Bite (noun): more meaty news to sink your teeth into.
Bark (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: the U.S. Senate confirms the appointment of Judge Lucy Koh to the bench of the Ninth Circuit; the Federal Circuit affirms a summary judgment ruling of no induced infringement in an international patent case over plastics manufacturing; the Supreme Court denies an appeal of the French government’s sovereign immunity win over cybersquatting claims; the Senate Commerce Committee approves a bill that would increase foreign direct investment into semiconductor manufacturing; Judge Mauskopf sends a letter indicating that the Administrative Office of the U.S. Courts will consider concerns raised regarding case assignment policies in the Waco Division of the Western District of Texas; the USPTO proposes a rule that would end the practice of mailing printed patent certificates upon issuance in favor of electronic-only patent certificates; and news reports indicate that Oracle is seeking a major acquisition of a medical records and software firm.
CAFC Affirms Ruling of No Inducement in International Plastic Manufacturing Patent Case – On Thursday, December 16, the U.S. Court of Appeals for the Federal Circuit issued a decision in Alpek Polyester, S.A. v. Polymetrix AG in which the appellate court affirmed a ruling on summary judgment from the District of Minnesota that Swiss plastics engineering firm Polymetrix did not induce infringement of patent claims covering methods for producing polyethylene terephthalate (PET) resin. The appellate court found no genuine dispute of material fact that samples of PET resin imported into the U.S. by Indorama Ventures Poland (IVP), a petrochemical producer contracting with Polymetrix, was not caused by any action on behalf of Polymetrix.
Judge Mauskopf Says AO Will Study Case Assignment Policies in Western Texas – On Wednesday, December 15, Roslyn R. Mauskopf, U.S. District Judge for the Eastern District of New York and Director of the Administrative Office of the U.S. Courts (AO), sent a letter addressed to Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) indicating that the AO’s Committee on Court Administration and Case Management will look into concerns raised by those Senators regarding case assignment policies and practices in the Western District of Texas’ Waco Division, which “has a single Article III judge who, over the last few years, accumulated approximately 25 percent of the patent litigation in the country.
Senate Commerce Committee Approves Semiconductor Supply Chain Bill – On Wednesday, December 15, the U.S. Senate Committee on Commerce, Science, and Transportation passed a series of four bills out of committee and toward a full vote on the floor of the Senate, including S. 3309, the Securing Semiconductor Supply Chains Act of 2021. If enacted, the law would direct the SelectUSA initiative of the U.S. Department of Commerce to coordinate with state-level economic development organizations to increase foreign direct investment in semiconductor-related manufacturing and production.
USPTO Issues NPRM Proposing Move Towards Electronic-Only Patent Issuances – On Wednesday, December 15, the U.S. Patent and Trademark Office issued a notice of proposed rulemaking (NPRM) in the Federal Register that would result in the agency ending its practice of mailing printed versions of issued patents to the correspondence address of record in favor of issuing patents electronically through the agency’s patent document viewing systems, including Patent Center and Patent Application Image Retrieval (PAIR). The same day, the USPTO also issued a request for comments in the Federal Register seeking public input on the agency’s plans to transition toward issuing electronic trademark registration certificates starting in the spring of 2022.
Reps. Tonko, Ellzey Introduce Microelectronics Research Bill Into U.S. House – On Tuesday, December 14, Representatives Paul D. Tonko (D-NY) and Jake Ellzey (R-TX) introduced the Microelectronics Research for Energy Innovation Act into the U.S. House of Representatives. If enacted, the bill would direct the U.S. Department of Energy to establish a program for developing commercial applications of microelectronics as well as create up to four Microelectronics Science Research Centers in the U.S. to drive microelectronics research and facilitate the transition of new microelectronics technologies into industry.
Senate Confirms Judge Lucy Koh to the Ninth Circuit – On Monday, December 13, the U.S. Senate confirmed Lucy Koh as a Circuit Judge for the U.S. Court of Appeals for the Ninth Circuit, becoming the first Korean-American woman to serve on a U.S. circuit court. Majority Whip Senator Dick Durbin (D-IL) released a statement commending the confirmation of Judge Koh, whom Durbin credited with “appl[ying] the law in an evenhanded and impartial way.”
Supreme Court Denies Cert in France.com Domain Name Case – On Monday, December 13, the U.S. Supreme Court issued an order list in which the nation’s highest court denied a petition for writ of certiorari seeking to appeal the U.S. Court of Appeals for the Fourth Circuit’s ruling that the French government had sovereign immunity from claims that France had engaged in cybersquatting and reverse domain name hijacking in violation of the Anticybersquatting Consumer Protection Act (ACPA). France had previously won an injunction in French courts awarding the European nation control over the domain name France.com.
Sen. Cantwell Urges FTC to Investigate Facebook’s Deceptive Advertising Metrics – On Wednesday, December 8, Senator Maria Cantwell (D-WA) sent a letter addressed to Federal Trade Commission (FTC) Chairwoman Lina Khan asking for the FTC to investigate complaints that social media giant Meta, formerly known as Facebook, made deceptive claims regarding both the potential reach of advertising campaigns on the platform as well as the amount of hateful content filtered out of Facebook.
USPTO Announces Emergency IT Maintenance to Address Log4J Vulnerability – On Thursday, December 16, the U.S. Patent and Trademark Office sent out an email alert to subscribers announcing that the agency had proactively shut down external access to all agency information technology (IT) systems, preventing document filings for a 12-hour period from Wednesday evening into Thursday, in order to perform necessary maintenance to address IT system vulnerabilities related to a recently unveiled vulnerability exposed in Log4J information logging software.
USITC Affirms Section 337 Violation, Enters LEO Against Infringing LED Products – On Thursday, December 16, the U.S. International Trade Commission (USITC) announced that the agency had affirmed a finding that certain light-emitting diode (LED) products, fixtures, and components thereof imported by Northvale, NJ-based RAB Lighting into the U.S. for sale infringe upon patent rights asserted by Durham, NC-based Ideal Industries Lighting, doing business as Cree Lighting. The USITC has issued a limited exclusion order (LEO) preventing import of the infringing products as well as a cease-and-desist order (CDO) to RAB Lighting.
Sen. Coons calls on administration to use new Indo-Pacific Economic Framework to set global standards on digital trade – On Thursday, December 16, U.S. Senator Chris Coons (D-DE) sent a bipartisan letter to Commerce Secretary Gina Raimondo, Secretary of State Antony Blinken, and U.S. Trade Representative Katherine Tai calling on the administration to ensure that President Biden’s new Indo-Pacific Economic Framework pushes the world forward on issues of digital trade, technology, and decarbonization. They also urged the administration to put digital trade at the forefront of the nation’s global economic agenda going forward, including by working with our allies in the Indo-Pacific. The letter was also signed by Senators Jeanne Shaheen (D-NH), Jeff Merkley (D-OR), John Cornyn (R-TX), Todd Young (R-IN), and Tom Carper (D-DE).
Magistrate Cott Recommends Attorney’s Fees in Greek Freak Trademark Case – On Wednesday, December 15, U.S. Magistrate Judge James L. Cott of the Southern District of New York entered a report and recommendation finding that Giannis Antetokounmpo, the NBA’s Most Valuable Player in 2019 and 2020, should be awarded more than $11,000 in attorneys’ fees and costs following a default judgment against a pair of defendants who allegedly sold merchandise online infringing on Antetokounmpo’s “Greek Freak” trademark.
Google, YouTube File Motion to Dismiss Class Action Copyright Suit – On Tuesday, December 14, Internet services giant Google and its video platform subsidiary YouTube filed a motion to dismiss a third amended class action complaint for copyright infringement filed in the Northern District of California, arguing that the amended complaint violates Federal Rule of Civil Procedure 8 for running 3,000 pages in length, fails to state a claim upon which relief can be granted and is precluded by the limited liability provisions of Section 230 of the Communications Decency Act.
EPO Proposes Moving Boards of Appeal to Munich City Center – On Tuesday, December 14, European Patent Office (EPO) President António Campinos and EPO Boards of Appeal President Carl Josefsson issued a joint proposal to the 38 member states of the EPO that would relocate the Boards of Appeal from the Haar district on the outskirts of Munich to the EPO’s premises at Pschorr-Höfe 7 in Munich’s city center.
DoJ Extends Public Comment Period for Draft Statement on SEP Licensing and Negotiations – On Monday, December 13, the U.S. Department of Justice’s (DoJ) Antitrust Division announced that the period for receiving public comments related to the draft policy statement composed jointly by the DoJ’s Antitrust Division, the USPTO and the National Institute of Standards and Technology (NIST) regarding licensing negotiations and remedies for standard-essential patents subject to fair, reasonable and non-discriminatory (FRAND) licensing obligations. The comment period will be extended for an additional 30 days until February 4, 2022.
Coachella Files Trademark Suit Against Live Nation for Ticket Sales to Copycat Festival – On Monday, December 13, Coachella Music Festival and Goldenvoice filed a lawsuit in the Central District of California against Live Nation Entertainment and Bluehost for contributory trademark infringement, alleging that those companies have benefitted from promoting a musical festival called Coachella Day One 22 and organized by the Twenty-Nine Palms Band of Mission Indians, a federally-recognized tribe that has claimed a sovereign immunity defense.
Judge Fitzgerald Denies Summary Judgment in “Shake It Off” Copyright Suit – On Thursday, December 9, U.S. District Judge Michael W. Fitzgerald of the Central District of California issued an order denying a motion for summary judgment by filed pop star Taylor Swift after determining that a triable issue of fact remained as to whether the asserted section of the 3LW single “Playas Gon’ Play” (2000), which plaintiff songwriters allege was copied in the chorus section of Swift’s “Shake It Off,” has the required amount of originality for copyright ownership to arise.
This Week on Wall Street
WSJ Reports Oracle in Talks for Possible $30B Acquisition of Medical Records Firm – On Thursday, December 16, The Wall Street Journal reported that American software and database management firm Oracle Corp. was in discussions that could lead to the acquisition of Kansas City, MO-based Cerner Corp., a company that designs medical records analytics software for hospitals and doctors, in a deal that could potentially be valued at $30 billion.
GM Announces Cruise CEO Ammann Left Autonomous Driving Subsidiary – On Thursday, December 16, shares of General Motor stock were down 4.5 percent on news that Dan Ammann, Chief Executive Officer of GM’s autonomous driving subsidiary Cruise, has left the company effective immediately. Kyle Vogt, Cruise’s President and Chief Technology Officer, is serving as interim CEO.
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: Micron Technology Inc. (22nd); Nike, Inc. (t-114th)
- Tuesday: BlackBerry Ltd. (t-183rd)
- Wednesday: None
- Thursday: None
- Friday: None
Director’s Letter to Senators Tillis and Leahy pdf