Bite (noun): more meaty news to sink your teeth into.
Bark (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: Senator Thom Tillis (R-NC) sent a letter yesterday to the Administrative Conference of the United States requesting it perform a study on the benefits of creating a unified, independent Intellectual Property Office; the Federal Circuit reversed an indefiniteness ruling invalidating computer-implemented method claims over a dissent from Judge Dyk; news reports indicate that Associate Justice Stephen Breyer will step down from the U.S. Supreme Court once the Court’s current term finishes; the Second Circuit vacated-in-part a ruling transferring ownership of wedding influencer social media accounts; Iowa’s state legislature is considering a bill to divest Iowa PBS recordings of copyright and make those works public record; the EGC reversed a $1.18 billion dollar fine levied against Intel after regulators improperly analyzed alleged anticompetitive impacts of conditional rebates; the Fifth Circuit dismissed an appeal from a Texas A&M employee asserting a qualified immunity defense against copyright infringement claims; the PTAB institutes an IPR against one of two VLSI patents earning the company a multi-billion dollar infringement verdict against Intel; and Apple posts its largest quarterly revenues ever on strong performance in iPhone and services sales.
Tillis Asks ACUS to Conduct Study on Creating a Unified U.S. IP Office – On Thursday, January 27, Senator Thom Tillis (R-NC) sent a letter to Matthew Wiener, Acting Chairman of the Administrative Conference of the United States (ACUS), and Todd Rubin, ACUS Counsel for Congressional Affairs, asking that the ACUS “conduct a study on whether Congress should create a unified, stand-alone, and independent Intellectual Property Office.”
Tillis’ proposal would bring together the U.S. Patent and Trademark Office (USPTO), U.S. Copyright Office, the Office of the Intellectual Property Enforcement Coordinator (IPEC) and other IP-relevant posts across agencies under one Senate-appointed and presidentially-appointed Director, with separate commissioners for each area.
The goal of the letter is to gather data to support the proposition. Tillis specifically wants the ACUS to address the following issues:
- Funding models (fee-funded versus taxpayer-funded)
- What the key functions of such a unified IP office should be
- Streamlining duplicative functions
“Concentrating our intellectual property rights (IPR) expertise into one agency will not only provide a ‘one-stop-shop’ to assist American with engaging in their intellectual property system, it will also appropriately reflect intellectual property’s elevated role in our modern, digital economy,” Tillis wrote.
The letter asks ACUS to report back by February 1, 2023.
In a recent interview with former USPTO Director Andrei Iancu, IPWatchdog Founder and CEO Gene Quinn asked Iancu if he thought the USPTO Director should be a Cabinet-level position, considering the importance of IP to the modern economy and national security. Iancu said there would be pros and cons to that, but that “having a U.S. IP Office that handles all IP – both rights as well as policy – that’s elevated to the Cabinet level” would be warranted considering IP’s significance. “Some think it should be an independent agency,” Iancu said. “That’s also an option. But you’re right; in today’s day and age, with IP being on the front pages, it is such an important issue that [there could be benefits to] elevating a professional to the Cabinet level to be able to speak directly to the president and form national policy.”
CAFC Reverses ND Cal. Indefiniteness Ruling Over Dissent From Judge Dyk – On Thursday, January 27, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Nature Simulation Systems Inc. v. Autodesk, Inc. in which the appellate court reversed a ruling from the Northern District of California finding Nature Simulation Systems’ patent claims covering a computer-implemented method for building three-dimensional objects invalid for indefiniteness, finding that the district court improperly ignored examiner amendments during patent prosecution when assessing unanswered questions raised by Autodesk’s expert about a certain claim term. Circuit Judge Timothy Dyk authored a dissent in which he argued that the fact that the indefinite claim language was introduced by the patent examiner does not absolve the challenged claims from being invalidated under Section 112.
EGC Reverses $1B Fine Against Intel For Incomplete Analysis of Conditional Rebates – On Wednesday, January 26, the General Court of the European Union (EGC) vacated a May 2019 decision by the European Commission leveling a €1.06 billion ($1.18 billion USD) fine against chipmaker Intel for anticompetitive actions to exclude competitors from the market, including agreements with original equipment manufacturers (OEMs) conditioning rebates upon the OEM purchasing all their computer processing units from Intel. The EGC found that the Commission’s analysis was incomplete such that it was impossible to determine whether the conditional rebates at issue were capable of having anticompetitive effects under the requisite legal standard.
Stephen Breyer to Retire as Associate Supreme Court Justice After Current Term – On Wednesday, January 26, news reports indicated that Stephen Breyer, an Associate Justice for the Supreme Court of the United States since 1994, is planning to retire from the Supreme Court bench at the end of the current term. Breyer wrote the majority opinion in last year’s Google v. Oracle decision which was heavily criticized for allowing Google to make out a fair use defense protecting it from liability for stealing core functionalities of its Android platform from Oracle source code.
Fifth Circuit Dismisses Appeal of Qualified Immunity Claims in “12th Man” Copyright Case – On Wednesday, January 26, the U.S. Court of Appeals for the Fifth Circuit entered a ruling in Canada Hockey, L.L.C. v. Marquadt in which the appellate court dismissed an appeal from Brad Marquadt, an Associate Director of Media Relations for Texas A&M University’s Athletic Department who claimed a qualified immunity defense to allegations over his role in creating an unauthorized reproduction of an excerpt from a biography about E. King Gill and the origins of the University’s 12th Man tradition.
PTAB Institutes IPR Petition from Patent Aggregator Against Billion-Dollar VLSI Patent – On Wednesday, January 26, the Patent Trial and Appeal Board (PTAB) issued a decision instituting an inter partes review proceeding against one of two patents owned by VLSI which won more than $2 billion dollars in a jury verdict against Intel for infringement. The petition was filed by Patent Quality Assurance, LLC, a South Dakota-based defensive patent aggregator that was incorporated last June.
Australian Government Buys Copyright to Aboriginal Flag from Original Designer – On Tuesday, January 25, the office of the Prime Minister of Australia announced that the Australian government had purchased the copyright to the design of the Aboriginal Flag designed in 1971 by Aboriginal Australian artist and activist Harold Thomas for a reported $14 million dollars, intending to allow the flag’s free use in commerce by all Australians.
Second Circuit Vacates Injunctive Relief on Ownership of Wedding Influencer Accounts – On Tuesday, January 25, the U.S. Court of Appeals for the Second Circuit issued a ruling in JLM Couture, Inc. v. Gutman in which the appellate court vacated-in-part a district court’s ruling on preliminary injunction converting the social media accounts of Hayley Paige Gutman, a well-known wedding influencer, to bridal dress firm JLM Couture, which sued Gutman on trademark and contract claims after their work relationship ended.
CAFC Vacates USITC Ruling for Improper Expert Testimony, Means-Plus Function Analysis – On Friday, January 21, the Federal Circuit issued a precedential decision in Kyocera Senko Industrial Tools Inc. v. International Trade Commission in which the appellate court vacated a Section 337 ruling by the U.S. International Trade Commission finding Koki Holdings America infringed Kyocera patent claims covering a fastener driving tool. The Federal Circuit found that the USITC improperly admitted expert testimony from someone who didn’t have the requisite experience in power nailer design, and that the claim term “lifter member” invoked means-plus-function claiming analysis under Section 112 because “lifter member” did not connote a sufficient structure.
Judge McNulty Denies Interlocutory Appeal in Patent Fraud Suit Against J&J – On Thursday, January 27, U.S. District Judge Kevin McNulty of the District of New Jersey issued a ruling denying Johnson & Johnson’s request for an interlocutory appeal after finding that the pharmaceutical and consumer health firm did not establish a relevant difference of opinion among courts on the application of the public disclosure bar under the False Claims Act. In the case, J&J is alleged to have provided false information to the USPTO to obtain a drug patent.
Wolfgang’s Vault Settles Copyright Case After Class Certification Win at Ninth Circuit – On Wednesday, January 26, a stipulation of dismissal was entered in a Northern District of California lawsuit ending copyright infringement claims against the operators of the online concert recording archive Wolfgang’s Vault, less than a month after the U.S. Court of Appeals for the Ninth Circuit overturned a class certification sought by the musician plaintiffs in the case.
Iowa Legislature Considering Bill to Remove Broadcasting Copyright From PBS – On Wednesday, January 26, a subcommittee in the Iowa House of Representatives recommended passage of House Study Bill 579, which if enacted would convert records of all broadcasts held by the Iowa state public broadcasting board, including all Iowa PBS recordings, into public records. The bill was introduced after a copyright issue preventing the release of a wrestling documentary that Iowa PBS did not finish producing.
USITC Institutes Section 337 Investigation Into IC Devices Sold by Apple, Google – On Wednesday, January 26, the U.S. International Trade Commission announced that it was instituting a Section 337 investigation based on a complaint from Future Link Systems of Santa Clara, CA, into integrated circuit products and devices containing the same imported into the U.S. for sale by a collection of Big Tech firms including Apple and Google.
Music Publishers Drop Suit Against Gymshark Over Infringing Social Media Posts – On Tuesday, January 25, a collection of music publishers including Sony Music Entertainment and Arista Music filed a stipulation to dismiss a lawsuit filed in the Central District of California against fitness apparel retailer Gymshark over commercial social media posts by the company promoting its own fitness gear while playing snippets of copyrighted music.
Rapper RZA Reportedly Files Trademark Infringement Suit Over Wu-Tang Clan Merchandise – On Tuesday, January 25, Complex reported that rapper RZA had filed a trademark infringement suit against a collection of Chinese entities who are alleged to be selling Wu-Tang Clan branded merchandise in the United States.
Colaberry Wins on Copyright, Contract Claims in ED Tex. Suit Brought by Former Partner – On Monday, January 24, a jury verdict filed in the Eastern District of Texas found for data analytics firm Colaberry and its owner Ram Katamaraja on copyright infringement, breach of fiduciary duty and breach of contract claims brought by a former business partner who attempted a hostile takeover of the firm after taking a two-year sabbatical following alleged mismanagement of Colaberry’s sister firm Novedea.
Little Caesar’s Files Trademark Suits Against Former Pizza Chain Licensees – On Friday, January 21, pizza takeout chain licensor Little Caesar Enterprises filed a lawsuit in the Eastern District of Michigan alleging claims of trademark and trade dress infringement against a series of former licensees who continued to use Little Caesar’s trademarks to sell pizza after the pizza chain terminated licensing agreements with those entities.
This Week on Wall Street
Apple Posts Biggest Quarterly Revenues on Billion Dollar Beats in iPhones, Services – On Thursday, January 27, consumer tech giant Apple issued its most recent quarterly earnings showing that the Big Tech stalwart posted $123.9 billion in quarterly revenues, the firm’s largest quarterly revenues ever, beating analyst expectations of $118.66 billion thanks in large part to outperforming iPhone and services sales.
Comcast Beats Earnings Expectations Despite Falling Short on Internet Subscribers – On Thursday, January 27, media and Internet conglomerate Comcast Corp. issued its earnings report for 2021’s fourth quarter showing that the company beat revenue expectations, earning $30.34 billion over analyst predictions of $29.61 billion, although the company only added 212,000 high-speed Internet subscribers during the quarter, less than 220,000 expected net added new subscribers.
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: Alibaba Group Holding Ltd. (160th); NGK Insulators, Ltd. (t-265th); NXP Semiconductors N.V. (t-90th); TDK Corp. (81st)
- Tuesday: Advanced Micro Devices, Inc. (t-197th); Alphabet Inc. (17th); Exxon Mobil Corp. (t-135th); General Motors Co. (58th); Hitachi, Ltd. (23rd); Konica Minolta, Inc. (t-170th); Paypal Holdings, Inc. (131st); Stanley Black & Decker, Inc. (t-287th)
- Wednesday: Boston Scientific Corp. (83rd); Casio Computer Co., Ltd. (t-277th); Emerson Electric Co. (127th); Johnson Controls International (123rd); Novo Nordisk A/S (300th); Panasonic Corp. (19th); Qualcomm Inc. (13th); Subaru Corp. (t-222nd)
- Thursday: ABB Ltd. (132nd); Amazon.com, Inc. (15th); Dolby Laboratories, Inc. (232nd); Ford Motor Co. (20th); GoPro, Inc. (t-275th); Honeywell International Inc. (43rd); Infineon Technologies AG (65th); Merck & Co., Inc. (t-259th); Nikon Corp. (t-254th); Nippon Steel Corp. (181st); Nokia Corp. (64th); Skyworks Solutions, Inc. (238th); Snap Inc. (126th); Sumitomo Electric Industries (62nd)
- Friday: Eaton Corp. plc (t-141st); Ricoh Co. Ltd. (56th); Sanofi S.A. (200th); Shimadzu Corp. (180th)