Other Barks & Bites for Friday, November 12: NIH to File Suit Challenging Moderna’s Patent Ownership, EU General Court Affirms Massive Google Fine, and U.S. Government Warns Tech Companies About IP Risks in EU’s Digital Markets Act

This week in Other Barks & Bites: news reports indicate that the United States has warned American tech companies about disclosure rules in the EU’s Digital Markets Act threatening trade secrets; the Federal Circuit dismisses Apple’s latest appeal of Qualcomm IPRs over Judge Newman’s arguments that the licensing agreement between those companies creates standing; Johnson & Johnson and General Electric both announce corporate restructuring plans that will split those companies into multiple businesses; the EU’s General Court affirms a €2.42 billion fine by the EU Commission over Google’s anticompetitive online shopping practices; oral arguments at the Supreme Court indicate that a majority of Justices will side with Unicolors in its copyright case against H&M; NIH Director Collins tells reporters that his agency intends to file suit to challenge Moderna’s ownership of COVID-19 vaccine patents; and Rep. Massie introduces the Restoring America’s Leadership in Innovation Act to repeal much of the America Invents Act and clarify Section 101 subject matter eligibility.

Bites 

EU’s General Court Affirms €2.42B Fine Against Google’s Anticompetitive Shopping Service – On Wednesday, November 10, the General Court of the European Union issued a ruling dismissing an appeal by Internet services giant Google of a €2.42 billion fine levied by the European Commission for Google’s abuse of its dominant market position in online comparison shopping services. The General Court left the amount of the fine intact despite finding that the Commission erred in finding that Google’s online shopping practices had a potential anticompetitive effects in the market for general search services. 

CAFC Dismisses Apple Appeal Amid Judge Newman Dissent – On Wednesday, November 10, the U.S. Court of Appeals for the Federal Circuit issued a decision in Apple Inc. v. Qualcomm Inc. in which the appellate court dismissed Apple’s appeal of an inter partes review (IPR) proceeding at the Patent Trial and Appeal Board (PTAB), finding facts similar to a previous Apple appeal that was dismissed for lack of Article III standing due to a patent licensing agreement with Qualcomm. Circuit Judge Pauline Newman authored a dissent in which she noted that federal courts have often found Article III standing for patent validity challenges based on the existence of a patent license, which could create liability for an infringing party if the license ends prior to the expiration of the licensed patents.

NIH to File Lawsuit Challenging Moderna’s Ownership of COVID-19 Vaccine Patents – On Wednesday, November 10, Reuters reported that U.S. National Institutes of Health Director Dr. Francis Collins confirmed that the NIH intends to file suit in U.S. district court to challenge the ownership of patent claims held by pharmaceutical firm Moderna and covering COVID-19 vaccines which Dr. Collins said were developed in large part with contributions from NIH scientists and researchers.

U.S. Government Warns Tech Companies About IP Risks Under EU’s Digital Markets Act – On Wednesday, November 10, Reuters reported that the U.S. government had distributed a document to tech companies and several EU countries identifying potential IP risks to American tech companies that would be required by the EU’s proposed Digital Markets Act (DMA) to hand over various forms of information to competitors, noting that the DMA does not exempt trade secrets or other forms of IP from these disclosures.

EU’s General Court Dismisses AC Milan Appeal to Trademark Opposition – On Wednesday, November 10, the EU’s General Court issued a ruling dismissing an appeal by Italian football club AC Milan to the European Union Intellectual Property Office’s (EUIPO) decision to uphold an opposition to a trademark application covering the use of the football club’s logo on stationery and office supplies. The General Court found that the mark AC Milan applied to protect created a likelihood of confusion with a “MILAN” trademark asserted by the German firm filing the opposition at the EUIPO due to both aural similarity and the prominent portrayal of “MILAN” in AC Milan’s proposed mark.

SCOTUS Oral Arguments Appear to Favor Unicolors Despite Change in Question Presented – On Monday, November 8, the U.S. Supreme Court heard oral arguments in Unicolors v. H&M to decide whether 17 U.S.C. § 411 requires referral to the U.S. Copyright Office to determine if a copyright registration should be cancelled for a mistake in registration where there is no indicia of fraud or material error. Questions from Supreme Court Justices indicated a ruling in favor of Unicolors despite the petitioner’s change in the question presented in its brief on the merits after the Supreme Court granted certiorari to hear the case.

WIPO World IP Indicators 2021 Report Shows China Dominating Global IP Filings – On Monday, November 8, the World Intellectual Property Organization (WIPO) issued its World Intellectual Property Indicators 2021 report showing that a 13.7 percent increase in global trademark filings during 2020 was largely driven by a 19.3 percent increase in Chinese trademark filings. China also led the globe with nearly 1.5 million patent applications as well as more than 770,000 industrial designs filed at that nation’s IP office last year.

Rep. Massie Introduces Bill to Repeal PTAB, Return U.S. to First-to-Invent System – On Friday, November 5, Representative Thomas Massie (R-KY) introduced the Restoring America’s Leadership in Innovation Act (RALIA) into the House of Representatives. If passed, the bill would repeal much of the America Invents Act (AIA) by abolishing AIA trials at the PTAB and returning the U.S. to a first-to-invent patent system, as well as clarify subject matter eligibility under Section 101 of U.S. patent law.

Barks

Chinese Social Media Firm Receives Request from Tencent to Allow Copyrighted Videos – On Friday, November 12, Chinese short video social media app Douyin announced that it had received a request from Chinese tech conglomerate Tencent asking Douyin to enable users to share short videos including copyrighted content from Tencent’s movies and TV shows. 

Nokia Announces Milestone in Reaching 4,000 5G SEP Families – On Thursday, November 11, Finnish telecommunications firm Nokia announced that it had reached a milestone of having 4,000 patent families declared as standard essential patents (SEPs) to 5G mobile networking technology standards developed by the 3rd Generation Partnership Project (3GPP).

R.J. Reynolds Settles Patent Case Filed Over Vuse E-Cigarettes – On Thursday, November 11, counsel for R.J. Reynolds informed the Middle District of North Carolina that the tobacco company had settled a patent infringement suit filed by Ohio-based vape pen manufacturer Fuma International, which had asserted patent claims covering electronic vaporizers against R.J. Reynolds over its allegedly infringing sales of Vuse e-cigarettes.

Judge Davila Dismisses Apple, Google Suit Against USPTO Over Fintiv Framework – On Wednesday, November 10, U.S. District Judge Edward Davila of the Northern District of California dismissed a lawsuit filed by tech giants including Apple and Google targeting the U.S. Patent and Trademark Office’s Fintiv framework for discretionary denials of IPR petitions filed at the PTAB after finding that the USPTO’s decisions whether to institute IPRs are nonappealable under the America Invents Act.

USITC Finds Section 337 Violation in Infringing Roku Streaming Devices – On Wednesday, November 10, the U.S. International Trade Commission (USITC) entered a ruling finding that certain streaming players, televisions and set top boxes imported for sale by Roku Inc. infringed upon claims of a patent owned by Universal Electronics and covering a media device operable by multiple kinds of communication devices via a universal control engine.

IFIT Files Trademark Suit in Utah Over Victoria’s Secret “SWEAT” Exercise Clothing – On Wednesday, November 10, fitness and exercise firm IFIT filed a lawsuit in the District of Utah against Victoria’s Secret Stores over the lingerie retailer’s introduction of a new line of “SWEAT”-branded exercise clothing, which allegedly causes a likelihood of confusion with IFIT’s Sweat fitness app.

Copyright Office Seeks Further Comments in Publishers’ Protections Study – On Tuesday, November 9, the U.S. Copyright Office issued a notice of inquiry in the Federal Register seeking further comments for the Office’s study on the current state of copyright protections for publishers of news content, including any new issues related to the study’s topic or amplification of initial comments submitted for the study, with comments due by January 5, 2022.

Judge Albright Approves Transfer of Google Case, Says Federal Circuit “Muddled” Transfer Factors – On Monday, November 8, U.S. District Judge Alan D. Albright of the Western District of Texas issued an amended order granting defendant Google’s motion to transfer a patent infringement suit filed by Super Interconnect Technologies to the Northern District of California. Judge Albright entered the amended order following guidance on motions to transfer issued by the Federal Circuit, which Albright said had “muddled” the facts which are important to analysis of the public interest factor on court congestion.

This Week on Wall Street 

J&J to Split Consumer Products Division from Medical Devices, Pharmaceuticals – On Friday, November 12, shares of Johnson & Johnson were up by about 3 percent in pre-market trading after the company announced that it would separate J&J’s consumer products division, which includes popular brands such as Band-Aid, Aveeno and Neutrogena, from the company’s medical device and pharmaceuticals business, which will retain the J&J name. 

GE Announces Intent to Split Conglomerate Into Separate Aviation, Energy and Healthcare Firms – On Tuesday, November 9, American multinational General Electric announced that it would be splitting the company’s aviation, healthcare and energy divisions into separate businesses in the latest restructuring effort for the company as it tries to reduce a massive debt load accumulated during the 2010s. 

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: Doosan Group (t-295th)
• Tuesday: Dolby Laboratories, Inc. (t-181st); Walmart Inc. (125th)
• Wednesday: Baidu, Inc. (117th); Cisco Systems, Inc. (39th); NVIDIA Corp. (t-192nd); Sonos, Inc. (t-267th)
• Thursday: Thyssenkrupp AG (t-298th)

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