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This week in Other Barks & Bites: the Federal Circuit clarifies the “reasonable expectation of success” standard while reversing the PTAB’s obviousness determination regarding patent claims covering a method of photoinactivation of Gram-positive bacteria; Senator Tillis raises concerns about Judge Alan Albright with the USPTO and Chief Justice John Roberts; a CSET study shows that Chinese entities received nearly one-third of global patent grants for robotics technologies between 2005 and 2019; Google News announces that it will return to Spain early next year after that country’s government implemented the EU Copyright Directive; Redbubble’s print-on-demand service survives trademark and counterfeit infringement claims filed by Atari; Google enters a 10-year, $1 billion partnership with futures exchange company CME Group; and NXP Semiconductors files a Section 337 complaint against Amazon and other tech firms for infringing patent claims covering integrated circuits and chipsets.
CAFC Reverses PTAB Obviousness Determination of Bacteria Disinfecting Method Patent – On Thursday, November 4, the U.S. Court of Appeals for the Federal Circuit issued a ruling in University of Strathclyde v. Clear-Vu Lighting, LLC in which the appellate court reversed an obviousness determination at the Patent Trial and Appeal Board (PTAB) for not being supported by substantial evidence. The Federal Circuit found that the PTAB erred in finding all claim limitations of a patent covering a method of photoinactivation of harmful bacteria in hospital settings were disclosed by a pair of prior art references, ruling that those references did not teach the inactivation of Gram-positive bacteria without the use of a photosensitizer. The appellate court also clarified that the standard for reasonable expectation of success in obviousness determinations does not require “absolute predictability” or “guaranteed success,” but found that Clear-Vu did not present evidence demonstrating such a reasonable expectation due to shortcomings in the asserted prior art.
Judge Stark to Replace Kathleen O’Malley on Federal Circuit Bench – On Wednesday, November 3, the Biden Administration announced a new round of nominees for the federal judiciary, including the nomination of U.S. District Judge Leonard Stark of the District of Delaware to serve on the bench of the Federal Circuit. Judge Stark would replace outgoing Circuit Judge Kathleen O’Malley, who will be retiring from the court next May.
South Korean Semiconductor Firms to Comply With U.S. Data Request on Supply Chains – On Wednesday, November 3, South Korean daily newspaper The Hankyoreh reported that major domestic chipmakers SK Hynix and Samsung Electronics will voluntarily comply with requests from the Biden Administration to turn over data regarding semiconductor supply chains, including major customers, sales share and inventory, by next Monday’s deadline to the extent that such information does not violate non-disclosure agreements (NDAs) between the chipmakers and their customers.
Sen. Tillis Raises Judge Albright Concerns With USPTO, Chief Justice Roberts – On Tuesday, November 2, Senator Thom Tillis (R-NC) sent a pair of letters, one to Drew Hirshfeld, performing the duties and functions of the Director of the U.S. Patent and Trademark Office, and Chief Justice John Roberts of the U.S. Supreme Court, raising concerns over the activities of U.S. District Judge Alan D. Albright of the Western District of Texas’ Waco Division. Tillis’ letters, one of which was co-written with Sen. Patrick Leahy (D-VT), argue that Judge Albright has encouraged forum shopping and is setting unrealistic trial deadlines in patent cases.
CSET Study Finds China Filed One-Third of Global Robotics Patents From 2005 to 2019 – On Tuesday, November 2, the Center for Security and Emerging Technology (CSET) released a data brief on trends in robotics patents finding that Chinese entities received more than 25,000 global patents covering robotics technologies between 2005 and 2019, just under 35 percent of the global share of patent filings in that field and well ahead of U.S. entities which only received 9,554 such patents, ranking fourth behind China, Japan (15,130 patents) and South Korea (11,144 patents).
Senate Judiciary Committee Talks Legislative Fixes in Online Counterfeit Hearing – On Tuesday, November 2, the Senate Judiciary Committee convened a hearing on cleaning up counterfeit goods from online marketplaces in which multiple members of the committee discussed how major e-commerce platforms have made poor efforts to remove infringing and often dangerous goods from their online stores, as well as legislative proposals such as the Inform Consumers Act and the SHOP SAFE Act.
Spain Adopts EU Copyright Directive, Google News to Return By Early 2022 – On Tuesday, November 2, the government of Spain announced a new royal decree-law to formally adopt and implement the provisions of the European Copyright Directive. The following day, a post on Google’s official blog announced that the Google News online news service would return to Spain early next year; Google had left Spain in 2014 over national laws, now replaced by the EU Copyright Directive, that required Google to pay collective licensing fees for republishing news content.
Chinese Supreme People’s Court Affirms Extinguishing of Patent Rights for Incomplete Fee Payment – On Tuesday, November 2, the Chinese Supreme People’s Court issued a decision ruling that an incomplete patent annuity payment, even when made unintentionally under allegations that China’s National Intellectual Property Administration (CNIPA) failed to provide notice and provided improper info via telephone consultation, results in the termination of those patent rights under Chinese law.
Redbubble’s Print-on-Demand Service Survives Atari Copyright, Trademark Claims – On Thursday, November 4, a jury verdict entered in the Northern District of California found that print-on-demand company Redbubble did not commit counterfeit or infringe video game developer Atari’s ATARI and PONG trademarks, nor did Redbubble infringe any of Atari’s copyrights to their video game art, by allowing those marks and images to be used by third parties on Redbubble’s printing service.
Chinese Court Orders Apple to Pay $1.9M in Damages for Unlicensed Content on App Store – On Thursday, November 4, the South China Morning Post reported that the Tianjin Binhai People’s Court had ordered consumer tech giant Apple to pay 12 million yuan ($1.9 million USD) in damages to Chinese online publisher COL Digital Publishing Group after finding that Apple infringed COL’s copyrights by making unlicensed digital content available through several unnamed apps on Apple’s App Store.
NY State Appellate Court Bars “Copyright Troll” Liebowitz From NY Practice – On Wednesday, November 3, the New York State Supreme Court’s Appellate Division, Second Department, entered a ruling suspending lawyer Richard Liebowitz, whose lawsuit filings on behalf of copyright infringement plaintiffs have gained great notoriety in recent years, from legal practice within the state of New York.
Judge Schofield Enters Injunction Against Pepsi’s MTN DEW RISE ENERGY – On Wednesday, November 3, U.S. District Judge Lorna G. Schofield of the Southern District of New York entered a ruling granting a motion for preliminary injunction in favor of coffee brewing firm RISE Brewing enjoining Pepsico from using MTN DEW RISE ENERGY marks in association with its soft drinks.
EPO Study Shows U.S., China Lead Patent Filings for Space Applications of Quantum Technologies – On Tuesday, November 2, the European Patent Office (EPO) released the results of a study, completed jointly with a pair of European space agencies, showing that patent application filings covering the application of quantum technologies in outer space have increased by more than 400 percent over the past five years, with the vast majority of space-related quantum technologies filings coming from organizations based in either the United States or China.
Nevro to Appeal $20M Award to Boston Scientific in Delaware Jury Verdict – On Monday, November 1, American medical device company Nevro Corp. announced that it would likely appeal a $20 million jury verdict award to rival firm Boston Scientific from the District of Delaware after the jury found that Nevro infringed patents covering the manufacture of spinal cord stimulation technologies.
Candy Crush Operators File TTAB Opposition Over Mark for Fruit Preserves, Beverages – On Monday, November 1, King.com and Midasplayer, subsidiaries of Activision Blizzard and operators of the popular mobile gaming app Candy Crush, filed a notice of opposition at the Trademark Trial and Appeal Board (TTAB) asking the Board to refuse registration to a trademark application seeking to cover the use of “CANDY CRUSH” to cover several goods including fruit preserves, beverages and confectionary products.
NXP Semiconductors Files Section 337 Complaint at USITC Against Amazon, Others – On Monday, November 1, the U.S. International Trade Commission announced that global chip company NXP Semiconductors filed a Section 337 complaint at the agency including allegations of patent infringement by certain integrated circuits, chipsets and electronic devices imported into the U.S. for sale by Amazon, MediaTek, Belkin International and Linksys USA.
This Week on Wall Street
Google Announces 10-Year, $1B Cloud Partnership With CME Group – On Thursday, November 4, news reports indicated that Internet services giant Google had reached a deal with Chicago-based CME Group to invest $1 billion into the futures and options trading company and develop a cloud-based system for the CME Group’s core trading systems that will operate over the course of a 10-year partnership between the companies.
John Deere Ends Labor Negotiations With UAW After Company’s Best Offer – On Wednesday, November 3, Marc Howze, Chief Administrative Officer of agricultural machinery and heavy equipment manufacturer John Deere, made public remarks stating that the company’s latest contract offer rejected by members of the United Auto Workers union was the company’s best offer and that John Deere would reach out to workers individually to end major a labor strike that started in mid-October.
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: Kawasaki Heavy Industries Ltd. (t-255th); Softbank Group Corp. (65th); Toray Industries, Inc. (t-232nd); Xperi Holding Corp. (t-220th); Yamaha Corp. (168th)
- Tuesday: Bayer AG (68th); Mazda Motor Corp. (t-186th); Nissan Motor Co., Ltd. (102nd)
- Wednesday: Bridgestone Corp. (t-214th); Casio Computer Co., Ltd. (t-208th); Continental AG (98th); Infineon Technologies AG (52nd); Nippon Telegraph & Telephone Corp. (142nd); Tencent Holdings Ltd. (81st); The Walt Disney Co. (188th); Wistron Corp. (t-290th)
- Thursday: LG Corp. (3rd); Siemens AG (31st); Toshiba Corp. (34th); Windbond Electronics Corp. (t-244th)
- Friday: Deutsche Telekom AG (t-140th); Hon Hai Precision Industry Co., Ltd. (116th); Tokyo Electron Ltd. (97th)
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