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Posts in USPTO

Return of the ‘Hold-Up’ Bogeyman: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part III)

In Part II of this series, we considered the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI) and the prevailing law relating thereto. In this Part III, we consider the 2021 Draft Policy Statement with a particular view to highlighting its inconsistencies with the ETSI framework and the inapplicability of the hold-up narrative to the situation involving an individual United States patent. Despite its purported purpose of providing the agencies’ views on “remedies for the infringement of standards-essential patents (or SEPs) that are subject to a RAND and/or F/RAND licensing commitment”, the 2021 Draft Policy Statement does not take a clear position on this issue, instead merely stating the following (some might say “the obvious”):

This Week in Washington IP: America’s Sputnik Moment with China, Promoting Secure Transatlantic Supply Chains for Critical Tech, and the Energy Impacts of Crypto Mining

This week in Washington IP news, several committee hearings in the House of Representatives will focus on major tech issues. The House Oversight Committee on Thursday explores the energy impacts of cryptocurrency mining, while on Wednesday afternoon the House Europe Subcommittee will discuss ways to improve resiliency in transatlantic supply chains for critical technologies. Elsewhere, the Center for Strategic & International Studies will welcome former USPTO Director Andrei Iancu for a discussion regarding whether America’s tech policy is forcing the nation into another Sputnik moment in the race against China to build a strong domestic semiconductor industry.

Spotify Successfully Opposes Two Marijuana-Related Trademark Applications

On January 11, the U.S. Patent and Trademark Office’s (USPTO’s) Trademark Trial and Appeal Board (TTAB) issued a precedential decision finding dilution by blurring and sustaining two oppositions filed by Spotify AB against two marijuana-related trademark applications. Applicant U.S. Software Inc. filed trademark applications for POTIFY in standard characters, and stylized with a design on July 17, 2017, and May 2, 2018, respectively. These applications sought to register POTIFY for: “downloadable software for use in searching, creating and making compilations, rankings, ratings, reviews, referrals and recommendations relating to medical marijuana dispensaries and doctor’s offices and displaying and sharing a user’s location and finding, locating, and interacting with other users and place, in International Class 9.”

Senate Judiciary Committee Sends Vidal and Stark Nominations to Senate Floor

Today, the full Senate Judiciary Committee officially voted to confirm the nomination of Katherine Vidal by a vote of 17-5 for Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). The Committee also voted 16-6 in favor of Judge Leonard Stark, President Biden’s nominee to replace U.S. Court of Appeals for the Federal Circuit Judge Kathleen O’Malley, who announced on July 27, 2021, that she will retire, leaving a vacancy on the court as of March 11, 2022. The hearing was originally scheduled to take place last week, but was postponed to allow members of the committee to attend the funeral of former Senator Johnny Isakson (R-GA) on January 6.

Patent Filings Roundup: New Litigation-Funded Campaign; PTAB Denies Under NHK-Fintiv Despite Sotera(ish) Stipulation

Apologies for missing last week, which was a light, short holiday recap—nothing much of note beyond less-than-average filings, given the holidays. This week was back to the new normal at the Board, with 24 petitions—one post grant review (PGR) and 23 inter partes reviews (IPRs)—and 50 new filings, with fewer than usual file-and-settle suits (as it’s the beginning of a quarter, year, and month). Another unusually high 92 terminations are mostly due to the end of file-and-settle suits from last year. A few new campaigns of note below, more discretionary denials, and a bunch of IPR denials filed against a German microbattery company round out the week.

IFI CLAIMS Rankings Show Increasing Role of Chinese Entities in U.S., Global Patent Ownership

Today, patent data analytics firm IFI CLAIMS released its annual report of the top U.S. patent recipients and active patent family owners, providing the IP world with a look at the patent ownership landscape that developed throughout the course of 2021. For yet another year, information technology R&D giant International Business Machines (IBM) earned the top spot among entities obtaining patents from the U.S. Patent and Trademark Office (USPTO), while South Korean tech conglomerate Samsung Electronics enjoys the largest portfolio of global active patent families.

Amici for Apple Tell SCOTUS Federal Circuit’s Article III Standing Ruling Violates Precedent, Upsets Congressional Intent in Enacting AIA Trials

In mid-November, consumer tech giant Apple filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Federal Circuit’s decision to dismiss Apple’s appeal of unsuccessful inter partes review (IPR) challenges to the validity of several patents owned by Qualcomm. In that ruling, the Federal Circuit found that Apple’s choice to enter a patent licensing agreement with Qualcomm covering the patents-at-issue extinguished Article III standing as to Apple’s appeals from the Patent Trial and Appeal Board (PTAB). The question presented by Apple’s petition is: “Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.”

New Vision Gaming’s Motion for Reconsideration Highlights Issues with Arthrex USPTO Director Review Mandate

In the last few weeks of 2021, patent owner New Vision Gaming & Development filed a motion for reconsideration  of a remand order issued by the U.S. Court of Appeals for the Federal Circuit. That ruling, entered in early December, remanded New Vision Gaming’s appeal of covered business method (CBM) review proceedings back to the Patent Trial and Appeal Board (PTAB) “for the limited purpose” of requesting Director review of the CBM review decisions under the U.S. Supreme Court’s Arthrex standard. New Vision Gaming’s recent motion for reconsideration raises several issues regarding the U.S. Patent and Trademark Office’s (USPTO’s) implementation of Director reviews under Arthrex, making this particular case an important one to follow through at least early 2022.

Unified Report: Reexaminations Double; Samsung, Apple and Google Dominate PTAB Filings

Reexaminations continue to gain favor, seeing a 47% increase over last year; the Patent Trial and Appeal Board (PTAB) sees fewer filings; and filings by non-practicing entities (NPEs) rose by 4%, according to Unified Patents’ 2021 Patent Dispute Report: Year in Review, published earlier this week. The PTAB saw a nearly 12% decline in filings from the previous year, whereas district court proceedings remained unchanged, said the report. It added: “Operating companies filed 5.5% less cases in district court and over 10% less filings at the PTAB.”

Tillis Backs Vidal for USPTO Head, Dubbing Her a ‘Visionary Leader’

Senator Thom Tillis has come out on the record in support of Kathi Vidal to be the next Director of the U.S. Patent and Trademark Office (USPTO), on the eve of a Senate Judiciary Committee vote on her confirmation. Despite recent scrutiny of her ties to big tech and Silicon Valley, Tillis in a statement today said that he was satisfied with Vidal’s responses to his “tough questions” during the confirmation hearing process and feels he has received her commitment that she will continue the reforms implemented by former USPTO Director Andrei Iancu.

Federal Circuit Says Intel Can Appeal Qualcomm IPRs Despite Lack of Infringement Suit

On December 28, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a pair of precedential decisions in appeals raised by chipmaker Intel. These appeals came from final written decisions in several inter partes review (IPR) proceedings challenging the validity of patent claims owned by rival firm Qualcomm. In both decisions, the Federal Circuit found that Intel satisfied Article III standing requirements for appealing from the Patent Trial and Appeal Board (PTAB). Standing has become a thorny issue that has plagued the Federal Circuit and PTAB.

USPTO Outlines Trademarks Administrative Sanctions Process

The U.S. Patent and Trademark Office today announced in an unpublished Federal Register Notice that it has established an administrative process for investigating submissions filed with the USPTO in trademark matters that appear to violate the Trademark Rules of Practice. The announcement comes as part of the USPTO’s broader effort to improve the integrity of the U.S. trademark register amid a surge in fraudulent filings, largely from China.

The Top 10 Patents of 2021: Improved Eye Contact in Video Calls, Targeted Ads Based on Conversation Samples, and Analyzing Toxicity in Social Media Content

With the close of another year upon us, IPWatchdog is returning to an annual feature with its Top 10 list of issued U.S. patents during 2021. While it’s impossible to produce a definitive list of the ten most important patents in terms of future commercialization, the following list reflects a series of innovations that either represent important advances in burgeoning areas of technology, or practical innovations that address many of the recurring problems that our world has been facing during the course of the COVID-19 pandemic. From reducing the awkward nature of Zoom calls, during which it’s impossible to maintain genuine eye contact, to vehicle technologies using Bayesian inference models to predict the lane change behavior of nearby drivers, these patents offer an expansive view of the exciting state of invention during this early stage of the 2020s.

Patent Trial and Appeal Board Year in Review: The Top Five PTAB Developments of 2021

Noteworthy 2021 developments at the Patent Trial and Appeal Board (PTAB) were primarily driven by oversight—via the United States Patent and Trademark Office (USPTO) Director, Supreme Court and Federal Circuit—rather than by new rules or policy of the agency. After the highly anticipated Arthrex decision fizzled at the Supreme Court, the most significant 2021 development may be former Director Iancu’s departure and legacy of decidedly pro-patent owner policies. That legacy is increasingly under attack. From the Biden administration’s nomination of a new director, to legislative proposals, to Congressional pushback on Section 314(a) discretionary denials of institution (especially as they relate to the Western District of Texas), to lawsuits challenging the practice as an Administrative Procedures Act violation, change is afoot. The coming year is sure to see recalibration of current PTAB practices.

Christmas 2021: Iconic Patented Toys and Games Update – and Trademarks Too!

Its Christmas time again and IPWatchdog is back at it, compiling a list of iconic patented toys and games. This year, we have added some iconic trademarks to round out the list. This tradition was originally made popular in 2018, and updated in 2019, with a holiday feature by IPWatchdog Founder Gene Quinn: The Most Iconic (and Patented) Toys and Games of All Time. The original post included iconic toys such as “the Video Game Console, Barbie doll, Monopoly, Rubik’s Cube, Battleship, Super Soaker, Hoola Hoop, Slinky, Play-Doh, Easy Bake Oven, Game-Boy Frisbee, YoYo, Lego blocks, Transformers, Tricycles, Bicycles, Scooters, Tonka trucks, Rocking Horse, Twister, Simon, Magic 8 Ball, Erector Set, Etch A Sketch, Bunch-o-Balloons and Mr. Potato Head.” Here are a few more that have brought smiles to the faces of so many on Christmas Day over the years.