Other Barks & Bites for Friday, April 16: Apple Gets New Damages Trial in Optis Wireless Case, Tillis Again Urges Biden Administration to Snub TRIPS Waiver, and Fifth Circuit Affirms FTC Penalty Against Impax Pay-for-Delay Settlement

This week in Other Barks & Bites: Senator Thom Tillis Urges Commerce Department and U.S. Trade Representative heads not to be pressured into voting in favor of proposals to waive IP obligations under the TRIPS Agreement; a Federal Circuit panel hears oral arguments in New Vision Gaming’s appeal regarding due process violations at the Patent Trial and Appeal Board; China’s GDP has largest recorded year-over-year increase as the country’s economy returns to some normalcy following the COVID-19 pandemic; the Fifth Circuit affirms Federal Trade Commission antitrust charges against Impax Labs for delaying entry of its generic version of Opana ER; Puma and U.S. Olympic Committee settle their trademark dispute over city-plus-year trademarks for Olympic events; Judge Gilstrap orders a new damages trial in Optis Wireless’ patent case against Apple after finding that the jury wasn’t informed of Optis’ FRAND licensing obligations; and Walmart enters a $2.75 billion funding round for GM’s Cruise self-driving subsidiary.

Bites

Tillis Tells Raimondo and Tai to Resist TRIPS Waiver Requests – On Friday, April 16, Senator Thom Tillis (R-NC) wrote to Department of Commerce Secretary Gina Raimondo and U.S. Trade Representative Katherine Tai to oppose India’s and South Africa’s proposal to the World Trade Organization (WTO) asking for a temporary waiver of IP rights under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in order to provide faster access to medicines and vaccines during the COVID-19 pandemic. Tillis called the proposal “disastrous” and said it would do nothing to promote broader access to vaccines, but would instead “undermine the extraordinary global response that has achieved historically remarkable results in record time” and would facilitate the transfer of American technology to foreign competitors like China and India. The letter comes about two months after Tillis sent a similar letter to President Joe Biden. 

Judge Gilstrap Orders New Damages Trial in Optis Wireless Patent Case Against Apple – On Wednesday, April 14, U.S. District Judge Rodney Gilstrap of the Eastern District of Texas granted in part a motion by Apple ordering a new trial on damages, undoing a previous jury verdict awarding $506.2 million to Optis Wireless Technology after finding that the jury should have been informed of Optis’ fair, reasonable and non-discriminatory (FRAND) licensing obligations regarding the patents-in-suit.

Fifth Circuit Affirms FTC Antitrust Charges Over Impax’s Pay-for-Delay Settlement – On Tuesday, April 13, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Impax Laboratories, Inc. v. Federal Trade Commission in which the appellate court affirmed the FTC’s ruling that Impax Labs violated antitrust law by accepting $100 million to delay market entry of its generic version of Endo Pharmaceuticals’ extended-release oxymorphone drug Opana ER.

Fourth Circuit Says Antitrust Claims Against Actelion Patent Monopoly Not Time-Barred – On Tuesday, April 13, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in Mayor and City Council of Baltimore v. Actelion Pharmaceuticals Ltd. in which the appellate court ruled that antitrust claims alleging that Actelion extended its patent monopoly for its hypertension treatment Tracleer past the patent expiry date were not barred by the statute of limitations as plaintiff’s cause of action didn’t accrue until the Tracleer patent expired in November 2015 and the City of Baltimore’s Government Employees Health Association began paying supracompetitive prices.

Fourth Circuit Affirms Likelihood of Consumer Confusion From “Vagisan” Hygiene Product – On Tuesday, April 13, the Fourth Circuit issued a ruling in Combe, Inc. v. Dr. August Wolff GMBH & Co. KG Arzneimittel in which the appellate court affirmed the district court’s ruling that Wolff’s trademark application to register “Vagisan” for vaginal health and hygiene product created a likelihood of consumer confusion with Combe’s “Vagisil” mark.

CAFC Remands Patent Case to Determine Whether Patent Owner Had Article III Standing – On Monday, April 12, the U.S. Court of Appeals for the Federal Circuit issued a decision in WiNet Labs LLC v. Motorola Mobility LLC in which the appellate court remanded the case to the Northern District of Illinois to determine whether WiNet Labs had standing to bring its patent infringement suit after Motorola raised arguments about WiNet’s ownership of the patents for the first time during a motion for attorney’s fees filed after the case was dismissed.

Fifth Circuit Reverses Cancellation of “Metchup” Trademark for Condiment – On Monday, April 12, the Fifth Circuit issued a decision in Perry v. H.J. Heinz Company Brands, L.L.C. in which the appellate court reversed the district court’s cancellation of Dennis Perry, who has produced 50 to 60 bottles of a ketchup-mayo condiment he markets under the registered trademark “Metchup” since 2010, remanding the case for further proceedings on Heinz’s counterclaim to cancel the trademark.

Second of Three VLSI/Intel Trials Gets Underway – On Monday, April 12, opening statements for both patent owner VLSI and tech giant Intel Corp. were made in the second of three trials being held in the Western District of Texas to adjudicate Intel’s liability for alleged infringement of VLSI patents covering computer processor technologies. In early March, a jury verdict in the first trial rendered a $2.175 billion damages award to VLSI, one of the largest patent infringement verdicts ever awarded.

CAFC Wary of Reaching Past Arthrex to New Vision’s Due Process Argument – On Friday, April 9, oral arguments were held at the Federal Circuit in New Vision Gaming’s appeal of covered business method (CBM) review proceedings at the Patent Trial and Appeal Board (PTAB), which challenges the financial incentive structure for instituting America Invents Act (AIA) trials as violating constitutional due process. The Federal Circuit panel hearing arguments suggested that a remand under Arthrex would be more appropriate than reaching due process arguments that were not originally raised during the PTAB proceedings.

Barks

USPTO Solicits Comments on PPH Applications, Public Search Facility, Recording Assignments – On Friday, April 16, the U.S. Patent and Trademark Office issued requests for comments in the Federal Register seeking public input on information collected in requests to participate in the Patent Prosecution Highway (PPH) pilot program, requests to establish or replace identification badges for the USPTO’s Public Search Facility in Alexandria, and paper and electronic filings for recording patent and trademark assignments.

USPTO Announces Fast-Track Ex Parte Appeals for COVID-19 Inventions – On Thursday, April 15, the USPTO issued a notice in the Federal Register announcing that it was initiating a Fast-Track Pilot Program for Appeals Related to COVID-19, which is designed to expedite ex parte appeals of examiner actions on patent applications with claims covering products or processes related to COVID-19.

USITC Institutes Section 337 Investigation Into Skin Rejuvenation Resurfacing Devices – On Thursday, April 15, the U.S. International Trade Commission officially instituted a Section 337 investigation into certain skin rejuvenation resurfacing devices based on a complaint for patent infringement filed by Israel-based InMode Lt. and Invasix Inc. of Lake Forest, CA.

Judge Orrick Says UAB Planner 5D’s Copyright Claims Can Proceed Against Facebook, Princeton – On Wednesday, April 14, U.S. District Judge William Orrick III of the Northern District of California denied a motion to dismiss copyright claims filed by UAB Planner5D against Facebook and Princeton University, ruling that UAB Planner5D can pursue its infringement claims regarding virtual objects and scenes while the U.S. Copyright Office reconsiders the Lithuanian company’s copyright registration application.

Judge Bencivengo Rules IPR Estoppel Doesn’t Prevent On-Sale Bar Arguments – On Wednesday, April 14, U.S. District Judge Cathy Ann Bencivengo of the Southern District of California denied a motion to strike filed by NuVasive after ruling that Alphatec’s previous inter partes review (IPR) challenges to the patents-in-suit did not estop the company from challenging that NuVasive’s patent claims were invalid under the on-sale bar in 35 U.S.C. § 102(b).

Cryptocurrency Coalition Files DJ Action in UK Over Bitcoin White Paper Copyright – On Monday, April 12, the Cryptocurrency Open Patent Alliance (COPA) filed a lawsuit for declaratory judgment in the UK seeking a declaration from the UK High Court that blockchain scientist Craig Smith does not own the copyright to the 2008 Bitcoin white paper penned by Satoshi Nakamoto.

U.S. Olympic Committee, Puma End Trademark Spat Over “Tokyo 2020” – On Monday, April 12, the U.S. Olympic Committee entered a voluntary dismissal in a trademark suit filed in the District of Colorado against German athletic apparel maker Puma after Puma ended a series of opposition proceedings at the Trademark Trial and Appeal Board (TTAB) seeking to cancel mark registrations for “Tokyo 2020,” “Beijing 2022” and “Paris 2024.”

Trademark Suit Filed Against TikTok Over “Stitch” Video Editing Tool – On Monday, April 12, London-based commercial editing firm Stitch Editing filed a lawsuit in the Southern District of California against social media firm TikTok over that company’s “Stitch” video editing tool which the company introduced last September.

This Week on Wall Street

China Sees Largest Recorded Quarterly Increase in National GDP – On Friday, April 16, the national government of the People’s Republic of China released statistics showing that national gross domestic product (GDP) within the country increased 18.3 percent greater than the first quarter of 2019, the largest recorded increase in national GDP since Chinese quarterly GDP began to be reported in 1992. The increase is largely attributable to the fact that the Chinese economy faced major shutdowns during 2019’s first quarter owing to the COVID-19 pandemic.

Walmart Enters $2.75 Billion Funding Round for GM’s Cruise Self-Driving Subsidiary – On Thursday, April 15, business news reports indicated that retail giant Walmart had contributed to a $2.75 billion seed funding round for the self-driving firm Cruise, which is majority owned by American automaker General Motors.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2020 are announcing quarterly earnings next week (2020 rank in parentheses):

• Monday: None
• Tuesday: Abbott Laboratories (127th); Johnson & Johnson (24th); Lockheed Martin Corp. (t-163rd); Procter & Gamble Co. (77th)
• Wednesday: ASML N.V. (t-151st); Halliburton Co. (57th); Hyundai Motor Co. (21st); TE Connectivity Ltd. (t-163rd); Telefonaktiebolaget LM Ericsson (29th); Verizon Communications Inc. (67th); Whirlpool Corp. (t-153rd)
• Thursday: AT&T Inc. (27th); Intel Corp. (5th); Nidec Corp. (t-153rd); SAP SE (63rd); Seagate Technology PLC (147th)
• Friday: Schlumberger N.V. (79th)