Other Barks & Bites for Friday, June 18: Big Tech Critic Khan Sworn in as FTC Chair, CJEU Says Copyright Owners Can Request IP Addresses of Infringers, and International Cybercrime Prevention Act is Reintroduced

This week in Other Barks & Bites: Senators Tillis, Whitehouse, Graham and Blumenthal reintroduce bill to prevent cybercrime amid record year for ransomware attacks; Senators Crapo and Wyden introduce the FABS Act to create a 25% tax credit in domestic semiconductor manufacturing investment; the Federal Circuit affirms a Section 101 invalidation of digital camera patent claims over Judge Pauline Newman’s dissent that the claims cover a mechanical and electronic device; the Patent Trial and Appeal Board (PTAB) rules that it can institute post grant review (PGR) of patent claims that have been disclaimed by the owner; Lina Khan is sworn in as the new chair of the Federal Trade Commission (FTC); the Seventh Circuit nixes yet another appeal from Design Basics while deriding the architectural design firm as a “copyright troll”; the CJEU rules that the registration of Internet protocol addresses of Internet service provider (ISP) subscribers for submission to copyright owners seeking to enforce against infringers using BitTorrent can be permissible under EU law; and Senator Tillis issues questions for response to executives at Sonos and Amazon dealing with issues of efficient patent infringement and anticompetitive e-commerce activities.

Bites

Senators Push International Cybercrime Prevention Act Amid Rise in Ransomware Attacks – Senators Thom Tillis (R-NC), Sheldon Whitehouse (D-RI), Lindsey Graham (R-SC), and Richard Blumenthal (D-CT) reintroduced the International Cybercrime Prevention Act on Thursday, June 17, amid a sharp rise in ransomware attacks and other cybercrime this year. According to a press release, the Act would address such crimes by allowing authorities to confiscate communication devices and other property used to commit cybercrime and enhancing prosecutors’ ability to shut down botnets and other digital infrastructure used for a wide range of illegal activity, among other tools.

CJEU Says Registration, Communication of IP Address to Intellectual Property Owners Okay Under EU Law – On Thursday, June 17, the Court of Justice of the European Union (CJEU) issued a decision in an appeal from an information request by film copyright owner Mircom International Content Management Consulting seeking IP addresses from Belgian Internet provider Telenet of subscribers sharing films over BitTorrent. The CJEU clarified that sharing pieces of a film via BitTorrent constitutes “making [a work] available to the public” and that EU law doesn’t prohibit justified, proportionate and not abusive requests for IP addresses of users engaging in copyright infringing activities.

Seventh Circuit Tosses Another Appeal from “Copyright Troll” Design Basics – On Wednesday, June 16, the U.S. Court of Appeals for the Seventh Circuit issued a decision in Design Basics, LLC v. Kerstiens Homes & Designs, Inc. in which the appellate court affirmed a district court’s ruling that Design Basics’ thin copyright in single-family home plans consisting largely of features standard to American homes is not infringed by the Kerstiens’ family-owned home building business. The Seventh Circuit noted that Design Basics “fits [the] bill” of a copyright troll and added that it had already dismissed two appeals from the company in recent years.

PTAB Rules That It Can Determine Validity of Disclaimed Claims in Post-Grant Review – On Wednesday, June 16, the Patent Trial and Appeal Board (PTAB) denied institution of a post-grant review (PGR) proceeding petitioned by MicroSurgical challenging the validity of patent claims covering microsurgical devices for treating glaucoma that had been disclaimed by the University of Colorado. Although the PTAB denied institution, it ruled that such disclaimers do not prevent institution of a PGR proceeding “because such eligibility turns on whether the application for patent (not simply the issued patent) ever contained, at any time, a qualifying claim.”

Judge Ray II Urges CAFC Review in Patent Case After Admitting Low Understanding of Patent Law – On Wednesday, June 16, U.S. District Judge William M. Ray II of the Northern District of Georgia held a motions hearing during which he invited appellate review of a patent case filed by MModal Services against Nuance Communication, explaining that his own understanding of patent law was limited but that he could find no acceptable way to move the case off of his docket.

CJEU Clarifies Conditions for National Authorities to Exercise Data Regulatory Power Under GDPR – On Tuesday, June 15, the CJEU issued a decision on a question referred by Belgian courts clarifying the conditions under which national supervisory authorities charged with cross-border data processing regulatory enforcement under the General Data Protection Regulation (GDPR) can bring an alleged infringement of the GDPR to the court of a member state even when that agency is not the lead supervisory authority with regard to the challenged cross-border processing.

Lina Khan, Advocate for Increased Big Tech Antitrust Regulation, Sworn In as FTC Chair – On Tuesday, June 15, Lina Khan, an antitrust scholar who became a prominent student at Yale for arguing that modern antitrust laws need to be redrafted to address Big Tech monopoly business models, was sworn in as the Chair of the Federal Trade Commission (FTC) the same day that her nomination for the position was confirmed by the Senate.

CAFC Affirms Section 101 Invalidation of Digital Camera Claims Over Newman Dissent – On Friday, June 11, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Yu v. Apple Inc. in which the appellate court affirmed a decision by the Northern District of California to invalidate patent claims under Section 101 as directed to the abstract idea of taking two pictures and using those pictures to create an enhanced image. Circuit Judge Pauline Newman dissented, arguing that “[t]his camera is a mechanical and electronic device of defined structure and mechanism; it is not an ‘abstract idea.’”

Second Circuit Strikes Down FTC Section 5 Enforcement Against 1-800-Contacts Trademark Agreements – On Friday, June 11, the U.S. Court of Appeals for the Second Circuit issued a per curiam decision in 1-800-Contacts, Inc. v. Federal Trade Commission in which the appellate court vacated a final order of the FTC finding a Section 5 unreasonable restraint violation in trademark settlement agreements entered into by 1-800-Contacts restricting certain search terms on which competitors could bid in online search engine keyword auctions. The Second Circuit ruled that the FTC erred by analyzing the alleged restraints under the “inherent suspect” framework, though it cautioned that “trademark settlement agreements are not automatically immune from antitrust scrutiny.”

Barks

Two Americans Honored Among EPO’s European Inventor Award 2021 Recipients – On Thursday, June 17, the European Patent Office (EPO) announced the recipients of the European Inventor Award 2021 including two influential researchers representing the United States: Indian-American chemist Sumita Mitra, developer of nanoparticles for more durable dental materials who won the Non-EPO Countries category; and Serbian-American biomedical engineer Gordana Vunjak-Novakovic, developer of a novel technique to grow tissue replacements from patients’ cells who won the Popular Prize for winning an online poll for the public’s favorite inventor.

California Appellate Court Vacates Publicity Ruling for Heirs to Hansen’s Beverages – On Thursday, June 17, Associate Judge Richard D. Huffman of the California Court of Appeals, Fourth District, Division One, entered a ruling in Hansen v. Coca-Cola Company which vacated a California trial court ruling that heirs to juice and beverage proprietor Hubert Hansen, who developed a well-known line of Hansen’s beverages later purchased by Monster Energy, owned 90% of Hansen’s right to publicity after finding that the trial court had erred in resolving conflicts in extrinsic evidence to interpret a pair of asset transfer agreements by making credibility determinations from the bench that should have been made by a jury.

Warren, Sanders Letter Grills PhRMA on COVID-19 Lobbying Efforts – On Wednesday, June 16, Senators Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Sheldon Whitehouse (D-RI) and Tammy Baldwin (D-WI) signed a letter addressed to Stephen Ubl, President and CEO of Pharmaceutical Researchers and Manufacturers of America (PhRMA), asking the organization to disclose the amount of funding provided by PhRMA members for lobbying efforts to oppose the TRIPS waiver of international IP rights for COVID-19 vaccines, legislative bills on Medicare Part D pricing negotiation as well as the use of march-in rights and compulsory licensing for reducing drug price controls.

Ninth Circuit Says Early Dismissal, TTAB Litigation Sinks Motion for Attorney’s Fees – On Wednesday, June 16, the U.S. Court of Appeals for the Ninth Circuit entered an unpublished decision in Jonna Markets LLC v. Howell in which the appellate court affirmed a district court ruling denying defendant’s motion for attorney’s fees and costs, nothing that the early date of the voluntary dismissal as well as continued litigation of the parties’ trademark dispute at the Trademark Trial and Appeal Board (TTAB) supported the denial of fees.

Tillis Issues QFRs on Efficient Infringement, Amazon E-Book Practices – After the Senate Antitrust Subcommittee’s hearing on competition and innovation in home technologies on Tuesday, June 15, Senator Thom Tillis (R-NC), Ranking Member of the Senate IP Subcommittee, issued questions for the record to Eddie Lazarus, Chief Legal Officer on Sonos, regarding Congressional action that could be taken to eliminate the predatory practice of efficient infringement of patent and IP rights; and Ryan McCrate, Vice President and Associate General Counsel of Amazon, regarding that company’s practice of charging publishers for placing e-book ads on Amazon and whether the company gives preferential treatment to Amazon imprints relative to other publishers.

University of California Takes Top Spot in Top Patenting Universities for 2020 – On Tuesday, June 15, the National Academy of Inventors (NAI) and the Intellectual Property Owners Association (IPO) released the 9th annual Top 100 Universities Granted U.S. Utility Patents list showing that the Regents of the University of California was the top lead assignee among university patent applicants obtaining U.S. patents during 2020 with 597 patents, followed by the Massachusetts Institute of Technology (383 patents) and Stanford University (229 patents).

House Antitrust Subcommittee Announces Anti-Monopoly Legislative Agenda for Big Tech Regulation – On Friday, June 11, the leadership of the House Subcommittee on Antitrust, Commercial and Administrative Law announced a series of five bills having bipartisan support designed to address anticompetitive and monopolistic conduct perpetrated by Big Tech, especially Amazon, Apple, Facebook and Google.

Advanced Silicon Files Section 337 Complaint at USITC Against Silicon Photovoltaic Cell Importers – On Friday, June 11, the U.S. International Trade Commission announced that it had received a complaint from Advanced Silicon Group Technologies for a Section 337 investigation into allegedly infringing silicon photovoltaic cells and modules with nanostructures being imported for sale in the U.S. by 28 respondents from several countries including China, Canada, Thailand, South Korea and the United States.

This Week on Wall Street

Bipartisan FABS Act Would Create 25% Tax Credit on Semiconductor Manufacturing Investments – On Thursday, June 17, Senators Mike Crapo (R-ID) and Ron Wyden (D-OR) introduced legislation co-sponsored by a bipartisan group of Senators called the Facilitating American-Built Semiconductors (FABS) Act, which if passed would create a 25% investment tax credit for semiconductor manufacturing investments, both for investments in manufacturing equipment as well as in facility construction.

Danaher to Acquire Vaccine Supplier Aldevron for $9.6 Billion – On Thursday, June 17, science and technology firm Danaher announced that it had entered into an agreement to purchase Aldevron, a manufacturer of biological components for messenger RNA vaccines like Moderna’s COVID-19 vaccine, for $9.6 billion in cash. Aldevron will operate a standalone operating company and brand within Danaher’s Life Sciences unit.

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: None
• Wednesday: None
• Thursday: Accenture plc (165th); BlackBerry Ltd. (t-183rd); Nike, Inc. (t-114th)
• Friday: None