Other Barks & Bites for Friday, May 6: Bill to Crack Down on Cybercrime Made Law, Second Circuit Dismisses Termination Request for ‘Can’t Help Falling In Love’, Hawley to Introduce Bill Targeting Disney Copyright Extensions

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This week in Other Barks & Bites: the bipartisan Better Cybercrime Metrics Act was signed into law; the Department of Justice announced $105 million in civil penalties in the first action taken under the Federal Trade Commission’s “Made in USA” branding rules; Senator Josh Hawley tweeted his plans to introduce a bill limiting Disney’s ability to extend copyright covering Mickey Mouse and other entertainment properties; the Second Circuit affirmed a district court’s dismissal of a copyright termination action filed by the heirs of one of the co-writers of the Elvis Presley hit “Can’t Help Falling In Love”; CNBC reported that Elon Musk plans to serve as a temporary CEO of Twitter after his takeover is complete; Senators Roger Wicker and Cynthia Lummis introduced a bill to create federal R&D strategies for distributed ledger technologies; the EPO published a guide to obtaining a Unitary Patent after the corresponding EU patent has been granted by the EPO; and ACUS issued a request for public comments regarding its study for a small claims patent court.

Bites

Better Cybercrime Metrics Act Becomes Law – On Friday, May 6, the Better Cybercrime Metrics Act was signed into law. The bill had  bipartisan support, with Reps. Abigail Spanberger (D-VA), Blake Moore (R-UT), Andrew Garbarino (R-NY) and Sheila Jackson Lee (D-TX) leading the effort in the House while Sens. Brian Schatz (D-HI), Thom Tillis (R-NC), John Cornyn (R-TX) and Richard Blumenthal (D-CT) co-sponsored in the Senate. The bill directs the U.S. Department of Justice to work with the National Academy of Sciences to develop a taxonomy on cybercrime, and increases cybercrime reporting responsibilities at the Federal Bureau of Investigations (FBI) and the Government Accountability Office (GAO), among other measures.

Second Circuit Affirms No Termination of “Can’t Help Falling In Love” Copyright Transfer – On Wednesday, May 4, the U.S. Court of Appeals for the Second Circuit issued a decision in Peretti Acuti v. Authentic Brands Group LLC in which the appellate court affirmed the Southern District of New York’s dismissal of a declaratory judgment action seeking termination of a copyright transfer filed by the widow and daughters of Hugo Peretti, one of the songwriters of “Can’t Help Falling In Love,” popularized by Elvis Presley. The Second Circuit agreed that Peretti’s termination rights under 17 U.S.C. § 203 had not accrued by the date of a 1983 agreement transferring both his rights and the contingent rights of renewal of his wife and daughters to Authentic Brands’ predecessors-in-interest.

DOJ Announces $105M in Civil Penalties in First Action Over ‘Made in USA’ Branding – On Wednesday, May 4, the U.S. Department of Justice (DoJ) announced a settlement with Lithionics Battery LLC in which the U.S. federal government will collect $105 million in civil penalties over the improper labeling of batteries, battery modules and battery management systems as being “Made in USA.” This case represents the first action filed by the DoJ under the U.S. Federal Trade Commission’s (FTC) “Made in USA” rule established last July. 

WTO Director-General Distributes Draft of TRIPS Waiver for COVID-19 Vaccines – On Tuesday, May 3, World Trade Organization (WTO) Director-General Ngozi Okonjo-Iweala sent a letter to the Chair of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) including a draft proposal for the waiver of international IP obligations under TRIPS for COVID-19 vaccines, representing an agreement reached by delegates from the United States, European Union, India and South America, although questions remain as to whether WTO member nations eligible for waiving IP obligations should be limited to developing countries.

Sens. Wicker, Lummis Introduce Bill to Support Distributed Ledger Tech R&D – On Monday, May 2, Senators Roger Wicker (R-MS) and Cynthia Lummis (R-WY) introduced the National R&D Strategy for Distributed Ledger Technology Act, which if passed into law would direct the Office of Science and Technology Policy (OSTP), the National Science Foundation (NSF) and the National Institute of Standards and Technology (NIST) to study the potential benefits of distributed ledger technologies and develop a national strategy for improving research and development activities in that sector.

Sen. Hawley to Introduce Bill to Oppose Extensions of Copyright for Disney – On Monday, May 2, Senator Josh Hawley (R-MO) announced via Twitter that he intends on introducing legislation into the U.S. Senate that would end “special protections” for “woke corporations” like Disney from lobbying for additional extensions of copyright covering characters like the Steamboat Willie version of Mickey Mouse. 

CAFC Says Offer to Install Butane-Blending Equipment Was Not Experimental Use – On Friday, April 29, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Sunoco Partners Marketing & Terminals, L.P. v. U.S. Venture, Inc. in which the appellate court vacated the Northern District of Illinois’ ruling that an offer to install butane-blending equipment occurring two days before the critical date for the on-sale bar was only an experimental use that didn’t trigger the on-sale bar. The Federal Circuit found that, while the inventor’s company bore the costs of installation, it also secured payment for supplying butane for the equipment, and the agreement’s provisions on pre- and post-installation equipment testing did not establish an experimental use.

EPO Publishes Guide to Process for Obtaining Unitary Patent – On Friday, April 29, the European Patent Office (EPO) published a full edition of the agency’s Unitary Patent Guide, which is designed to inform businesses and inventors regarding the process of obtaining a Unitary Patent once the EPO has granted the corresponding patent under the European Union Convention. On the same day, the EPO also published a consolidated version of secondary legislation for implementing Unitary Patent processes at the EPO, including amendments to that legislation made in December 2021 and March 2022.

Judge Reyna Dissents from “Inflexible” Obviousness Rule in CAFC’s PTAB Reversal – On Friday, April 29, the Federal Circuit issued a decision in Auris Health, Inc. v. Intuitive Surgical Operations, Inc. in which the panel majority reversed a ruling from the Patent Trial and Appeal Board (PTAB) finding that Auris failed to demonstrate that challenged patent claims were invalid for obviousness, ruling that the PTAB impermissibly relied on evidence of general skepticism about the field of invention in its analysis of secondary considerations. Circuit Judge Jimmie Reyna authored a dissent in which he argued that the inflexibility of the majority’s rule that general skepticism could not be a secondary consideration of non-obviousness was in tension with the U.S. Supreme Court’s obviousness ruling in KSR v. Teleflex.

Barks 

USPTO Publishes NPRM Requiring Electronic Filings for PTE Applications – On Friday, May 6, the U.S. Patent and Trademark Office published a notice of proposed rulemaking in the Federal Register that would require applicants seeking patent term extensions (PTEs), which make up for periods of patent exclusivity lost by drug and medical device makers while seeking governmental approval, to be submitted electronically through the USPTO’s EFS-Web or Patent Center systems. 

EPO, EIT Sign MOU on Knowledge Sharing Agreement for Technology Trends – On Thursday, May 5, the European Patent Office (EPO) and the European Institute of Innovation and Technology (EIT) announced that the two agencies have signed a memorandum of understanding to support the EU’s innovation ecosystems by fostering synergies and knowledge sharing activities in four main areas of cooperation, including business support, technology trends, education and promoting awareness.

ACUS Issues Notice for Public Comments on Small Claims Patent Court – On Tuesday, May 3, the Administrative Conference of the United States (ACUS) issued a notice in the Federal Register requesting public comments for a study requested by the U.S. Patent and Trademark Office that would analyze issues associated with and options to consider regarding the creation of a small claims patent court.

Judge Rules that Pinterest Display of Copyrighted Content with Ads is Covered by DMCA Safe Harbor – On Tuesday, May 3, U.S. District Judge Haywood S. Gilliam, Jr. of the Northern District of California issued a ruling  granting a motion for summary judgment filed by defendant Pinterest in a copyright case brought by photographer Harold Davis, finding that Pinterest’s use of algorithms to reproduce Davis’ works in online feeds and advertisements qualified for the safe harbor provisions of the Digital Millennium Copyright Act (DMCA) as Davis did not allege that Pinterest had any financial benefit directly attributable to the alleged infringement.

GM Becomes 37th Auto Brand to Sign License with Avanci for Connected Vehicle Tech – On Tuesday, May 3, Internet of Things (IoT) patent licensing firm Avanci announced that it had entered into a patent licensing agreement covering its portfolio of 2G, 3G and 4G standard-essential patents (SEPs) for connected vehicle technologies with General Motors, which is now the 37th automotive brand to acquire such a license from Avanci.

Texas Pastor Files Copyright Suit Against Kanye for Sampling Sermon – On Tuesday, May 3, Texas pastor Bishop David Paul Moten filed a lawsuit in the Northern District of Texas against rapper Kanye West alleging claims of copyright infringement over Kanye’s sampling of a Bishop Moten sermon in Kanye’s 2021 single “Come to Life.”

NortonLifeLock Hit With $185 Million Willful Infringement Verdict Over Columbia University Patents – On Monday, May 2, a jury verdict entered in the Eastern District of Virginia awarded $185 million in damages to Columbia University after finding that software firm NortonLifeLock willfully infringed a pair of patents covering cybersecurity technologies invented by professors at the university.

USPTO to Transition to Electronic Trademark Registration Certificates This June – On Monday, May 2, the U.S. Patent and Trademark Office issued a notice in the Federal Register announcing that on June 7 of this year, the agency will begin to issue electronic registration certificates upon the registration of a trademark. Although the electronic certificate will be the official registration document, applicants will still be able to obtain a paper “presentation” copy for a fee.

Dfinity Foundation Files Trademark Suit Over Meta’s Infinity Trademark – On Friday, April 29, non-profit blockchain developer Dfinity Foundation filed a lawsuit in the Northern District of California against Facebook owner Meta Platforms, alleging claims of trademark infringement over Meta’s use of the infinity loop logo which Dfinity argues is confusingly similar to its own infinity loop logo registered as a trademark with the USPTO in 2018.

This Week on Wall Street

Elon Musk to Serve as Temporary CEO of Twitter After Completing Takeover – On Thursday, May 5, CNBC reported that sources close to Elon Musk indicate that Musk will likely serve as temporary CEO of social media firm Twitter once Musk’s $44 billion deal to acquire majority ownership of the company is completed.

High Oil, Gas Prices Lead to Record Quarterly Profits for Shell in Q1 2022 – On Thursday, May 5, UK-based consumer energy firm Shell released its earnings report for the first quarter of 2022 showing that the company earned $9.13 billion in profits, representing the highest quarterly profits ever earned by Shell, thanks in large part to high oil and gas prices despite the company’s decision to wind down operations in Russia.

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: Infineon Technologies AG (65th); Palantir Technologies Inc. (t-252nd); Siemens AG (38th); Xperi Holding Corp. (104th)
• Tuesday: Bayer AG (84th); Mitsubishi Corp. (28th); Ricoh Co. Ltd. (56th); Schaeffler AG (t-186th); Shimadzu Corp. (180th); Toyota Motor Corp. (8th)
• Wednesday: Alibaba Group Holding Ltd. (160th); Bridgestone Corp. (t-277th); Casio Computer Co., Ltd. (t-277th); Continental AG (98th); Fujifilm Holdings Corp. (25th); Panasonic Corp. (19th); Sharp Corp. (50th); Softbank Group Corp. (76th); Sumitomo Electric Industries (62nd); The Walt Disney Co. (t-183rd)
• Thursday: Hamamatsu Photonics K.K. (t-281st); Hon Hai Precision Industry Co., Ltd. (t-197th); Honda Motor Co., Ltd. (30th); Konica Minolta, Inc. (t-170th); LG Corp. (3rd); Mitsubishi Heavy Industries, Ltd. (80th); Nikon Corp. (t-254th); Nissan Motor Co., Ltd. (t-148th); Tokyo Electron Ltd. (96th)
• Friday: Carl Zeiss Meditec AG (143rd); Deutsche Bank AG (108th); Japan Display Inc. (119th); Mazda Motor Corp. (t-174th); Mitsubishi Chemical Holdings Corp. (t-205th); Toray Industries, Inc. (t-222nd); Toshiba Corp. (35th)