Other Barks & Bites for Friday, January 22: Iancu and Peter Step Down from USPTO, CJEU Asked Whether Preliminary Injunction Standard Burdens Patent Owners, SCOTUS Denial Leaves Invalidation of Idenix Genus Patent Claims Untouched

This week in Other Barks & Bites: an industry group representing French news publishers and Google reached a first-of-its-kind agreement on a copyright licensing framework for republishing news snippets online; USPTO Director Andrei Iancu and Deputy Director Lisa Peter announce their intention to step away from the agency during the Biden Administration; President Biden designates Jessica Rosenworcel to serve as acting Chairwoman of the Federal Communications Commission; BlackBerry’s patent settlement with Facebook helps shares of that company increase by as much as $20 per share; the FCC’s annual broadband report shows that the digital divide is decreasing for rural Americans who had lacked access to 4G LTE mobile communications; the Supreme Court strikes down a petition for certiorari filed by Idenix seeking to overturn the Federal Circuit’s invalidation of genus claims for Section 112 enablement issue; and the Court of Justice of the European Union is asked whether German law on preliminary injunctions in infringement proceedings is unduly burdensome on patent owners.

Bites

Andrei Iancu, Laura Peter Resign From the USPTO – On Tuesday, January 19, Andrei Iancu confirmed that he would be stepping away from the position of Director of the U.S. Patent and Trademark Office after the inauguration of President Joe Biden. The following day, USPTO Deputy Director Laura Peter also announced that she would be resigning from her official position as well. USPTO Commissioner for Patents Drew Hirshfeld took over the functions and duties of the Under Secretary of Commerce for Intellectual Property and USPTO Director at noon on January 20.

CRB Amends Allocation of Initial Funding for MLC – On Friday, January 22, the Copyright Royalty Board published a final rule and amended determination in the Federal Register indicating that it was invoking its authority under provisions of the Music Modernization Act to amend the initial allocation for funding the music licensing collective (MLC) to provide for flat fee rates to be paid by smaller licensees and services that exclusively offer download stores under pass-through licenses received by record labels. 

Google, French Publishers Agree on Copyright Licensing Framework – On Thursday, January 21, representatives from Google and the Alliance de la presse d’information générale (APIG) announced that they had agreed upon a copyright licensing framework for the Internet search giant to pay French news publishers to republish copyrighted news content online, the first such agreement under the EU’s Copyright Directive.

CJEU Finds Low Degree of Similarity Between “BBQLOUMI” and Collective Mark “HALLOUMI” – On Wednesday, January 20, the Court of Justice for the European Union (CJEU) issued a decision dismissing a legal action filed by a Cypriot-based association holding rights to a collective mark for Halloumi cheese that had been filed to oppose an EU trademark application filed by a Bulgarian meat and cheese company to register the trademark “BBQLOUMI.” The CJEU affirmed the EU Intellectual Property Office (EUIPO) examiner’s decision to dismiss the action after finding a low likelihood of consumer confusion due to a low degree of similarity between the marks.

Ninth Circuit Says “LETTUCE TURNIP THE BEET” Has Aesthetic Functionality – On Wednesday, January 20, the U.S. Court of Appeals for the Ninth Circuit issued a decision in LTTB LLC v. Redbubble, Inc. in which the appellate court affirmed a lower court’s ruling that LTTB could not preclude Redbubble and others from using the mark “LETTUCE TURNIP THE BEET” on products under the doctrine of aesthetic functionality, thus it had failed to raise a triable issue that Redbubble’s use served the function of source-identification.

FCC Annual Broadband Report Shows Lack of Rural Access Reduced More than 50% – On Tuesday, January 19, the Federal Communications Commission (FCC) published its 14th annual broadband deployment report which indicated that the number of Americans lacking access to 4G LTE mobile broadband had decreased by 57 percent, including a 54 percent decrease among rural Americans.

CJEU Asked Whether Injunction Standard Imposes Undue Burden on Patent Owners – On Tuesday, January 19, a Munich district court issued a decision referring a question of law to the CJEU, asking the EU’s highest court whether the current standard for granting a preliminary injunction in German patent infringement proceedings, which requires that a patent’s validity is first confirmed by surviving inter partes invalidity proceedings, imposes an undue burden on patent owners, especially those owning newly issued patents that haven’t faced such validity challenges.

SCOTUS Denies Cert to Idenix Pharmaceuticals’ Appeal on Enablement in Genus Claims – On Tuesday, January 19, the U.S. Supreme Court issued an order list indicating that the nation’s highest court had denied a petition for writ of certiorari filed by Idenix Pharmaceuticals, leaving in place the Federal Circuit’s invalidation of Idenix patent claims that had led to a $2.54 billion jury verdict for patent infringement against Gilead at district court. Idenix and parent company Merck had asked the nation’s highest court to clarify certain Section 112 enablement requirements in the context of genus claims.

Barks 

USPTO Issues New Questions for Sovereign Immunity Study – On Friday, January 22, the USPTO issued a request for information in the Federal Register asking for public comment in response to additional questions for the agency’s sovereign immunity study, including whether patent and trademark owners have been able to seek relief for IP infringement by state actors and whether IP owners believe that their states have relevant laws and policies to provide adequate remedies for infringement that occurs.

Shell Wins $851K in Chinese Trademark Case Over Helix Mark – On Thursday, January 21, the Beijing Intellectual Property Court issued a ruling awarding 5.5 million RMB ($851,000 USD) to oil and gas company Shell International after finding that Chinese domestic firms North Shell Company and Jianchi Company for selling SheH Hliex-branded lubricant products, infringing upon Shell’s rights to the “SHELL” and “HELIX” marks and causing consumer confusion. 

Biden Designates Rosenworcel to Serve as Acting FCC Chair – On Thursday, January 21, President Joe Biden designated Federal Communications Commission (FCC) Commissioner Jessica Rosenworcel to serve as acting chair of the FCC, replacing outgoing chair Ajit Pai. 

PTAB Knocks Out Uniloc Patent Claims After Challenges By Alleged Infringers – On Tuesday, January 19, the Patent Trial and Appeal Board (PTAB) issued final written decisions in inter partes review (IPR) proceedings petitioned by Netflix and Sling invalidating all challenged claims of two Uniloc patents. This follows another PTAB decision issued last Friday invalidating some Uniloc claims challenged by Apple. 

USPTO Announces Info Request on Processing Fees for Patent Applications, Reexaminations – On Tuesday, January 19, the USPTO announced in the Federal Register that it would be renewing an information collection to solicit public comments on petitions filed in patent application and reexamination proceedings that are accompanied by fees set forth in 37 CFR 1.17(f), (g) or (h).

ITC Institutes Section 337 Investigation Based on Philips Complaint – On Tuesday, January 19, the U.S. International Trade Commission announced that it would be instituting a Section 337 investigation into certain UMTS and LTE cellular communication modules based on claims of patent infringement filed by Koninklijke Philips against several firms including Thales, Telit Communications, Quectel Wireless and CalAmp.

Judge Schroeder Denies Apple’s Post-Trial Motions in VirnetX Case – On Friday, January 15, U.S. District Judge Robert Schroeder of the Eastern District of Texas denied a series of post-trial motions filed by Apple in that company’s bid to overturn a jury verdict awarding $1.1 billion to VirnetX for Apple’s infringement of patent claims covering virtual private network technologies.

Atari Files Trademark Suit Against Retro Joystick Maker – On Friday, January 15, video game company Atari Interactive filed a lawsuit in the Central District of California alleging trademark infringement claims against a pair of companies selling a version of the classic Atari 2600 joystick for use with gaming systems having USB ports.

This Week on Wall Street

Intel Beats Revenue, EPS Expectations Thanks to Strong PC Demand – On Thursday, January 21, tech giant Intel announced its earnings for 2020’s fourth quarter, beating revenue expectations by $2.51 billion and posting a 42 cent beat on earnings per share (EPS) thanks in large part to a 33 percent year-over-year increase in the number of PCs sold during the quarter that used Intel chips.

BlackBerry Shares Up 20% After Patent Settlement With Facebook – On Tuesday, January 19, shares of BlackBerry stock increased by as much as 20 percent during trading after the company announced that it had settled ongoing patent infringement litigation against social media giant Facebook; terms of the settlement agreement were undisclosed.

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: Koninklijke Philips N.V. (40th); LG Innotek Co., Ltd. (123rd); Nidec Corp. (190th)
• Tuesday: 3M Co. (86th); Advanced Micro Devices Inc. (192nd); General Electric Co. (6th); Johnson & Johnson (26th); Lockheed Martin Corp. (141st); Microsoft Corp. (5th); Nitto Denko Corp. (t-281st); Novartis AG (195th); Raytheon Technologies Corp. (124th); Rockwell Automation Inc. (t-267th); Texas Instruments Inc. (50th); Verizon Communications Inc. (76th); Xerox Holdings Corp. (117th); Xilinx Inc. (t-233rd)
• Wednesday: Abbott Laboratories (99th); Apple Inc. (14th); AT&T Inc. (27th); Boeing Co. (29th); Corning Inc. (91st); Dolby Laboratories Inc. (t-139th); Facebook Inc. (34th); Fanuc (75th); LG Chemical Ltd. (59th); LG Display Co. Ltd. (53rd); Mastercard Inc. (t-184th); Mediatek Inc. (t-107th); Omron Corp. (t-168th); Samsung Electro-Mechanics Co., Ltd. (t-127th); Shin-Etsu Chemical Co., Ltd. (211th); Stryker Corp. (132nd); TE Connectivity Ltd. (151st); Textron Inc. (204th); United Microelectronics Corp. (136th); Whirlpool Corp. (160th)
• Thursday: Aisin Seiki Co., Ltd. (164th); Canon Inc. (3rd); Comcast Corp. (176th); Danaher Corp. (198th); Dow Inc. (90th); Fuji Electric Co., Ltd. (t-107th); Fujitsu Ltd. (36th); Juniper Networks Inc. (t-161st); Northrop Grumman Corp. (256th); Samsung Electronics (2nd); Samsung SDI Co., Ltd. (129th); Seiko Epson Corp. (32nd); STMicroelectronics N.V. (61st); Tokyo Electron Ltd. (116th); Visa Inc. (t-200th); Western Digital Corp. (64th)
• Friday: Casio Computer (188th); Caterpillar Inc. (98th); Colgate-Palmolive Co. (t-261st); Honeywell International Inc. (35th); Johnson Controls International (163rd); LG Electronics Inc. (9th); NEC Corp. (45th); SK Hynix Inc. (58th); Sumitomo Chemical Co., Ltd. (191st); TDK Corp. (95th); Telefonaktiebolaget LM Ericsson (22nd)

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