Other Barks & Bites for Friday, August 7: USPTO Increases Fees for Patent Filings and AIA Trials, State AGs Ask HHS to March-In on Remdesivir, CAFC Denies American Axle Rehearing

This week in Other Barks & Bites: the Federal Circuit denies petitions for en banc rehearing in a pair of patent cases regarding Section 101 eligibility and holds that the essentiality of patent claims to a standard is a question of fact for the jury; a letter signed by 34 state attorneys general asks U.S. federal health agencies to exercise march-in rights under Bayh-Dole on Gilead’s remdesivir; the USPTO issues final rules for agency fee adjustments, including a $3,500 increase to inter partes review (IPR) petitions; the release of Reels on Instagram helps Mark Zuckerberg become the world’s third-richest person; the Western Washington district court denies an interlocutory appeal on a theory of copyright infringement for Amazon “making available” copyrighted sound recordings; former Google engineer Anthony Levandowski is sentenced to 18 months in prison for trade secret theft; and a Chinese patent owner files a patent suit against Apple’s Siri voice assistant feature, seeking USD 1.43 billion in damages.

Bites 

USPTO Final Rule on FY2020 Fee Adjustments Increase Fees for Patent Filings, AIA Trials – On Monday, August 3, the U.S. Patent and Trademark Office issued a final rule in the Federal Register announcing fee adjustments for fiscal year 2020 including increases to requests for expedited design patent examinations ($700 increase for large entities), utility and reissue patent issue fees ($200 increase for large entities) and requests for inter partes review (IPR) challenges at the Patent Trial and Appeal Board ($3,500 increase for large entities). 

Letter From 34 State AGs Urges HHS to Use Bayh-Dole March-In Rights Against Gilead – On Tuesday, August 4, a letter signed by attorneys general for 34 states and addressed to the heads of the U.S. Department of Health and Human Services, the National Institutes for Health and the U.S. Food and Drug Administration called upon those agencies to exercise march-in rights available under the Bayh-Dole Act of 1980 to “ensure that Americans can afford and access a sufficient supply of [Gilead Sciences’ antiviral agent] remdesivir during [the COVID-19] pandemic.”

CAFC Issues Fractured Rehearing Denial in Section 101 Eligibility Case – On Friday, July 31, the Federal Circuit denied a petition for en banc rehearing in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, leaving in place a prior panel decision invalidating patent claims covering a method for manufacturing driveline propeller shafts as patent-ineligible subject matter under 35 U.S.C. § 101. The rehearing denial included five separate opinions, including dissents from Circuit Judges Pauline Newman, Kara Farnandez Stoll and Kathleen O’Malley which raised concerns about the majority’s decision to overly extend the application of natural law exceptions to Section 101 eligibility through the court’s adoption of a novel “nothing more” test. 

CAFC Says Essentiality of Patent Claim to Standard is Question For Factfinder – On Tuesday, August 4, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Godo Kaisha IP Bridge 1 v. TCL Communication Technology Holding Limited, in which the appellate court found that the District of Delaware appropriately posed the question of the essentiality of Godo Kaisha’s patent claims to the LTE standard to the jury over TCL Communication’s argument that such a question should be decided by the court as a matter of law.

Second Circuit Says Honey Harvesting Copyright Infringement Occurred Before Registration – On Tuesday, August 4, the U.S. Court of Appeals for the Second Circuit issued a decision in Fischer v. Forrest in which the appellate court affirmed a Southern District of New York ruling granting a motion for summary judgment dismissing copyright claims over infringing honey harvester advertisements. The Second Circuit agreed with the district court that the copyright claims were barred under 17 U.S.C. § 412 because the first alleged infringing act occurred before the work was registered with the U.S. Copyright Office.

CAFC Denies En Banc Rehearing In Illumina Patent Case – On Monday, August 3, the Federal Circuit issued a per curiam order denying a petition for en banc rehearing of its decision this March in Illumina, Inc. v. Ariosa Diagnostics, Inc., which found that patent claims owned by Illumina and covering a method of preparation were not directed to a natural phenomenon and were thus patent-eligible under 35 U.S.C. § 101.

CAFC Reverses Part of Infringement Verdict in Microfluidic Systems Patent Case – On Monday, August 3, the Federal Circuit issued a precedential decision in Bio-Rad Laboratories, Inc. v. 10X Genomics Inc. in which the appellate court affirmed part of a District of Delaware jury verdict for 10X Genomics’ infringement of one Bio-Rad patent covering microfluidic systems for biochemical reactions. However, the CAFC reversed both infringement findings on claims of two patents because of the lower court’s erroneous claims construction, as well as part of an injunction entered by the lower court.

Ninth Circuit Affirms Dismissal of “Inside Out” Copyright Case Under Extrinsic Test for Substantial Similarity – On Monday, August 3, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Masterson v. Walt Disney Company affirming the District of Nevada’s dismissal of copyright claims against the Walt Disney movie “Inside Out” after finding that no substantial similarities existed between the movie and works authored by writer Carla Masterson after filtering unprotectable elements from asserted similarities under the extrinsic test for substantial similarity. 

Barks 

Huawei Announces Patent Infringement Verdict in China Against SolarEdge – On Friday, August 7, Huawei announced that China’s Guangzhou Intellectual Property Court found that solar energy inverter products sold by SolarEdge infringed Huawei’s patent claims, leading the court to order that SolarEdge cease its infringing activities and pay 10 million yuan ($1.4 million USD) to Huawei. 

Neil Young Files Copyright Suit Against Trump Campaign – On Wednesday, August 5, singer-songwriter Neil Young filed a lawsuit in the Southern District of New York against Donald J. Trump For President alleging that the entity managing Donald Trump’s 2020 re-election campaign infringed Young’s copyright through their unauthorized use of “Rockin’ in the Free World” and “Devil’s Sidewalk” at campaign events.

No Interlocutory Appeal on “Making Available” Theory in Harold Arlen/Amazon Copyright Case – On Wednesday, August 5, U.S. District Judge Brian Tsuchida of the Western District of Washington issued an order denying a motion for certification of interlocutory appeal by SA Music LLC, an entity holding copyright to works by American composers Harold Arlen, Ray Henderson and Harry Warren, after determining that SA Music’s question for appeal regarding Amazon’s infringement liability for making unauthorized copies available for sale failed to satisfy the requirements for an interlocutory appeal under 28 U.S.C. § 1292(b).

“Sargon of Akkad” Wins Attorney’s Fees Over Clinton Video Copyright Claims – On Wednesday, August 5, U.S. District Judge Richard Sullivan of the Southern District of New York granted a motion for attorney’s fees to Carl Benjamin, known on YouTube as “Sargon of Akkad,” after determining that Internet commentator Akilah Hughes intended to inflict financial harm and raise her own profile by filing a copyright case over Benjamin’s use of video from Hilary Clinton’s campaign event on the night of 2016’s presidential election.

Ninth Circuit Says Central California Erroneous to Grant Final Judgment in Fred Segal Trademark Case – On Tuesday, August 4, the Ninth Circuit entered a ruling in Fred Segal, LLC v. CormackHill, LP, a case involving signage for a now-defunct Fred Segal apparel store on Melrose Avenue in Los Angeles. While the Central District of California did not err in granting summary judgment to Fred Segall finding that CormackHill wasn’t a third-party beneficiary of various contractual agreements regarding the Fred Segal trademarks, the appellate court did find that the lower court erred in entering final judgment in the case based on the denial of summary judgment to Fred Segal on its claim that building tenants who become month-to-month tenants after their lease terms expire are not entitled to month-to-month extensions of Fred Segal licensing agreements.

Levandowski Sentenced to 18 Months for Trade Secret Theft – On Tuesday, August 4, U.S. District Judge William Alsup of the Northern District of California sentenced former Google engineer Anthony Levandowski to 18 months in prison for his role in stealing trade secrets from Google’s Waymo self-driving car division prior to starting his own company that was later acquired by Uber.

ITC Institutes Section 337 Investigation Filed by Nokia Against Lenovo Electronic Devices – On Tuesday, August 4, the U.S. International Trade Commission issued a notice of institution of a Section 337 investigation based on a complaint by Nokia alleging that various Lenovo entities were involved with importing into the U.S. and selling certain electronic devices, including computers and tablet computers, which infringe on claims of five patents asserted by Nokia.

Apple Faces $1.43 Billion Patent Case in China Over Siri – On Monday, August 3, Chinese tech developer Shanghai Zhizhen Network Technology Co. announced that the company had filed a patent infringement suit against Apple in Chinese court seeking a reported 10 billion yuan ($1.43 billion USD) for patents covering chatbot technologies. Shanghai Zhizhen’s patent claims were recently upheld as valid by a Shanghai court.

This Week on Wall Street 

Zuckerberg Net Worth Hits $100 Billion – On Thursday, August 6, shares of Facebook stock rose by 6.5 percent after the social media giant announced the release of Reels, a short video feature for Instagram similar to TikTok’s video platform, pushing the net worth of Facebook CEO Mark Zuckerberg past the $100 billion mark. 

Microsoft Seeking to Buy TikTok’s Entire Global Business – On Thursday, August 6, The Financial Times reported information from unnamed sources close to acquisition talks between Microsoft and TikTok indicated that, contrary to prior reports, Microsoft was looking to purchase the entirety of TikTok’s global business and not just TikTok’s operations in the U.S., Canada, Australia and New Zealand.

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: ON Semiconductor Corp. (t-142nd)
• Tuesday: Bosch Ltd. (38th)
• Wednesday: Cisco Systems Inc. (44th); Hon Hai Precision Industry Co. (t-102nd); Tencent Holdings Ltd. (111th); Toshiba Corp. (25th)
• Thursday: Applied Materials Inc. (63rd); Deutsche Telekom AG (167th); Fujifilm Holdings Corp. (31st); Lenovo Group Ltd. (78th); Thyssenkrupp AG (231st)
• Friday: None