Other Barks & Bites for Friday, January 15: Copyright Office Issues Final Rule on Unmatched Musical Works Under MMA, $1 Billion Copyright Verdict Against Cox Communications Upheld, USPTO Publishes Report on China IP Filings

This week in Other Barks & Bites: the USPTO issues a report on the impacts of non-market forces encouraging larger numbers of bad-faith patent and trademark applications from China; IBM tops the list of U.S. patent recipients for the 28th-straight year; Judge Gilstrap issues a “late” stay in a patent case after the USPTO grants ex parte reexamination requests from Cisco; the Copyright Office issues a final rule on digital music providers obligations on royalty reporting to qualify for limited liability under the Music Modernization Act; China’s IP administration reports that copyright industries contribute more than 7% of the nation’s GDP; Judge O’Grady denies post-trial motions filed by Cox Communications, affirming a $1 billion verdict against the cable provider for copyright infringement; and TSMC announces plans to invest up to $28 billion in capital expenditures during 2021 to improve its advanced chipmaking capabilities.

Bites 

Eleventh Circuit Hears Oral Arguments in Stephen King Copyright Case – On Thursday, January 14, the U.S. Court of Appeals for the Eleventh Circuit heard oral arguments in Dubay v. King, a copyright case appealed by the creator of the 1970s comic book character “The Rook,” who alleges that Roland Deschaine of Stephen King’s “The Dark Tower” series copied several elements of his original fictional character. 

USPTO Report Details Impacts of Non-Market Factors on Chinese Patent and Trademark Filings – On Wednesday, January 13, the U.S. Patent and Trademark Office issued a report detailing the impact that non-market forces, including government mandates and subsidies, have had on increasing the amount of bad-faith patent and trademark application filings in China, which in turn has impacted international IP systems and national IP agencies like the USPTO.

CNIPA Report Shows Copyright Industries Contribute 7% of China’s GDP – On Wednesday, January 13, China’s National Intellectual Property Administration (CNIPA) issued a report showing that, in 2019, China’s copyright industry contributed 7.39% of the nation’s gross domestic product (GDP) that year and accounts for 9.49% of China’s total national employment.

AG Bobek Issues Opinion in Facebook Cross-Border Data Processing Case at CJEU – On Wednesday, January 13, Advocate General Michal Bobek issued an opinion to the Court of Justice for the European Union (CJEU) finding that, under the EU’s General Data Protection Regulation (GDPR), data authorities in EU member countries like Belgium are entitled to commence proceedings against Facebook for cross-border data practices involving Belgian users and violating the GDPR despite the general competence of data protection regulators in Ireland, home of Facebook’s main EU establishment, to begin GDPR proceedings on any cross-border data processing issues.

IBM Leads IFI Claims’ Top 50 List, Samsung Dominates Global 250 List – On Tuesday, January 12, patent database firm IFI Claims issued reports indicating that IBM topped the list of Top 50 U.S. patent recipients for 2020 for the 28th straight year, while Samsung Electronics led the Global 250 list of top worldwide patent owners with 80,577 active patent families, more than twice the amount owned by second-place IBM.

Judge O’Grady Affirms $1 Billion Copyright Verdict Against Cox Communications – On Tuesday, January 12, U.S. District Judge Liam O’Grady of the Eastern District of Virginia affirmed a jury verdict awarding $1 billion to music publishers for copyright infringement allegations against Cox Communications after finding that Cox failed to produce evidence at trial supporting its post-trial contention that the jury’s damages award was improperly based upon works that were duplicative of others in the action.

Copyright Office Issues Final Rule on Royalties for Unmatched Musical Works Under MMA – On Monday, January 11, the U.S. Copyright Office issued a final rule in the Federal Register addressing digital music providers’ obligations to transfer and report accrued royalties for the use of unmatched musical works to the mechanical licensing collective (MLC) for the MLC to determine whether those providers are covered by limited liability provisions in the Music Modernization Act (MMA) for prior unlicensed uses.

Sixth Circuit Affirms Non-Trademark Use of “Derby Pie” by Courier-Journal – On Monday, January 11, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Rupp v. Courier-Journal, Inc. in which the appellate court affirmed the Western District of Kentucky’s dismissal of trademark charges filed against the Louisville-area Courier-Journal, agreeing that articles mentioning “Derby Pie” were non-trademark uses of the term and did not create a likelihood of consumer confusion with the “well-known chocolate nut pie” sold nationwide and covered by the plaintiff’s trademark.

Barks 

Copyright Office Issues Updated Third Edition of Compendium of Practices – On Thursday, January 14, the Copyright Office issued an update to the Compendium of U.S. Copyright Practices, Third Edition, including several changes to the agency’s administrative manual based on the passage of the Music Modernization Act as well as recent Supreme Court decisions in cases such as Georgia v. Public.Resource.Org, Inc. (2020) and Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC (2019).

DoJ Says University Technology Licensing Program Unlikely to Harm Competition – On Wednesday, January 13, the U.S. Department of Justice’s Antitrust Division announced that it had completed its review of the University Technology Licensing Program (UTLP), a proposed joint patent licensing pool that would involve 15 participating universities at launch, finding that the proposed pool is unlikely to harm competition.

Judge Gilstrap Stays March 1 Trial Date for USPTO Ex Parte Reexams – On Wednesday, January 13, U.S. District Judge Rodney Gilstrap of the Eastern District of Texas granted what he referred to as a “late” stay in a patent case brought by Tel Aviv University’s tech transfer division against Cisco Systems for its infringement of patents covering fiber optics technologies after the USPTO granted requests from Cisco for ex parte reexaminations on each of Tel Aviv’s patents-in-suit. A jury trial in this case had been scheduled to begin on March 1.

Google Succeeds in Knocking Out Virentem Patents at PTAB to Avoid Infringement Liability – On Tuesday, January 12, and Wednesday, January 13, the Patent Trial and Appeal Board (PTAB) issued rulings invalidating patent claims covering video playback technologies which had been asserted by owner Virentem Ventures against Google in 2018 for alleged infringement by YouTube.

TTAB Tells Apple That “Smart Keyboard” is Generic, Can’t Be Registered – On Tuesday, January 12, the Trademark Trial and Appeal Board (TTAB) issued a ruling affirming a trademark examiner’s refusal of an Apple application to register the mark “Smart Keyboard,” agreeing with the examiner that the mark was a generic term used to refer to a class of technologically advanced keyboards.

USPTO Reopens Public Comments on Secondary Trademark Infringement Liability in E-Commerce – On Monday, January 11, the USPTO announced in the Federal Register that it was reopening a public comment period first announced last November to solicit public input on the application of traditional trademark infringement doctrines to e-commerce settings. The public comment period will now be open until January 25.

Judge Engelmayer Says Hendrix Family Members Violated Trademark Injunction – On Monday, January 11, U.S. District Judge Paul Engelmayer of the Southern District of New York ruled that Leon Hendrix and Tina Hendrix, family members of the late rock icon Jimi Hendrix, were in contempt of court for violating a permanent injunction against infringing on Jimi’s trademarks in marketing the family’s Hendrix Music Academy. 

WIPO Announces 150th Member in Global Health Research Organization – On Monday, January 11, the World Intellectual Property Organization (WIPO) announced that the Re:Search global health research network added its 150th member, the University of Antioquia in Columbia, as part of its private-public partnership to spur early-stage research & development to fight neglected tropical diseases, malaria and tuberculosis. 

This Week on Wall Street 

TSMC Issues Guidance Showing Plans for Up To $28B in Capital Expenditures in 2021 – On Thursday, January 14, Taiwan Semiconductor Manufacturing Company (TSMC) issued its earnings report for 2020’s fourth quarter including guidance that the company plans to spend between $25 billion and $28 billion on advanced chipmaking capital expenditures during 2021 to stay ahead of competitive threats from Samsung and other chip foundries. 

Acacia Negotiates New $4.5B Merger Agreement With Cisco Systems – On Thursday, January 14, optical networking tech firm Acacia Communications announced that it had agreed to a new merger agreement with Cisco Systems valuing the company at $4.5 billion, or nearly $115 per share, after an earlier agreement fell through after delayed approval from Chinese regulators.

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: Bank of America Corp. (114th); Halliburton Co. (41st)
• Wednesday: ASML Holding N.V. (152nd); Hyundai Motor Co. (23rd); Procter & Gamble Co. (93rd)
• Thursday: Intel Corp. (4th); International Business Machines (1st); Intuitive Surgical Inc. (245th); STMicroelectronics N.V. (61st)
• Friday: Schlumberger N.V. (51st)

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