Other Barks & Bites, Friday, October 11: IPWatchdog Celebrates, USPTO Meets Pendency Goals, SCOTUS Denies IP Cases and ACLU Opposes CASE Act

This past week in Other Barks & Bites: the Federal Circuit issued precedential decisions affirming the invalidation of patent claims covering osteoarthritis treatments and a costs award to Facebook, but reversed the PTAB on a reasonable expectation of success finding; the U.S. Supreme Court issued orders denying certiorari to several intellectual property cases; North Korea acceded to the Geneva Act of WIPO’s Lisbon Agreement; the Dollywood theme park was hit with a copyright suit over use of the Peanuts’ “Christmas Time is Here”; Nokia announced 2,000 patent families declared as 5G SEPs; former CAFC Chief Judge Rader has called on China to move forward with promised pharmaceutical patent reforms; 2019’s third quarter showed growth in the global PC market; and the USPTO announced that it has met its patent application pendency goals as well as a new senior-level position for an AI expert.

Bites

IPWatchdog Anniversary Party Features IP VIPs, Food and Friends – On Thursday, October 10, IPWatchdog celebrated its 20th anniversary at The Park at 14th in Washington, DC with hundreds of friends and colleagues, including many of the most prominent names in the IP community. Stay tuned for the a recap of the night in photos!

CAFC Affirms District Court’s Invalidation of Osteoarthritis Patents – On Thursday, October 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in HZNP Medicines LLP v. Actavis Laboratories UT, Inc. which affirmed the District of New Jersey’s invalidation of osteoarthritis treatment patent claims owned by HZNP Medicines for Section 112 indefiniteness, its determination of Actavis’ noninfringement and a finding that an asserted HZNP Medicines patent claim was valid as nonobvious.

ACLU Sends Letter to House Judiciary Committee Opposing CASE Act – On Thursday, October 10, the American Civil Liberties Union (ACLU) sent a letter addressed to Representatives Jerrold Nadler (D-NY) and Doug Collins (R-GA) expressing concerns that the copyright enforcement system that would be created through passage of the Copyright Alternative in Small-Claims Enforcement (CASE) Act would “creat[e] a chilling effect with respect to speech online.”

USPTO Meets Agency Goal to Reduce Patent Pendency – On Wednesday, October 9, the U.S. Patent and Trademark Office published a blog post penned by USPTO Director Andrei Iancu and Commissioner for Patents Drew Hirshfeld which announced that the agency had reduced average pendency times in the patent prosecution process to below 15 months for first office actions and below 24 months for total pendency.

CAFC Affirms Award of Costs to Facebook in Patent Case – On Wednesday, October 9, the Federal Circuit issued a precedential decision in B.E. Technology, L.L.C. v. Facebook, Inc. which affirmed a district court’s decision to award costs to Facebook in a patent infringement suit. B.E. Technology had argued that costs shouldn’t be awarded because Facebook didn’t “prevail” in the district court litigation, but rather that the case was mooted after asserted claims were invalidated in inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB).

USPTO to Hire Senior Expert in Artificial Intelligence – On Wednesday, October 9, the USPTO announced a newly created senior level position at the agency for an artificial intelligence technical expert to help provide solutions for large-scale problems with the use of AI technologies, including an initiative to develop AI tools for patent and trademark examination.

North Korea Accedes to Geneva Act of WIPO’s Lisbon Agreement – On Tuesday, October 8, the World Intellectual Property Organization (WIPO) announced that the Democratic People’s Republic of Korea had deposited its instrument of accession to the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, which enables producers to access an intellectual property protection system for distinctive designations based on region of origin.

SCOTUS Denies Cert to Patent, Trademark Cases – On Monday, October 7, the U.S. Supreme Court issued a list of orders which denied certiorari to a pair of patent cases: Acorda Therapeutics v. Roxane Laboratories, which was seeking to overturn the invalidation of patent claims covering the MS treatment Ampyra; and Wisconsin Alumni Research v. Apple, leaving in place the Federal Circuit’s decision to rescind a $506 million infringement award. SCOTUS also denied certiorari to Branded LLC v. Iancu, which was filed to challenge the USPTO’s denial of trademark rights to “Tweeds” for being descriptive.

CAFC Reverses PTAB Obviousness Determination on Reasonable Expectation of Success – On Friday, October 4, the Federal Circuit issued a precedential decision in OSI Pharmaceuticals, LLC v. Apotex Inc. which reversed the PTAB’s holding that patent claims owned by OSI Pharmaceuticals were invalid as obvious after determining that the Board didn’t have substantial evidence to support its finding that there would be a reasonable expectation of success in combining asserted prior art references.

Barks

ITC Institutes Section 337 Investigation Against HTC Corp. – On Friday, October 11, the U.S. International Trade Commission (ITC) announced that it has voted to institute a Section 337 patent infringement investigation which includes HTC Corp. as a respondent after a complaint from Innovation Sciences LLC of Plano, TX, based on the importation of certain wireless communication devices and related components. 

Nokia Announces More Than 2,000 SEPs Related to 5G Standard – On Wednesday, October 9, Finnish telecom firm Nokia announced that it has declared more than 2,000 patent families to the European Telecommunications Standards Institute (ETSI) as essential to the 5G mobile networking standard being managed by the 3rd Generation Partnership Project.

Peanuts Production Company Sues Dollywood Over “Christmas Time is Here” – On Tuesday, October 8, Lee Mendelson Film Productions filed a copyright infringement suit in the Eastern District of Tennessee against the theme park Dollywood for its unauthorized use of the song “Christmas Time is Here” in live Christmas performances dating back to 2007.

Rader, Chen Urge China to Move Forward on Pharmaceutical Patent Reforms – On Tuesday, October 8, Jones Day Partner Anthony Chen and Former Federal Circuit Chief Judge Randall Rader penned a guest commentary published by BioCentury which called upon the Chinese government to move forward with promised reforms for pharmaceutical patents, including establishing a patent linkage system and a patent term restoration program to compensate for time lost during the clinical trial process.

Peloton Files Trademark Suit Against Exercise Bike Rival Echelon – On Tuesday, October 8, streaming exercise company Peloton, itself facing a major lawsuit over the unauthorized use of copyright-protected music, filed a lawsuit in the District of Delaware against Echelon accusing that company of infringing on Peloton’s trademarks and trade dress.

Seventh Circuit Affirms Storm Shelter Trademark Infringement Ruling – On Monday, October 7, the U.S. Court of Appeals for the Seventh Circuit issued a decision in 4SEMO.com v. Southern Illinois Storm Shelters affirming most of a district court trademark infringement ruling which leaves undisturbed a $17 million lost profits award to 4SEMO.com for storm shelters infringing its logo and “Life Saver” wordmark.

Sixth Circuit Vacates Dismissal of Consent Judgment, Copyright Claims – On Monday, October 7, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Evoqua Water Technologies v. M.W. Watermark which vacated a district court’s decision to dismiss consent judgment violation and copyright infringement claims after the appellate court found that the consent judgment from Evoqua’s predecessor was assignable and that the transfer agreement from Evoqua’s predecessor was ambiguous as to the copyrights.

Jennifer Lopez Named Defendant in Paparazzi Copyright Suit – On Saturday, October 5, Splash News and Picture Agency filed a lawsuit in the Central District of California alleging two counts of copyright infringement against Jennifer Lopez for sharing a picture on Instagram that was captured by one of the agency’s photographers featuring Lopez and her fiance Alex Rodriguez.

This Week on Wall Street

SAP CEO McDermott to End Nine-Year Tenure as Head of Software Company – On Thursday, October 10, German database software firm SAP announced that Bill McDermott, who has served the company as CEO for nine years, will be stepping aside from his executive role and will be replaced by a pair of co-CEOs appointed from SAP’s board of directors.

Tariffs, Window 7 Shutdown Lead to Growth in PC Market – Recent news reports indicate that market research firms IDC and Gartner both reported growth, 1.1 percent to 3 percent respectively, in the global personal computer market for 2019’s third quarter with sales buoyed in large part by the threat of tariffs and the coming shutdown of Windows 7 support by Microsoft in January 2020.

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: Johnson & Johnson (t-34th)
• Wednesday: ASML Holding NV (144th); Bank of America Corp. (111th); International Business Machines Corp. (1st)
• Thursday: Honeywell International Inc. (36th); Taiwan Semiconductor Manufacturing Co., Ltd. (8th); Telefonaktiebolaget LM Ericsson (23rd)
• Friday: Schlumberger NV (59th); Weatherford International plc (t-282nd)