Other Barks & Bites for Friday, March 18: Tillis and Leahy Introduce Copyright Protection Bill, EUIPO Report Shows Increase in Dangerous Counterfeits, and NSF Announces New Technology and Innovation Directorate

This week in Other Barks & Bites: the EU and the U.S. agree to draft language of a waiver of reciprocal obligations under the TRIPS Agreement for patented COVID-19 vaccines; the USPTO’s latest report on IP intensive industries show increased contributions to GDP and U.S. employment; NSF Director Panchanathan announces a new Technology, Innovation and Partnerships Directorate to facilitate commercialization of lab research; Judge Leonard Stark is sworn in at the Federal Circuit; Senators Tillis and Leahy introduce new copyright legislation to protect content online the same week that both Senators are recognized by the MPA for their contributions to the film, TV and streaming industry; Toyota announces that it will undergo an “intentional pause” from April until June as the company deals with rising COVID-19 cases; an EUIPO/OECD report shows an increase in shipments of dangerous counterfeits into the EU; and AG ?apeta affirms the importance of IP rights in finding that Denmark has failed to uphold EU law on protected designations of origin.

Bites

Senators Tillis, Leahy Introduce to Designate Standardized Content Protection Tools – On Friday, March 18, Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) introduced the Strengthening Measures to Advance Rights Technologies (SMART) Copyright Act into the U.S. Senate. If passed, the bill would establish procedures by which the Librarian of Congress would designate certain standardized technical measures (STMs) that can be adopted by online service providers to limit certain liabilities stemming from the unauthorized republication of copyrighted content on their platforms.

USPTO Report on IP Intensive Industries Shows Increases in GDP, Employment – On Thursday, March 17, the U.S. Patent and Trademark Office issued the latest report highlighting economic contributions from industries that heavily leverage intellectual property rights, showing that since the last report in 2016, IP intensive industries accounted for a higher share of U.S. gross domestic product (41 percent vs. 38.2 percent) and both direct and indirect employment of U.S. workers (44 percent vs. 30 percent) over the previous economic figures.

EUIPO, OECD Report Shows Rise in Online Sales of Dangerous Counterfeit Goods – On Thursday, March 17, the European Union Intellectual Property Organization (EUIPO) issued a report conducted in collaboration with the Organization for Economic Co-operation and Development (OECD) which found that 60 percent of sales of counterfeit goods imported into the EU and presenting significant health and safety risks, including cosmetics, pharmaceuticals and other categories that are frequently subject to safety alerts and recalls, were conducted through online channels.

AG ?apeta Says IP Rights in PDO Justify Prohibition Against Danish “Feta” Cheese – On Thursday, March 17, Advocate General Tamara ?apeta delivered an opinion to the Court of Justice for the European Union (CJEU) finding that the government of Denmark has not upheld its obligations under EU law by failing to prevent the export to third countries of cheese sold by Danish producers as “feta,” which has been registered as a protected designation of origin for cheese produced in certain regions of Greece. AG ?apeta found that “[w]hile free trade is undoubtedly one of the values respected by the EU legal order,” the prohibition against the export of Danish “feta” cheese to countries outside of the EU “can be justified by reasons based on the protection of intellectual property rights.”

Judge Lourie Dissent Calls Biogen En Banc Denial an “Outlier” on Written Description Case Law – On Wednesday, March 16, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Biogen International GmbH v. Mylan Pharmaceuticals Inc. in which the appellate court denied a petition for en banc rehearing filed by Biogen to appeal the invalidation of its patent claims covering a method of treating multiple sclerosis using dimethyl fumarate (DMF). Circuit Judge Alan D. Lourie authored a dissent, joined by Chief Judge Kimberley Moore and Circuit Judge Pauline Newman, arguing that the original panel majority’s decision “imported extraneous considerations into the written description requirement,” including additional weight on clinical trial data and undue emphasis on unclaimed disclosures in the specification of Biogen’s patent.

EU, US Agree to New Draft Compromise on TRIPS Waiver for COVID-19 Vaccines – On Wednesday, March 16, news reports indicated that representatives from the European Union, the United States, India and South Africa, have come to an agreement on language proposing a waiver to international obligations for reciprocal IP rights under the Agreement on Trade-Related Aspects of International Property Rights (TRIPS) that would limit the waiver of TRIPS Agreement obligations to patented subject matter for the production and supply of COVID-19 vaccines, although the waiver could also be extended to the production and distribution of COVID-19 diagnostics and therapeutics under the current draft language.

NSF Announces New Directorate for Technology, Innovation and Partnerships – On Wednesday, March 16, National Science Foundation (NSF) Director Sethuraman Panchanathan announced that the NSF would establish the Directorate for Technology, Innovation and Partnerships, the NSF’s first new directorate in more than 30 years, which would be responsible for administering integrated initiatives for accelerating the commercialization of innovative laboratory research and establishing regional innovation engines across the United States.

Former Pharmaceutical Executives Sentenced for Trade Secret Theft from Genentech – On Tuesday, March 15, the U.S. Department of Justice announced that a pair of co-founders and former executives of JHL Biotech were each sentenced to one year’s imprisonment to be followed by 36 months of supervised release based on charges that the pair engaged in a conspiracy to commit trade secret theft and wire fraud by misappropriating trade secrets from Genentech regarding the production of biosimilars through interactions with scientists who formerly worked with Genentech.

CAFC Affirms PTAB Obviousness Ruling on Overlapping Characteristics of Gelling Agents – On Monday, March 14, the Federal Circuit issued a precedential decision in Almirall, LLC v. Amneal Pharmaceuticals LLC in which the appellate court affirmed a final written decision by the Patent Trial and Appeal Board (PTAB) invalidating patent claims owned by Almirall and covering methods to treat acne in an inter partes review (IPR) proceeding. The Federal Circuit agreed with the PTAB that specific ranges of formulations of hydrophilic gelling agents in one asserted prior art reference, along with the known overlap in characteristics among several such gelling agents, supported the PTAB’s obviousness finding. 

Barks

Judge Stark Sworn In at CAFC – On Thursday, March 17, the Honorable Leonard P. Stark was sworn in as a U.S. Judge for the Court of Appeals for the Federal Circuit at a private ceremony conducted at the National Courts Building in Washington, D.C.

Russian Court Overturns Samsung Phone Ban After Company Stops Shipments – On Thursday, March 17, a Russian court overturned a legal ruling banning South Korean tech conglomerate Samsung from importing 61 models of smartphones into that country for sale. About two weeks earlier, Samsung had stopped shipping consumer tech products into Russia as part of the growing movement of private companies cutting ties with the country over its invasion of Ukraine.

Sens. Tillis, Leahy Honored for Copyright Advocacy at First Annual MPA Awards – On Tuesday, March 15, the Motion Picture Association (MPA) held its inaugural MPA Awards ceremony to honor those making significant contributions to the film, TV and streaming industry. Among the event’s honorees were Senator Thom Tillis (R-NC), who received an MPA Industry Champion Award for efforts to promote IP rights in the streaming services industry, and Senator Patrick Leahy (D-VT), who received the MPA Lifetime Achievement Award for his longtime involvement with IP law.

USPTO Requests Public Comments on Patents External Quality Surveys – On Tuesday, March 15, the U.S. Patent and Trademark Office issued a request for comment in the Federal Register seeking public comments to be filed by May 16 regarding the evaluation of information collected by the agency’s Patents External Quality Surveys, which measures customer opinions on the services provided by the USPTO’s patent examiners.

Iowa House Passes Bill Stripping Copyright From Iowa PBS Broadcasts – On Monday, March 14, the Iowa House of Representatives passed by a 54-39 vote a bill that, if passed by the state’s Senate, would allow any member of the public to use broadcasts archived by Iowa PBS without authorization from the public television corporation or other rightsholders whose music or video content may be republished in Iowa PBS broadcasts.

Passport Foods Files Trade Secret Suit in Central California Over Flautas Recipe – On Monday, March 14, prepared foods firm Passport Foods filed a lawsuit in the Central District of California alleging claims of trade secret misappropriation against Culinary International, which allegedly produces flautas using Passport Foods’ secret recipe that was provided to Culinary International by a former Passport Foods business partner.

CRB Seeks Public Comments on Partial Distribution of 2015-17 Satellite Royalty Funds – On Monday, March 14, the Copyright Royalty Board (CRB) issued a request for comment in the Federal Register regarding a proposed 95 percent distribution of satellite television retransmission royalties for royalty years 2015 through 2017, with 5 percent of royalties withheld until the resolution of certain controversies in fund allocations within certain categories of royalty claimants identified in a notice and motion submitted to the CRB last September.

Peppa Pig Trademark Case First Casualty of Russia’s IP Offensive Against “Unfriendly Countries” – On Saturday, March 12, UK-based news outlet The Daily Mail reported that a Russian judge dismissed a trademark case filed by Entertainment One, a television production company behind the popular children’s television show “Peppa Pig,” ruling that “unfriendly actions” by the United States and other countries that have opposed Russia’s invasion of Ukraine led to a decree from the Russian government immunizing the alleged infringement from any claims for monetary damages. 

This Week on Wall Street 

Neighborhood Opposition Leads Amazon to Drop Plans for Churchill, PA Distribution Center – On Thursday, March 17, news reports indicated that e-commerce giant Amazon.com was officially ending its plans to build a 3 million square foot distribution facility in Churchill, PA, three months after obtaining approval for constructing the facility, in part due to backlash from neighborhood residents who opposed the construction project.

Toyota to Take “Intentional Pause” in Production from April to June – On Thursday, March 17, Japanese automaker Toyota announced on its official blog that the company would be slowing global production of automobiles between April and June during a planned three-month “intentional pause” as the company tries to respond to growing COVID-19 case numbers.

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: Hon Hai Precision Industry Co., Ltd. (t-197th); Nike, Inc. (111th)
• Tuesday: None
• Wednesday: None
• Thursday: None
• Friday: None

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