Other Barks & Bites for Friday, September 23: Thaler Seeks Rehearing of CAFC Decision on DABUS AI, the Solicitor General Urges SCOTUS to Deny Cert in Amgen, and FTC Orders Amazon’s Jassy and Bezos to Testify in Prime Investigation

Bite (noun): more meaty news to sink your teeth into.

Bark (noun): peripheral noise worth your attention.

https://depositphotos.com/68772623/stock-photo-young-border-collie-dog-playing.htmlThis week in Other Barks & Bites: the Journalism Protection and Competition Act moves out of the Senate Judiciary Committee with a content moderation amendment securing Republican support; the U.S. Solicitor General files a brief with the U.S. Supreme Court recommending denial of a petition for writ of certiorari in Amgen; the Federal Trade Commission tells Amazon that it hasn’t shown that demands for testimony from CEO Andy Jassy and founder Jeff Bezos are unduly burdensome; Ford announces that it has broken ground on its $5.6 billion BlueOval City campus outside of Memphis; the Court of Federal Claims affirms a Section 101 invalidation of Audio Evolution Diagnostics’ patent claims; the Trademark Trial and Appeal Board finds no clear and convincing evidence of an earlier priority date in a cancellation proceeding on the mark “Happiest Hour”; and Stephen Thaler files a petition for rehearing at the U.S. Court of Appeals for the Federal Circuit in his ongoing attempts to have DABUS AI recognized as an inventor under U.S. law. 


JCPA Moves Out of Senate Judiciary Committee With Content Moderation Amendment – On Thursday, September 22, the U.S. Senate Committee on the Judiciary voted to move S. 673, the Journalism Competition and Preservation Act (JCPA), out of committee toward a full vote on the Senate floor. The bill, which would create a safe harbor from U.S. antitrust laws for digital journalism providers forming joint entities to negotiate licenses for online news republishings with covered platforms, moved forward with Republican support thanks to the inclusion of an amendment first proposed by Senator Ted Cruz (R-TX) seeking to prohibit parties from being able to negotiate content moderation into their agreements.

U.S. Solicitor General Tells SCOTUS to Deny Cert on Enablement Issues in Amgen – On Wednesday, September 21, the office of the U.S. Solicitor General filed a brief representing the views of the U.S. federal government on the issues raised in the petition for writ of certiorari in Amgen v. Sanofi, urging the nation’s highest court to deny granting the petition for writ on Amgen’s appeal from the Federal Circuit’s decision affirming the invalidation of Amgen’s patent claims covering cholesterol treatments for lack of enablement.

Sixth Circuit Says JHP Has Right to Sue On Copyright to Mayweather-McGregor Fight – On Wednesday, September 21, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Joe Hand Productions, Inc. v. Griffith in which the appellate court reversed the Eastern District of Tennessee’s grant of summary judgment to the owners of a bar who displayed the August 2017 pay-per-view fight between Floyd Mayweather and Conor McGregor without paying Showtime for a commercial license. The Sixth Circuit ruled that a November 2017 copyright agreement between Showtime and Joe Hand Productions gave Joe Hand the right to sue for infringements occurring prior to the agreement between those parties.

Novartis to Appeal From June CAFC Decision Invalidating MS Treatment Claims – On Wednesday, September 21, pharmaceutical firm Novartis announced that it would be filing a petition for writ of certiorari with the U.S. Supreme Court to appeal a June panel rehearing by the U.S. Court of Appeals for the Federal Circuit that reversed the panel’s previous opinion upholding the validity of Novartis patent claims covering the multiple sclerosis treatment Gilenya.

FTC Orders Amazon’s Bezos, Jassy to Testify on Prime Consumer Deception – On Wednesday, September 21, Commissioner Christine Wilson of the Federal Trade Commission (FTC) issued an order denying in part Amazon’s omnibus petition to limit civil investigation demands (CIDs), ruling that Amazon did not show that CIDs issued to company CEO Andy Jassy and founder Jeff Bezos were unduly burdensome. Under the CIDs, Jassy and Bezos will be required to testify in the FTC’s investigation into whether Amazon utilizes practices in its Prime retail subscription service that deceive customers into signing up for the service.

TTAB Finds No Clear and Convincing Evidence to Support Earlier Priority Date in “Happiest Hour” Proceeding – On Wednesday, September 21, the Trademark Trial and Appeal Board (TTAB) entered a precedential ruling in JNF LLC v. Harwood International Inc. in which the TTAB terminated a cancellation proceeding petitioned by JNF after finding that the firm could not establish an earlier priority date of its use of a “Happiest Hour” mark for bar and restaurant services by clear and convincing evidence, a higher burden of proof that JNF faced for claiming a priority date that was earlier than the date listed in its original registration application.

Sixth Circuit Tells Eastern Michigan to Apply Safe-Distance Rule in Jeep Trade Dress Case – On Monday, September 19, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in Mahindra & Mahindra Ltd. v. FCA US, LLC in which the appellate court vacated the Eastern District of Michigan’s ruling denying a permanent injunction against a redesigned version of a off-road vehicle previously found to infringe upon Jeep’s trade dress. The Sixth Circuit found that the district court’s ruling lacked sufficient justification for failing to apply the safe-distance rule, which addresses lingering confusion from past trade dress infringement by requiring known infringers to choose trade dress with characteristics far removed from the infringed trade dress.

Stephen Thaler Seeks Rehearing at CAFC Over Definition of “Individual” – On Monday, September 19, computer scientist Stephen Thaler filed a request at the Federal Circuit asking that court for a rehearing on its previous decision declaring that Thaler’s DABUS AI artificial intelligence system could not qualify as an inventor under U.S. patent law. Thaler’s request challenges the Federal Circuit’s definition of “individual” under the statute.


C4IP Brings Together IP Industry Leaders to Counter Anti-IP Narratives – On Thursday, September 22, the Council for Innovation Promotion (C4IP) was officially launched by founding members Andrei Iancu and David Kappos, both former Directors of the U.S. Patent and Trademark Office; Kathleen O’Malley, Former Circuit Judge at the U.S. Court of Appeals for the Federal Circuit; and Paul Michel, Former Chief Judge at the Federal Circuit. The C4IP will promote real world benefits of IP protections for consumers in an effort to correct anti-IP narratives that have been promoted in recent years.

Copyright Office to Host Final Plenary Session on Technical Protection Measures on October 4 – On Thursday, September 22, the U.S. Copyright Office announced that it would host the final plenary session on technical measures for identifying or protecting copyrighted works on October 4, the fourth such session held by the Copyright Office following a request last June from Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC).

Western Texas Jury Enters $175 Million Verdict Against Facebook Live, Instagram Live – On Wednesday, September 21, a jury verdict entered into the Western District of Texas awarded $175 million in damages for patent infringement to push-to-talk system innovator Voxer after finding that Meta Platforms had infringed upon Voxer’s asserted patent claims through its Facebook Live and Instagram Live services.

Judge Keeley Rules That Mylan Generics Infringe Merck Diabetes Treatment Patent Claims – On Wednesday, September 21, Senior U.S. District Judge Irene M. Keeley of the Northern District of West Virginia entered a ruling finding that generic diabetes treatments marketed by Mylan Pharmaceuticals infringe upon patent claims owned by Merck and covering its Januvia and Janumet branded drugs.

CFC Denies Motion to Alter Judgment on Section 101 Patent Invalidation – On Wednesday, September 21, the U.S. Court of Federal Claims (CFC) issued a ruling in Audio Evolution Diagnostics, Inc. v. United States in which the court denied Audio Evolution’s motion to alter or amend judgment. The CFC found that the plaintiff’s arguments simply reasserted arguments made previously by Audio Evolution in opposition to a motion to dismiss its complaint for failure to state a claim as the patent claims were directed to unpatentable abstract ideas under 35 U.S.C. § 101.

Chief Judge Cheney Denies Exclusionary Relief Against OnAsset in Section 337 Proceeding – On Friday, September 16, Chief Administrative Law Judge Clark S. Cheney of the U.S. International Trade Commission issued an initial determination in a Section 337 proceeding brought by mobile computing firm Zebra Technologies denying all exclusionary relief requested by Zebra against radio frequency transmission devices for tracking cargo imported into the U.S. for sale by supply chain firm OnAsset.

Crocs Settles Trademark Suit Against Walmart in District of Colorado – On Friday, September 16, American retail giant Walmart was terminated as a defendant in a trademark lawsuit filed by footwear designer Crocs in the District of Colorado after Crocs voluntary dismissed its claims against Walmart following a reported settlement.

Virginia State Court Enters $2 Billion Trade Secret Misappropriation Ruling for Appian – On Thursday, September 15, Judge Richard Gardiner of Virginia’s Fairfax County Circuit Court entered final judgment on a jury verdict awarding $2 billion in damages to cloud computing firm Appian, as well as 6 percent post-judgment interest on damages and attorneys’ fees, in its trade secret misappropriation case against software rival Pegasystems.

This Week on Wall Street

Ford Breaks Ground on Construction of BlueOval City’s EV Factory – On Friday, September 23, Detroit automaker Ford Motor Company announced that structural steel had gone up on the site of BlueOval City, a 3,600-acre campus outside of Memphis, TN, into which Ford is investing $5.6 billion to construct a factory producing electric vehicles and trucks.

Accenture Reports Record 22% Revenue Increase for FY2022 – On Thursday, September 22, global professional services firm Accenture reported earnings for the fourth quarter of 2022 and the full fiscal year, reporting a record revenue increase of 22 percent for the year up to $61.6 billion as well as a record $71.7 billion in bookings during the 2022 fiscal year.

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: BlackBerry Ltd. (213th)
  • Wednesday: None
  • Thursday: Micron Technology Inc. (18th); Nike Inc. (111th)
  • Friday: None

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Author Ksuksann


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