Other Barks & Bites for Friday, September 15: CAFC Issues Precedential Ruling in Design Patent Case; Tech Titans Testify Before Congress on AI; FTC Publishes Policy Statement on ‘Improper Patent Listings’

This week in Other Barks & Bites: the CAFC issues a precedential ruling in a design patent win for Columbia Sportswear; the country’s biggest tech CEOs testify before Congress on the state of artificial intelligence (AI) in the United States; the Federal Trade Commission releases a policy statement charging that brand pharmaceutical companies are improperly listing patents in the Orange Book; and the IFPMA explained the pharmaceutical industry’s priorities of innovation and pandemic preparedness.

Bites

Federal Circuit Sends Design Patent Ruling Back to District Court a Second Time

The U.S. Court of Appeals for the Federal Circuit on Friday issued a precedential decision in a design patent case between Columbia Sportswear North America, Inc. and Seirus Innovative Accessories, Inc. that it initially ruled on in 2019. In the 2019 case, the CAFC reversed a summary judgment decision against Seirus for infringement of Columbia’s U.S. Design Patent No. D657,093 and remanded for further proceedings on the design patent. On remand, another jury found that Seirus did not infringe, and Columbia appealed to the CAFC, mainly challenging the jury instructions. The CAFC this time around rejected each of the parties’ arguments regarding the preclusive effects of the first appellate decision (Columbia I); said that “the district court erred by failing to instruct the jury as to the scope of the D’093 patent claim (design for a heat reflective material) and, relatedly, the proper scope of comparison prior art,” and that the error was prejudicial; and ultimately vacated the non-infringement judgment and again remanded for further proceedings.

CAFC Rejects Philip Morris Appeal of PTAB Ruling on E-Cigarette Patent

On Thursday, September 14, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a Patent Trial and Appeal Board (PTAB) ruling against tobacco conglomerate Philip Morris in its bid to overturn an R.J. Reynolds e-cigarette patent. The CAFC said the Board did not legally err in finding that combining certain elements of the e-cigarette product was not obvious and that its holding did not contradict a previous PTAB ruling. In March, the International Trade Commission (ITC) banned Philip Morris from importing electronic vapes that infringed on the R.J. Reynolds patent into the United States.

ITC Says Active Parties Don’t Infringe Crocs’ Trade Dress But Issues Limited Exclusion Order for Defaulting Respondents

The U.S. International Trade Commission on Thursday, September 14, issued a Notice of Final Determination that Hobby Lobby and other active parties to an investigation into “certain casual footwear” brought by Crocs, Inc. did not violate Section 337 of the Tariff Act of 1930. Crocs had alleged that Hobby Lobby, Walmart and others had infringed its trade dress in its “Classic Clog” model. In March, an administrative law judge issued an Initial Determination finding the trade dress invalid for lack of secondary meaning and that no respondent infringed. Crocs sought a reversal from the Commission, but the Commission affirmed the finding of no infringement and took no position on invalidity. However, the Commission issued limited exclusion orders against four respondents that were found to be in default and waived their rights, as well as cease and desist orders against two of them.

FTC Publishes Policy Statement on Improper Patent Listing by Brand Pharma Companies

The U.S. Federal Trade Commission of Thursday, September 14, issued a Policy Statement warning that “brand drug manufacturers may be harming generic competition through the improper listing of patents” in the Food and Drug Administration’s (FDA) “Orange Book.” The stated goal of the policy statement is “to put market participants on notice that the FTC intends to scrutinize improper Orange Book listings to determine whether these constitute unfair methods of competition in violation of Section 5 of the Federal Trade Commission Act.” The statement charges that “certain manufacturers have submitted patents for listing in the Orange Book that claim neither the reference listed drug nor a method of using it” and this practice “may have played a role in distorting pharmaceutical markets for decades.”

IFPMA Emphasizes Need for Pandemic Preparedness Ahead of UN General Assembly

On Wednesday, September 13, the International Federation of Pharmaceutical Manufacturers & Associations published a press release detailing the trade association’s priorities and future innovation plans ahead of the 78^th Session of the UN General Assembly. On September 20, the UN General Assembly will hold a high-level meeting on pandemic prevention, preparedness and response. In its press release, the IFPMA wrote, “current pandemic preparedness plans should not undermine what worked well in response to COVID-19 and must support both “innovation and equity.”” The trade association further argued that the pharmaceutical industry will play a key role in the prevention and response to future pandemics.

Tech CEOs Testify on AI Before Senate’s Inaugural AI Insight Forum

On Wednesday, September 13, tech executives including Elon Musk, Bill Gates, Mark Zuckerberg, and Sam Altman of OpenAI, testified in front of senators for the Senate’s first AI Insight Forum. Many of the tech titans behind AI innovations emphasized the technology’s potential to solve societal issues and also asked U.S. lawmakers for regulation on the technology. Senate Majority Leader Chuck Schumer (D-NY) said, “AI is here and here to stay. Congress must play a role, because without Congress we will neither maximize AI’s benefits, nor minimize its risks.”

Inventors Sends Letter to Congress in Support of Patent Reform

On Tuesday, September 12, the Inventor’s Project announced that a group of 40 inventors sent a letter to Congress members expressing their support for the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act. The inventors wrote, “the (PREVAIL) Act would play a crucial role in safeguarding the property rights of inventors, small businesses, universities, and other patent holders.” The inventors argued the legislation would curtail patent infringers from exploiting the patent system and hindering U.S. innovation.

Barks

USPTO Delays Deadline for Registration to Attend Trademark Listening Session In Person

The U.S. Patent and Trademark Office announced Friday, September 15, that it has extended the deadline to to register for in-person attendance and requests to participate as a speaker at the public listening session on changes to the attorney recognition rule to September 22. The original deadline was September 15.

The listening session will take place on September 26 from 2:00pm-3:30 p.m. ET in person or online and will feature stakeholder perspectives on whether the Office should retain or revise the current trademark rule regarding duration of attorney recognition. To attend in person or virtually without speaking, register by September 22. Written comments will be accepted through October 6.

CAFC Rejects Healthcare Patent Application

On Thursday, September 14, the CAFC affirmed a PTAB ruling that rejected an applicant’s physician-patient information patent due to patent-ineligible subject matter and obviousness. The CAFC agreed with the Board that Angadbir Singh Salwan’s patent application only deals with well-known information exchange processes and the claims in the patent were related to abstract ideas.

Textbook Companies Accuse Library Genesis of Staggering Copyright Infringement

On Thursday, September 14, a group of textbook companies filed a lawsuit against Library Genesis, a file-sharing service the companies accused of wide-scale copyright infringement. The companies including McGraw Hill, Pearson, and Macmillan, claimed that the amount of copyright infringement carried out by Library Genesis is “staggering.” They also claimed that the file-sharing platform’s mission statement to share knowledge is simply a ruse to cover up copyright infringement. Library Genesis and other so-called “shadow libraries” have faced increased scrutiny as authors and copyright holders launch lawsuits against AI platforms, some of which rely on these services as a database.

Appeals Court Revives Impossible Foods’ Trademark Infringement Lawsuit

On Tuesday, September 12, the 9th U.S. Circuit Court of Appeals reversed a district court ruling that dismissed a trademark infringement case filed by Impossible Foods. The plant-based meat substitute company sued Joel Runyon’s company Impossible X for trademark infringement in a California court, which promptly dismissed the case. Impossible Meats was able to revive the court proceeding by convincing the appeals court that the California district court lacked jurisdiction over Runyon’s company because he was only formerly based in the state and lacked sufficient ties to California.

USPTO Postpones New Trademark Modernization Act Provisions to 2024

On Monday, September 11, the United States Patent and Trademark Office (USPTO) postponed the implementation of the Trademark Modernization Act’s provisions for post-registration response deadlines. The USPTO expects to announce a new date in the spring or summer of 2024 after the Office upgrades its databases, public search system, and internal examination systems. The new provision will allow registrants three months to respond to affected post-registration office actions and apply for a three-month extension for a fee.

This Week on Wall Street

UAW Goes on Strike Against Big 3 Automakers

On Friday, September 15, United Auto Workers (UAW) began a strike against the Big 3 U.S. automakers, GM, Ford, and Stellantis, after a negotiation deadline passed with no agreement. The autoworker’s union is asking for pay rises as well as an end to a two-tier employment system. About 13,000 of the UAW’s 145,000 members walked off the job in what the union is referring to as a Stand Up Strike, where members of different local unions will be asked to strike at different times.

Starbucks Founder Steps Down from Board of Directors

On Wednesday, September 13, Howard Schultz, the founder of Starbucks announced he is stepping down from the board of directors after 41 years at the coffee giant. The company characterized the change as a planned transition that will add Wei Zhang to the board, a former Alibaba executive. Starbucks workers have been in the news recently for their attempts to unionize, and in March Schulz was grilled during his testimony before Congress for the company’s labor practices.

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