Other Barks & Bites for Friday, November 11: FTC Says Method of Distribution Patents Don’t Belong in Orange Book, EPO Report Shows 13.2% of European Inventors are Women, and Ninth Circuit Nixes Intel Antitrust Appeal Against Fortress and VLSI

This week in Other Barks & Bites: the European Patent Office issues the results of a study showing that 13.2% of European inventors between 1978 and 2019 were women; the Supreme Court disappoints the life sciences community by dismissing the cert petition in Juno Therapeutics, but grants cert in Amgen v. Sanofi and Abitron Austria v. Hetronic International; the Federal Trade Commission files an amicus brief in the District of Delaware arguing that Jazz Pharmaceuticals’ patents covering a method of distributing Xyrem should not be listed in the Orange Book; Amazon CEO Andy Jassy leads a review of Amazon’s major business division to identify cost-cutting measures; the Ninth Circuit affirms the dismissal of Intel’s antitrust claims against the patent aggregation activities of Fortress Investment Group and VLSI Technology; and the World Intellectual Property Organization issues its first ever flagship report on climate change adaptation technology. 

Bites

FTC Amicus Brief Argues That Distribution System Patents Don’t Belong in Orange Book – On Thursday, November 10, the Federal Trade Commission (FTC) filed an amicus brief in the District of Delaware in a patent infringement case filed by Jazz Pharmaceuticals against Avadel CNS Pharmaceuticals over a generic version of the narcolepsy drug Xyrem. The FTC’s amicus brief supports Avadel CNS’ motion to delist Jazz’s asserted patents from the U.S. Food and Drug Administration’s (FDA) Orange Book, which the FTC argues should be delisted because the patent’s claims protect a method of distributing a drug instead of a method of using or administering a drug.

CAFC Affirms Online Marketing Injunction Against Sunset Healthcare’s CPAP Filters – On Wednesday, November 9, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in SoClean, Inc. v. Sunset Healthcare Solutions, Inc. in which the appellate court affirmed the District of Massachusetts’ grant of preliminary injunction requiring Sunset to clearly associate its online marketing and sales of filters for continuous positive airway pressure (CPAP) machines with the Sunset brand. The Federal Circuit found that the district court did not err in finding that SoClean’s federal registration for its trade dress was prima facie evidence of its validity, which along with evidence of alternative designs supported SoClean’s likelihood of succeeding on the merits of its trademark claims.

EPO Report Finds 13.2% of European Inventors are Women – On Tuesday, November 8, the European Patent Office (EPO) issued the findings of a report showing that from 1978 to 2019, 13.2% of European inventors, or fewer than one in seven, were women, with the highest percentage of women inventors being seen in Latvia (30.6%), Portugal (26.8%) and Croatia (25.8%). The report also found that chemistry (22.4%) saw the highest percentage of women inventors of any tech field, while mechanical engineering (5.2%) saw the lowest share of women inventors among tech fields.

Ninth Circuit Rules No Trademark Infringement Over Disclaimed “Museum of Illusions” – On Tuesday, November 8, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Metamorfoza D.O.O. v. Big Funny, LLC in which the appellate court affirmed a district court’s dismissal of trademark claims filed by Croatia-based Metamorfoza. The Ninth Circuit found that Metamorfoza could not plausibly allege trademark infringement based on Big Funny’s commercial use of the term “Museum of Illusions” because that phrase was disclaimed from the federal trademark registration asserted by Metamorfoza in the lawsuit.

CAFC Issues Mandamus Relief Striking Down Judge Albright’s Scheduling Orders – On Tuesday, November 8, the Federal Circuit issued a precedential order in In re: Apple Inc. in which the appellate court vacated a scheduling order entered by U.S. District Judge Alan D. Albright of the Western District of Texas after finding that Judge Albright abused the district court’s discretion in entering a schedule order mandating additional discovery on the merits of the underlying patent infringement suit brought by Aire Technology and unrelated to Apple’s pending motion to transfer venue. The same day, the Federal Circuit issued another order granting mandamus relief to Apple in a separate Western Texas suit brought by Scramoge Technology, vacating another scheduling order by Judge Albright under similar reasoning.

Ninth Circuit Affirms Dismissal of Intel’s Antitrust Claims Over Patent Aggregation – On Tuesday, November 8, the Ninth Circuit issued a decision in Intel Corp. v. Fortress Investment Group LLC in which the appellate court affirmed the district court’s dismissal of federal and California state antitrust claims filed by Intel against Fortress and VLSI Technology. The Ninth Circuit found that Intel had presented no plausible allegations that it had actually paid higher licensing royalties due to patent aggregation activities by Fortress and VLSI, adding that “[t]here are substantial questions regarding whether a litigation demand is even a cognizable ‘price’ for purposes of the antitrust laws.” 

SCOTUS Disappoints Life Sciences Community By Denying Cert Petition in Juno Therapeutics – On Monday, November 7, the U.S. Supreme Court denied a petition for writ of certiorari in Juno Therapeutics, Inc. v. Kite Pharma, Inc., nixing Juno Therapeutics’ appeal of the Federal Circuit’s decision invalidating patent claims covering a cancer immunotherapy treatment for failing the written description requirement under 35 U.S.C. § 112. Several commentators and amicus briefs had pointed out that the Federal Circuit’s legal standard, requiring inventors to show possession of the full scope of the claimed invention, would greatly increase the amount of testing required by pharmaceutical developers and other life sciences firms to obtain a patent with no corresponding benefit from public disclosure.

SCOTUS Grants Cert on Amgen’s Enablement Question and Foreign Scope of Lanham Act – On Friday, November 4, the Supreme Court issued a miscellaneous order in which the nation’s highest court granted petitions for writ of certiorari in a pair of intellectual property cases: Amgen, Inc. v. Sanofi, which asks whether the enablement standard under 35 U.S.C. § 112 requires that the patent disclosure enables those skilled in the art to reach the full scope of claimed embodiments without undue experimentation; and Abitron Austria GmbH v. Hetronic International, Inc., which asks whether the Lanham Act applies extraterritorially such that a defendant can be liable for trademark infringement under the Act for purely foreign sales that never reach the United States or confused U.S. consumers. 

Barks 

USPTO to Issue Interim Final Rule Eliminating Voluntary CLE Certification – Next Monday, November 14, the Federal Register will publish an interim final rule submitted by the U.S. Patent and Trademark Office that will amend the USPTO’s rules of practice to eliminate provisions regarding the voluntary continuing legal education (CLE) certification for patent practitioners based on stakeholder feedback on the implementation of the CLE program and the certification process.

WIPO Publishes First-Ever Green Technology Book on Climate Change Adaptation Tech – On Thursday, November 10, the World Intellectual Property Organization (WIPO) published the first edition of the organization’s Green Technology Book, which examines technology trends and practical solutions for addressing the impact of climate change on agriculture, forestry and other sectors, and was developed in partnership with the Climate Technology Center and Network (CTCN) and the Egyptian Academy of Scientific Research and Technology (ASTR). 

Judge Breyer Finds No Consumer Confusion in Dismissing Trademark Suit Against Meta – On Thursday, November 10, U.S. District Judge Charles Breyer of the Northern District of California granted a motion to dismiss a trademark infringement suit filed by blockchain nonprofit entity Dfinity Foundation against Meta over the social media giant’s infinity logo developed while rebranding from Facebook after finding sufficient differences in design and consumer base to ensure no likelihood of consumer confusion. 

CAFC Rescinds Mask-Wearing Requirement in National Courts Building – On Wednesday, November 9, the Federal Circuit issued an order rescinding a prior administrative order implementing a mask-wearing requirement for anyone entering the National Courts Building or connected buildings, with the rescission becoming effective as of Thursday, November 10. 

Major Chip Firms Face Section 337 Investigation Based on Bell Semiconductor’s Complaint – On Tuesday, November 8, the U.S. International Trade Commission (USITC) announced that it had decided to institute a Section 337 proceeding to investigate claims of patent infringement filed by Bethlehem, PA-based Bell Semiconductor over certain electronic and semiconductor devices imported into the U.S. for sale by several major chip firms including NXP Semiconductors, Micron Technology, NVIDIA and Advanced Micro Devices. 

Judge Fitzgerald Tells Riot Games to Bring League of Legends Copyright Suit to China – On Tuesday, November 8, U.S. District Judge Michael Fitzgerald of the Central District of California issued a ruling dismissing a copyright infringement suit brought by Riot Games under the doctrine of forum non conveniens, finding that Riot’s suit over Shanghai Moonton’s unauthorized use of promotional material from the popular video game League of Legends should instead be litigated in China where Riot Games had already filed suit against Shanghai and its parent company ByteDance.

USPTO Announces Public Listening Sessions, RFC on FDA Collaboration Initiatives – On Monday, November 7, the U.S. Patent and Trademark Office issued a notice and request for comments (RFC) in the Federal Register announcing a public listening session to take place on January 19, 2023, regarding joint initiatives for collaboration between the USPTO and U.S. Food and Drug Administration (FDA). The notice also announced that public comments will be accepted for the RFC through February 6 of next year.

CRB Issues Proposed Rule on Phonorecords IV Ratemaking Proceeding – On Monday, November 7, the Copyright Royalty Board (CRB) issued a proposed rule in the Federal Register for the determination of rates and terms for making and distributing phonorecords under 17 U.S.C. § 115 (Phonorecords IV), which requires a compulsory mechanical license for entities releasing permanent digital downloads and ringtones of copyrighted works, for the period from January 1, 2023, through December 31, 2027.

This Week on Wall Street

Amazon CEO Jassy Reviewing Alexa, Other Business Divisions for Cost-Cutting Moves – On Thursday, November 10, The Wall Street Journal reported that sources close to the matter have acknowledged that Andy Jassy, CEO of e-commerce giant Amazon.com, was leading a months-long effort to review several business divisions across the corporation, including the company’s Alexa unit that employs about 10,000 people, to implement cost-cutting measures.

“Deep Concern” at FTC Over Activity Surrounding Musk’s Takeover of Twitter – On Thursday, November 10, a spokesperson for the Federal Trade Commission (FTC) indicated that the nation’s competition agency was currently “tracking developments at Twitter with deep concern,” especially regarding past consent decrees between the FTC and Twitter regarding users’ personal information and advertisement targeting. That same day, Twitter’s Chief Information Security Officer, Lea Kissner, announced that she would be leaving the social media firm following major changes at Twitter by new owner and CEO Elon Musk.

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

• Monday: SK Group (33rd)
• Tuesday: Infineon Technologies AG (65th); Walmart Inc. (t-202nd)
• Wednesday: NVIDIA Corp. (t-163rd); Sonos, Inc. (t-262nd); Tencent Holdings Ltd. (68th)
• Thursday: Alibaba Group Holding Ltd. (160th); Applied Materials, Inc. (59th); Dolby Laboratories, Inc. (232nd); Siemens AG (38th)
• Friday: None

Image Source: Deposit Photos
Image ID: 68772623
Author: Ksuksann