Other Barks & Bites for Friday, January 21: CNIPA Announces Rapid Trademark Examination Measures, SCOTUS Asked to Clarify Octane Fitness Standard, and Qualcomm Opposes Apple’s Petition on Article III Standing

This week in Other Barks & Bites: Qualcomm files its brief in opposition to Apple’s petition for writ of certiorari asking the Supreme Court to overturn the Federal Circuit’s ruling on Article III licensee standing; Big Tech CEOs reportedly ramp up their efforts against antitrust bills in the Senate; the DOJ levies charges involving the transfer of technology to the Central Bank of Iran; the U.S. Copyright Office issues a strategic plan for 2022 through 2026; Heat On-The-Fly files a petition for writ asking the Supreme Court to clarify the Octane Fitness standard for determining exceptionality of an infringement suit; Austria’s ratification of UPC Protocol clears path for the Unified Patent Court to begin operations by the end of 2022; the CNIPA announces a 20-day rapid examination program for certain trademark applications related to major events and natural disasters; and the Eastern District of New York unseals court documents in a suit filed by Gilead Sciences against a ring of HIV treatment counterfeiters.

Bites 

CAFC Vacates ITC Ruling on Claim Construction and Expert Testimony – on Friday, January 21, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling vacating and remanding a decision of the International Trade Commission (ITC) on several issues, including that the Commission abused its discretion in allowing expert testimony from a person lacking the requisite skill in the art and that the ITC’s Administrative Law Judge erred in construing certain claims.

Apple Countersues Ericsson at USITC After Ericsson Files Western Texas SEP Suit – On Wednesday, January 19, consumer tech giant Apple filed a complaint for a Section 337 investigation at the U.S. International Trade Commission (USITC) against Swedish telecom firm Ericsson, asserting a trio of patents covering millimeter wave technologies for mobile device networking. The complaint follows a few days after Ericsson filed suit in the Western District of Texas alleging that Apple devices infringed upon patents covering standards-essential technologies incorporated into the 5G networking standard.

Qualcomm Files Brief in Opposition to Apple’s Petition for Cert on Article III Standing – On Wednesday, January 19, semiconductor developer Qualcomm filed a brief in opposition at the U.S. Supreme Court challenging a petition for writ recently filed by Apple. Qualcomm argued that the Federal Circuit’s application of Article III standing doctrine was faithful to Supreme Court precedent handed down in MedImmune v. Genentech (2006), contending that Apple’s petition exaggerates any exception under MedImmune allowing Article III standing for patent licensees as Apple presented no evidence that invalidating Qualcomm’s patent claims at issue would have any concrete effect to Apple’s rights or obligations under its license agreement with Qualcomm. 

Austrian Ratification is Last Country Needed to Start UPC Preparations – On Wednesday, January 19, the European Patent Office (EPO) announced that, after the Austrian government officially ratified the Protocol to the Agreement on a Unified Patent Court (UPC), an eight-month provisional application period will begin to handle technical and infrastructural preparations with the goal of beginning operations at the UPC by the end of 2022.

CNIPA Announces Rapid Examination Program for Emergency Trademark Applications – On Tuesday, January 18, China’s National Intellectual Property Administration (CNIPA) announced new measures for the rapid examination of certain trademark applications, including applications to register marks related to major events or natural disasters, with qualifying applications receiving an examination that will conclude within 20 working days upon the CNIPA’s grant of rapid examination.

SCOTUS Denies Apple, Mylan Petitions Challenging NHK/Fintiv Framework – On Tuesday, January 18, the U.S. Supreme Court issued an order list showing that it had denied petitions for writs of certiorari filed by consumer tech giant Apple and generic drugmaker Mylan Laboratories, nixing a pair of challenges under U.S. administrative law to the NHK/Fintiv framework developed at the Patent Trial and Appeal Board (PTAB) for discretionary denials of inter partes review (IPR) petitions based on parallel infringement proceedings in U.S. district court.

DOJ Charges U.S.-Iranian Citizen for Transferring Technology to Iranian Government – On Tuesday, January 18, the U.S. Department of Justice (DOJ) announced that it had charged a 44-year-old U.S.-Iranian dual citizen for his role in illegally transferring both electronics equipment and information technology to the Central Bank of Iran in violation of the International Emergency Economic Powers Act.

CAFC Reverses Claim Construction in Northern California Firearm Conversion Kit Case – On Friday, January 14, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Evolusion Concepts, Inc. v. HOC Events, Inc. in which the appellate court reversed a summary judgment ruling of noninfringement from the Central District of California after ruling that the district court erred in construing the claim term “magazine catch bar” to exclude a factory-installed magazine catch bar. The Federal Circuit ruled that such a construction reads additional limitations into the asserted claims and that nothing in the claims precludes the reuse of the factory-installed bar when using the accused kit for converting a firearm with a detachable magazine to one with a fixed magazine.

Heat On-The-Fly Files Petition for Writ Asking SCOTUS to Clarify Octane Fitness Standard – On Wednesday, January 12, hydraulic fracturing tech developer Heat On-The-Fly filed a petition for writ of certiorari with the Supreme Court asking the nation’s highest court to take up an appeal of the Federal Circuit’s ruling affirming that Heat On-The-Fly’s infringement case against Energy Heating and other defendants was exceptional after the asserted patent claims were invalidated for obviousness and obtained from the USPTO through inequitable conduct. Heat On-The-Fly argues that the standard for exceptionality under Octane Fitness v. ICON Health & Fitness (2014) should take into account Heat On-The-Fly’s manner of litigating the case, not just the substantive strength of its litigating position.

Barks

U.S. Copyright Office Issues Five-Year Strategic Plan for Improved Outreach, Tech Integration – On Thursday, January 20, the U.S. Copyright Office released a strategic plan for 2022 through 2026 articulating four overarching goals that the Office will pursue throughout the upcoming five years that will include improving accessibility to the U.S. copyright system among all stakeholders and increasing the integration of data and technology at the agency.

USPTO Extends Comment Period on Info Collected to Determine AIA Filing Status – On Thursday, January 20, the U.S. Patent and Trademark Office issued a notice in the Federal Register extending by 30 days the public comment period regarding information collected by the agency in order to determine whether a given patent application filing is subject to novelty, obviousness and first-to-file requirements under the America Invents Act (AIA) or whether the filing is subject to pre-AIA rules in effect up to March 15, 2013.

EUIPO Announces Sporadic Outages on January 22 – On Wednesday, January 19, the European Union Intellectual Property Office (EUIPO) announced that the agency’s online platform, including the EUIPO website and the European Union Intellectual Property Network (EUIPN) portals for regional IP offices, may suffer sporadic outages this Saturday, January 22, as the agency completes a planned disaster recovery exercise from 9:00 AM Central European Time (3:00 AM Eastern Time) to 11:00 AM CET (5:00 AM ET).

Judge Yeakel Denies Most of Motions for SJ in Patent Infringement Suit Against Blizzard – On Wednesday, January 19, U.S. District Judge Lee Yeakel of the Western District of Texas entered a ruling denying a motion for summary judgment filed by Blizzard Entertainment seeking a ruling of noninfringement and invalidity of networking patent claims asserted by Via Vadis and AC Technologies. Judge Yeakel also dismissed a motion for summary judgment filed by plaintiffs in the case, except for a ruling that a “shifting” limitation covered by the claims was sufficiently definite to survive a Section 112 challenge.

Eastern New York District Court Unseals Gilead’s Suit Against HIV Counterfeits – On Tuesday, January 18, the Eastern District of New Yorks unsealed a second amended complaint and a memorandum of law filed by pharmaceutical firm Gilead Sciences against dozens of named defendants who were allegedly part of a drug making ring designed to produce counterfeit HIV treatments, both medications for patients living with HIV as well as pre-exposure prophylactic treatments to prevent HIV transmission, and fake pedigree documents tracking the sale of drugs from the manufacturer to the seller.

Judge McNulty Trims Most of Zipit Wireless Patent Claims Against LG on MTD – On Tuesday, January 18, U.S. District Judge Kevin McNulty of the District of New Jersey granted most of a motion to dismiss filed by LG Electronics, dismissing the entire first count of an amended complaint filed by patent owner Zipit Wireless and all infringement contentions regarding method claims under a second asserted patent, although Zipit Wireless may continue with claims that LG Electronics directly infringed claims covering an apparatus for receiving text messages with graphical and emoji symbols.

EUIPO Rolls Out AI-Powered Image Search for Trademarks, Designs – On Monday, January 17, the EUIPO announced that it would be expanding access to the agency’s artificial intelligence-powered image search tools, previously available through the agency’s eSearch Plus service, by implementing them into the agency’s TMview and DesignView tools for searching trademark and design databases.

USPTO and JPO Issue Joint Statement Setting New Targets for PPH Pendencies – On Friday, January 14, the USPTO and the Japan Patent Office (JPO) released a joint statement setting new timeline targets for patent applications submitted for fast-track examination through the Patent Prosecution Highway (PPH), with both offices committing to responding to both PPH requests and applicant responses to first office actions within three months of receipt.

This Week on Wall Street

Big Tech CEOs Ramp Up Lobbying Efforts Against Antitrust Bills on Capitol Hill – On Thursday, January 20, political news outlet Axios reported that Apple CEO Tim Cook and Google CEO Sundar Pichai have been ramping up lobbying efforts against a pair of antitrust bills that are set to be marked up by the Senate Judiciary Committee, including the American Innovation and Choice Online Act and the Open App Markets Act, to quell antitrust activities that have been ramping up against Big Tech firms in recent years.

Mercedes-Benz Signs LIDAR Technology Deal With Luminar – On Thursday, January 20, German automaker Mercedes-Benz announced that it had signed a deal with autonomous driving tech firm Luminar to incorporate that firm’s LIDAR technology into Mercedes-Benz’s upcoming models of self-driving cars and to acquire 1.5 million shares of Luminar over the course of the partnership.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2020 rank in parentheses):

• Monday: Halliburton Co. (47th); Hyundai Motor Co. (24th); Koninklijke Philips N.V. (46th)
• Tuesday: 3M Co. (74th); Capital One Financial Corp. (63rd); Disco Corp. (t-265th); General Electric Co. (21st); Johnson & Johnson (22nd); Lockheed Martin Corp. (t-289th); Microsoft Corp. (12th); Raytheon Technologies Corp. (9th); Shin-Etsu Chemical Co., Ltd. (211th); Telefonaktiebolaget LM Ericsson (26th); Texas Instruments Inc. (42nd); United Microelectronics Corp. (t-190th); Xerox Holdings Corp. (139th)
• Wednesday: Abbott Laboratories (121st); AT&T Inc. (36th); The Boeing Company (27th); Corning Inc. (t-102nd); Dolby Laboratories, Inc. (232nd); Edwards Lifesciences Corp. (t-239th); Fanuc Corp. (t-109th); Fuji Electric Co., Ltd. (167th); Fujifilm Holdings Corp. (25th); Intel Corp. (6th); Nidec Corp. (138th); Samsung Electronics Co., Ltd. (2nd); Samsung Electro-Mechanics Co., Ltd. (92nd); Seagate Technology plc (185th); TE Connectivity Ltd. (t-163rd); Whirlpool Corp. (201st); Xilinx, Inc. (t-220th)
• Thursday: Apple Inc. (11th); Canon Inc. (4th); Comcast Corp. (122nd); Dow Chemical Co. (115th); Fujitsu Ltd. (53rd); Honeywell International Inc. (43rd); Juniper Networks, Inc. (t-155th); KLA Corp. (t-272nd); LG Electronics (3rd); Mastercard Inc. (125th); Mediatek Inc. (107th); Samsung SDI (162nd); STMicroelectronics N.V. (71st); Stryker Corp. (95th); Textron Inc. (135th); Visa Inc. (t-148th); Western Digital Corp. (57th)
• Friday: Caterpillar Inc. (93rd); Omron Corp. (t-144th); Seiko Epson Corp. (29th); SK Group (33rd); AB Volvo (196th)

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