Bite (noun): more meaty news to sink your teeth into.
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This week in Other Barks & Bites: the Russian government issues a decree telling domestic entities that they will be immune from monetary damages if they infringe patents filed by entities from “unfriendly” countries; the Defending American Courts Act is introduced into the Senate to prevent anti-suit injunctions in other countries from affecting U.S. court proceedings; WIPO report shows that the United States and China are the leading countries of origin for COVID-19 vaccine and treatment patent applications; the USPTO terminates relations with patent offices in Russia and Belarus while China’s IP agency extends its relationship with the Eurasian Patent Organization; antitrust regulators in the UK and the EU open an investigation into the 2018 “Jedi Blue” online ad deal between Google and Facebook; the Ninth Circuit finds that certain ostinatos used in Katy Perry’s “Dark Horse” do not rise to the level of copyrightable expression; and an EUIPO report finds that nearly 6% of goods entering the EU in 2019 were pirated or counterfeit.
CNIPA Extends PPH Program with EAPO; U.S. Terminates Engagement with EAPO and PPH with Rospatent – On Thursday, March 10, the U.S. Patent and Trademark Office announced that it would terminate engagement with Rospatent, Russia’s patent agency, and the Eurasian Patent Organization (EAPO), which grants patents enforceable in Russia and several former Soviet nations, and the IP office of Belarus. As a result, the agency will no longer accept requests for the Global Patent Prosecution Highway (PPH) program originating from those offices. A few days earlier, China’s National Intellectual Property Administration (CNIPA) announced that it was extending China’s PPH pilot project with the EAPO through March 2023.
Defending American Courts Act Introduced to Prevent Anti-Suit Injunctions – On Thursday, March 10, Senators Thom Tillis (R-NC), Chris Coons (D-DE), Tom Cotton (R-AR), Mazie Hirono (D-HI) and Rick Scott (R-FL) jointly announced that they had introduced the Defending American Courts Act into the U.S. Senate. If enacted, the bill would amend Title 35 of U.S. Code to create a presumption that cases in which an anti-suit injunction awarded by a foreign court to prevent the filing of a patent infringement suit in U.S. courts is asserted, that infringement in that case is willful and that the case is exceptional for purposes of determining whether to award treble damages.
CAFC Affirms PTAB Invalidation of Parachute System Patent Claims for Obviousness – On Thursday, March 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Fleming v. Cirrus Design Corp. in which the appellate court affirmed an obviousness ruling by the Patent Trial and Appeal Board (PTAB) from an inter partes review (IPR) proceeding challenging the validity of Fleming’s reissue patent claims covering ballistic parachute systems for aircraft. The Federal Circuit affirmed that those claims were obvious in light of a pilot operating handbook for Cirrus aircraft and a patent covering an autonomous flight system, and also affirmed the PTAB’s denial of Fleming’s motion to amend.
Ninth Circuit Says Ostinatos in Katy Perry’s “Dark Horse” Not Copyrightable Expression – On Thursday, March 10, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Gray v. Hudson in which the appellate court affirmed the district court’s ruling vacating a jury verdict awarding $2.8 million to Christian hip-hop artists claiming that Katy Perry’s 2013 single “Dark Horse” copied elements of their 2008 single “Joyful Noise.” The Ninth Circuit ruled that the ostinatos, or continually repeated musical phrases, that were allegedly copied by the Perry song did not rise to the level of copyrightable expression as a musical work.
CAFC Dismisses Apple Appeal, MPH’s Patent Claims Valid Under Plain Meaning of Terms – On Wednesday, March 9, the Federal Circuit issued a precedential decision in Apple Inc. v. MPH Technologies Oy in which the appellate court affirmed the Patent Trial and Appeal Board’s (PTAB) final written decisions upholding as nonobvious certain MPH patent claims covering improved systems for secure messaging between arbitrary hosts. The Federal Circuit dismissed claim construction arguments by Apple, finding that the plain meaning of MPH’s patent claim terms did not bring those claims within the scope of the asserted prior art.
Copyright Office Issues Final Rules on CCB Service Agents, Opt-Outs and Class Actions – On Wednesday, March 9, the U.S. Copyright Office issued a final rule in the Federal Register establishing procedures at the Copyright Claims Board (CCB) for library and archives seeking to opt-out of small copyright claims filed at the CCB, as well as procedures for claimants receiving notice of a class action suit involving the transaction underlying the CCB action. The previous day, the Copyright Office issued a final rule in the Federal Register establishing procedures for designating an agent for receiving notice of initial proceedings against them filed at the CCB.
Russia Decree Allows Patent Theft From All “Unfriendly” Countries – On Monday, March 7, the government of Russia issued a decree effectively immunizing all Russian companies from any monetary damages for patent infringement if those patents were filed by entities residing in countries that are “unfriendly” to Russia, which is currently embroiled in an attempt to overthrow the democratically elected government of Ukraine.
Eighth Circuit Overturns Injunctive Relief Against Harassment Targeting Patent Attorney’s Family – On Friday, March 4, the U.S. Court of Appeals for the Eighth Circuit issued a decision in Tumey v. Mycroft AI in which the appellate court overturned an injunction against Mycroft, which has publicized its vituperative views on “patent trolls” through its official blog, after finding that Tumey, who is representing a patent owner asserting infringement claims against Mycroft in separate litigation, did not provide sufficient evidence tying a cyber attack and harassing phone call campaign targeting Tumey and his family to Mycroft.
First Circuit Affirms Fair Use Win on Copyright Claim Against Republishing Blog Comment – On Thursday, March 10, the U.S. Court of Appeals for the First Circuit issued a decision in Monsarrat v. Newman in which the appellate court affirmed a district court ruling dismissing defamation and copyright claims filed against the operator of a neighborhood blog who republished blog posts onto a new platform including one comment that was the subject of a copyright registration at the U.S. Copyright Office.
WIPO Report Shows U.S., Chinese Patent Applicants Leading COVID-19 Vaccine, Treatment Filings – On Thursday, March 10, the World Intellectual Property Organization (WIPO) issued a patent landscape report showing that, of the 5,300 patent applications related to COVID-19 filed in nearly 50 patent offices in the 21 months following the start of the pandemic, the largest share of patent applications covering COVID-19 vaccines and treatments came from entities originating in China and the United States.
AutoStore Says It Will Appeal ITC Ruling Finding No Infringement of Automated Storage Patents – On Thursday, March 10, Reuters reported that Norwegian automated storage firm AutoStore plans to appeal a ruling by the U.S. International Trade Commission invalidating three of four patents asserted against rival firm Ocado Group and finding the fourth patent not infringed by Ocado’s robotic storage system.
Second Circuit Affirms Copyright Act Preemption of Lyric Copyright Claims Against Google – On Thursday, March 10, the U.S. Court of Appeals for the Second Circuit issued a decision in ML Genius Holdings LLC v. Google LLC in which the appellate court affirmed the district court’s dismissal of breach of contract and unfair competition claims filed by lyric website operator Genius against Google over that firm’s repurposing of song lyrics through its own search engine as statutorily preempted by the Copyright Act.
Impossible Foods Files Patent Suit Over Use of Beef Substitute Heem – On Wednesday, March 9, plant-based meat firm Impossible Foods filed a lawsuit in the District of Delaware alleging claims of patent infringement over rival firm Motif FoodWorks’ use of heem, a substance derived from bovine myoglobin that is designed to replicate the taste of meat, through Motif’s own heem-producing technological process that it sells to other food companies.
EPO Announces Redesign of Digital Patent Grant Certificates – On Wednesday, March 9, the European Patent Office (EPO) announced that a newly reformatted version of its digital patent grant certificate, which will now include the title of the invention and the date on which the grant was published in the European Patent Bulletin, will start to be issued on April 1 of this year.
EUIPO Report Says 5.8% of All Goods Entering EU in 2019 Were Counterfeit – On Monday, March 7, the European Union Intellectual Property Organization (EUIPO) released a study conducted in collaboration with Europol which found that 5.8% of all goods entering the EU during 2019 were counterfeit or pirated and had a combined value reaching €119 million.
Sam Smith, Normani Face Copyright Suit Over “Dancing With a Stranger” – On Friday, March 4, Sound and Color, representing a trio of songwriters, filed a lawsuit in the Central District of California against pop stars Sam Smith and Normani alleging that the pair’s 2019 release “Dancing With a Stranger” infringed upon the plaintiff’s own song of the same name, which was released in 2015.
This Week on Wall Street
Google, Facebook Facing Antitrust Probes from EU and UK Over “Jedi Blue” Agreement – On Friday, March 11, antitrust regulators in the European Union and in the United Kingdom announced that they would be opening investigations into the 2018 “Jedi Blue” agreement between online search giant Google and social media behemoth Facebook, which allegedly hampers competition in the online display ad market.
Oracle Income Dragging Due to Gene Sequencing, Server Chip Investment Misses – On Thursday, March 10, enterprise-level software developer Oracle Corp. released its earnings report for the third quarter of its 2022 fiscal year showing that, although quarterly revenues were up about 4% compared to the same period the previous year, net income had fallen due to investments made by Oracle into gene sequencing and server chip companies that have lost value over time.
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: None
- Tuesday: None
- Wednesday: Bayerische Motoren Werke (t-129th); Hon Hai Precision Industry Co., Ltd. (t-197th)
- Thursday: Accenture plc (t-141st)
- Friday: None