Other Barks & Bites for Friday, May 26: USPTO Proposes Track Three Pilot Program for Micro Entity Patent Applicants; LeBron James Joins Taco Tuesday Trademark Battle; European Commission Releases List of Countries with Concerning IP Rights Protections

This week in Other Barks & Bites: The USPTO releases a blog post detailing the success of its Patent Pro Bono Program and announces a proposed pilot for micro entity applicants; NBA superstar LeBron James puts his weight behind Taco Bell in its battle to cancel the “Taco Tuesday” trademark; and Gilead and Teva sign a deal with pharmacies to avoid an antitrust suit.

Bites

CAFC Affirms ITC’s Claim Construction of Surgical Device Patent Claims

The U.S. Court of Appeals for the Federal Circuit on Friday affirmed the International Trade Commission’s (ITC’s) construction of the term “means for guiding” in Ethicon, LLC’s U.S. Patent No. 9,844,369 for “Surgical End Effectors” and also upheld the Commission’s finding that U.S. Patent No. 8,479,969 was obvious.

USPTO Updates Regulations on Patent Application Disclosures for Nucleotides/ Amino Acids to Comply with WIPO Standard

Following the World Intellectual Property Office’s (WIPO’s) adoption of a new version of its Standard ST.26, the U.S. Patent and Trademark Office (USPTO) announced today that it has published a final rule incorporating St.26 by reference into its regulations. The final rule was published in the Federal Register and is aimed at simplifying the multi-country application process. According to the announcement, “ST.26 requires submission of a single-sequence listing in eXtensible Mark-up Language (XML). The XML format provides the public with better preservation, accessibility, and sorting of the submitted sequence data. Among other improvements, the new version of ST.26 clarifies requirements, improves descriptions, and corrects editorial mistakes.”

USPTO Wants Comments on Proposed Track Three Pilot Program for Micro Entities

The USPTO announced today that it is seeking input on a proposed Track Three Pilot Program that would  The “permit micro entity applicants to delay payment of search and examination fees for 30 months from the earliest filing date claimed, under certain conditions.” According to USPTO Director, Kathi Vidal, the pilot was conceived following discussions with inventors across the country. The pilot proposes allowing micro entities to obtain a pre-examination search report prior to the examination fee deadline. Comments are due by July 25.

Gilead and Teva Sign Deal with Pharmacies in Attempt to Ward Off Antitrust Case

On Thursday, May 25, Gilead Sciences and Teva Pharmaceuticals signed a deal with pharmacies a day after their antitrust trial began over allegations that the pharmaceutical companies illegally inflated HIV drug prices. The two pharmaceutical giants have been accused by UnitedHealthcare of working together to keep generic versions of Gilead’s HIV medications off the market and profiting from their monopoly on the drugs. Gilead and Teva are also accused of signing unfair patent settlements to keep generics off the market.

European Commission Publishes Report on Countries with ‘Concerning’ IP Rights Protections

On Wednesday, May 24, the European Commission published its biennial Report titled “Protection and Enforcement of Intellectual Property Rights (IPR) in third countries.” The report categorizes countries into groups based on how concerned the Commission is about the state of IP rights protection in the country. China remains the top priority for the Commission to monitor and lobby for strengthened IP rights. India and Türkiye are listed as priority 2 countries with Argentina, Brazil, Ecuador, Indonesia, Malaysia, Nigeria, Saudi Arabia, and Thailand being priority 3 countries.

Solicitor General Asks Supreme Court to Not Review Two IP Cases

On Tuesday, May 23, Solicitor General Elizabeth Barchas Prelogar asked the U.S. Supreme Court to decline review of a copyright win for Google over Genius and a patent infringement case win for the California Institute of Technology over Apple and Broadcom. In the Genius v. Google case, the Solicitor General said the U.S. Court of Appeals for the Second Circuit was correct in ruling that the song lyric website Genius’s case was preempted by Section 301(a). Genius attempted to sue Google for posting song lyrics from its website on Google search results, however, it was determined that Genius does not own the copyright of the lyrics. Similarly, the Solicitor General told the Supreme Court that the CAFC ruling that determined Apple and Broadcom could not invalidate Caltech’s patents after the companies failed to present invalidity arguments.

USPTO Declares Patent Pro Bono Program a Success

On Monday, May 22, Derrick Brent, Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office, published a guest blog celebrating the successes of the Patent Pro Bono Program. Since the program launched in 2015, the program has resulted in 95,000 hours of free legal services to independent inventors and small businesses, resulting in 2,000 patent application filings. Brent also highlighted the program’s success in reaching underrepresented groups including significant year-on-year increases in program applicants who are women, Black, and Hispanic. Brent wrote, “those are real numbers, real results. Real people benefiting from resources and opportunity, which yields robust, inclusive innovation that makes our country stronger.”

USPTO Director Vacates Previous Board Decision

On Monday, May 22, USPTO Director Kathi Vidal vacated a Patent Trial and Appeal Board (PTAB) final written order which determined that tech giants Samsung and Apple were real parties in interest to a patent dispute between Unified Patents and MemoryWeb. Apple and Samsung have a separate patent suit against MemoryWeb, and this ruling by Vidal will improve their chances of winning their administrative battles. In its ruling, the PTAB sided with Unified Patents in its dispute with MemoryWeb. Vidal wrote, “the Board can and should make a determination of the real parties in interest or privity in any proceeding in which that determination may impact the underlying proceeding, [but] that is not the situation here.”

Barks

Science Committee Passes Drone Development Bill

On Wednesday, May 24, the House Committee on Science, Space, and Technology passed the National Drone and Advanced Air Mobility Research and Development Act, a bill that would increase federal funding for research and development related to drone technology. A major concern for the committee was the lack of U.S. competition with the major Chinese drone manufacturer, DJI, which according to a committee fact sheet produces 90% of drones used for public safety in the United States. “This bill will develop strong, safe, and secure domestic UAS and AAM industries that will grow our economy and counter foreign threats,” said Chairman Frank Lucas (R-OK).

USPTO Announces a New Trademark Search System Will Be Released Later in 2023

On Tuesday, May 23, the USPTO announced that it is working on a new system to improve the user experience when searching its trademark database. The new system will launch later in 2023 and replace the Trademark Electronic Search System. In the press release, the USPTO said, “we are redesigning the interface to make it more intuitive, straightforward, and easier to view search results.”

USPTO Requests Public Comment on the Motion to Amend Pilot Program and PTAB Rules

On Monday, May 22, the USPTO announced a request for comments from the public on the Motion to Amend (MTA) Pilot Program and the rules of practice to allocate the burden of persuasion on motions to amend in trial proceedings before the PTAB. The USPTO is asking the public if the pilot program should be made permanent and if any changes should be made. The request for public comments was published as a Federal Registry Notice. The MTA Pilot Program was implemented in 2019 and provides patent owners with two options if they choose to file an MTA in an America Invents Act (AIA) trial. Read the full IPWatchdog coverage here.

LeBron James Joins Taco Bell in Taco Tuesday Trademark Battle

On Monday, May 22, Taco Bell revealed that NBA superstar LeBron James threw in his support for the fast-food restaurant’s petition before the Trademark Trial and Appeal Board to cancel the registered trademark “Taco Tuesday.” The current Los Angeles Laker uses the phrase “Taco Tuesday” on social media frequently. “‘Taco Tuesday’ is a tradition that everyone should be able to celebrate. All restaurants, all families, all businesses – everybody,” said James.

USPTO Denies Washington Commanders Trademark

On Thursday, May 18, the USPTO denied the Washington Commanders a trademark for its new team name. The denial has received increased media attention as the current scandal-plagued owner Dan Snyder is finalizing the sale of the team for $6.05 billion. The main reason behind the denial was the likelihood of confusion with the trademark for the Commanders’ Classic, a yearly college football game between Air Force and Army.

This Week on Wall Street

Netflix Cracks Down on Password Sharing

On Tuesday, May 23, streaming giant Netflix announced in a blog post that it was introducing a $8 a month charge per person for users to share their password with people outside of their household. Netflix wrote, “a Netflix account is for use by one household.” The decision is a departure from the company’s laissez-faire approach to password-sharing as the streaming platform attempts to compete with new challengers in the streaming market.

Treasury Secretary Yellen Warns Congress of Default if Debt Ceiling Is Not Raised

On Monday, May 22, Secretary of the Treasury Janet Yellen sent a letter to congressional leadership warning that the Treasury will likely default on some government obligations if the debt ceiling is not raised by June 1. “We have learned from past debt limit impasses that waiting until the last minute to suspend or increase the debt limit can cause serious harm to business and consumer confidence, raise short-term borrowing costs for taxpayers, and negatively impact the credit rating of the United States,” wrote Yellen. The Treasury Secretary has been sending regular letters to Congress on the debt limit since the United States reached its statutory debt limit of 31.4 trillion on January 19 of this year.

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: None
• Tuesday:  Hewlett Packard Enterprise (84)
• Wednesday: Salesforce (68)
• Thursday: Dell Technologies (13)
• Friday: None