Other Barks & Bites for Friday, August 18: Record Labels File Copyright Infringement Lawsuit Against the Internet Archive; The NYT Considers Legal Action Against OpenAI; and more

Dusty Quinn, from Summer 2020. Soaking up the sun!

This week in Other Barks & Bites: Meta settles an AI trade secrets lawsuit launched by an AI startup; the U.S. Court of Appeals for the Federal Circuit (CAFC) upholds Patent Trial and Appeal Board’s (PTAB) invalidation of two cancer treatment patents; the United States Patent and Trademark Office (USPTO) announces plans to send welcome letters to newly filed patent and trademark applications; Record labels file copyright infringement against the Internet Archive, the New York Times is considering a copyright lawsuit against OpenAI, and Taco Bell celebrates Taco Tuesday trademark reversal by giving out free tacos.

Bites

New York Times Weighs Up Potential Copyright Lawsuit Against OpenAI

On Wednesday, August 16, NPR reported that The New York Times is considering filing a lawsuit against OpenAI, the creator of ChatGPT, over intellectual property rights. According to NPR’s sources, the newspaper and generative AI company have been in negotiations about a licensing deal that would add stories from The Times into OpenAI’s algorithm. ChatGPT has begun to face several copyright lawsuits from several IP holders including authors who accuse the company of incorporating their copyrighted novels into ChatGPT’s training datasets without permission. The Times updated its terms of service on August 3 to explicitly forbid AI companies from scraping their data, signaling the company’s concern about IP rights violations.

CAFC Upholds PTAB Decision that Invalidated Two Cancer Treatment Patents

On Wednesday, August 16, the CAFC issued a precedential ruling that ruled the PTAB was correct to invalidate two prostate cancer treatment patents from Incept. Palette Life Sciences filed an IPR review that resulted in two of Incept’s patents being invalidated due to obviousness. The CAFC found no error in the PTAB’s decision and disagreed with Incept that the Board was “picking and choosing” from precedent. Notably, CAFC Judge Pauline Newman dissented from her colleague’s opinion and argued the Board incorrectly analyzed subordinate claims in the case.

X, Formerly Twitter, Files Motion to Dismiss Copyright Infringement Lawsuit

On Monday, August 14, X (formerly Twitter) filed a motion to dismiss a lawsuit filed by the National Music Publishers Association that accused the social media company of infringing on the copyright of 1,700 songs. The social media giant used a 2005 Supreme Court ruling to argue that the case should be tossed as the music publishers “do not allege that X encouraged, induced, or took affirmative steps with the intent to foster the infringement of Plaintiffs’ works.” X continued that because the lawsuit failed to establish liability the company could not be held responsible for the infringing content. The music publishers accused the social media company of hosting content on their platform that infringed on a variety of musicians’ copyright.

Major Record Labels Hit Internet Archive with Copyright Infringement Lawsuit

On Friday, August 11, a group of record labels including Capitol Records, Sony Music Entertainment, and UMG Records filed a lawsuit accusing the digital library Internet Archive of infringing on the labels’ copyright. The companies pointed to the Internet Archive’s “Great 78 Project” as a “massive ongoing violation of Plaintiffs’ rights in protected pre-1972 sound recordings.” “The Great 78 Project is a community project for the preservation, research and discovery of 78rpm records,” according to its website. However, the record labels argue that the Internet Archive is operating as an illegal record store and infringing on hundreds of thousands of works.

USPTO to Send Applicants “Welcome Letters” to Connect Them with Resources

On Thursday, August 10, the USPTO announced it plans to provide applicants with welcome letters to help navigate the patent and trademark process as well as find relevant resources. The new plan is part of the Office’s strategy to expand access to the innovation and intellectual property industry. Applicants that file new patent and trademark registrations will now receive a welcome letter electronically or by mail. “We want these letters to educate filers about our processes, reaching them where they are and connecting them with valuable resources to help them protect their intellectual property, start new businesses, and drive our economy forward,” said Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the USPTO.

Caltech Nears Settlement in Blockbuster Patent Infringement Case with Apple

On Thursday, August 10, The California Institute of Technology and Apple announced that a potential settlement has been reached to end their patent infringement dispute. In 2016, Caltech accused Apple and Broadcom of infringing on several of its patents, and the institute won $1.1 billion in damages. However, the case was overturned and has since been dragged out to the stage. On Tuesday, Caltech also announced a settlement with Samsung after the institute sued the South Korean tech firm for patent infringement.

Meta Settles AI Trades Secrets Case

On Tuesday, August 8, Meta settled a lawsuit in which it was accused by an AI startup of stealing its trade secrets. The startup Neural Magic accused the social media platform of stealing algorithms that helped data scientists process large datasets more efficiently. The case was settled on confidential terms and the allegations cannot be refiled. Meta lost an earlier court battle in the case when the district judge ruled that Meta must face a jury trial.

Gizmodo Editor-in-Chief Accuses Apple’s Tetris Movie of Copyright Infringement

On Monday, August 7, the editor-in-chief of Gizmodo Dan Ackerman filed a lawsuit accusing tech giant Apple of infringing his copyright when they developed a Tetris movie. Ackerman wrote “The Tetris Effect” and sent it to the Tetris Company in 2016, which he subsequently accused them and Apple of ripping off. Ackerman is seeking damages of at least 6% of the movie’s $80 million production budget. The movie has been available on Apple TV since March.

Barks

CAFC Rejects Apple’s Appeal Seeking to Overturn Venue Ruling 

On Wednesday, August 16, the CAFC denied Apple’s appeal to overturn a district court ruling that denied the tech company’s petition to move a patent infringement lawsuit to a California court. Lionra Technologies filed a lawsuit in Texas accusing the tech giant of patent infringement. Apple argued that Lionra submitted evidence of three Apple employees who work in the Texas district where the lawsuit was filed in an untimely matter that did not allow the company enough time to respond. However, the CAFC found that Apple did not show that the district court abused its discretion by finding Lionra’s untimeliness harmless.

Advocacy Group Claims Big Pharma Companies Keeping Generics Off Market Through Patent Tricks

On Tuesday, August 15, health insurance company advocacy group AHIP released a statement against large pharmaceutical companies’ use of continuation patents. AHIP cited an article in STAT that argues that pharmaceutical companies use continuation patents to keep low-cost generics off the market. According to AHIP, the article details, “how Big Pharma is using continuation patents to keep lower-cost generic drugs from reaching the market, forcing hardworking Americans to choose between paying their bills and getting the life-saving medicines they need.”

Screenwriter Agrees to Drop Copyright Lawsuit Against Netflix Over “Stranger Things”

On Friday, August 11, screenwriter Jeffrey Kennedy agreed with Netflix to drop his copyright lawsuit against streaming giant Netflix over the hit show “Stranger Things”. Kennedy had accused Netflix and the “Stranger Things” creators of copying his screenplay called “Totem”. Kennedy cited similarities between his screenplay and the show, but ultimately agreed with Netflix to drop the lawsuit with prejudice.

USCO Issues Final Rule on Ex Parte Communication in Informal Rulemakings

On Friday, August 11, the U.S. Copyright Office issued a final rule that defines ex parte communication in informal rulemakings as including “only communications to the Office on substantive issues concerning an ongoing rulemaking.” The rule also sets out how one can request an ex parte meeting and the responsibilities of parties during these meetings. Full details are available on the Federal Register.

Photo Agencies Demand Copyright Protection in Open Letter

On Thursday, August 10, many of the top photo agencies in the world released an open letter demanding better copyright protection from AI. The list of signatories includes Getty Images, the Associated Press, and the National Writers Union. “We look forward to being part of the solution to ensure that AI applications continue to prosper while respecting the rights of media companies and individual journalists who produce content that protects the truth and keeps our communities informed and engaged,” wrote the photo agencies.

Panasonic Launches Patent Infringement Lawsuits Against Two Chinese Firms

On Wednesday, August 9, tech company Panasonic announced patent infringement lawsuits against Chinese firms Xiaomi and OPPO. The Japanese firm said the lawsuits related to the infringement of their 4G patents will be pursued in Germany, the UK, the newly established European Unified Patent Court (UPC), and China. “This is the first time Panasonic sees a need to initiate actions associated with its cellular communications SEPs,” said the company. Litigation will proceed in parallel in Germany, the United Kingdom (UK), the newly established European Unified Patent Court (UPC) and China.

Taco Bell Celebrates Taco Tuesday Trademark Victory with Free Tacos

On Tuesday, August 8, Taco Bell announced that it was celebrating its Taco Tuesday trademark victory by giving away $5 million in free tacos in 49 U.S. states. The fast-food chain made the announcement after rival Taco John’s abandoned the “Taco Tuesday” trademark. However, New Jersey residents cannot participate as another restaurant still holds the trademark in that state.

USPTO Reminds Stakeholders of August 23 Deadline for Comments on Antipiracy Strategy

On Tuesday, August 8, the USPTO issued a reminder to stakeholders that the deadline to submit comments on the Office’s anticounterfeiting and antipiracy strategies is midnight on August 23. The comments will be accompanied by a roundtable on the USPTO strategies on October 3. The USPTO is particularly interested in what consumers, intellectual property rights holders, and online and physical marketplaces have to say about the recent evolution of counterfeiting and piracy.

This Week on Wall Street

Berkshire Hathaway Bets Big on U.S. Housing Market

On Monday, August 14, Warren Buffet’s investment firm Berkshire Hathaway publicized three big buys related to the housing market. The three companies D.R. Horton, Lennar, and NVR received a bump in their stock price when the news became public. The biggest position for Berkshire Hathaway was 6 million shares of the homebuilder D.R. Horton worth around $720 million. The firm made slashes in other holdings including in tech firms, but the only buys in this quarter were the three firms related to the housing market.

Disney Increases Disney+ Streaming Prices Off Back of Poor Earnings

On Wednesday, August 9, Disney announced it is raising the subscription price for its streaming service Disney+. On October 12, the price for its ad-free monthly subscription will go up $3 to $13.99 a month after it increased by $3 in December of last year.  The increases come as Disney reported $512 in third-quarter losses on its streaming service and a 7.4% dip in subscribers.

WeWork Doubts it Can Continue

On Tuesday, August 8, coworking space company WeWork announced that “substantial doubt exists about the Company’s ability to continue as a going concern.” The company expressed these concerns in its second-quarter financial results, in which the company posted a net loss of $397 million. “Excess supply in commercial real estate, increasing competition in flexible space and macroeconomic volatility drove higher member churn and softer demand than we anticipated, resulting in a slight decline in memberships,” said David Tolley, Interim CEO

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: Medtronic (29), Baidu (73)
• Wednesday: NVIDIA (159), Analog Devices (187), Splunk Inc. (191) Snowflake (207)
• Thursday: Vmware (54), Marvell Technology (191), Intuit (256)
• Friday: None