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Other Barks and Bites, Friday, March 8: DOJ Arrests Chinese Citizen Accused of Stealing Google Trade Secrets; WIPO Patent Activity Drops for First Time in 14 Years; New Copyright Detector Finds High Rate of Copyright Infringement by Generative AI

This week in Other Barks and Bites: Amazon and Huawei resolve their patent dispute by closing a global patent agreement; the U.S. Department of Justice (DOJ) arrests a Chinese citizen accused of stealing proprietary information from Google, and the Bank of America announces patent growth with focus on AI.

Federal Circuit Reverses PTAB Claim Construction, Reviving Cooling Patent

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday, March 7, vacated a decision of the Patent Trial and Appeal Board (PTAB) that had held unpatentable certain claims to CoolIT Systems, Inc.’s patent. U.S. Patent 9,057,567 is titled “Fluid Heat Exchange Systems” and is directed to a system for fluid heat transfer to cool electronic devices. On appeal to the CAFC, CoolIT argued that the PTAB erred in construing one of the claim terms, “matingly engaged” and that even under the PTAB’s construction, the asserted prior art did not meet the matingly engaged limitation.

DMA Impact Remains Unclear on Deadline for ‘Gatekeeper’ Compliance

As of today, the world’s major platforms—Apple, Alphabet, Meta, Amazon, Microsoft and ByteDance—must be in full compliance with the European Union’s Digital Markets Act (DMA), an EU regulation intended to level the playing field in the digital marketplace. Signed into law in September 2022, the DMA imposed a complex regulatory framework upon the major Internet services platforms that are deemed to be “gatekeepers” (i.e. have a market capitalization of at least €75 billion [$83 billion USD]) due to their dominant market position. These gatekeepers each market at least one “core platform service” (CPS) that connects large numbers of users and business interests.

Patent Filings Roundup: Sitnet LLC Patents Challenged; Touchmusic Launches First Campaign; NPE Activity in UPC Ramps Up

This week was an above-average one for patent filings in both the Patent Trial and Appeal Board (PTAB) and in district courts. The PTAB had two new post grant review (PGR) petitions and 39 new inter partes review (IPR) petitions, for a total of 41 new filings. And the district court also had heightened activity with 75 new filings.

After Weber v. Provisur, Confidentiality Provisions May Not Be Sufficient to Protect Your Documents from Being Prior Art

On February 8, 2024, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Weber, Inc. v. Provisur Technologies, Inc., reversing the finding of the Patent Trial and Appeal Board (PTAB) that certain operating manuals with limited dissemination and confidentiality restrictions did not qualify as prior art. The Federal Circuit’s decision concluded that the Board misapplied the analysis for meeting the public accessibility standard for a printed publication to qualify as prior art.

Federal Circuit Says Narrowing Limitation Does Not Create a Contradiction Leading to Indefiniteness

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today reversing the Western District of Texas district court’s indefiniteness analysis and explaining that it improperly found a contradiction between two claim limitations to arrive at its indefiniteness holding. Amperex Technology Limited filed an action seeking declaratory judgment of noninfringement and challenged the validity of certain claims of Maxell, Ltd.’s U.S. Patent No. 9,077,035 for a rechargeable lithium battery and Maxell asserted infringement of the patent in a separate action. The two actions were consolidated in the Western District of Texas and the court ultimately held that two of the “wherein” clauses of the sole independent claim 1 of the ‘035 patent contradicted one another.

Jim Pooley Becomes Latest IPWatchdog Masters Hall of Famer During AI Program

IPWatchdog’s Artificial Intelligence Masters™ wrapped up today with panels exploring how to get AI patents past Sections 101 and 112 at the U.S. Patent and Trademark Office (USPTO) and, ultimately, granted, as well as Ethics and AI. But yesterday’s day-long program also included an award for the latest IPWatchdog Masters™ Hall of Famer, James Pooley, who IPWatchdog CEO and founder Gene Quinn called “the leading expert on trade secrets in the world.”

CAFC: PHOSITA Can Bridge Gaps with Reasonable Success Under Result-Effective Variable Doctrine

On March 5, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Pfizer Inc. v. Sanofi Pasteur Inc. affirming lower rulings by the Patent Trial and Appeal Board (PTAB) that invalidated Pfizer’s patent claims and denied motions to amend (MTA). Although the Federal Circuit vacated the PTAB’s MTA denials with respect to two patent claims, the ruling adds new contours to the appellate court’s case law on obviousness in ways that could affect companies that are patenting chemical inventions with claimed numerical ranges.

Understanding IP Matters – IP and AI: Lessons for Students, Businesses and Governments

The use of generative and other forms of artificial intelligence is fueling challenging questions about AI’s relationship to IP rights. Businesses, investors, governments, lawyers and students all are learning as they go. What AI means to IP and how it can be regulated should be a part of every educator’s syllabus. How will students use AI to help them learn? Will the datasets that are being used to train popular AI tools be transparent and accessible? Will these datasets continue to use copyrighted works without compensating copyright owners? If that is the case, copyrights may never be the same, nor trade secrets nor patents, for that matter.

Apple’s 1.8 Billion EU Fine Foreshadows Increased Regulatory Activity Under Digital Markets Act

On March 4, the European Commission announced that it had levied a fine of more than €1.8 billion ($1.95 billion USD) against American consumer tech giant Apple over app restrictions employed by Apple’s App Store. The massive fine, which the Commission increased to ensure it was sufficiently deterrent to Apple’s anti-competitive practices, is the latest in a series of legal actions within the European Union (EU) to target dominant Internet platforms under competition law.

CAFC Partially Reverses Noninfringement Judgment But Scraps IBM Web Advertising Claims as Ineligible

The U.S. Court of Appeals for the Federal Circuit (CAFC) in a precedential decision today mostly upheld a district court ruling that found Chewy, Inc. did not infringe several claims of one IBM web advertising patent and that granted summary judgment of patent ineligibility on certain claims of another. However, the decision, authored by Chief Judge Kimberly Moore, reversed the district court’s finding of noninfringement on one of the five asserted claims of one patent, remanding the case for further proceedings on that issue.

Automotive Patents: Brands are Wasting Millions of Dollars Annually in the United States Alone

The recent U.S. auto workers strike has had a wide reaching impact on the automotive industry, including spurring investors to review their current automotive investments. While significant events like the strike often cause this sort of reaction, more common practices from automakers should – but usually don’t – draw investor attention, including intellectual property management. Our recent three-part analysis on the financial impact of patent lapse strategies for major automotive manufacturers found, among other data points,that major auto brands overspend several million dollars annually by paying fees to renew non-strategic U.S. patents. Investors who understand the patent lapsing strategies of these automotive companies can more effectively evaluate their growth plans and innovation strategies. 

Harnessing Differences Between U.S. and European Patent Education Systems for an International Advantage in Portfolio Strength

Participants in the U.S. and European patent systems face a rapidly changing landscape as the European patent with unitary effect and Unified Patent Court (UPC) are off to a successful start. The UPC has positioned itself alongside U.S. district courts, the International Trade Commission (USITC), and the U.S. Patent Trial and Appeal Board (PTAB) as a leading patent litigation forum…. Accordingly, participants in these patent systems constantly engage with U.S. and European patent attorneys, and now interact more frequently with attorneys who can represent them before the UPC (“UPC representatives”). This article describes key differences in the training, development, and skill sets of U.S. patent attorneys, European patent attorneys, and UPC representatives.

AI Masters Panelists on State of the AI Landscape: Time for Companies to Slow Down and for Policymakers to Speed Up

Panelists on day one of IPWatchdog’s Artificial Intelligence Masters 2024 program painted a sometimes-grim picture of the current state of generative AI (GAI) tools and the ways in which they are being deployed in the United States, but seemed convinced overall that the kinks would be worked out once lawmakers and courts catch up, as they have done with past disruptive technologies.

UK Decision Provides Guidance on Takedown Notices and Unjustified Threats

A large number of businesses trade through online platforms and marketplaces such as Amazon and eBay. Consumers may believe that because goods are listed on a well-known trusted platform, they are authentic, and the sellers have been approved in some way by the service provider. Unfortunately, as too many business owners are aware, e-commerce platforms offer counterfeiters and infringers a relatively easy way of offering their infringing goods for sale. A balance must be struck between forcing online marketplace providers to police intellectual property disputes themselves and allowing businesses to protect their intellectual property rights effectively when they are being exploited via online platforms.