Other Barks & Bites for Friday, October 23: Senate Judiciary Committee Votes to Subpoena Tech CEOs, Google Faces DOJ Antitrust Suit, and Chinese Patent Law Amendments to Increase Willful Infringement Damages

This week in Other Barks & Bites: during a meeting to vote on the nomination of Amy Coney Barrett to the U.S. Supreme Court and other judicial nominees, the Senate Judiciary Committee also approved a motion to authorize subpoenas against Twitter and Facebook relating to online content moderation; the Standing Committee of China’s national legislature approved revisions to the country’s patent law that would increase punitive damages for willful infringement; the Eleventh Circuit reverses grants of summary judgment in a trade dress case between Gorilla Glue and J-B Weld; MasterObjects tells the PTAB that Facebook is a real party in interest in Unified Patents IPR; the DOJ and 10 state AGs file antitrust charges against Google’s monopoly in Internet search; the ITC institutes an investigation into OLED devices sold by Apple and Samsung; the USPTO issues a request for comments regarding whether to engage in rulemaking to codify the discretionary denial framework for IPRs at the PTAB; Gilead’s Veklury remdesivir product becomes the first FDA-approved treatment for COVID-19; and Honeywell and Microsoft announce a new partnership to develop industrial workplace cloud platforms.

Bites

Senate Judiciary Committee Authorizes Subpoenas Against Big Tech – On October 22, the Senate Judiciary Committee voted on a motion to issue subpoenas to Jack Dorsey, Chief Executive Officer, Twitter, Inc. and Mark Zuckerberg, Chairman and Chief Executive Officer, Facebook, Inc., to testify before the Committee regarding online content modernization. The written motion of Senator Lindsey Graham specified that testimony will be requested on the issues of: 1) “the suppression and/or censorship of two news articles from the New York Post,” (2) “any other content moderation policies, practices, or actions that may interfere with or influence elections for federal office,” and (3) “any other recent determinations to temporarily reduce distribution of material pending factchecker review and/or block and mark material as potentially unsafe.” Democrats did not attend the hearing.

ITC Institutes Section 337 Patent Suit Against Apple, Samsung and LG Electronics – On Thursday, October 22, the U.S. International Trade Commission announced that it had decided to institute a Section 337 investigation into several major tech companies, including Apple, Samsung, Dell, LG Electronics, Sony and Motorola Mobility, for their alleged infringement of patents owned by Irish firm Solas OLED by importing for sale certain active matrix OLED display devices. Solas previously asserted similar claims against Apple in U.S. district court over the tech titan’s sale of Apple Watch products. 

TTAB Affirms Specimens, Descriptiveness Refusals for “Thermal Matrix” Mark – On Wednesday, October 21, the Trademark Trial and Appeal Board (TTAB) issued a precedential decision in In re James S. Fallon in which the TTAB affirmed a trademark examiner’s rejection of an application claiming the mark “THERMAL MATRIX” for use in oral dental appliances for mere descriptiveness as well as issues with the application of the mark on the claimed specimen of use. 

USPTO Requests Comments for Potential Rulemaking on PTAB Discretionary Denials – On Tuesday, October 20, the U.S. Patent and Trademark Office issued a request for comments in the Federal Register seeking input from the public as to whether the agency should engage in rulemaking to codify the discretionary denial framework for America Invents Act (AIA) trials at the Patent Trial and Appeal Board (PTAB) which the agency has previously developed through precedential and informative decision making. 

DOJ, State AGs File Antitrust Suit Against Google’s Online Search Monopoly – On Tuesday, October 20, the U.S. Department of Justice and attorneys general from 10 states filed a lawsuit in the U.S. District Court for the District of Columbia alleging antitrust claims against Google over that company’s activities to maintain a monopoly in general Internet search services and search advertising services.

Eleventh Circuit Reverses Trade Dress Rulings in GorillaWeld Packaging Case – On Tuesday, October 20, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in J-B Weld Company v. Gorilla Glue Company in which the appellate court upheld a grant of summary judgment to Gorilla Glue that its GorillaWeld two-part epoxy adhesive product on false advertising claims filed by J-B Weld, but reversed the lower court’s grant of summary judgment on J-B Weld’s claims of trade dress dilution and trade dress infringement against GorillaWeld’s packaging, which was fashioned by Gorilla Glue to look like J-B Weld’s competing epoxy adhesive.

USPTO Appoints Critharis as Acting Chief Policy Officer – On Monday, October 19, the USPTO announced that Mary Critharis, who has been the agency since 1992 and served as senior counsel since 2017, will serve as Acting Chief Policy Officer and Director of International Affairs while the USPTO conducts a search to permanently fill the role vacated by Shira Perlmutter, recently appointed to serve as Register of Copyrights at the U.S. Copyright Office.

China Patent Law Amendments Add Punitive Damages for Willful Infringement – On Saturday, October 17, Chinese state-owned media reported that the Standing Committee of the National People’s Congress completed the fourth revision of the nation’s patent law, which as amended would increase punitive damages for willful infringement as well as increase evidentiary discovery for patent owners trying to prove infringement when they have made best efforts to produce evidence that is otherwise held by the alleged infringer.

MasterObjects Tells PTAB That Facebook is Real Party in Interest in Unified Patents IPR – On Friday, October 16, patent owner MasterObjects filed a preliminary response in an inter partes review (IPR) proceeding petitioned by Unified Patents asking the PTAB to find that Facebook, a subscribing member of Unified Patents, is a real party in interest in the IPR petitioned by Unified to challenge the validity of a MasterObjects patent asserted against Facebook in district court.

Barks 

USPTO Requests Comments on Patent Examiner Hiring, Trademark Application Practices – On Friday, October 23, the USPTO issued a pair of requests for comments in the Federal Register soliciting public comments related to the agency’s use of hiring management systems to review employment applications for prospective patent examiners as well as trademark applicant submissions regarding the commercial use of their claimed goods and services. 

HBO, Warner Media Receive Copyright Notice Over Charm City Kings – On Wednesday, October 21, the creators of the 2001 Baltimore dirt bike documentary 12 O’Clock Boyz issued a press release announcing that they had sent a copyright infringement notice to HBO Max and parent company Warner Media regarding the upcoming movie release Charm City Kings, a film adaptation of a 2012 Baltimore dirt bike documentary titled 12 O’Clock Boys which has also been sued by the creators of the 2001 documentary.

Ninth Circuit Affirms Lack of Subject Matter Jurisdiction Over Infringing Acts in Japan – On Wednesday, October 21, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision in Superama Corporation v. Tokyo Broadcasting System Television in which the appellate court affirmed a dismissal for lack of subject matter jurisdiction over copyright claims related to the rebroadcasting of live sumo events because all of the allegedly infringing activity took place in Japan. The storage of downloaded material on a U.S. server that only occurred because of an infringing download abroad did not cure the jurisdictional issue.

Award-Winning Photographer Files Copyright Case Against Verizon for Yahoo Infringement – On Wednesday, October 21, award-winning photographer Howard Schatz filed a lawsuit in the Central District of California alleging claims of copyright infringement against Verizon Communications over subsidiary company Yahoo.com’s reproduction of several copyrighted photos captured by Schatz which depict various forms of human musculature.

Michigan Trademark Case Filed Over Fraternity’s Acceptance of Women Members – On Tuesday, October 20, Sigma Phi Society filed a lawsuit in the Eastern District of Michigan alleging claims of trademark infringement against the Sigma Phi chapter operating at the University of Michigan for continuing to use the national fraternity organization’s trademarks despite its removal from the organization’s membership after the fraternity’s Michigan chapter began accepting women.

Judge Wright Narrows Claims in Copyright Case Against Post Malone – On Monday, October 19, U.S. District Judge Otis D. Wright II of the Central District of California issued a ruling granting in part a motion to dismiss claims regarding the copyright to the sound recording of Post Malone’s 2019 single “Circles,” although Judge Wright did not dismiss copyright claims filed by Canadian musician Tyler Armes relating to Armes allegations that he co-wrote the original song.

Samsung Faces Eastern Texas Patent Suit Over Samsung Pay Contactless Payments – On Friday, October 16, patent owner RFCyber Corp. filed a lawsuit in the Eastern District of Texas against Samsung Electronics accusing the South Korean tech conglomerate of infringing claims of five patents covering technologies for making mobile e-commerce payments through the company’s use of contactless payments in its Samsung Pay e-commerce platform.

Copyright Office to Remove Outdated Applications from Electronic Records – On Friday, October 16, the U.S. Copyright Office announced that it would be removing outdated application drafts which have been saved in the eCO electronic registration system without being submitted to the agency. The removal, which affects any application created on or before November 30, 2019, will take place this November 30.

This Week on Wall Street

Gilead Shares Up After Remdesivir Becomes First COVID-19 Treatment Approved by FDA – On Friday, October 23, shares of Gilead Sciences stock popped by about 6 percent in trading after the company announced that its remdesivir treatment for COVID-19, sold under the brand name Veklury, became the first such treatment approved by the U.S. Food and Drug Administration for administration to patients suffering from the effects of coronavirus.

Honeywell, Microsoft Announce New Partnership to Develop Industrial Workplace Cloud – On Thursday, October 22, software giant Microsoft and industrial solution firm Honeywell announced a partnership to develop a cloud platform for industrial workplaces using Honeywell’s domain-specific applications and AI-driven enterprise performance management software that are distributed to facility managers via Microsoft’s cloud infrastructure.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2019 are announcing quarterly earnings next week (2019 rank in parentheses):

• Monday: Canon Inc. (3rd); Nidec Corp. (190th); Nitto Denko Corp. (t-281st); NXP Semiconductor N.V. (77th); Samsung Electro-Mechanics (t-127th); SAP SE (73rd)
• Tuesday: 3M Co. (86th); Advanced Micro Devices Inc. (192nd); Caterpillar Inc. (98th); Fujitsu Ltd. (36th); Hubbell Inc. (t-274th); Juniper Networks (t-161st); Merck & Co. (208th); Microsoft Corp. (5th); Novartis AG (195th); Raytheon Technologies Corp. (124th); Samsung SDI Co., Ltd. (129th); Shimano Inc. (t-233rd); Shin-Etsu Chemical Co., Ltd. (211th); Xerox Corp. (117th)
• Wednesday: BASF SE (83rd); Boeing Inc. (29th); Boston Scientific Corp. (t-88th); Denso Corp. (39th); eBay Inc. (t-179th); Ford Motor Co. (13th); General Electric Co. (6th); Hitachi Ltd. (24th); LG Innotek Co., Ltd. (123rd); Mastercard Inc. (t-184th); Mediatek Inc. (t-107th); Sony Corp. (11th); United Microelectronics Corp. (136th); Western Digital Corp. (64th)
• Thursday: Airbus SE (80th); Alphabet Inc. (12th); Amazon.com, Inc. (15th); Apple Inc. (14th); Delta Electronics, Inc. (257th); Facebook Inc. (34th); Fanuc (75th); Fuji Electric Co., Ltd. (t-107th); Jtekt Corp. (t-225th); Konica Minolta, Inc. (74th); Kyocera Corp. (43rd); Mitsubishi Electric Corp. (33rd); Motorola Solutions Inc. (t-206th); NEC Corp. (45th); Nokia Oyj (49th); Omron Corp. (t-168th); Panasonic Corp. (20th); Renesas Electronics Corp. (97th); Samsung Electronics (2nd); Sanofi Sa (165th); Seiko Epson Corp. (32nd); Stryker Corp. (132nd); TCL Technology Group Corp. (t-88th); Textron Inc. (204th); Tokyo Electron Ltd. (116th); ZTE Corp. (115th)
• Friday: Colgate-Palmolive Co. (t-261st); Exxon Mobil Corp. (135th); LG Electronics, Inc. (9th); TDK Corp. (95th)

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