Other Barks & Bites for Friday, June 7: Delrahim Remarks on FRAND, SCOTUS Grants Cert in Copyright Case, Google Buys Looker

Bites (noun): more meaty news to sink your teeth into.

Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/121268514/stock-photo-crazy-silly-dumb-dog-fisheye.htmlThis week in Other Barks & Bites: the Wisconsin Alumni Research Foundation’s petition to the Supreme Court in a case against Apple; AAG Makan Delrahim’s remarks about misuse of antitrust law by U.S. courts; Eli Lilly’s petition to the Supreme Court regarding functional claiming rule; cert granted in Allen v. Cooper to determine state sovereign immunity against copyright claims; the list of top universities receiving U.S. utility patents; Google Buys Looker For $2.6 Billion; and the ongoing Senate debate on patent eligibility.


AAG Delrahim Delivers Remarks on Patents, FRAND Obligations in Paris – On Thursday, June 6, Assistant Attorney General Makan Delrahim delivered remarks at the Organisation for Economic Co-operation and Development in Paris where he spoke out against the misuse of antitrust law by U.S. courts in cases where patent owners are attempting to maximize licensing rates while operating under fair, reasonable and non-discriminatory (FRAND) obligations put in place by standard-setting organizations (SSOs) 

Senate IP Subcommittee Holds Hearings on Section 101 Patent Eligibility – On Tuesday, June 4, and Wednesday, June 5, the Senate Intellectual Property Subcommittee held hearings to explore a recently proposed legislative framework to address patent eligibility issues under Section 101 of U.S. patent law. Tuesday’s hearing focused a great deal on the uncertainty in Section 101 patent eligibility wrought by recent court decisions while Wednesday’s hearing featured concerns over gene patenting and drug pricing.

WARF asks SCOTUS to Review Its Case Against Apple – The Wisconsin Alumni Research Foundation (WARF) asked the Supreme Court on Wednesday to grant cert in a case involving WARF’s claim that Apple infringed a computer processing technology patent granted to WARF in 1998. WARF won the case in district court, but the Federal Circuit overturned the decision based on a de novo review of the claims. 

Eli Lilly Files Petition with Supreme Court Over Functional Claiming Rule – On Wednesday, June 5, Eli Lilly filed a petition for writ of certiorari with the U.S. Supreme Court asking the Court to determine whether a single-step patent claim that describes its point of novelty solely in functional terms violates the functional claiming rule set forth in Halliburton Oil Well Cementing Co. v. Walker (1946). 

Big Tech Coalition Announces Fixed Price Patent Buying Program – On Tuesday, June 4, the non-profit organization Allied Security Trust, a coalition of tech companies including Google, Microsoft, Cisco, IBM, Intel, Oracle, Spotify and Uber, announced a fixed price program that would open this July to buy patents and mitigate the risk that those patents will be asserted against member companies. Last year, Allied Security Trust’s patent buying program purchased nearly 50 patents for $3 million.

Ninth Circuit Affirms Invalidity of Copyright Registration, Handing Win to Major Retailers – On Tuesday, June 4, the Court of Appeals for the Ninth Circuit affirmed the Central District of California’s grant of summary judgment in a copyright infringement case filed against Sanctuary Clothing, Amazon.com, Macy’s and other retailers, agreeing with the district court that plaintiff Gold Value International Textile knowingly included inaccurate information in a copyright registration application, invalidating the asserted copyright. 

USITC Finds Comcast Infringed Patents Asserted By Rovi – On Tuesday, June 4, the U.S. International Trade Commission (ITC) issued a notice of initial determination in a Section 337 investigation brought by TiVo subisidiary Rovi Corporation. ITC Administrative Law Judge MaryJoan McNamara found that Comcast’s sale of digital video receivers infringed upon claims of a Rovi patent and recommended both a limited exclusion order and a cease and desist order.

Supreme Court Grants Cert on Copyright Case Involving Sovereign Immunity Issues – On Monday, June 3, the U.S. Supreme Court granted a petition for writ of certiorari to take up Allen v. Cooper on appeal from the Court of Appeals for the Fourth Circuit. The case asks the court to determine whether Congress validly abrogated state sovereign immunity by enacting the Copyright Remedy Clarification Act and providing remedies for authors of original expression whose federal copyrights are infringed by states.

Copyright Office Asks House Judiciary Committee to Let Section 119 STELAR License Expire – On Monday, June 3, Register of Copyrights Karyn Temple addressed a letter to Representatives Jerrold Nadler (D-NY) and Doug Collins (R-GA), respectively the Chairman and Ranking Member of the House Judiciary Committee, asking them not to renew the Section 119 compulsory license for secondary transmissions of distant broadcast programming by satellite providers which will sunset at the end of 2019.



Tom Brady Says “Tom Terrific” Trademark Filing Was to Prevent Other Application – On Thursday, June 6, New England Patriots QB Tom Brady made remarks indicating that his trademark application for “Tom Terrific” was only filed to prevent other attempts to trademark his nickname. 

Second Circuit Affirms Trade Secret Judgment on Summary Order – On Wednesday, June 5, the Court of Appeals for the Second Circuit issued a summary order in which it affirmed the grant of a preliminary injunction by the Southern District of New York enjoining former employees of ExpertConnect from certain business activities after those employees misappropriated trade secrets to benefit a new business venture. The Second Circuit did remand to the district court for redrafting the injunction to conform with Federal Rule of Civil Procedure 65(b).

https://depositphotos.com/30633387/stock-illustration-postman-followed-by-a-dog.htmlNorthern District of California Affirms Damages, Ongoing Royalties for Opticurrent – On Wednesday, June 5, a ruling issued in the Northern District of California upheld a $6.6 million damages award for patent infringement to Opticurrent and increased the ongoing royalty rate owed by defendant Power Integrations. In recent weeks, Opticurrent had accused Power Integrations of gamesmanship by filing for a reexamination of an Opticurrent patent based on similar invalidity arguments that it had dropped prior to trial in the district court proceedings. 

PTAB Institutes IPR Proceedings Against Peloton Patents – On Wednesday, June 5, the Patent Trial and Appeal Board (PTAB) instituted a trio of inter partes review (IPR) proceedings challenging the validity of patent claims owned by streaming exercise company Peloton. The claims were challenged by Flywheel Sports after Peloton asserted them in an infringement suit filed in the Eastern District of Texas. 

University of California Named Top Recipient of U.S. Patents Among Universities – On Tuesday, June 4, the National Academy of Inventors and Intellectual Property Owners Association released Top 100 Worldwide Universities Granted U.S. Utility Patents in 2018. The Regents of the University of California took the top spot for 2018 by earning 526 patents, well ahead of the 304 patents earned by second-place Massachusetts Institute of Technology. 

ITC Finds Patent Infringement of Blood Cholesterol Testing Strips – On Tuesday, June 4, Administrative Law Judge Clark Cheney of the U.S. International Trade Commission issued a notice of initial determination in a Section 337 investigation  which found that respondents ACON Laboratories and ACON Biotech had infringed upon claims of two patents asserted by Polymer Technology Systems through the importation and sale of certain blood cholesterol testing strips products.

Washington University Asks Third Circuit to Affirm Judgment Against WARF – On Monday, June 3, Washington University filed a brief with the Court of Appeals for the Third Circuit  asking the appellate court to affirm the District of Delaware’s judgment ordering the Wisconsin Alumni Research Foundation to pay $31.6 million in damages for breaching a patent licensing agreement. Washington University is also seeking prejudgment interest in the appeal. 

INTA, National Inventors HoF Announce “Power of Trademarks” Exhibit – On Monday, June 3, the International Trademark Association (INTA) and National Inventors Hall of Fame Museum announced the opening of an interactive exhibit sponsored by both organizations called “The Power of Trademarks” which aims to raise awareness of the dangers of counterfeiting and promote education on the importance of trademarks and the growth of many of the world’s best known brands.

Activision Tells Court That First Amendment Bars Humvee Maker’s Trademark Claims – On Friday, May 31, Activision Blizzard filed a motion for summary judgment in a Southern District of New York trademark case in which the video game developer argued that the First Amendment defeated claims by AM General, the maker of Humvee army vehicles, that it was entitled to compensation over the use of Humvee vehicles in the “Call of Duty” video game series.

This Week on Wall Street

GoogleGoogle Buys Looker For $2.6 Billion – On Thursday, June 6, Internet services giant Google announced that it would buy business intelligence firm Looker for $2.6 billion. The company plans to integrate Looker into Google Cloud, the first major acquisition for that division since former Oracle executive Thomas Kurian became Google Cloud’s CEO last November.

IBM to Lay Off Around 1,700 Employees – On Thursday, June 6, news reports indicated that information technology giant IBM was planning to layoff around 1,700 employees, about 0.5 percent of the company’s current workforce, in the midst of its Red Hat acquisition. 

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2017 are announcing quarterly earnings next week (2017 rank in parentheses):

  • Monday: None
  • Tuesday: None
  • Wednesday: None
  • Thursday: Broadcom Corp. (t-291st)
  • Friday: None

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