Other Barks & Bites for Friday, June 24: Congressional Hearings Focus on PTAB Reforms, French Regulators Accept Google’s Copyright Payment Framework, and DOJ Announces Settlement with Meta Over Biased Ad Algorithm

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This week in Other Barks & Bites: the Federal Circuit vacates Eastern Virginia’s denial of a motion for recusal, nixing a $2.75 billion verdict for Centripetal Networks; interim USPTO Director Drew Hirshfeld joins Schwegman Lundberg & Woessner as Principal following end of nearly three-decade career at USPTO; the Senate and House of Representatives both host hearings focused on the negative impacts of the Patent Trial and Appeal Board on small businesses as well as potential reforms; Senator Tillis blasts the U.S. Food and Drug Administration for failing to engage with requests for a drug patent study; the U.S. Department of Justice announces a settlement with Facebook owner Meta Platforms over allegations of biased advertising algorithms; U.S. Patent and Trademark Office Director Kathi Vidal issues a memo clarifying that Fintiv denials are limited to petitions with parallel U.S. district court proceedings; and French authorities approve a payment framework proposed by Internet giant Google for responding to notices from news publishers regarding violations of the EU’s Copyright Directive.

Bites

CAFC Vacates Denial of Recusal Motion in $2.75 Billion Centripetal Networks Patent Case – On Thursday, June 23, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Centripetal Networks, Inc. v. Cisco Systems, Inc. in which the appellate court vacated all orders entered in the case by the Eastern District of Virginia, including the final judgment signed by U.S. District Judge Henry C. Morgan, Jr., enhancing the damages and royalties awarded in the case to Centripetal Networks to more than $2.75 billion, as of August 11, 2020, the date on which Judge Morgan had emailed parties in the case to notify them that his wife owned 1,000 shares of Cisco stock and the date from which the Federal Circuit found that Judge Morgan should have been disqualified from the case.

Drew Hirshfeld Joining Schwegman Lundberg & Woessner as Principal – On Thursday, June 23, Schwegman Lundberg & Woessner announced that Drew Hirshfeld, a 28-year employee of the U.S. Patent and Trademark Office who recently left the agency after recently serving as Performing the Functions and Duties of USPTO Director and then Acting Deputy Director under current Director Kathi Vidal, will be joining the firm as Principal focused on the firm’s patent practice.

Congressional Hearings Focus on Reforming PTAB, Limiting Small Business Impacts – On Wednesday, June 22, the Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held a hearing discussing potential reforms to the Patent Trial and Appeal Board (PTAB) that could be established through passage of the PTAB Reform Act, which would limit serial petitions at the PTAB and eliminate the PTAB’s ability to exercise its discretion to deny petitions for inter partes review (IPR) proceedings under the agency’s Fintiv framework. The following day, the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing to examine the impacts of PTAB validity trials on small businesses, including those like Centripetal Networks who have been forced to defend their patent rights multiple times just to protect their rights against well-resourced infringers like Cisco Systems.

Tillis Letter to FDA Says Refusal to Reply to Drug Patent Questions is “Unacceptable” – On Wednesday, June 22, Senator Thom Tillis (R-NC) sent a letter addressed to U.S. Food and Drug Administration (FDA) Commissioner Dr. Robert Califf asking the agency for a third time to respond to questions regarding the false narrative surrounding the impact of patents on high drug prices, telling Commissioner Califf that the FDA’s refusal to engage with Sen. Tillis’ office on the matter “is unacceptable.”

CAFC Says Silence Is Not Disclosure of Negative Claim Limitation – On Tuesday, June 21, the U.S. Court of Appeals for the Federal Circuit granted a petition for rehearing in Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc. in which the appellate court found that Novartis patent claims including a negative limitation precluding the use of a loading dose in a multiple sclerosis (MS) treatment did not have sufficient support in the patent’s written description, reversing a January decision by the Federal Circuit affirming the validity of Novartis’ patent claims. Senior Circuit Judge Richard Linn authored a dissent arguing that the majority improperly created a heightened written description requirement for negative claim limitations.

Director Vidal Issues Memo Explaining Fintiv Doesn’t Apply to USITC Proceedings – On Tuesday, June 21, U.S. Patent and Trademark Office Director Kathi Vidal issued a memo to the members of the PTAB regarding procedures surrounding discretionary denials of America Invents Act (AIA) validity trials under the PTAB’s Fintiv framework. The memo notes that Fintiv denials are not available based on parallel proceedings at the U.S. International Trade Commission (USITC) but rather for parallel proceedings in U.S. district court.

French Regulators Accept Google’s Transparent Offer Framework for Copyright Violations – On Tuesday, June 21, French authorities announced that government regulators in that country had agreed to accept Google’s proposed framework for responding to copyright violations, including transparent offers of payment to news groups within three months of receiving a copyright violation notice for republishing news snippets, and that Google had agreed to end its appeal of a €500 million ($530 million USD) fine levied last year for failing to enter into good faith negotiations with news publishers under the EU Copyright Directive.

Fifth Circuit Nixes Continental’s Appeal of Sherman Act Claims – On Tuesday, June 21, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Continental Automotive Systems, Inc. v. Avanci, L.L.C. in which the appellate court affirmed a district court’s ruling that Continental failed to state claims under Sections 1 and 2 of the Sherman Antitrust Act based on allegations that Avanci failed to meet its fair, reasonable and non-discriminatory (FRAND) licensing obligations related to standard-essential patents (SEPs) within a patent pool managed by Avanci.

DOJ Announces Settlement With Meta Over Biased Ad Algorithm Violating FHA – On Tuesday, June 21, the U.S. Department of Justice (DoJ) announced that it had obtained a settlement agreement from Meta Platforms which requires Meta to stop using the Special Ad Audience tool on its Facebook social media platform. The settlement comes after the DoJ filed a lawsuit in the Southern District of New York alleging that Facebook’s advertising algorithms discriminate against users in violation of the Fair Housing Act (FHA).

Barks 

USPTO Extends Public Comment Period for Info Collection on Inventor Promoter Complaints – On Thursday, June 23, the U.S. Patent and Trademark Office issued a notice in the Federal Register announcing that the agency would be extending for 30 days the public comment period regarding the information collected by the agency from members of the public who file complaints with the agency regarding inventor promoters and promotion firms.

USITC Institutes Section 337 Investigation Into Zebra, Symbol Barcode Scanners – On Wednesday, June 22, the U.S. International Trade Commission announced that the agency had instituted a Section 337 investigation based on a complaint filed in May by Honeywell International and Hand Held Products into certain barcode scanners, scan engines and mobile computers with barcode scanning functionalities imported into the U.S. for sale by Zebra Technologies Corp. and Symbol Technologies, Inc.

EPO Announces European Inventor Awards and First-Place Tie for Young Inventor Prize – On Tuesday, June 21, the European Patent Office (EPO) announced the winners for different categories of the European Inventor Awards, including an Estonian research team winning the Industry category for superior carbon-based materials for supercapacitors and a first-place tie for the Young Inventors category between a duo from Belgium and the UK who developed an AI-driven waste management system and a U.S. inventor who developed an AI system for early detection of Parkinson’s disease.

Lawsuit Filed Against Pfizer Over Paxlovid COVID-19 Treatment – On Tuesday, June 21, biotech firm Enanta Pharmaceuticals filed a lawsuit in the District of Massachusetts against pharmaceutical giant Pfizer alleging that Pfizer’s COVID-19 treatment Paxlovid infringes on patent claims owned by Enanta and covering functionalized peptides as antiviral agents for inhibiting the 3CL protease of COVID-19, the main protease involved in the coronavirus’ replication.

USPTO Approves Ohio State’s Application for “THE” Trademark – On Tuesday, June 21, the U.S. Patent and Trademark Office issued a registration certificate to The Ohio State University which grants that school the right to use the standard character mark “THE” on Class 25 goods including athletic merchandise including T-shirts and baseball caps.

Wisconsin Jury Hands Out $100M+ Verdict in Cup Holder Trade Dress and Patent Case – On Friday, June 17, a jury verdict entered in the Eastern District of Wisconsin awarded $107 million, including $97.5 million in punitive damages, to electronic system developer Raffel Systems, which had sued Chinese furniture maker Man Wah Holdings for willful trade dress and patent infringement as well as false patent marking in connection with an electronic cup holder for home theater seating.

CleveMed Files Lawsuit in Delaware Against ResMed Over Sleep Diagnostic Systems – On Thursday, June 16, Cleveland Medical Devices (CleveMed) filed a lawsuit in the District of Delaware against medical device firm ResMed, asserting claims of eight patents that CleveMed alleges are infringed by ResMed’s Positive Airway Pressure (PAP) systems offering sleep diagnostic and therapy solutions.

This Week on Wall Street

Twitter Board Approves Special Stockholder Meeting on Musk Takeover – On Thursday, June 23, news reports indicated that Twitter’s Board of Directors had filed a proxy statement with the U.S. Securities & Exchange Commission to hold a special stockholder meeting sometime this year after unanimously approving Elon Musk’s bid to purchase the social media company for $44 billion.

Netflix Lays Off 3% of Entire Workforce as Company Revenues Slow Down – On Thursday, June 23, news reports indicated that streaming video provider Netflix had laid off 300 workers, or about three percent of the company’s entire workforce of 11,000 employees, as the company deals with slower revenues in the wake of its first ever subscriber loss reported in quarterly earnings this April.

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: Nike, Inc. (111th)
• Tuesday: None
• Wednesday: None
• Thursday: Micron Technology Inc. (18th)
• Friday: None

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