Bite (noun): more meaty news to sink your teeth into.
Bark (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: the Federal Circuit affirms the Patent Trial and Appeal Board’s invalidation of VirnetX patent claims supporting a $502 million verdict against Apple; the U.S. Solicitor General asks the Supreme Court to overturn an infringement ruling against Teva’s skinny label for carvedilol; the Trademark Trial and Appeal Board reverses a trademark examiner’s refusal to register several column titles for The New York Times; the UK High Court invalidates robotics warehousing patents owned by AutoStore and clears grocery store Ocado from infringement claims; the Japanese government announces that it will restrict exports for nearly two dozen types of chip-making equipment; and Judge Koeltl rejects the fair use defense raised by the Internet Archive in its copyright case against book publishers.
CAFC Affirms PTAB’s Invalidation of VirnetX Patents Supporting $500 Million Jury Verdict – On Thursday, March 30, the U.S. Court of Appeals for the Federal Circuit issued a ruling in VirnetX Inc. v. Mangrove Partners Master Fund, Ltd. affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of patent claims VirnetX had previously asserted against consumer tech giant Apple leading to a $502 million infringement verdict in U.S. district court. The Federal Circuit also ruled that VirnetX forfeited its challenge to the PTAB’s decision to join Black Swamp IP to inter partes review (IPR) proceedings petitioned by Mangrove Partners.
UK High Court Delivers Win to Ocado in Automated Warehousing Patent Case – On Thursday, March 30, Judge Richard Hacon of the UK’s High Court of Justice issued a ruling finding that patents owned by Norwegian automated warehousing developer AutoStore Technology and asserted against UK grocery store chain Ocado were invalid over the asserted prior art. Judge Hacon further ruled that had the patents been valid, they would not be infringed by Ocado’s robotic storage systems at the center of AutoStore’s infringement allegations.
U.S. Solicitor General Asks SCOTUS to Reverse Skinny Label Ruling Against Teva – On Wednesday, March 29, the U.S. Solicitor General filed an amicus brief with the U.S. Supreme Court representing the views of the federal government on the issues present in Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC. The Solicitor General argues that the Supreme Court should grant Teva’s petition for certiorari and reverse the Federal Circuit ruling finding that Teva infringed upon a GlaxoSmithKline reissue patent when it utilized a section viii “skinny” label for its generic carvedilol heart treatment that carved out methods of use patented by GlaxoSmithKline.
Second Circuit Affirms Ruling That Unfair Competition Claims Are Preempted by Copyright Act – On Wednesday, March 29, the U.S. Court of Appeals for the Second Circuit affirmed a ruling by the Southern District of New York that had dismissed unfair competition and misappropriation of “hot news” claims made by Steven Eric Greer against several news media outlets as preempted by the federal Copyright Act.
Ninth Circuit Nixes Copyright Appeal Over Bull Episode – On Tuesday, March 28, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Washington v. ViacomCBS Inc. in which the appellate court affirmed the dismissal of copyright claims against ViacomCBS. The Ninth Circuit held that the district court did not err in dismissing copyright claims based on substantial similarities between the main character of an episode of CBS’ legal drama Bull and the protagonist of a television pilot written by Washington and registered with the U.S. Copyright Office.
Judge Koeltl Rules Against Internet Archive’s Fair Use Defense – On Friday, March 24, U.S. District Judge John G. Koeltl of the Southern District of New York issued a ruling granting a motion for summary judgment filed by a series of book publishers against the Internet Archive. Judge Koeltl found that each of the four fair use factors weighed against the Internet Archive’s unauthorized reproductions of complete books distributed online.
TTAB Reverses Examiner Refusal of Trademark Applications for NYT Column Titles – On Thursday, March 30, the Trademark Trial and Appeal Board (TTAB) issued a decision reversing examiner refusals on a series of trademark applications filed by The New York Times covering the titles of certain subscription-based columns published online by the newspaper. While the TTAB did not agree with the newspaper that the columns were each separate “goods in trade,” the Board did find that the column titles were registrable without a showing of acquired distinctiveness upon an application of the “goods in trade” factors from the Federal Circuit’s 2012 decision in Lens.com v. 1-800-Contacts.
Adidas Rescinds Opposition at USPTO to Black Lives Matter Three-Stripe Design – On Wednesday, March 29, athletic clothing and shoe company Adidas AG announced that it would withdraw its notice of opposition filed this Monday to challenge a trademark registration application filed by the Black Lives Matter Global Network Foundation that Adidas had previously argued was too close to its own iconic three-stripe design.
Judge Biggs Dismisses Challenge to AAVN’s High Thread Count Textile Patents – On Tuesday, March 28, U.S. District Judge Loretta C. Biggs of the Middle District of North Carolina granted a motion to dismiss a lawsuit filed by Globe Cotyarn against AAVN seeking to invalidate AAVN’s patent claims covering methods of manufacturing high thread count cotton-rich bed sheets.
SRAM Seeks New Trial For Proper Application of Doctrine of Equivalents – On Tuesday, March 28, bicycle component manufacturer SRAM filed a motion for a new trial in the Southern District of Florida, which argues that defendant Princeton Carbon Works used an improper defense that did not allow the jury to consider the doctrine of equivalents and that the trial court erred by excluding SRAM’s non-expert witness testimony regarding the appearance of Princeton’s allegedly infringing rim.
Judge Amon Enters $33.4M Judgment on Diabetes Test Strip Infringement Claims – On Friday, March 24, U.S. District Judge Carol Bagley Amon of the Eastern District of New York entered a ruling ordering medical supply distributor H&H Wholesale Services to pay $33.4 million for its infringement of trademarks held by Abbott Laboratories on diabetes test strips improperly repackaged for sale within the United States.
Leather Brothers Wins Preliminary Injunction Protecting OmniPets Before Trade Show – On Tuesday, March 21, U.S. District Judge Wendy W. Burger of the Middle District of Florida issued a ruling granting a preliminary injunction to pet product manufacturer Leather Brothers preventing rival firm Springhaus from marketing a line of OmniPets products days prior to the start of the Global Pet Expo in Orlando, FL.
This Week on Wall Street
Japan Becomes Latest Country to Restrict Chip-Making Exports – On Friday, March 31, Japan’s ministry of trade and industry issued a public statement indicating that the country would restrict nearly two dozen categories of chip-making equipment exports, following similar announcements by the United States and the Netherlands in moves that many commentators believe are tied to trade tensions between the U.S. and China over semiconductors.
Nikola Announces Second Public Offering, Will Issue $100M in Shares – On Thursday, March 30, electric semi-truck developer Nikola announced that had registered with the U.S. Securities and Exchange Commission to commence a public offering of $100 million in common stock shares. Nikola also announced a forward stock purchase agreement with an unidentified investor who will purchase any outstanding common shares up to $100 million that remain after the public sale of stock.
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