Other Barks & Bites for Friday, May 5: Ed Sheeran Wins Copyright Case, Generic Drug Pricing Discussion Continues, and How the Pandemic Impacted Counterfeiting

This week in Other Barks & Bites: Vanda Pharmaceutical sues the U.S. government over trade secrets; the CAFC vacates a PTAB decision on objective indicia of nonobviousness; Ed Sheeran wins his copyright battle with the heirs of “Let’s Get It On” songwriter; and Supreme Court Justice Clarence Thomas’s close financial ties with billionaire Harlan Crowe remain under microscope.

Bites

CAFC Gives Guardant Health a Second Chance at PTAB

The U.S. Court of Appeals for the Federal Circuit on Friday, May 5, vacated and remanded a decision of the Patent Trial and Appeal Board (PTAB) that certain claims of Guardant Health’s patent on sytems and methods “for the detection of rare mutations and copy number variations in” cfDNA would have been obvious. While the court agreed with the PTAB’s analysis in some respects, it ultimately vacated the obviousness determination and remanded for further fact finding “because the Board’s objective indicia of nonobviousness analysis is not supported by substantial evidence.”

Jury Rules Ed Sheeran Did Not Violate Marvin Gaye’s Copyright

On Thursday, May 4, a New York jury found that Ed Sheeran did not copy Marvin Gaye’s hit 1973 song “Let’s Get It On.” In a press conference after the verdict, Sheeran said, “I’m unbelievably frustrated that baseless claims like this are allowed to go to court at all.” Heirs of songwriter Ed Townsend accused Sheeran of copying chord progressions from the 1973 song, and the legal battle has taken eight years to resolve. The jury found that Townsend’s heirs had failed to prove that Sheeran had infringed on Townsend’s copyright.

INTA Releases Counterfeiting Report

On Thursday, May 4, the International Trademark Association (INTA) published a new report to support the anticounterfeiting efforts of its members globally. The Anticounterfeiting Benchmarking Report uses personal insights and aggregated data to quantify the effects of the COVID-19 pandemic on counterfeiting. INTA CEO Etienne Sanz de Acedo said, “we know counterfeiting is among the top issues for our members and all IP stakeholders. In this data-driven world, INTA is committed to providing accurate and up-to-date information which is vital to our efforts to address what is a scourge that is both criminal and a risk to consumers’ well-being.”

Senate Committee Postpones Markup of Generic Drug Price Legislation

On Tuesday, May 2, the Senate Committee on Health, Education, Labor & Pensions postponed its final markup of four bills that aim to lower generic drug prices until May 11, one day after a hearing with several pharmaceutical executives. “For anyone here who thinks this is going to be the end of what we do on prescription drugs, I have bad news for you,” Committee Chair Bernie Sanders, I-Vermont said in his opening statement. Sanders and Sen. Amy Klobuchar (D-Minn.) also introduced legislation on Thursday to cut the price of prescription drugs under Medicare in half.

Pharmaceutical Company Sues U.S. Government for Spilling Trade Secrets

On Monday, May 1, Vanda Pharmaceuticals sued the U.S. federal government and accused the Food and Drug Administration (FDA) of revealing trade secrets related to two of its drugs. In the lawsuit, Vanda claimed that the FDA revealed proprietary data related to its drugs to competitors looking to produce a generic version of the drugs. “The material available thus far through public record requests demonstrates that [the] FDA routinely directly or indirectly discloses confidential portions of drug sponsors’ applications to competitors seeking to market generic knockoffs,” wrote Vanda.

Barks

Billionaire Paid Private School Tuition for Clarence Thomas’s Son

On Thursday, May 4, ProPublica reported that billionaire Harlan Crowe paid for Supreme Court Justice Clarence Thomas’s son to attend a private boarding school for at least one year. Crowe and Thomas’s close relationship and financial ties have been under heavy scrutiny after it was uncovered that Crowe had paid for Thomas and his family to take luxury vacations. U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, said about the report, “I hope that the Chief Justice understands that something must be done—the reputation and credibility of the Court is at stake.”

USCO Issues a Notice of Proposed Rulemaking on Agreement-Based Counterclaims

On Wednesday, May 3, the U.S. Copyright Office (USCO) published a notice of proposed rulemaking regarding Copyright Claims Board procedures governing “agreement-based” counterclaims. The proposed rule covers requirements for asserting or responding to agreement-based counterclaims as well as standard interrogatories and standard requests for the production of documents. The deadline for written comments is June 20. Read the full IPWatchdog coverage here.

Kanye West Settles Copyright Case

On Wednesday, May 3, Kanye West settled a copyright dispute with musician Marshall Jefferson who accused West of sampling a song without permission. Details of the settlement were not made public, but a New York district court dismissed the case as it had been “settled in principle.” Jefferson accused West of sampling his 1986 song “Move Your Body” in West’s 2022 album.

Popular Mixtape Website to Pay $50 Million in Damages and Shut Down After Copyright Dispute

On Tuesday, May 2, Spinrilla, a website popular for rap mixtape downloads, offered $50 million in damages to end its years-long copyright battle with the RIAA. In 2020, a district court found that Spinrilla had infringed on musicians’ copyright, and $600 million in damages were up for grabs if a jury determined the infringement was willful. As part of the $50 million judgment agreement, Spinrilla will also cease its operations.

CAFC Reverses Join Inventorship Decision

On Tuesday, May 2, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision that reversed a district court ruling that an inventor should be added as a joint inventor for his contributions to a patent for methods of pre-cooking bacon and meat pieces. The appeals court determined that the inventor’s contribution was not significant enough and failed the three-part test articulated in Pannu v. Iolab Corp. For full coverage on IPWatchdog, click here.

This Week on Wall Street

Fed Hikes Interest Rate to 16-Year High

On Wednesday, May 3, Federal Reserve Chair Jerome Powell announced an interest rate hike from 5% to 5.25%, a 16-year high. The stated goal of the interest rate hike is to temper inflation. Powell also attempted to assuage fears of further regional bank collapses. “We are committed to learning the right lessons from this episode and will work to prevent events like these from happening again,” said Powell.

JPMorgan Snaps Up Assets of Failed First Republic Bank

On Monday, May 1, regulators seized all assets from First Republic Bank and sold them to JPMorgan Chase. First Republic Bank is the third failed regional bank since a crisis for regional lenders in March sent shockwaves through the economy. First Republic Bank is the largest bank to fail since the 2008 financial crisis when Washington Mutual failed. Jamie Dimon, Chairman and CEO of JPMorgan Chase said the acquisition “modestly benefits our company overall.”

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2022 are announcing quarterly earnings next week (2022 rank in parentheses):

• Monday: PayPal (137), Palantir (234)
• Tuesday: None
• Wednesday: Toyota (4), Walt Disney (244)
• Thursday: None
• Friday: Honda (25)