Other Barks & Bites for Friday, July 22: ACUS Extends Comment Period for Small Claims Patent Court Study, Third Circuit Says AndroGel ANDA Suit Was Not Sham Litigation, and Senate Advances CHIPS+ Act Toward Cloture Vote

This week in Other Barks & Bites: the Senate approves a motion to advance a beefed-up version of the Creating Helpful Incentives to Produce Semiconductors Act; the Tenth Circuit affirms a $2.35 million judgment in a case involving trade secret and false association claims in the bovine serum industry; Senator Roger Wicker (R-MS) questions the business ties between President Biden’s nominee for OSTP Director and former Google CEO Eric Schmidt; the Copyright Office liberalizes the requirements for filing deposit copies to register single issues of serial publications; the Administrative Conference of the United States extends the public comment period on the agency’s small claims patent court study; the Third Circuit rules that Hatch-Waxman litigation filed by AbbVie and Abbott cannot support antitrust claims by generic drugmaker Perrigo; and Amazon.com makes a major push into virtual healthcare with a $3.9 billion acquisition of One Medical.

Bites

ACUS Extends Comment Period for Small Claims Patent Court Study to August 26 – Recently, the Administrative Conference of the United States (ACUS) issued a notice in the Federal Register extending the public comment period for the agency’s feasibility study regarding the creation of a small claims court to handle patent infringement small claims, including suggestions from the public regarding the potential structure of such a court. Public comments from interested persons will now be accepted by ACUS through August 26, and the ACUS study is being assisted by Duke Law Professor Arti Rai, Marquette Law Professor Kali Murray and University of Texas Law Professor Melissa Wasserman. 

House IP Subcommittee Looks at PTAB Judicial Independence Issues From GAO Report – On Thursday, July 21, the U.S. Government Accountability Office (GAO) issued a report on oversight of judicial decision-making at the Patent Trial and Appeal Board (PTAB) and the independence of administrative patent judges (APJs) at the PTAB. Among the report’s key findings include 75 percent of respondent APJs reporting that U.S. Patent and Trademark Office (USPTO) oversight practices have affected judicial independence, and that awareness of management’s involvement with decisions varied among company and other stakeholder respondents. On the same day, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet held a hearing to explore the findings of the GAO report during which former APJs discussed issues with the management culture of the PTAB that discourages dissenting opinions and did not properly enforce prohibitions against ex parte communications.

Tenth Circuit Affirms $2.35 Million Verdict in Bovine Serum Business Misappropriation Case – On Thursday, July 21, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Atlas Biologicals, Inc. v. Kutrubes in which the appellate court affirmed various monetary damages awards under the Lanham Act and the Colorado Uniform Trade Secrets Act, finding that the district court’s record established that Kutrubes and his company Peak Serum, which he formed in 2014 after nearly a decade of working at Atlas and serving on Atlas’ board of directors, had misappropriated confidential information related to Atlas’ customer base and selling fetal bovine serum mislabelled with Atlas’ branding.

Third Circuit Rules That ANDA Lawsuit Over Generic AndroGel Was Not Sham Litigation – On Thursday, July 21, the U.S. Court of Appeals for the Third Circuit issued a ruling in Perrigo Co. v. AbbVie Inc. in which the appellate court affirmed a district court’s judgment on the pleadings dismissing antitrust claims filed by Perrigo, which manufactures a generic version of the hypogonadism treatment AndroGel 1%. The Third Circuit agreed that Perrigo’s antitrust claim accrued when Abbott and AbbVie filed litigation under the Hatch-Waxman Act in response to Perrigo’s hybrid New Drug Application (NDA) for generic AndroGel 1%, and the antitrust claim was thus barred by release provisions included in a 2012 settlement that terminated the Hatch-Waxman litigation between the parties.

USPTO, WIPO to Pool Resources for Efficient SEP Dispute Resolution – On Wednesday, July 20, the U.S. Patent and Trademark Office (USPTO) and WIPO announced that the two IP agencies have agreed to collaborate on efforts to improve efficiency in resolving private company disputes related to standard-essential patents (SEPs) by leveraging existing resources at both the USPTO and at WIPO’s Arbitration and Mediation Center.

Senate Advances CHIPS+ Act With 64-34 Vote on Cloture Motion – On Wednesday, July 20, the U.S. Senate voted 64 to 34 to advance the Creating Helpful Incentives to Produce Semiconductors (CHIPS) Act of 2022, which was initially part of the U.S. Innovation and Competition Act (USICA) that passed the Senate last June before running into issues in the U.S. House of Representatives. The version of the CHIPS Act moving toward a cloture vote in the Senate includes a 1,000+ page amendment from Senator Chuck Schumer (D-NY) containing numerous provisions for $54 billion in federal funding into 5G wireless networks, semiconductor production and various areas of scientific research.

Senator Wicker Questions Google’s Business Ties to Biden’s Nominee for OSTP Director – On Wednesday, July 20, the U.S. Senate’s Committee on Commerce, Science, and Transportation held a hearing to question Dr. Arati Prabhakar, President Biden’s nominee for Director of the White House Office of Science and Technology Policy (OSTP), during which Senator Roger Wicker (R-MS), Ranking Member of the committee, made remarks concerning Dr. Prabhakar’s business ties to Eric Schmidt, formerly the CEO of Internet services giant Google. Sen. Wicker also noted issues with former OSTP Director Eric Lander’s ties to Schmidt, saying that “there is something unseemly about a well-connected billionaire’s foundation reportedly paying the salaries of OSTP staff and consultants indirectly.”

Tenth Circuit Says No Contract Breach for Unpaid Royalties After Patent Expiration – On Wednesday, July 20, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Hildebrand v. Wilmar Corp. in which the appellate court affirmed a district court’s final judgment dismissing breach of a patent settlement agreement. The Tenth Circuit agreed with the lower court that the patent owner Hildebrand failed to show damages for unpaid royalties under the settlement as patent owners cannot charge royalties for the use of inventions after the patent term expires under U.S. Supreme Court precedent from Brulotte v. Thys Co. (1964) and Kimble v. Marvel Entertainment, LLC (2015).

House Judiciary Report Recommends Stronger Antitrust Laws for Digital Competition – On Tuesday, July 19, the U.S. House of Representatives’ Committee on the Judiciary published a committee report on competition in the digital marketplace finding a large amount of evidence of the market dominance of major Big Tech firms including Apple, Google, Amazon and Facebook. The report also includes several legislative recommendations including prohibitions against dominant platforms from operating in adjacent lines of business, stronger provisions in existing antitrust laws and increased regulatory authority for the Federal Trade Commission (FTC).

CAFC Rehearing Denial Affirms Section 101 Invalidation of Organ Transplant Diagnostics – On Monday, July 18, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in CareDx, Inc. v. Natera, Inc. in which the appellate court affirmed a District of Delaware ruling invalidating patent claims covering methods of detecting whether a transplant patient is rejecting an organ transplant as directed to unpatentable subject matter under Section 101 in light of the Federal Circuit’s 2015 decision in Ariosa Diagnostics v. Sequenom.

Barks

Copyright Office Issues Final Rule Liberalizing Deposit Requirement for Single Issue of Serial – On Friday, July 22, the U.S. Copyright Office issued a final rule in the Federal Register liberalizing the deposit requirements for registering a single issue of a serial publication, such as a magazine or journal, allowing copyright owners to submit one physical deposit copy instead of two and give copyright owners the option to upload digital versions of the deposit copy through the agency’s electronic registration system even if the issue was only published in physical format.

WIPO Members Approve Diplomatic Conferences for Design Law Treaty, Genetic Resources – On Thursday, July 21, member states of the World Intellectual Property Organization (WIPO) approved the convening of diplomatic conferences to negotiate a pair of proposed international agreements, one which would establish a Design Law Treaty to streamline the global system for protecting design rights, and another that would create legal mechanisms by which patent applicants claiming genetic resources, including plants and microorganisms, and traditional knowledge associated with those resources would have to disclose those generic resources and traditional knowledge when filing a patent application.

USPTO Requests Comments on Director Review, POP Panel and PTAB Decision Circulation – On Wednesday, July 20, the U.S. Patent and Trademark Office (USPTO) issued a request for comments in the Federal Register soliciting public input on various practices and policies regarding review of Patent Trial and Appeal Board (PTAB) including the interim review process for requests for Director review under Arthrex v. Smith & Nephew, the process for PTAB Precedential Opinion Panel (POP) decisions and the interim process for PTAB decision circulation and internal review.

Epidemic Seeks $142 Million for Copyright Infringing User Videos on Facebook, Instagram – On Wednesday, July 20, Swedish music soundtrack firm Epidemic Sound filed a lawsuit in the Northern District of California against social media giant Meta Platforms alleging claims of copyright infringement by millions of user videos uploaded to Meta’s Facebook and Instagram social media platforms and seeking $142 million in actual damages.

Canon Wins GEO, CDO Against Defaulting Toner Supply Respondents in Section 337 Action – On Wednesday, July 20, the U.S. International Trade Commission (USITC) issued a notice announcing that the agency found patent infringement violations by a series of defaulting respondents from China and the United States in a Section 337 investigation into certain toner supply containers and components thereof based on a complaint filed by South Korean tech conglomerate Canon Inc.

Manolo Blahnik Announces Major Trademark Victory in China – On Tuesday, July 19, news reports indicated that Spanish luxury footwear firm Manolo Blahnik received a favorable ruling last month from the Supreme People’s Court of China ending a more than 20-year trademark battle waged by Manolo Blahnik against a Chinese citizen who owns trademarks related to the luxury brand’s name.

Teams From China, Japan, the Netherlands and Singapore Win Inaugural WIPO Global Awards – On Tuesday, July 19, an award ceremony held during the WIPO Assemblies honored five small- and medium-sized enterprises (SMEs) as the winners of the first-ever WIPO Global Awards, which are given to recognize achievements in the use of IP to create positive social benefit. Global Award winners included Hydraloop, from the Netherlands; Lucence, from Singapore; Raycan and Shylon, both from China; and Splink, from Japan.

This Week on Wall Street

Verizon Earnings Report Includes Downward Revision to Wireless Service Revenue Guidance – On Friday, July 22, telecommunications giant Verizon Communications issued its earnings report for the second quarter of the 2022 fiscal year in which the company acknowledged that cash flow was being affected by customers waiting longer to pay their phone bills, and also included a slight downward revision on corporate guidance for full year revenues in Verizon’s wireless service division. The company expects that wireless service revenues will increase 8.5 percent to 9.5 percent during the fiscal year, down from previous guidance projecting an increase of 9 percent to 10 percent in wireless service. 

Amazon Makes Big Push Into Virtual Healthcare With $3.9 Billion Purchase of One Medical – On Thursday, July 21, e-commerce giant Amazon.com announced that it had entered into an agreement to purchase virtual healthcare firm One Medical in an all-cash deal valued at $3.9 billion. Amazon Health Services’ Senior VP Neil Lindsay made public remarks that the acquisition is part of Amazon’s plans to reinvent the healthcare experience for consumers in the coming years.

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: Alphabet Inc. (17th); Koninklijke Philips N.V. (46th); MediaTek, Inc. (107th); NXP Semiconductors N.V. (t-90th); Whirlpool Corp. (101st)
• Tuesday: 3M Co. (74th); Canon Inc. (4th); Corning Inc. (t-102nd); Fujitsu Ltd. (53rd); General Electric Co. (21st); General Motors Co. (58th); Juniper Networks, Inc. (t-155th); Microsoft Corp. (12th); Raytheon Technologies Corp. (9th); Shimano, Inc. (t-269th); Texas Instruments Inc. (42nd); Xerox Holdings Corp. (139th)
• Wednesday: Airbus SE (97th); BASF SE (88th); The Boeing Co. (27th); Boston Scientific Corp. (83rd); Bristol Myers Squibb (t-239th); Citrix Systems, Inc. (161st); Dolby Laboratories, Inc. (232nd); Fanuc Corp. (109th); Ford Motor Co. (20th); Meta Platforms, Inc. (31st); Nielsen Holdings plc (t-202nd); Qualcomm Inc. (13th); Samsung Electro-Mechanics Co., Ltd. (92nd); TE Connectivity Ltd. (t-163rd); United Microelectronics Corp. (t-190th)
• Thursday: Aisin Corp. (t-144th); Amazon.com, Inc. (15th); Apple Inc. (11th); Baxter International Inc. (t-234th); Comcast Corp. (122nd); Denso Corp. (34th); Edwards Lifesciences Corp. (t-239th); Fuji Electric Co., Ltd. (167th); Honeywell International Inc. (43rd); Intel Corp. (6th); Konica Minolta, Inc. (t-170th); Mastercard Inc. (125th); Mazda Motor Corp. (174th); Merck & Co., Inc. (t-259th); Mitsubishi Electric Corp. (28th); NEC Corp. (44th); Nissan Motor Co., Ltd. (t-148th); Realtek Semiconductor Corp. (t-183rd); Renesas Electronics Corp. (159th); Samsung Electronics Co., Ltd. (2nd); Sanofi S.A. (200th); STMicroelectronics N.V. (71st); Textron Inc. (t-135th); Thermo Fisher Scientific Inc. (154th)
• Friday: Delta Electronics, Inc. (t-174th); Fujitsu Ltd. (53rd); Exxon Mobil Corp. (t-135th); Hitachi, Ltd. (23rd); Komatsu Ltd. (t-227th); LG Electronics Inc. (3rd); Magna International Inc. (t-155th); NGK Insulators, Ltd. (t-265th); Samsung SDI Co., Ltd. (162nd); Seiko Epson Corp. (29th)

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