Other Barks & Bites for Friday, October 29: EU-Africa Joint Communiqué Avoids Mention of TRIPS Waiver, Ninth Circuit Says AZ Dealership Data Privacy Law Not Preempted by Copyright Act, and Bayer’s Xarelto Patent Rights in EU Extended Until 2026

This week in Other Barks & Bites: the Federal Circuit issues a partial remand asking the Trademark Trial and Appeal Board (TTAB) to analyze the distinctiveness of the “BROOKLYN BREW SHOP” trademark; the Copyright Royalty Board finalizes its ratemaking determination for statutory licenses on digital performances of sound recordings; China’s IP administration issues draft regulations that would allow foreign patent agencies to open representative offices in China; a joint communiqué between ministers from the EU and Africa committed to increasing COVID-19 vaccine production without mention of a waiver of IP obligations under TRIPS; the U.S. government is found liable for more than $100 million in damages for infringing an airport security checkpoint tray system patent; the Ninth Circuit finds that an Arizona state law protecting consumer personal data collected by car dealerships did not conflict with the Copyright Act; the EUIPO extends Bayer’s EU patent rights for Xarelto until 2026; and Microsoft becomes the world’s most valuable company after Apple’s disappointing earnings report lowers its market cap.

Bites

EPO Issues Reasoning on Holding Oral Proceedings by Videoconference – On Thursday, October 28, the Enlarged Board of Appeal of the European Patent Office (EPO) issued a document outlining the Board’s reasoning regarding its July ruling which held that oral hearings at the EPO can be conducted via videoconference during the COVID-19 pandemic even without the consent of the parties, in large part because of the pandemic has impaired the possibility that parties are able to attend proceedings in person.

Sixth Circuit Affirms Injunction in Construction Equipment Trade Secret Case – On Thursday, October 28, the U.S. Court of Appeals for the Sixth Circuit entered a ruling in RECO Equipment, Inc. v. Wilson in which the appellate court affirmed an injunction entered by a lower court ordering former RECO Equipment employees to abstain from the use of trade secrets related to construction equipment repairs and rebuilds, to return devices containing that information and to not compete with RECO for 90 days. In affirming, the Sixth Circuit determined that the lower court properly determined that RECO held valid trade secrets in the company’s institutional knowledge surrounding the repair of construction parts that break in unique ways, and that RECO showed a likelihood of irreparable harm by the defendants’ use of their trade secrets. 

CAFC Issues Partial Remand in Brooklyn Brew Shop Trademark Case – On Wednesday, October 27, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC in which the appellate court affirmed the Trademark Trial and Appeal Board’s (TTAB) decision to dismiss a petition to cancel a trademark application for “BROOKLYN BREW SHOP.”. However, the Federal Circuit did vacate part of a TTAB’s denial of Brooklyn Brewery’s opposition to the same mark and remanded to enter judgment in favor of Brooklyn Brewery on a class of goods deleted from the trademark application and for a proper analysis of Brooklyn Brewery’s claim that the applied-for mark lacked distinctiveness.

CRB Announces Web V Royalty Rates for Statutory Licenses on Digital Audio Transmissions – On Wednesday, October 27, the Copyright Royalty Board (CRB) issued a final rule and order in the Federal Register in which the CRB announced that it had set rates for statutory licenses under Section 114 and Section 112 for the digital performance of sound recordings and making of ephemeral copies to facilitate those performances. The CRB set rates through 2021 of $0.0026 per performance for commercial subscription services and $0.0021 per performance for commercial nonsubscription services, with rates for 2022 through 2025 to be adjusted based on changes in the Consumer Price Index.

EU-African Union Joint Communiqué Includes No Mention of TRIPS Waiver – On Wednesday, October 27, a joint communiqué issued by ministers from the European Union and the African Union following a recent ministerial meeting in Kigali, Rwanda, included agreements for nations to work together on improving local production of vaccines to address the COVID-19 pandemic but the document did not include any agreement on a TRIPS waiver of reciprocal IP obligations, which news reports indicate that African ministers were encouraging at the meeting.

CNIPA Issues Draft Regulations to Allow Foreign Patent Agencies to Open Chinese Offices – On Tuesday, October 26, China’s National Intellectual Property Administration (CNIPA) released a draft comment regarding regulations that would enable foreign patent agencies to open representative offices within China to provide consultations on patent matters within China, although those firms will not be able to prosecute Chinese patent applications under the current draft of the rules.

Ninth Circuit Finds AZ Car Dealership Data Privacy Law Not Preempted by Copyright Act – On Monday, October 25, the U.S. Court of Appeals for the Ninth Circuit issued a decision in CDK Global LLC v. Brnovich in which the appellate court affirmed a district court’s ruling upholding a 2019 law passed by the Arizona Legislature limiting third-party access to personal data collected by auto dealerships. In affirming, the Ninth Circuit dismissed arguments that the data privacy law was preempted by the Copyright Act, citing to the Supreme Court’s decision in Google v. Oracle to push back on CDK Global’s contention that the law required it to develop application programming interfaces (APIs) that would then be copied by third-party integrators authorized under the law to access data.

EUIPO Issues Report on Growing Misuse of E-Commerce Channels for Counterfeits – On Monday, October 25, the European Union Intellectual Property Office (EUIPO) released a study on the growing misuse of e-commerce channels for the sale of counterfeit goods which noted that more than 90 percent of counterfeit seizures by border officials that are linked to online sales are entering EU member nations through mail and postal services, most being distributed through those services in small parcels.

U.S. Government to Owe $100M+ for Infringing Airport Security Checkpoint Tray System – On Friday, October 22, the U.S. Court of Federal Claims issued a decision finding that the Transportation Security Administration infringed upon patent claims covering a system of recycling trays through security screening checkpoints by use of movable carts, awarding a running royalty of $0.02 per airline passenger, an award that many news outlets report will eclipse $100 million in damages.

Barks

EUIPO Extends Bayer’s Patent Rights to Xarelto Until 2026 – On Friday, October 29, German pharmaceutical firm Bayer AG announced that the EUIPO had maintained the company’s patent rights to its best-selling stroke medication Xarelto, and extended the deadline for the expiration of those patents by two years until 2026. 

Copyright Office Issues Eighth Triennial Section 1201 Exemption Rulemaking – On Thursday, October 28, the U.S. Copyright Office issued a final rule in the Federal Register adopting recommendations by the Register of Copyrights regarding the renewal of existing exemptions under 17 U.S.C. § 1201 to circumventing technological protection measures, as well as expanded exemptions for criticism of audiovisual works, text and data mining for motion pictures and jailbreaking modems to upload alternative firmware. 

Locast Agrees to Permanent Injunction, $32M Damages Award to End Copyright Case – On Thursday, October 28, a consent judgment entered in the Southern District of New York terminated a copyright case brought against David R. Goodfriend and Sports Fans Coalition, operators of the streaming Locast broadcast TV service, with the Locast operators agreeing to both a permanent injunction against offering their streaming service as well as a statutory damages award of $32 million under the terms of the Copyright Act.

WIPO Launches Young Expert Program Initiative to Develop IP Leaders in Developing Countries – On Thursday, October 28, the World Intellectual Property Organization (WIPO) announced that it had launched the Young Expert Program (YEP) designed to expose high-potential adults aged 35 or younger from developing and least developed countries, exposing them to technical and policy aspects of IP over the course of a two-year program.

USITC Institutes Section 337 Investigation into Motorola, Lenovo Wireless Devices – On Wednesday, October 27, the U.S. International Trade Commission (USITC) announced that it had instituted a Section 337 investigation into certain electronic devices having wireless communication capabilities and imported into the U.S. for sale by a dozen respondents, including Motorola Mobility and Lenovo Group, based on a complaint alleging patent infringement filed at the USITC by Bell Northern Research of Chicago, IL.

Copyright Office Extends Comment Period on Initiating Small Claims at the CCB – On Wednesday, October 27, the Copyright Office issued a notice in the Federal Register extending the public comment period soliciting input on procedures for initiating small copyright claims at the recently established Copyright Claims Board (CCB) through November 12. The Office is also extending the deadline for reply comments to November 30.

Judge Leinenweber Rules WorkForce Trademark Allegations Survive Judgment on Pleadings – On Tuesday, October 26, U.S. District Judge Harry D. Leinenweber of the Northern District of Illinois issued a ruling denying-in-part a motion by Workforce.com for judgment on the pleadings, allowing trademark infringement claims by WorkForce Software to survive as the mark owner pleaded allegations of the mark’s secondary meaning sufficient to survive a motion to dismiss.

USPTO Reopens Public Comment Period on Post-Registration Trademark Submissions – On Monday, October 25, the U.S. Patent and Trademark Office announced in the Federal Register that the agency would be submitting an information collection request to the Office of Budget and Management (OMB) to reopen a public comment period regarding post-registration communications between trademark owners and the USPTO, including requests to amend registrations and responses to post-registration office actions.

This Week on Wall Street

Exxon Mobil Misses on Revenues Despite Highest Quarterly Profit in Years – On Friday, October 28, American oil and gas company Exxon Mobil announced earnings for the third quarter of 2021 during which the company posted $1.58 earnings per share (EPS), its largest EPS returns for a quarter since 2014, although the company’s $73.79 billion in quarterly revenues was more than $2.5 billion less than analyst expectations for the third quarter.

Apple Misses Revenues Expectations Due to $6B in Supply Chain Constraints – On Thursday, October 28, consumer tech giant Apple Inc. issued its earnings report for the fourth quarter of 2021 in which the company missed on analyst revenue expectations by nearly $1.5 billion, posting $83.36 in revenues for the quarter, in large part because of supply chain constraints that Apple CEO Tim Cook estimated cost the company $6 billion during the quarter. The disappointing quarter also resulted in Apple’s market capitalization dipping below that of software giant Microsoft Corp., which in turn made Microsoft the world’s most valuable company.

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: Cirrus Logic, Inc. (t-265th); Konica Minolta, Inc. (83rd); Kyocera Corp. (47th); NXP Semiconductors NV (73rd); Rambus Inc. (t-261st); Realtek Semiconductor Corp. (t-216th); TDK Corp. (85th)
• Tuesday: Dupont de Nemours Inc. (226th); Eaton Corp. (t-111th); Fresenius SE & Co. KGaA (254th); Mitsubishi Chemical Holdings (219th); Samsung SDI Co., Ltd. (t-153rd); Sumitomo Electric Industries (61st); Yamaha Corp. (168th)
• Wednesday: Alibaba Group Holding Ltd. (64th); Bayerische Motoren Werke AG (t-129th); Borgwarner Inc. (t-244th); Ingersoll-Rand plc (190th); Novo Nordisk A/S (t-295th); Qualcomm Inc. (17th); Toyota Motor Corp. (13th)
• Thursday: Becton, Dickinson & Co. (t-120th); Citrix Systems, Inc. (227th); Fujifilm Holdings Corp. (30th); Interdigital (t-140th); Microchip Technology Inc. (t-269th); Motorola Solutions, Inc. (202nd); Nikon Corp. (205th); Ricoh Co., Ltd. (49th); Sharp Corp. (44th); Terumo Corp. (t-261st); Uber Technologies, Inc. (224th)
• Friday: Berkshire Hathaway (t-228th); Johnson Controls International (119th); Magna International (139th); Olympus Corp. (75th); Shimadzu Corp. (195th)

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