Other Barks & Bites, Friday, September 20: CAFC Issues Precedential Decisions on Patent Term Adjustment, DOJ Announces Trade Secret Charges, USPTO Urges CAFC Deference to POP

This week in Other Barks & Bites: the Federal Circuit issued a pair of precedential opinions affirming the USPTO’s determinations on patent term adjustment; Chuck Yeager filed a trademark lawsuit against Airbus; Facebook CEO Mark Zuckerberg met with Capitol Hill lawmakers and President Trump; the Office of Technology Assessment Improvement and Enhancement Act was introduced into both houses of Congress; the Sixth Circuit affirmed the dismissal of a copyright case lodged against musician Steve Winwood; the U.S. Department of Justice announced criminal charges over the theft of pediatric medicine trade secrets; and the NMPA doubled the damages sought against Peloton after finding more unlicensed songs used by the streaming exercise companies.

Bites

Senator Hirono, Representative Stivers Receive Awards From Innovation Alliance – On Thursday, September 19, Senator Mazie Hirono and Representative Steve Stivers (R-OH) received “Champions of the Inventor” awards from the Innovation Alliance in recognition of their efforts on behalf of inventors to improve the U.S. patent system.

CAFC Affirms Patent Term Adjustment for Applicant Delay – On Wednesday, September 18, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Intra-Cellular Technologies, Inc. v. Iancu, affirming a patent term adjustment determination by the U.S. Patent and Trademark Office that included a 21-day applicant delay because the first response from Intra-Cellular to a final office action failed to comply with agency requirements on a proper reply.

Legislation Introduced to Modernize the Office of Technology Assessment – On Thursday, September 19, the Office of Technology Assessment Improvement and Enhancement Act, which would reform the Office of Technology Assessment to improve transparency and technical assistance to Capitol Hill lawmakers, was introduced into both houses of Congress. The bill was announced by Sens. Thom Tillis (R-NC) and Mazio Hirono (D-HI), and Representatives Mark Takano (D-CA) and Bill Foster (D-IL).

USPTO Argues That Federal Circuit Should Defer to POP Panel Decisions – On Tuesday, September 17, the USPTO filed a brief with the Federal Circuit in Facebook v. Windy City Innovations which urged the appellate court to accept law created by the decisions of the Patent Trial and Appeals Board’s (PTAB) Precedential Opinion Panel (POP) as long as the POP’s interpretation is reasonable.

Sixth Circuit Finds Lack of Admissible Evidence in “Gimme Some Lovin’” Copyright Case – On Tuesday, September 17, a divided panel at the U.S. Court of Appeals for the Sixth Circuit affirmed a grant of summary judgment by the Middle District of Tennessee dismissing copyright claims filed by the songwriters of “Ain’t That a Lot of Love” against Steve Winwood over the baseline to “Gimme Some Lovin’.”

MLC Proposes $37 Million in Funding to Administer Blanket License – On Tuesday, September 17, Billboard reported that the Mechanical Licensing Collective (MLC) had submitted a proposal to the Copyright Royalty Board estimating that the MLC will need $37.25 million in funding to carry out its responsibilities under the Music Modernization Act through its first year of administering blanket licenses for mechanical rights.

CAFC Affirms USPTO Patent Term Adjustment Involving B Delay – On Monday, September 16, the Federal Circuit issued a precedential decision in Mayo Foundation v. Iancu, affirming the USPTO’s determination that there was no B Delay under 35 § 154(b)(1)(B) over Mayo’s arguments that the agency’s declaration of a patent interference terminates request for continued examination (RCE) time for the purposes of calculating B Delay.

DOJ Announces Pediatric Medicine Trade Secret Theft Charges Against Couple – On Monday, September 16, officials from the U.S. Department of Justice unsealed criminal charges against a couple accused of stealing trade secrets related to exosomes and exosome isolation from the National Children Hospital’s Research Institute for personal gain through a Chinese startup the couple allegedly founded in 2015.

Barks 

MEPs Issue Resolution Against EPO’s Rules on Plant Patents – On Thursday, September 19, the European Parliament adopted a resolution expressing concerns about the European Patent Office’s refusal to implement rules that would prevent patents from being granted for plants and animals obtained from essentially biological processes, such as conventional breeding. 

Anti-Piracy Groups Announce Formation of IP Advisory Board – On Thursday, September 19, the International AntiCounterfeiting Coalition and the National Intellectual Property Rights Coordination Center announced a joint effort to establish an Intellectual Property Advisory Board that will bring together law enforcement officials and industry stakeholders to cooperate on anti-counterfeiting and anti-piracy measures.

Rothy’s, OESH Settle Patent Dispute Over Ballet Shoes – On Wednesday, September 18, shoemakers Rothy’s and OESH filed a notice with the Western District of Virginia that the two parties had resolved the patent and trade secret lawsuit filed by Rothy’s after they agreed that OESH would redesign its ballet flats so as not to infringe Rothy’s patents. 

Chuck Yeager Files Trademark Infringement Case Against Airbus – On Wednesday, September 18, retired U.S. Air Force pilot Chuck Yeager, famous as the first pilot to break the sound barrier, filed a trademark infringement suit in the Central District of California alleging that Airbus committed trademark infringement for using his name, identity and likeness in promotional material.

Antitrust, Patent Misuse Claims Removed From Lawsuit Over Generic Latisse – On Monday, September 16, U.S. District Judge Brian Martinotti of the District of New Jersey dismissed counterclaims filed by Akorn alleging that Duke University and Allergan engaged in “sham litigation” to try and force Akorn and others out of the market by preventing generic versions of the eyelash-loss drug Latisse.

PTAB Denies Challenge to Arthroscopic Surgery Patent Asserted by KFx Against Stryker – On Monday, September 16, the Patent Trial and Appeal Board (PTAB) denied institution to an inter partes review (IPR) proceeding petitioned by Stryker to challenge a patent involved in a suit filed against it by KFx Medical. The patent covers medical devices and surgical procedures for attaching soft tissue to bone during arthroscopic surgery.

Copyright Claims Over Love, Gilda Interviews Tossed By District Court – On Monday, September 16, U.S. District Judge Vincent Briccetti issued an order dismissing copyright claims filed by journalist Hillary Johnson after determining that Johnson hadn’t registered the copyright for videotaped interviews of Gilda Radner that were used in the Radner documentary Love, Gilda.

NMPA Doubles Copyright Damages Sought Against Peloton to $300M – On Thursday, September 13, the National Music Publishers’ Association filed a request to amend its complaint in its copyright battle against Peloton to increase the damages sought to $300 million after discovering an additional 1,200 songs Peloton had allegedly in its bicycle streaming exercise service without licensing.

This Week on Wall Street

Facebook CEO Zuckerberg Meets With D.C. Politicians, President Trump – On Thursday, September 9, Axios reported that Mark Zuckerberg went on an unannounced tour of Washington, D.C. in which he held meetings on Capitol Hill, met with a group of U.S. Senators and met with President Trump, presumably with regards to antitrust and regulatory pressure building against the social media giant Facebook. 

Microsoft Announces $40 Billion Stock Buyback, Dividend Increase – On Wednesday, September 17, Microsoft issued a statement announcing that it would repurchase $40 billion worth of the company’s stock and increase its quarterly dividend by 5 cents up to 51 cents per share.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2018 are announcing quarterly earnings next week (2018 rank in parentheses):

• Monday: None
• Tuesday: Blackberry Ltd. (105th); Nike, Inc. (96th)
• Wednesday: None
• Thursday: Accenture plc (t-258th); Micron Technology, Inc. (37th)
• Friday: None

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