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Senate Judiciary Advances American Innovation and Choice Online Act to Ramp Up Antitrust Efforts Against Big Tech

On January 20, the Senate Committee on the Judiciary voted 16-6 to advance S. 2992, the American Innovation and Choice Online Act, out of committee and toward a full vote on the floor of the U.S. Senate. If passed, the bill would give the Federal Trade Commission (FTC), the U.S. Attorney General and state attorneys general new powers to bring antitrust enforcement actions against major online platforms that are alleged to be engaging in discriminatory conduct by preferencing their own products and services over competing products and services that are also available on those platforms.

Qualcomm SCOTUS Brief Charges Apple Has No Legal Leg to Stand On

On January 19, Qualcomm filed a brief in opposition to Apple’s petition for certiorari to the U.S. Supreme Court, arguing Apple failed to make the requisite evidentiary showing to obtain Article III standing. In 2017, Qualcomm filed suit against Apple, alleging Apple’s mobile devices infringed five of its patents, two of which are at issue here, U.S. Patent No. 7,844,037 (the ‘037 patent) and U.S. Patent No. 8,683,362 (the ‘362 patent). Apple counterclaimed, urging the court to invalidate those five patents. Additionally, Apple filed a simultaneous challenge to two of the patents through inter partes reviews (IPRs).

On Day Two of PTAB Masters™ 2022, Panelists Dig into Data Showing Fintiv Denials May Be Dead for Texas Cases

The first panel of Tuesday’s PTAB Masters™ 2022, titled “Discretionary Denials: Has the WDTX Been Neutered?”, presented data that reveals the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) seemingly stopped citing Fintiv as a reason to discretionarily deny inter partes review (IPR) proceedings for cases with parallel litigation in the Western or Eastern Districts of Texas (WD of TX/ ED of TX) during the last four months of 2021. While the PTAB issued a larger number of institution decisions overall in those months compared with previous months, and a larger number of cases citing Fintiv, there was also a relatively low number of cases across all jurisdictions in which discretion to deny was applied based on the Fintiv analysis.

Billion Dollar Code Brings to Life the Nasty Patent Battle Over Google Earth

A new crime drama, The Billion Dollar Code, is a fascinating breakthrough mini-series that illustrates the legal challenges of inventions and inventors in a world where technology giants can refuse to acknowledge the source of ideas they do not control. The popular four-part Netflix mini-series achieves uncanny success not only in depicting an epic legal battle but doing it over four plus hours in German with subtitles and an abundance of algorithm detail and trial preparation. It is reminiscent of Chernobyl, HBO’s award-winning series that turned the complex series of events and failures, both technical and human, leading to a nuclear core meltdown into award-winning entertainment.

Federal Circuit Finds ‘Lifter Member’ Invokes Means-Plus-Function

On January 21, 2022, the U.S. Court of Appeals for the Federal Circuit held that the term “lifter member” invokes means plus function (MPF) claiming. The case is Kyocera Senco Indus. Tools Inc. v. ITC, Appeal Nos. 2020-1046 and 2020-2050 (Fed. Cir. 2022). The Federal Circuit panel for the case consisted of Chief Judge Moore along with Judges Dyk and Cunningham. Chief Judge Moore wrote the opinion for the panel. To summarize, in 2017, Kyocera filed a complaint with the International Trade Commission (ITC). Kyocera alleged that a company named Koki violated 19 U.S.C. § 1337 (Section 337) by importing gas spring nailer products that infringe, or were made using methods that infringe, certain claims in five Kyocera patents. Those patents generally relate to linear fastener driving tools, like portable tools that drive staples, nails, or other linearly-driven fasteners.

Use of Research Tools May Expose Companies to Patent Infringement Claims

The safe harbor provision set forth in 35 U.S.C. § 271(e)(1) immunizes many types of activities in pursuit of a Food and Drug Administration (FDA) submission from patent infringement claims. Research tools are frequently used in pursuit of an FDA submission, such as drug development, testing and screening. But research tools themselves generally are not subject to FDA or other regulatory approval. Depending on the circumstances, using research tools to submit data to the FDA may not be protected by the safe harbor provision and thus may expose companies to patent infringement claims.

Edell, Shapiro and Finnan is Seeking a Patent Attorney or Agent

Edell, Shapiro & Finnan, LLC (“ESF”), an Intellectual Property Boutique, is seeking a Patent Attorney or Agent specialing in ME/EE or Life Sciences to join the patent prosecution team. This is a full-time, permanent, immediate position located in Gaithersburg, MD.

Day One of PTAB Masters™ 2022: Tillis and Iancu Chime in on PTAB and Patent System Problems

The first day of IPWatchdog’s PTAB Masters™ 2022 program featured a welcome from Senator Thom Tillis (R-NC), Ranking Member of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, who told attendees that Congress should consider codifying some of the reforms made by former U.S. Patent and Trademark Office (USPTO) Director Andrei Iancu in order to better avoid “gamesmanship” at the Patent Trial and Appeal Board. Tillis specifically called out entities like OpenSky Industries, who last December petitioned the PTAB to institute an IPR proceeding challenging claims from one of two patents involved in VLSI Technologies’ $2.175 billion jury verdict for patent infringement against Intel, which was handed down in March 2021 in the Western District of Texas.

Apple/ Ericsson Dueling FRAND Suits Highlight Issues With Recent Proposed Changes in DOJ’s SEP Policies

On January 19, consumer tech giant Apple filed a complaint with the U.S. International Trade Commission (USITC) asking the agency to institute a Section 337 investigation against Swedish telecom firm Ericsson, asserting a trio of patents related to millimeter wave technology used by electronic devices communicating on mobile 5G networks. The Section 337 complaint is the latest salvo in a legal battle that highlights the mounting tension surrounding standard-essential patents (SEPs) and where infringement litigation fits into the fair, reasonable and non-discriminatory (FRAND) obligations that standards-setting organizations (SSOs) impose upon SEP owners.

This Week in Washington IP: The Patchwork of State Data Privacy Laws, The Future of Digital Currencies and the TPAC’s Quarterly Meeting

This week in Washington IP news, both houses of Congress remain very quiet, as both the Senate and the House of Representatives enter scheduled work periods. Elsewhere, the Information Technology & Innovation Foundation explores the growing patchwork of state-level data privacy regulations and the drag it produces on the Internet economy. Also, the Bipartisan Policy Center hosts a chat with the Honorable Keith J. Krach and Gen. H.R. McMaster on the importance of building trust in networking technologies, the Center for Strategic & International Studies focuses on efforts to coordinate satellite operations to prevent collisions in space, and the U.S. Patent and Trademark Office closes the week by hosting the most recently quarterly meeting of the Trademark Public Advisory Committee for public review of the agency’s trademark operations.

The Right to Repair of Medical Equipment is Not an IP Issue

How does it make any sense that fixing something, which you bought and paid for, is a violation of the manufacturer’s copyright? It’s not, and here’s why. Fixing things is legal under multiple sections of Copyright Law. Repair doesn’t modify books, music, videos or licensed software, so it’s absurd that copyright law is even being used to restrict repair.

Top Issues for the U.S. Patent and Trademark Office in 2022

Incoming U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal’s answers to Senators’ written questions following her recent confirmation hearing provide reasons for hope to those concerned about the current state of the patent system. Vidal’s responses emphasize three priorities: strengthening patents and trademarks, ensuring that U.S. intellectual property is protected abroad, and expanding the reach of the patent system to underrepresented groups. This article focuses on five important issues that any new USPTO Director will need to address—and looks for clues as to how she may approach them.

Torrey Pines Law Group is Seeking a Biotechnology Patent Attorney or Agent

Torrey Pines Law Group is seeking a biotechnology patent attorney or patent agent to engage with our early- to mid-stage biotechnology, bioinformatics, biopharmaceutical, and diagnostics clients. This is a part-time, permanent position in San Diego, CA, or remote. Torrey Pines Law Group San Diego offices are in Carmel Valley, and the firm supports in-office, remote, and hybrid working arrangements.

Other Barks & Bites for Friday, January 21: CNIPA Announces Rapid Trademark Examination Measures, SCOTUS Asked to Clarify Octane Fitness Standard, and Qualcomm Opposes Apple’s Petition on Article III Standing

This week in Other Barks & Bites: Qualcomm files its brief in opposition to Apple’s petition for writ of certiorari asking the Supreme Court to overturn the Federal Circuit’s ruling on Article III licensee standing; Big Tech CEOs reportedly ramp up their efforts against antitrust bills in the Senate; the DOJ levies charges involving the transfer of technology to the Central Bank of Iran; the U.S. Copyright Office issues a strategic plan for 2022 through 2026; Heat On-The-Fly files a petition for writ asking the Supreme Court to clarify the Octane Fitness standard for determining exceptionality of an infringement suit; and more.

Mossoff Policy Memo for Hudson Institute Calls for Transparency from I-MAK on Data Used in Drug Pricing Debate

A Policy Memo published by the Hudson Institute and authored by Professor Adam Mossoff of the Antonin Scalia Law School at George Mason University has charged that some of the key data relied upon in the heated debate over the effects of pharmaceutical patents on drug pricing and access may be faulty. The memo, titled “Unreliable Data Have Infected the Policy Debates Over Drug Patents,” specifically targets the Initiative for Medicines, Access & Knowledge (I-MAK), an advocacy organization that has become a “principal, go-to source” for data on the number of patents and patent applications covering pharmaceutical innovations.