Other Barks & Bites for Friday, August 9: Rader Calls Out CAFC, JCPA Fails to Move Out of Committee, and Teva SCOTUS Reply Urges Review of ‘Skinny Label’ Inducement Case

This week in Other Barks & Bites: former Federal Circuit Chief Judge Randall Rader urges inventors to pursue changes to flawed Federal Circuit case law; Federal Circuit Chief Judge Kimberly Moore opines that the patent dispute between Apple and VirnetX may never end during oral arguments; Tesla seeks relief from Texas property taxes to build the first lithium refining plant in North America; Teva files a reply brief with the Supreme Court asking the nation’s highest court to review the Federal Circuit’s ruling that Teva’s skinny label actively induced infringement of GlaxoSmithKline patents; the Journalism Competition and Preservation Act meets heavy resistance during a Senate Judiciary Committee markup meeting; the Eleventh Circuit overturns a default judgment in a copyright case for improper service of an amended complaint; and the Senate IP Subcommittee holds an oversight hearing of the U.S. Copyright Office. 

Bites

CAFC Chief Judge Moore “Pretty Sure” That Apple/VirnetX Dispute Will Never End – On Thursday, September 8, Reuters reported on oral arguments at the U.S. Court of Appeals for the Federal Circuit in the long-standing patent infringement dispute between consumer electronics giant Apple and Internet security software developer VirnetX, during which Chief Judge Kimberly Moore reportedly said that “I’m pretty sure this dispute will never end between these two companies.”

Stiff Resistance to JCPA Prevents Bill From Passing Out of Senate Judiciary Committee – On Thursday, September 8, the U.S. Senate Committee on the Judiciary held an executive business meeting during which the committee debated the Journalism Competition and Preservation Act (JCPA), which would create a safe harbor preventing antitrust enforcement against print, broadcast or digital news providers to collectively negotiate with online content distributors, though the markup of the bill was reportedly delayed to reconcile an amendment raised during the meeting.

CAFC Upholds Restriction Requirement Against Hyatt Patent Application – On Thursday, September 8, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Hyatt v. U.S. Patent and Trademark Office in which the appellate court affirmed a summary judgment ruling from the Eastern District of Virginia’s in favor of the USPTO. The Federal Circuit agreed with the district court that a patent examiner at the USPTO properly issued a restriction requirement on several patent claims amended by Hyatt, forcing them to be prosecuted in a separate patent application that would be subject to the 20-year patent term established under the Uruguay Round Agreements Act.

Former CAFC Chief Judge Rader Urges Inventors to Address Flawed Patent Law – On Wednesday, September 7, Randall Rader, former Chief Judge of the Federal Circuit, appeared in a US Inventor webinar during which he called upon inventors to urge lawmakers to fix flawed patent case law being developed at the Federal Circuit. In a statement sent to IPWatchdog, Randy Landreneau, President of US Inventor, said that Rader “accurately predicted that the PTAB would be a ‘death squad for patent rights’ back in 2013. Landreneau added: “He talked about being mocked for predicting there would be ‘a tsunami of cases coming,’ but his prediction was spot-on. On injunctive relief, Chief Judge Rader said that for the 200 years of U.S. history, as well as another 200 years in England prior, ‘the remedy for violation of property rights was removal of the trespasser,’ and indicated that this is what is needed now. He said that ‘the Federal Circuit, the court that should be identifying problems, is instead doing exactly the opposite.’ And for all of us working to restore the patent rights of inventors and startups, he said we need to be like the heroes of the past who stepped up, called attention to the things that needed change, and caused change to happen.”

Eleventh Circuit Overturns Default Judgment for Improper Service in Rap Copyright Case – On Wednesday, September 7, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Campbell v. Bennett in which the appellate court vacated a default judgment entered against Bennett, known under the stage name YFN Lucci, over claims that his 2016 single “Everyday We Lit” was copied from a 2015 recording by Campbell, known under the stage name Rackboy Cam. The Eleventh Circuit ruled that the default judgment was based on an amended complaint filed by Campbell stating a new claim for relief but which was improperly served upon Bennett.

Copyright Office Oversight Hearing Looks at Early CCB Operations, Fair Use – On Wednesday, September 7, the U.S. Senate Committee on the Judiciary’s Subcommittee on Intellectual Property held an oversight hearing regarding the U.S. Copyright Office with Register of Copyrights Shira Perlmutter, who testified that it remained to be seen whether opt-out provisions would greatly impact the number of filings at the Copyright Claims Board (CCB), and that the government’s position on the fair use issues at play in Warhol v. Goldsmith is that transformative use should not be interpreted so broadly that it would undermine the derivative work right under copyright law.

Teva Reply Brief Urges SCOTUS to Review Active Inducement Under Hatch-Waxman Regime – On Wednesday, September 7, generic drugmaker Teva Pharmaceuticals filed a reply brief with the U.S. Supreme Court in its appeal of an infringement ruling in favor of GlaxoSmithKline. Teva’s brief argued that the Supreme Court regularly reviews legal-sufficiency questions in patent cases and that review was warranted to determine active inducement under the Hatch-Waxman regime in which carve-out or “skinny” labels are prepared by generic drugmakers based on information provided in sworn declarations by drug patent owners to the U.S. Food & Drug Administration.

CAFC Affirms Duplicative-Litigation Doctrine Dismissal of Arendi Patent Infringement Complaint – On Wednesday, September 7, the Federal Circuit issued a precedential decision in Arendi S.A.R.L. v. LG Electronics Inc. in which the appellate court affirmed the District of Delaware’s dismissal of a patent infringement complaint filed by Arendi. The Federal Circuit upheld the application of the duplicative-litigation doctrine after finding that the LG Electronics products accused by Arendi in the dismissed infringement suit were the same products previously accused by Arendi in an earlier complaint in which Arendi failed to meet standards for initial disclosures under Delaware’s local rules.

Reply Brief in Texas A&M “12th Man” Copyright Case Urges Review of Takings Claim – On Monday, September 5, Canada Hockey, doing business as Epic Sports, and sports writer Michael Bynum filed a reply brief with the U.S. Supreme Court in its appeal of copyright infringement claims against Texas A&M University’s unauthorized use of a “12th Man” biography in which the petitioners pushed back on the university’s response brief, which claimed that the underlying Fifth Circuit decision was unreviewable because it was unpublished, and urged SCOTUS to review the certworthy question of whether sovereign immunity persists for state entities when remedies for copyright infringement are hypothetical rather than established and available.

Barks

CAFC Resuming Normal Operations Next Week – On Friday, September 9, the U.S. Court of Appeals for the Federal Circuit issued a pair of administrative orders reopening the National Courts Building and resuming normal court operations based on recent changes to public health guidance making restrictions to court access no longer necessary. The Federal Circuit also issued revised protocols for in-person arguments that will take effect starting with the October court sitting.

University of California, MIT Top NAI/IPO List of Top Patenting Universities in 2021 – On Thursday, September 8, the National Academy of Inventors (NAI) and the Intellectual Property Owners Association (IPO) issued the results of its Top 100 Worldwide Universities Granted U.S. Utility Patents in 2021. Leading these rankings are the Regents of the University of California with 589 U.S. utility patents in 2021, the Massachusetts Institute of Technology (MIT) with 335 patents in 2021, and the University of Texas with 203 patents in 2021.

USPTO Issues NPRM Aligning Disciplinary Practice, Conflict Rules With State Bars – On Thursday, September 8, the U.S. Patent and Trademark Office issued a notice of proposed rulemaking (NPRM) in the Federal Register announcing proposed amendments to agency rules for disciplinary practice of patent and trademark practitioners committing minor misconduct as a result of physical or mental health issues, and conflict of interest rules regarding fee-sharing agreements between practitioners and non-practitioners. Further, the NPRM would require foreign trademark attorneys to provide updated contact information and remove the fee required by the agency when changing status from patent agent to patent attorney.

Altria Announces $95M Jury Verdict in E-Vapor Patent Infringement Suit – On Wednesday, September 7, tobacco company Altria Group announced that a jury verdict entered into the Middle District of North Carolina awarded more than $95 million in damages in Altria’s patent infringement suit against Reynolds Vapor Company over that company’s Vuse Alto e-vapor product.

USITC Institutes Section 337 Investigation Into Chinese Pillows and Seat Cushions – On Wednesday, September 7, the U.S. International Trade Commission announced that it had decided to institute a Section 337 investigation against more than three dozen Chinese entities based on a complaint filed by Purple Innovation of Lehi, UT, alleging patent infringement claims against certain pillows and seat cushions imported into the U.S. for sale.

Metacapital Files Trademark Suit Against Facebook Rebrand, Expansion Into Financial Services – On Wednesday, September 7, financial services firm Metacapital filed a lawsuit in the Southern District of New York against social media giant Meta Platforms alleging claims of trademark infringement over Facebook’s highly publicized Meta rebranding and the company’s decision to maintain a financial services division.

EPO Opens Enrollment for First EPAC Exam in December – On Monday, September 5, the European Patent Office (EPO) officially opened enrollment for the agency’s first European Patent Administration Certification (EPAC) exam, which will certify individuals to handle certain patent prosecution and maintenance activities at the EPO, that will take place in December. Enrollment for the EPAC exam ends on September 30.

This Week on Wall Street

Tesla Seeks Property Tax Relief to Build Lithium Refining Plant in Texas – On Friday, September 9, news reports indicated that electric vehicle firm Tesla filed an application with the Texas Comptroller’s Office seeking relief from Texas property taxes in order to build a lithium hydroxide refining facility on the Gulf Coast, which the application indicates will be the first factory of its kind in North America.

United Airlines Increases eVTOL Investment With Air Taxi Purchase From Eve Air Mobility – On Thursday, September 8, major airline firm United Airlines announced that it agreed to purchase 200 electric air taxis from Eve Air Mobility and invest another $15 million into the electric vertical takeoff and landing (eVTOL) developer. The announcement follows on the heels of United’s decision to purchase electric aircraft from Archer Aviation.

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: Oracle Corp. (70th)
• Tuesday: None
• Wednesday: None
• Thursday: Adobe Inc. (87th)
• Friday: None

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Author: RuthBlack