Other Barks & Bites for Friday, September 17: FTC Report Finds Big Tech Acquisitions Underreported, ITC Appoints OUII Investigative Attorney as Judge, and Hughes Dissents from CAFC’s Damages Remand in Omega Patents Case

This week in Other Barks & Bites: IPWatchdog LIVE brought together thought leaders from the IP industry and major keynote speakers, including Judge Albright, Qualcomm’s Mark Snyder and Former Assistant AG for Antitrust Makan Delrahim; a report from the Federal Trade Commission finds dozens of Big Tech acquisitions during the 2010s were not reported under the Hart-Scott-Rodino (HSR) Act; the Second Circuit confirms that plaintiffs hold the burden of persuasion to prove likelihood of confusion in trademark cases involving refurbished goods; Judge Hughes dissents from the Federal Circuit’s remand of a jury’s damages award to Omega Patents, finding sufficient evidence to support a $5 per device product rate; Walmart will partner with Ford and Argo AI to rollout autonomous delivery in three U.S. cities; Monica Bhattacharya of the International Trade Commission’s Office of Unfair Import Investigations is appointed to serve as an administrative law judge at the agency; and the U.S. Patent and Trademark Office extends its pilot program for motions to amend during Patent Trial and Appeal Board proceedings.

Bites 

IPWatchdog LIVE Brings IP Industry Leaders to Dallas – Earlier this week, IPWatchdog LIVE took place at the Renaissance Dallas Richardson Hotel, featuring three days of programming, including several sessions on developing areas of intellectual property law such as the fair use implications of Google v. Oracle, separating fact from fiction on the proposed TRIPS waiver, strategies for patent owner success at the Patent Trial and Appeal Board (PTAB), and ways to combat the Federal Circuit’s myopic jurisprudence on software patent eligibility. Keynote addresses at the conference were given by Alan D. Albright, U.S. District Judge for the Western District of Texas; Mark Snyder, Senior Vice President and Deputy General Counsel of Qualcomm; and Makan Delrahim, Former Assistant Attorney General for Antitrust at the U.S. Department of Justice. 

Despite U.S. Sanctions, 40% of 6G Patent Applications Originate From China – On Thursday, September 16, Japanese financial news outlet Nikkei Asia reported that, despite expectations that U.S. sanctions against Chinese telecommunications firm would harm research and development on sixth-generation (6G) mobile networks, Chinese firms currently account for 40% of all patent applications filed worldwide to cover 6G mobile wireless technologies, followed by the United States (35%) and Japan (10%).

FTC Report Finds Big Tech Acquisitions Being Underreported Under HSR Act – On Wednesday, September 15, the U.S. Federal Trade Commission (FTC) held an open meeting during which FTC staff presented findings of a study into past acquisitions by Big Tech firms including Amazon, Alphabet, Apple, Facebook and Microsoft, finding that 94 of 616 acquisitions conducted by those companies between January 1, 2010 and December 31, 2019 were unreported despite exceeding size thresholds that usually require reporting to the FTC under the terms of the Hart-Scott-Rodino (HSR) Act. 

CAFC Remands Damages Verdict in CalAmp Case Over Judge Hughes Dissent – On Tuesday, September 14, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Omega Patents, LLC v. CalAmp Corp. in which the appellate court reversed infringement findings on one of two patents covering remote vehicle system technologies and deemed infringed by a Middle District of Florida jury verdict, and vacated the royalty rate awarded for infringement of the second patent. Circuit Judge Todd Hughes dissented-in-part, finding that the district properly excluded CalAmp’s damages expert on retrial and that Omega’s evidence sufficiently supported a $5 per product royalty rate.

Second Circuit Confirms That Plaintiff Bears Consumer Confusion Burden Under Champion – On Tuesday, September 14, the U.S. Court of Appeals for the Second Circuit issued a decision in Hamilton International Ltd. v. Vortic LLC in which the appellate court affirmed a final judgment for Vortic on trademark infringement claims filed by Hamilton over Vortic’s refurbishment of Hamilton’s antique pocket watches. In affirming, the Second Circuit confirmed that under the U.S. Supreme Court’s holding in Champion Spark Plugs v. Sanders (1947), plaintiffs bear the burden of establishing consumer confusion in light of disclosures by second-hand dealers to consumers.

Latest ITC Judge Appointed from OUII – On Tuesday, September 14, Monica V. Bhattacharyya was named Administrative Law Judge (ALJ) at the U.S. International Trade Commission (ITC). Bhattacharyya comes to the bench from within the Commission, having most recently worked as an investigative attorney in the ITC’s Office of Unfair Import Investigations (OUII) for the last nine years. According to industry insiders, this is unusual. Most ITC judges in the past have come from outside the Commission, after having worked as ALJs in other agencies. As an OUII investigative attorney, however, Bhattacharyya is intimately familiar with ITC proceedings, regularly appearing in investigations as an independent party. Prior to 2012, Bhattacharyya worked for more than 12 years in private practice, at firms including Kasowitz Benson Torres LLP, Wiggin and Dana LLP, Kirkland & Ellis LLP and Simpson Thacher & Bartlett LLP. She also served as a law clerk for the Honorable Louis H. Pollak in the U.S. District Court for the Eastern District of Pennsylvania.

First Circuit Directs Entry of Judgment for Puerto Rican Playwright in Copyright Case – On Monday, September 13, the U.S. Court of Appeals for the First Circuit entered a ruling in Perea v. Editorial Cultural, Inc. in which the appellate court directed the entry of an amended judgment in a copyright case in favor of Puerto Rican playwright Roberto Ramos Perea over the district court’s award of copyright ownership to the heirs of Puerto Rican author Enrique Laguerre, in part because the First Circuit found that Laguerre’s novels were in the public domain prior to Ramos’ stage adaptations.

Ninth Circuit Reverses Denial of Motion to Compel Arbitration in Comcast Data Privacy Case – On Friday, September 10, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Hodges v. Comcast Cable Communications, LLC in which the appellate court reversed the district court’s denial of Comcast’s motion to compel arbitration of class action claims filed by a former subscriber seeking equitable relief from the company’s privacy and data collection practices. The Ninth Circuit found that the lower court erred in determining that Hodges sought “public injunctive relief,” which implicated a rule from California case law that renders unenforceable any contractual provisions waiving the right to seek such relief.

Barks

USPTO Extends Motion to Amend Pilot Program at PTAB – On Thursday, September 16, the U.S. Patent and Trademark Office issued a notice in the Federal Register announcing that the agency would be extending until September 16, 2022, its Motion to Amend (MTA) pilot program at the Patent Trial and Appeal Board (PTAB); pre-pilot and pilot MTA petitions have been filed by patent owners in about 10% of eligible proceedings at the PTAB.

Judge Gilstrap Nixes Patent Claims Against Peloton Under Section 101 – On Wednesday, September 15, U.S. District Judge J. Rodney Gilstrap of the Eastern District of Texas granted Peloton’s motion to dismiss patent infringement claims filed by bicycle and training firm Mad Dogg Athletics after finding that Mad Dogg’s asserted patent claims were directed to the unpatentable abstract idea of simulating an instructive exercise bike class at home.

Delaware Jury Enters $85 Million Verdict for BASF in Antitrust Suit Over Fuel Vehicle Capture Components – On Wednesday, September 15, a jury verdict entered in the District of Delaware awarded $84.9 million to German multinational chemical firm BASF after finding that South Carolina-based specialty chemical firm Ingevity violated U.S. antitrust law by falsely claiming that the only use for Ingevity’s honeycomb-style inserts were in the firm’s patented vehicle fuel carbon capture canisters, allowing Ingevity to maintain exclusivity over BASF’s own inserts.

Latvian National Sentenced to Four Years, $4.5 Million in Restitution for Fraudulent Trademark Scheme – On Wednesday, September 15, Acting U.S. Attorney M. Rhett DeHart announced that Latvian citizen Viktors Suhorukovs was sentenced in the District of South Carolina to four years in federal prison and was ordered to pay $4.5 million in restitution for conducting a mail scheme to defraud owners of trademarks registered at the USPTO.

Judge Stanton Enters Permanent Injunction Against Locast’s Streaming Service – On Wednesday, September 15, U.S. District Judge Louis L. Stanton of the Southern District of New York entered a permanent injunction following a copyright infringement ruling that prevents Locast, which had provided an Internet service for retransmitting television broadcast signals from local TV markets, from operating its service.

Square Joins Open Invention Network – On Tuesday, September 14, digital payments firm Square announced that it was joining the Open Invention Network (OIN), a patent non-aggression consortium mainly involving companies operating on the open source Linux computing platform, allowing other members of OIN to practice patented technologies that leverage the use of core Linux and adjacent open source technologies.

Australia Makes Industrial Designs Available to EUIPO’s DESIGNview Database – On Monday, September 13, the European Union Intellectual Property Office (EUIPO) announced that the IP agency of the Australian government made 220,000 industrial designs available to the EUIPO’s DESIGNview search database, which now provides access to more than 28 million designs from 73 participating IP offices worldwide.

Judge Rogers Says Apple Isn’t a Monopolist But Engages in Anticompetitive Conduct – On Friday, September 10, U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California issued a 185-page ruling finding that consumer tech giant Apple is not a monopolist in the relevant market of digital mobile gaming transactions, but that Epic Games showed at trial that Apple engages in anticompetitive conduct under California state law through its use of anti-steering provisions, which may warrant a nationwide remedy to remove those provisions. 

This Week on Wall Street

JPMorgan Will Launch Digital Chase Bank in UK Next Week – On Friday, September 17, CNBC confirmed reports that JPMorgan Chase plans to launch a Chase-branded digital bank in the UK next week, the first time in the company’s 222-year history that its consumer bank brand will expand internationally outside of the United States.

Walmart to Roll Out Autonomous Delivery in Three U.S. Cities With Ford, Argo AI – On Wednesday, September 15, retailing giant Walmart announced that it would be partnering with Ford Motor Company and autonomous car startup Argo AI to increase its autonomous delivery programs in Miami, FL, Austin, TX, and the District of Columbia.

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: Adobe Inc. (99th)
• Wednesday: BlackBerry Ltd. (t-183rd)
• Thursday: Accenture plc (165th); Nike, Inc. (114th)
• Friday: None