Other Barks & Bites for Friday, November 13: Tillis Moves on DMCA Reform and Iancu Support, China Copyright Law Amendments Include 10X Increase to Statutory Damages, EPO Extends Virtual Hearings

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

Barks (noun): peripheral noise worth your attention.

Business dogThis week in Other Barks & Bites: the Federal Circuit grants Apple’s motion to transfer Uniloc’s patent infringement case to the Northern District of California, while Circuit Judge Moore dissents because Apple’s motion was based mainly on ad hominem attacks on Western Texas judges; China’s national legislature approves amendments to the nation’s Copyright Law that increase statutory damages for infringement by 10 times, up to 5 million yuan; the Copyright Office issues a final rule on mandatory deposit provisions for e-books; Senator Thom Tillis issues DMCA reform questions to copyright system stakeholders and addresses open letter expressing his “strongest support” of Director Iancu’s PTAB reforms; the European Patent Office issues a progress report on videoconference hearings announcing an extension to the pilot program; and antitrust regulators at the European Commission begin enforcement efforts against Amazon’s use of non-public seller data.


CAFC Tells Google It Forfeited Claim Construction Arguments in PTAB Appeal – On Friday, November 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re: Google Technology Holdings LLC in which the appellate court affirmed a patent examiner’s obviousness rejection of patent claims covering technologies for transferring content within video-on-demand systems as the claim construction arguments made by Google on appeal were forfeited by Google because they weren’t first raised on ex parte appeal of the examiner’s rejection to the Patent Trial and Appeal Board (PTAB).

Tillis Issues DMCA Questions to Stakeholders, Expresses Strong Support of Director Iancu – Recently, Senator Thom Tillis (R-NC), Chair of the Senate IP Subcommittee, issued a series of questions for interested stakeholders  related to modernizing the Digital Millennium Copyright Act (DMCA), especially Sections 512, 1201 and 1202, each of which Tillis said are “ripe for reform.” On Thursday, November 12, Sen. Tillis also sent a letter to U.S. Patent and Trademark Office Director Andrei Iancu , which was also submitted to the Federal Register, to “express [his] strongest support” for reforms made by Director Iancu, including the alignment of standards at the PTAB with district court litigation and the establishment of a clearer standard for when joinder is allowed in PTAB proceedings.

Copyright Office Issues Final Rule on Mandatory Deposit Provisions for E-books – On Thursday, November 12, the U.S. Copyright Office issued a final rule in the Federal Register regarding mandatory deposit provisions for electronic-only books when those books are affirmatively demanded by the Office. The final rule amends the notice of proposed rulemaking slightly to clarify that the mandatory deposit provisions also encompass some e-books that are available through print-on-demand services.

Draft Amendments to Chinese Copyright Law Includes 10x Increase to Statutory Damages – On Wednesday, November 11, Chinese state-owned media reported that the 23rd Standing Committee session of the 13th National People’s Congress adopted a draft amendment to China’s Copyright Law which would increase the statutory damages that can be awarded to copyright owners proving infringement from 500,000 yuan ($75,500 USD) up to 5 million yuan ($755,000 USD).

CAFC Reverses Section 101 Invalidity Ruling After Finding Claims Not Directed to Printed Matter – On Tuesday, November 10, the Federal Circuit issued a precedential decision in C R Bard Inc. v. AngioDynamics, Inc. in which the appellate court reversed in part a ruling from the District of Delaware after the Federal Circuit found that C R Bard’s patent claims covering assemblies and systems for identifying a vascular access port suitable for power injection were not invalid under 35 U.S.C. § 101 for being directed to printed matter.

Seventh Circuit Affirms Sanctions Against Unreasonable IP Claims – On Tuesday, November 10, the U.S. Court of Appeals for the Seventh Circuit issued a ruling in Matlin v. Spin Master Corp. affirming sanctions of nearly $272,000 in costs and fees awarded by the district court against Matlin for asserting intellectual property claims related to products sold by Spin Master after previous arbitration proceedings involving Matlin determined that Matlin is not entitled to any royalties for his IP claims from any company other than a holding company established by Matlin and a co-plaintiff back in 1997.

CAFC Reverses SJ Ruling on Equitable Estoppel in Inventorship Case – On Tuesday, November 10, the Federal Circuit issued a precedential decision in Ferring B.V. v. Allergan, Inc. in which the appellate court reversed a grant of summary judgment issued by the Southern District of New York after the Federal Circuit found that the “quintessentially fact-laden… equitable matter at issue” in the inventorship claims over desmopressin, a treatment for nighttime urinary problems, was improperly dismissed at the summary judgment stage.

CAFC Grants Apple Motion to Transfer to Northern California Over Moore Dissent – On Monday, November 9, the Federal Circuit issued a precedential order on motion from a petition for writ of mandamus in In re: Apple Inc. granting Apple’s request to transfer a patent suit filed by Uniloc from the Western District of Texas to the Northern District of California. Circuit Judge Kimberly Moore dissented, finding that the panel majority erred in granting a petition for mandamus “based almost entirely on ad hominem attacks on esteemed jurists.”


Solas OLED Wins German Patent Suit Against LG Electronics – On Wednesday, November 11, Irish organic light emitting diode firm Solas OLED announced that it had prevailed in a patent infringement suit against LG Electronics in Germany’s Mannheim District Court, which awarded an injunction in favor of Solas OLED after finding that Solas, which doesn’t operate in Germany as an active manufacturer, operates a legitimate business by indirectly financially supporting the R&D activities at the University of Stuttgart through licensing revenues.

Dell Faces Caltech Suit Asserting Same Patents From $1.1B Apple/Broadcom Suit – On Wednesday, November 11, the California Institute of Technology, commonly known as Caltech, filed a lawsuit in the Western District of Texas alleging claims of patent infringement against personal computing firm Dell Technologies based on patent claims which led earlier this year to a jury verdict awarding a $1.1 billion reasonable royalty award to Caltech for Apple and Broadcom’s sale of infringing Wi-Fi devices. 

David Berdan Appointed as General Counsel at the USPTO – On Wednesday, November 11, the U.S. Patent and Trademark Office announced that David L. Berdan, formerly General Counsel and Compliance Officer at Gaming Arts, has been appointed to serve the USPTO as General Counsel, replacing Acting General Counsel Nicholas Matich.

Copyright Office Announces Webinar on Electronic Recordation System Pilot Program – On Tuesday, November 10, the Copyright Office announced that it will host its eleventh public modernization webinar on agency modernization efforts, especially the Office’s transition from a paper-based recordation process to a digital platform, at 1 PM ET on December 1.

European Commission Begins Antitrust Action Against Amazon – On Tuesday, November 10, the European Commission announced that it had sent a Statement of Objections to e-commerce giant Amazon alleging that the company’s use of non-public seller data likely distorts competition in online retail markets in violation of Article 102 of the Treaty on the Functioning of the European Union.

EPO VICO Report Shows Zoom Success, Substantial Backlog in Opposition Hearings – On Tuesday, November 10, the European Patent Office (EPO) issued a progress report on the pilot program for holding opposition hearings by videoconference (VICO), which started this May, showing that the VICO program has successfully incorporated the Zoom platform for multi-party VICO opposition hearings. However, a substantial backlog in opposition hearings has developed leading the agency to announce that the VICO pilot project, as well as the postponement of in-person hearings, will be extended until September 15, 2021, and that consent from all parties for VICO hearings will no longer be necessary after January 4, 2021.

Copyright Office Extends Filing Deadlines to January 8 Through CARES Act Authority – On Monday, November 9, the Copyright Office announced that it was exercising its authority under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to extend filing deadlines for certain registration claims, notices of termination and Section 115 notices of intention and statements of account for an additional 60 days until January 8, 2021.

AutoStore Files Entitlement Action at UKIPO Over Robotic Storage and Retrieval Systems – On Monday, November 9, robotic storage and retrieval system developer AutoStore filed an entitlement action with the UK Intellectual Property Office asserting that it is the rightful inventor of robotic system technologies covered by claims filed with the UKIPO by online grocery retailer Ocado Group.

This Week on Wall Street 

Amazon Launches In-Garage Delivery in 4,000 U.S. Cities – On Thursday, November 12, Amazon announced that it was launching a Key by Amazon in-garage delivery service that offers contactless delivery services with the use of myQ smart garage door openers. The service is available to Amazon Prime members living in 4,000 cities across the United States.

NVIDIA Price Target Raised by Deutsche Bank Analyst Prior to Earnings Report – On Wednesday, November 11, Deutsche Bank analyst Ross Seymore raised his price target on NVIDIA Corp. stock from $450 to $500 in expectations that NVIDIA would post a solid beat on analyst expectations when it reports third quarter earnings next week. Shares of NVIDIA closed on Wednesday at $536.72.

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: None
  • Tuesday: None
  • Wednesday: NVIDIA Corp. (t-261st); Sonos Inc. (t-251st); Intuit Inc. (t-274th)
  • Thursday: Thyssenkrupp AG (231st)
  • Friday: None

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