Other Barks & Bites for Friday, June 5: China Gains on U.S. in Important Tech Sectors, DMCA Modernization Hearings and Copyright Office Studies State Sovereign Immunity Issues

This week in Other Barks & Bites: a study from Bertelsmann Stiftung shows that China has made great strides in obtaining patents for important tech sectors; the Federal Circuit rules that attorney’s fees awards under Section 285 are not available for PTAB trials; the Senate IP Subcommittee holds a two-part DMCA modernization hearing exploring issues in current online copyright law; AI firm ZoomInfo is successful in the first tech IPO since the COVID-19 pandemic began; Amazon partners with Slack to develop enterprise collaboration solutions to compete with Microsoft Teams; the Copyright Office announces a study into the degree to which state entities covered by sovereign immunity have infringed copyright; and the FDA solicits public input on the types of patent information that should be listed in the Orange Book.

Bites

CAFC Rules That Section 285 Attorney’s Fees Can’t Be Awarded In IPR – On Thursday, June 4, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Amneal Pharmaceuticals v. Almirall in which the appellate court held that 35 U.S.C. § 285, which allows district court to award attorney’s fees in exceptional patent cases, does not allow for awards covering fees and costs incurred during inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB).

Patent Study Shows China Gaining on U.S. in Cutting-Edge Tech – On Wednesday, June 3, the independent foundation Bertelsmann Stiftung published the findings of a study showing that, while the United States held the largest number of world-class patents in 50 of 58 technology sectors, China has made great strides over the past two decades and the country is now holds the third-most world-class patents in 42 tech sectors.

Copyright Office to Study State Sovereign Immunity Issues – On Wednesday, June 3, the U.S. Copyright Office published a notice of inquiry in the Federal Register to evaluate the degree to which copyright owners experience infringement by state entities. The study comes after the U.S. Supreme Court ruled earlier this year in Allen v. Cooper that state sovereign immunity in copyright cases was not properly abrogated by the Copyright Remedy Clarification Act of 1990.

Copyright Office Proposes Rules on Recordation of Notices of Termination – On Wednesday, June 3, the Copyright Office published a notice of proposed rulemaking in the Federal Register designed to improve agency efficiency in processing notices of termination by increasing the agency’s discretion for accepting untimely notices and notices filed with harmless errors.

Creators, Tech Sector Square Off in DMCA Modernization Hearings – On Tuesday, June 2, the Senate IP Subcommittee held a two-part hearing on efforts to modernize the Digital Millennium Copyright Act (DMCA) in which representatives from the creative community testified that the law needed to be updated in order to better hold tech companies accountable for infringing uses not contemplated when the law was first passed in the late 1990s.

Copyright Office Seeks Public Input on the MLC’s Unclaimed Royalties – On Tuesday, June 2, the U.S. Copyright Office issued a notice of inquiry in the Federal Register soliciting input from the public, especially music industry stakeholders, to determine best practices for various responsibilities of the mechanical licensing collective (MLC) under the Music Modernization Act (MMA), including ways to identify copyright owners with unclaimed royalties held by the MLC and methods for reducing incidents of unclaimed royalties.

Second Circuit Trims Injunction Against BAP Educational Toys – On Monday, June 1, the U.S. Court of Appeals for the Second Circuit issued a summary order in Really Good Stuff v. BAP Investors in which the appellate court narrowed a preliminary injunction entered by the Southern District of New York which had barred BAP Investors from selling any Steve Spangler-branded science educational toys at issue in the case.

FDA Solicits Comments on Orange Book Patent Information – On Monday, June 1, the Food and Drug Administration (FDA) published a pair of notices in the Federal Register soliciting public comments from stakeholders regarding how they use information about FDA-approved drugs listed in the Orange Book as well as their thoughts on the types of patent information that should be listed in the Orange Book.

Barks 

Boxy Girl Files Trademark Suit Against Doll Makers – On Thursday, June 4, lifestyle goods firm Boxy LLC filed a complaint in the Southern District of Florida alleging trademark infringement and counterfeiting claims against a series of defendants responsible for creating a line of Boxy Girl dolls which “offensively objectify young girls and women” and optimizing online ad keywords to create consumer confusion.

TTAB Dismisses Opposition to “Sock It Up” Trademark – On Wednesday, June 3, the Trademark Trial and Appeal Board (TTAB) issued a precedential decision in Sock It To Me v. Fan in which the TTAB determined that the opposer failed to prove its claims of non-ownership of the standard character mark “SOCK IT UP” as well as likelihood of confusion to the mark “SOCK IT TO ME.”

Apple Escapes Direct Infringement Liability for Spell-Check Feature – On Tuesday, June 2, U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California granted a partial dismissal of patent infringement claims filed against consumer tech giant Apple after finding that Apple doesn’t directly infringe patent claims covering a red line spell-check feature which software users have to enable to use. 

Judge O’Grady Upholds Cox Copyright Verdict But Might Reduce $1B Damages Award – On Tuesday, June 2, U.S. District Judge Liam O’Grady of the Eastern District of Virginia entered an order denying in part a post-verdict motion filed by Cox Communication challenging the sufficiency of the evidence entered at trial, although Judge O’Grady did indicate that the $1 billion damages award entered against Cox in the case will be recalculated based on the number of songs actually pirated by Cox.

TTAB Denies Motion for Additional Depositions – On Tuesday, June 2, the TTAB issued a precedential order in Spliethoff’s Bevrachtingskantoor B.V. v. United Yacht Transport in which the Board denied a request to conduct additional depositions in an opposition proceeding, finding that the opposer both secured no written agreement covering additional depositions and failed to prove necessity justifying the 10 depositions it had already conducted in the proceeding.

Spotify Files Third Party Claim Against Kobalt in Eminem Copyright Battle – On Friday, May 29, Spotify filed a third-party complaint against Kobalt Music Publishing America in the Middle District of Tennessee, alleging that Kobalt had executed a mechanical license agreement with Spotify covering 243 musical compositions, many of which were authored by rapper Eminem, which are at the center of a copyright infringement suit filed by Eight Mile Style

Judge Broderick Finds Embedded Photos Covered By Fair Use – On Monday, June 1, U.S. District Judge Vernon Broderick of the Southern District of New York granted a motion on the pleadings by defendant Townsquare Media after finding that its use of copyrighted pictures of Cardi B contained in Instagram posts embedded in an online article constituted a fair use of those images.

Alexion, Amgen Settle IPRs, Agree on Market Entry Date for Soliris Generic – On Friday, May 29, Alexion Pharmaceuticals filed a Form 8-K with the U.S. Securities and Exchange Commission (SEC) in which the company announced that it had settled three IPRs filed by Amgen and had agreed on a March 2025 date to allow Amgen to enter the market with a generic version of eculizumab, a treatment for the rare blood disease paroxysmal nocturnal hemoglobinuria (PNH) which Alexion markets under the tradename Soliris.

This Week on Wall Street 

Amazon Announces Partnership With Slack for Workforce Collaboration Solutions – On Thursday, June 4, e-commerce giant Amazon announced that it had entered into a strategic partnership with Slack Technologies, a developer of workforce collaboration tools for enterprise settings, which would allow Slack to make greater use of Amazon Web Services software in an attempt to challenge Microsoft’s Teams video-calling software. 

AI Firm ZoomInfo Sees Early Success in First Tech IPO Since Pandemic – On Thursday, June 4, shares of ZoomInfo closed at $34 per share, a 62 percent increase from the price of stock earlier that day during its initial public offering, the first IPO by a tech firm going public in the few months since the global economy has been overturned by the COVID-19 pandemic.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2019 are announcing quarterly earnings next week (2018 rank in parentheses):

• Monday: None
• Tuesday: None
• Wednesday: None
• Thursday: Adobe (105th)
• Friday: None

 

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