Other Barks & Bites for Friday, February 11: CAFC Denies Rehearing in Skinny Label Case; WIPO Reports 2021 PCT Filing Statistics, Judge Newman Dissents from NARCAN Patent Invalidity Ruling

This week in Other Barks & Bites: the The Federal Circuit denies rehearing in Teva’s case with GlaxoSmithKline’s regarding Teva’s induced infringement of a GSK patent directed to a method of treating Congestive Heart Failure; the Eleventh Circuit affirms that press release statements regarding patent licensing and other business activities by Revolutionary Concepts included false statements violating federal securities law; the World Intellectual Property Organization reports that nearly 55% of international patent application filings during 2021 were submitted by Asian entities; Judge Newman authors a dissent arguing flaws in a Federal Circuit panel majority’s decision to affirm the invalidity of patents covering the opioid overdose treatment NARCAN; Disney’s quarterly earnings show strong results in both streaming subscribers as well as theme park attendance; White House OSTP Director Eric Lander resigns following an investigation into bullying allegations; and a federal indictment surrounding the theft of walkie talkie trade secrets from Motorola Solutions was unsealed in Northern Illinois federal district court.

Bites 

Prost, Dyk and Reyna Split from CAFC’s Denial of En Banc Rehearing in GSK v. Teva Skinny Label Case – The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, February 11, denied panel rehearing and rehearing en banc in a case where the CAFC reversed a district court’s motion for judgment as a matter of law (JMOL) for Teva, ruling that Teva was liable for induced infringement of GlaxoSmithKline’s (GSK’s) patent directed to a method of treating Congestive Heart Failure (CHF) using carvedilol. In the dissenting opinion on denial, Judge Prost said the majority was abdicating its responsibility as “the
circuit court vested with exclusive jurisdiction to review” issues such as those presented in the case, which are “at the intersection
of patent law and pharmaceutical regulation” and “unquestionably important—affecting millions of Americans.”

CAFC Finds Commercial Language in Negotiation Letter Was Invalidating Offer for Sale – On Thursday, February 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Junker v. Medical Components, Inc. in which the appellate court reversed a summary judgment ruling of no invalidity from the Eastern District of Pennsylvania regarding a design patent covering an introducer sheath medical device. The Federal Circuit found that a January 1999 letter to Boston Scientific from a company partnering with the medical device’s inventor included commercial language that amounted to an offer to sell an invention that triggered the on-sale bar under pre-America Invents Act 35 U.S.C. § 102(b), invalidating the asserted patent.

Asian Countries Increase Percentage Share of Global Patent Application Filings – On Thursday, February 10, the World Intellectual Property Organization (WIPO) reported global patent application filing statistics for 2021 showing that patent applications filed through WIPO’s Patent Cooperation Treaty (PCT) system increased by 0.9 percent last year to 277,500 PCT patent applications. Asian countries increased their share of PCT filings up to 54.1 percent of all PCT patent application filings, up from 38.5 percent in 2011, with Chinese entities filing 69,540 PCT patent applications, the largest total for any single country in 2021.

Judge Newman Calls Out Obviousness Analysis in Majority’s Invalidation of NARCAN Patents – On Thursday, February 10, the Federal Circuit issued a precedential decision in Adapt Pharma Operations Ltd. v. Teva Pharmaceuticals USA in which a panel majority at the appellate court affirmed a ruling by the District of New Jersey invalidating claims from a trio of patents covering the opioid overdose treatment NARCAN as obvious in light of the prior art. Circuit Judge Pauline Newman authored a dissent in which she argued that the majority affirmed the district court ruling without any teaching or suggestion from the prior art or expert witness testimony provided by Teva during the trial as required for obviousness, and disregarded objective indicia of nonobviousness including long-felt need.

Eleventh Circuit Affirms Ruling on False Statements on Smart Camera Patent Licensing – On Wednesday, February 9, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in U.S. Securities and Exchange Commission v. Revolutionary Concepts, Inc. in which the appellate court affirmed the district court’s summary judgment ruling finding that an executive with Revolutionary Concepts, which owned patent rights covering smart camera technology but generated no revenue, had issued several press releases containing materially false or misleading statements violating federal securities laws.

Bipartisan Senate Vote Confirms Judge Stark to the CAFC Bench – On Wednesday, February 9, the U.S. Senate voted 61-35 to confirm Leonard P. Stark as Circuit Judge to serve on the Federal Circuit and replace outgoing Circuit Judge Kathleen O’Malley when she retires from the appellate bench on March 11 of this year.

OSTP’s Eric Lander Resigns Following Bullying Investigation – On Monday, February 7, Eric Lander resigned both from his Cabinet-level position as Science Advisor to President Joe Biden as well as from the Director of the Office of Science and Technology Policy (OSTP) following a widely publicized investigation into allegations that Lander created a toxic work environment for his subordinates. The same day, House Science Committee Chairwoman Eddie Bernice Johnson (D-TX) and Ranking Member Frank Lucas (R-OK) sent a letter to President Biden seeking a copy of the White House’s investigative report on the bullying allegations against Lander.

Indictment Unsealed Showing DOJ Charges Over Walkie Talkie Trade Secret Theft – On Monday, February 7, a federal indictment was unsealed by court order in the Northern District of Illinois, revealing charges filed by the U.S. Department of Justice against Chinese-based telecom Hytera Communications and several defendants alleged to have been recruited by Hytera to steal proprietary information and trade secrets surrounding digital mobile radio, or “walkie talkie,” technology from Motorola Solutions while those defendants were still working at Motorola.

China Joins Hague System and Marrakesh Treaty – On Saturday, February 5, WIPO announced that China had formally submitted its accession to both the Hague System, which facilitates international protections for designs, and the Marrakesh Treaty, which facilitates the reproduction of copyrighted works produced in more accessible formats for the deaf and visually impaired.

Barks

Western Texas Jury Verdict Awards $20 Million for Google’s Infringement of Thermostat Patents – On Thursday, February 10, a jury verdict entered in the Western District of Texas awarded more than $20 million to patent owner EcoFactor after finding that Google infringed claims from one of two patents asserted by EcoFactor and covering home thermostat technology. 

FDA Issues Notice of Biosimilar Patent Infringement Suit Filed by AbbVie – On Thursday, February 10, the U.S. Food & Drug Administration (FDA) issued a notice in the Federal Register announcing that the agency had been informed that a patent suit filed by pharmaceutical firm AbbVie against biopharma rival Alvotech in the Northern District of Illinois involves infringement claims in connection with a biologics license application covering a biosimilar and filed at the FDA.

USPTO Requests Comments on Madrid Protocol Filings, Practitioner Discipline – On Wednesday, February 9, the U.S. Patent and Trademark Office issued a request for comments in the Federal Register seeking public input to evaluate the agency’s procedures for collecting information to process international trademark filings under the Madrid Protocol. The previous day, the USPTO issued a request for comments to evaluate the agency’s reporting and recordkeeping requirements in connection with enforcing the agency’s Rules of Professional Conduct.

Rimini Street Appeals Judgment Favoring Oracle to Ninth Circuit – On Tuesday, February 8, enterprise software firm Rimini Street filed a notice of appeal with the clerk’s office of the U.S. Court of Appeals for the Ninth Circuit to appeal a ruling from the District of Nevada ordering Rimini Street to pay $630,000 for violating a court-ordered injunction against infringing Oracle’s software copyrights by failing to comply with technical terms of the injunction in interactions with several customers.

EPO’s Campinos Holds Progress Update Meeting With UPC Members – On Tuesday, February 8, European Patent Office (EPO) President António Campinos met with Jérôme Debrulle, Chair of the Select Committee of the Administrative Council in charge of the Unitary Patent, as well as representatives of the member states participating in preparations for the Unitary Patent Court (UPC) system, to discuss preparatory work remaining prior to the launch of those systems later this year.

Honeywell Targeted By Pair of Section 337 Complaints at the USITC – On Tuesday, February 8, the U.S. International Trade Commission announced that Zebra Technologies Corporation and Symbol Technologies had filed a Section 337 complaint seeking to stop imports of certain barcode scanners, mobile computers with barcode scanning capabilities and scan engines imported into the U.S. for sale by Honeywell International and Hand Held Products. The previous day, the USITC had announced that Zebra and Symbol had filed a separate Section 337 complaint against Honeywell and Hand Held Products against their sale of barcode scanners and radio frequency identification (RFID) printers.

Pandora Sued for Joke Writing Royalties By Williams and Carlin Estates – On Monday, February 7, a series of lawsuits were filed against streaming media company Pandora, each in the Central District of California by various entities representing the trusts of Robin Williams and George Carlin, as well as living comedians Andrew Dice Clay, Bill Engvall and Ron White, seeking royalties for authoring jokes on top of royalties for reproducing audio recordings of past live shows.

USPTO Seeking Nominations for National Medal of Technology and Innovation – On Monday, February 7, the U.S. Patent and Trademark Office announced that it would begin accepting nominations of individuals, teams up to four, company divisions and companies to receive the National Medal of Technology and Innovation, the federal government’s highest award for honoring innovators who have contributed major technological achievements for the nation’s economic, environmental, and social well-being.

This Week on Wall Street

Affirm Releases Quarterly Earnings Early After Inadvertent Revenues Tweet – On Thursday, February 10, “buy now pay later” financing company Affirm released quarterly earnings ahead of schedule, posting $361 million in quarterly revenues and beating analyst expectations of $328.8 million, after the company inadvertently published a post on Twitter including sales figures and indicating that the company would beat revenue expectations.

Disney Beats EPS and Revenue Expectation on Strong Streaming Numbers, Parks Attendance – On Wednesday, February 9, media and entertainment giant The Walt Disney Company reported quarterly earnings showing that the company beat analyst forecasts on earnings per share ($1.06 adjusted EPS vs. $0.63 EPS expected) and revenues ($21.82 billion vs. $20.91 billion expected), thanks largely to positive results in the company’s streaming media and theme parks divisions.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2020 rank in parentheses):

• Monday: None
• Tuesday: Baidu, Inc. (99th); Borgwarner Inc. (t-281st); Bridgestone Corp. (t-277th)
• Wednesday: Analog Devices, Inc. (t-178th); Applied Materials, Inc. (59th); Cisco Systems, Inc. (40th); NVIDIA Corp. (t-163rd)
• Thursday: Airbus SE (97th); Interdigital Inc. (152nd); Walmart Inc. (t-202nd); Windbond Electronics Corp. (210th)
• Friday: Deere & Co. (101st)