and Biosimilars Act; S. 1388, the Prescription Pricing for the People Act; and S. 1435, the Affordable Prescriptions for Patients Act.
Germany’s BGH Rules That Lindt Gold Foil-Wrapped Bunny Has Trademark Protection – On Thursday, July 29, Germany’s Bundesgerichtshof (BGH), also known as the Federal Court of Justice, issued a ruling holding that Swiss chocolatier Lindt & Sprüngli holds trademark rights in the appearance of a gold foil-wrapped chocolate bunny that Lindt sells during the Eastern season. The case has been remanded to a lower regional court for further proceedings on likelihood of consumer confusion between Lindt’s bunny and a similar product sold by German chocolate company Heilemann.
InterDigital Succeeds in 4G LTE Patent Infringement Suit Against Lenovo in UK – On Thursday, July 29, mobile and video R&D firm InterDigital announced that it had received a favorable ruling from the UK’s High Court of Justice regarding claims that computer electronics firm Lenovo had infringed a patent covering a technology essential to the 4G LTE mobile networking standard. The case will continue at the High Court to determine fair, reasonable and non-discriminatory (FRAND) licensing terms as a royalty for using InterDigital’s wireless networking technology.
CAFC Says PTAB Failed to Give Opportunity to Respond to Sua Sponte Claim Construction – On Tuesday, July 27, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Qualcomm Inc. v. Intel Corp. in which the appellate court vacated-in-part a series of inter partes review (IPR) rulings by the Patent Trial and Appeal Board (PTAB) after finding that the PTAB violated Qualcomm’s due process rights under the Administrative Procedure Act (APA) by failing to give Qualcomm any meaningful notice of and opportunity to respond to a claim construction entered sua sponte by the PTAB.
Circuit Judge O’Malley to Retire From CAFC Bench Next March – On Tuesday, July 27, Circuit Judge Kathleen O’Malley of the Federal Circuit announced that she plans to retire from serving the U.S. federal circuit court with appellate jurisdiction over patent infringement and validity cases from U.S. district courts and the PTAB. Judge O’Malley’s retirement will become effective March 11, 2022.
Ninth Circuit Denies Sovereign Immunity Claims in TiO2 Trade Secret Case – On Monday, July 26, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in United States v. Panang Group Company, Ltd. in which the appellate court affirmed the Northern District of California’s denial of a motion by four Chinese companies accused of stealing trade secrets related to the manufacture of titanium dioxide (TiO2) to dismiss a lawsuit filed against them. The Ninth Circuit ruled that the companies failed to make a prima facie showing that they are instrumentalities of a foreign sovereign for claiming sovereign immunity under the terms of the Foreign Sovereign Immunities Act (FSIA).
EU Commission Enforces Compliance With Digital Single Market Copyright Rules – On Monday, July 26, the European Commission announced that it had sent letters of formal notice to the governments of several EU countries, including Spain, Italy and France, asking those governments to comply with EU copyright rules for the EU’s Digital Single Market within the next two months.
Second Circuit Affirms Another Sanctions Award Against Copyright Lawyer Liebowitz – On Friday, July 23, the U.S. Court of Appeals for the Federal Circuit issued a ruling in Liebowitz v. Bandshell Artist Management in which the appellate court affirmed yet another sanctions order entered by district courts against Richard Liebowitz, a copyright lawyer who “has compiled an ignominious record of reprimands and sanctions from judges across the country.” The present sanctions order involved a bad faith lawsuit filed over alleged infringement of a photograph of the musician Leon Redbone.
Copyright Office Begins Open Application Period for Ringer Fellowships – On Friday, July 30, the U.S. Copyright Office announced that it had started accepting applications for the Barbara A. Ringer Copyright Honors Program, which hosts early career-stage attorneys for periods of eighteen to twenty-four months who demonstrate exceptional ability and interest in copyright law.
USITC Receives Section 337 Complaint Over RFID Cargo Trackers – On Thursday, July 29, the U.S. International Trade Commission announced that it had received a complaint from Zebra Technology Corporation seeking a Section 337 investigation and a limited exclusion order against certain radio frequency transmission devices used for cargo tracking that are imported for sale by OnAsset Intelligence.
CRB Extends Comment Period on Section 115 Statutory License Rates and Terms – On Thursday, July 29, the Copyright Royalty Board published a notice in the Federal Register to inform the public that the comment period for a proposed partial settlement and proposed regulations in connection with statutory licenses for making and distributing phonorecords of nondramatic musical works under 17 U.S.C. § 315. The 15-day extension of the comment period comes in response to technical issues with the CRB’s electronic system for filing comments.
Judge Rogers Orders $2.3M in Attorneys’ Fees in “To Kalon” Winery Trademark Case – On Wednesday, July 28, U.S. District Judge Yvonne G. Rogers of the Northern District of California entered an order awarding $2.3 million in attorneys’ fees to Constellation Brands, owned by famed winemaker Robert Mondavi, after finding that The Vineyard House had no records to prove that it sat on land that was used as a winery by wine pioneer Henry Walker Crabb, claims The Vineyard House made in connection with attempts to prevent Constellation from marketing “To Kalon” wine, a brand historically connected with Crabb.
Eastern Virginia Tosses Hyatt Suit Against USPTO Over Heightened Examination Regulations – On Wednesday, July 28, the Eastern District of Virginia entered an order dismissing a lawsuit filed by inventor Gilbert P. Hyatt after finding that the USPTO’s heightened examination regulations related to a series of nearly 400 patent applications filed by Hyatt were not arbitrary, capricious or an abuse of discretion under the terms of the Administrative Procedure Act (APA).
Cox, BMG Settle Claims Over Misfiled Copyright Takedown Requests – On Tuesday, July 27, a voluntary dismissal was entered in the Central District of California indicating that telecommunications firm Cox Communication had settled claims filed against music company BMG seeking to invalidate numerous takedown requests asserted by BMG in separate copyright infringement litigation, arguing that the takedown requests were sent to an old email address no longer operated by Cox despite giving public notice of an updated email address for takedown requests.
USPTO Revises Information Collection on Post Patent Submissions – On Monday, July 26, the U.S. Patent and Trademark Office published a request for comments in the Federal Register in which the agency indicated that it was revising an information collection related to patent reexaminations, supplemental reexaminations and post patent submissions, specifically to incorporate an item on information disclosure citations related to post patent submissions.
GM’s Autonomous Driving Subsidiary Files Trademark Suit Against Ford’s BlueCruise – On Friday, July 23, Cruise LLC, the self-driving automotive development subsidiary of General Motors, filed a lawsuit in the Northern District of California against rival automaker Ford Motor Company over allegations that Ford’s BlueCruise hands-free driving system creates a likelihood of consumer confusion with GM’s Cruise and SuperCruise trademarks for hands-free driving assistance technology.
This Week on Wall Street
P&G Posts Quarterly Revenue Beat, Warns of Rising Commodity Costs – On Friday, July 30, consumer goods corporation Procter & Gamble reported quarterly earnings, which showed that the company posted quarterly revenues of $18.95 billion ahead of analyst expectations of $18.41 billion, although the company also advised investors that it plans to take on $1.9 billion in after-tax costs during the 2022 fiscal year due to rising commodity and freight costs.
Vy Capital Leads Series C Funding Round for Musk’s Neuralink Startup – On Thursday, July 29, artificial intelligence and brain-machine interface firm Neuralink, which was founded by tech icon Elon Musk, announced that it had closed a $205 million Series C round of funding that was led by Dubai-based Vy Venture and also received participation from Google Ventures.
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: Innolux Corp. (t-261st); Rambus Inc. (t-261st)
- Tuesday: Bayerische Motoren Werke AG (t-129th); Casio Computer Co., Ltd. (t-208th); Daikin Industries, Ltd. (t-290th); DuPont de Nemours, Inc. (226th); Eaton Corp. (t-111th); Infineon Technologies AG (52nd); Microchip Technology Inc. (t-269th); Nippon Steel Corp. (t-132nd); Subaru Corp. (t-276th); Sumitomo Electric Industries (61st); Xperi Holding Corp. (t-220th); Zimmer Biomet Holdings, Inc. (t-251st)
- Wednesday: Borgwarner Inc. (t-244th); Emerson Electric Co. (107th); General Motors Co. (54th); Globus Medical (t-269th); Honda Motor Co., Ltd. (35th); Motorola Solutions, Inc. (202nd); Qorvo, Inc. (258th); Ricoh Co. Ltd. (49th); Schaeffler Technologies (t-192nd); Softbank Group Corp. (65th); Sony Corp. (10th); Terumo Corp. (t-261st); Toyota Motor Corp. (13th); Uber Technologies, Inc. (224th); Western Digital Corp. (55th)
- Thursday: Bayer AG (68th); Becton, Dickinson and Co. (t-120th); The Merck Group (t-220th); Nikon Corp. (205th); Novo Nordisk A/S (t-295th); Olympus Corp. (75th); Sharp Corp. (44th); Shimadzu Corp. (195th); Siemens AG (31st); Sumitomo Rubber Industries, Ltd. (t-216th)
- Friday: Magna International (139th); Nippon Telegraph & Telephone (142nd)
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