Other Barks & Bites for Friday, October 6: CAFC Issues Precedential Opinions; Software Company Must Pay Columbia University $481.3 Million for Patent Infringement; Senate IP Subcommittee Discusses SHOP SAFE Act

Colby Jack McDermott-Doppman

This week in Other Barks & Bites: The U.S. Supreme Court denies a hearing to music publishers who accused a website of infringing on the copyright of live music performances; the U.S. Court of Appeals for the Federal Circuit (CAFC) issues two precedential patent opinions; X Social Media sues Elon Musk’s social media platform X for copyright infringement; and the PTAB grants Mylan Pharmaceutical’s petition for an inter partes review on the validity of Novo Nordisk’s Ozempic and Wegovy patents.

Bites

CAFC Issues Precedential Ruling Partially Vacating PTAB on ‘Noah Group’ Analysis

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, October 6, partially affirmed and partially vacated a Patent Trial and Appeal Board (PTAB) decision that determined some claims of Sisvel’s U.S. Patent No. 6,529,561 (’561 patent) were unpatentable, but upheld several other claims. On Sierra Wireless’ cross-appeal, the CAFC found the PTAB had incorrectly grouped the protocols disclosed in the specification into “Noah Group One,” meaning the specification discloses no algorithm, and that “the Board should have evaluated the protocols disclosed in the specification in light of the knowledge of a skilled artisan and conducted an analysis appropriate to Noah group two,” and thus should have considered expert testimony. The court thus vacated that portion of the decision and remanded for further proceedings.

Federal Circuit Upholds PTAB Invalidation of Image Transfer Patents

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, October 6, issued a second precedential ruling affirming the Patent Trial and Appeal Board’s (PTAB) finding that a number of claims to patents for an image transfer process owned by Jodi A. Schwendimann were obvious in view of the prior art. The court in particular held that Schwendimann’s argument that “justification for selection of a primary reference is a necessary step to guard against hindsight bias for the motivation to combine references” was both forfeited but also unsupported by the CAFC’s case law. “We have made clear that ‘where the relevant factual inquiries underlying an obviousness determination are otherwise clear,’ characterizing references ‘as ‘primary’ and ‘secondary’ is merely a matter of presentation with no legal significance,” wrote the court.

PTAB Grants IPR to Review Validity of Novo Nordisk’s Ozempic and Wegovy Patents

On Wednesday, October 4, the Patent Trial and Appeal Board (PTAB) granted an inter partes review following Mylan Pharmaceutical’s petition to review Novo Nordisk’s patents for the weight loss drugs Ozempic and Wegovy. The PTAB was persuaded by Mylan’s arguments that “demonstrated a reasonable likelihood that it would prevail with respect to at least one claim challenged in the Petition.” Mylan suffered a defeat earlier in the week when the PTAB rejected the company’s petition to review the validity of a patent related to the drug’s active ingredient. The patents now under review by the PTAB are related to the administration of the drug’s active ingredient.

C4IP Expresses Support for Anticounterfeiting Legislation Introduced in the Senate

On Tuesday, October 3, the Council for Innovation Promotion (C4IP) issued a statement and sent a letter to the Senate Subcommittee on Intellectual Property Chairman Chris Coons (D-DE) supporting the subcommittee’s introduction of the SHOP SAFE Act. The legislation aims to incentivize e-commerce platforms to implement best practices to prevent the sale of counterfeit items online. The SHOP Safe Act was originally introduced in 2020 but failed to come to fruition. Coons and Thom Tillis (R-NC) began their attempt to revitalize the bill this year. The legislation was discussed in a Senate Subcommittee on Intellectual Property hearing on Tuesday that featured witness testimony from executives in a variety of business sectors. “The introduction of the SHOP SAFE Act by Chairman Coons and Ranking Member Tillis is a necessary step toward making online shopping safer for American consumers and reinforcing the IP rights of trademark holders,” wrote the C4IP in their statement. 

Social Media Company Files Trademark Lawsuit Against Elon Musk’s X Corp After Twitter Rebrand

On Monday, October 2, X Social Media filed a trademark infringement lawsuit against X Corp, the social media giant formerly known as Twitter. In the lawsuit, X Social Media claimed that Twitter’s rebrand to X has caused confusion among users that its service connecting law offices with clients is associated with Elon Musk’s X Corp. The company further argued that this confusion has led to lost revenue. This lawsuit is one of several ongoing high-profile cases against the social media platform that began after Musk bought Twitter. Check out the full IPWatchdog coverage here.

Judge Orders Software Company Must Pay Columbia University $481.3 Million for Patent Infringement

On Saturday, September 30, a Virginia judge issued a final ruling that found software company Gen Digital owes Columbia University $481.3 million for willfully infringing on two of the university’s cybersecurity patents. Gen Digital, formerly known as NortonLifeLock, had already received a $185 million penalty from a jury verdict, but the judge found that the sum should be increased due to the willful infringement of the patents. The federal judge also ruled Gen Digital’s attorneys had not complied with the court’s orders by withholding witness testimony that was unfavorable to Gen Digital.

Barks

USPTO Releases Working Paper on Large Tech Companies’ Impact on Metaverse Trademarks

On Wednesday, October 4, the USPTO’s Office of the Chief Economist released a working paper on trademark trends in the metaverse. The paper looks back to 2014, when large firms started showing interest in the metaverse, including Facebook’s acquisition of the virtual reality technology Oculus. The report found that Facebook’s entry into the market resulted in a 10% decline in new metaverse trademarks, as smaller firms worried about established tech companies entering the fray.

Copyright Office Extends Deadline for Comments on Copyright and AI

On Wednesday, October 4, the USPTO, which is cooperating with the U.S. Copyright Office as part of its AI/ET Partnership, announced that the deadline has been extended for comments on copyright and artificial intelligence. The deadline for written comments is now October 30 and reply comments are due on November 29. The U.S. Copyright Office (USCO) initially published the notice of inquiry in August, as the Office is studying copyright issues raised by the growth of generative AI.

FTC Releases Blog Post Covering AI Concerns

On Tuesday, October 3, the Federal Trade Commission (FTC) released a blog post outlining current consumer concerns around AI. The FTC mentioned copyright and IP concerns surrounding AI companies’ ability to scrape copyright-protected data in order to train generative AI models. The FTC pointed toward an October 4 virtual roundtable that it hosted as evidence of the Commission’s continued outreach to impacted individuals and businesses. “We are ultimately invested in understanding and preventing harms as this new technology reaches consumers and applying the law,” wrote the FTC

Supreme Court Denies Hearing on Concert Recording Copyright Dispute

On Monday, October 2, the U.S. Supreme Court denied a hearing to a group of music publishers, including Sony Music, a hearing on their claims that Bill Sagan’s company, Wolfgang’s Vault, infringed on their copyright. Sagan’s company was previously hit with a $189,000 fine for damages, but the music publishers were seeking a higher figure. Wolfgang’s Vault hosts a variety of concert recordings from famous rock bands and stars. 

This Week on Wall Street

Fraud Trial Against Sam Bankman-Fried Begins

On Tuesday, October 3, the trial of Sam Bankman-Fried for defrauding his cryptocurrency customers of billions of dollars kicked off with opening statements from the defense and prosecution. Thane Rehn, assistant U.S. attorney for the Southern District of New York, said, “He had wealth. He had power. He had influence. But all of that — all of that — was built on lies.” Bankman-Fried’s attorneys attempted to paint the 31 year-old defendant not as a victim, but as a young math nerd who got in over his head. Several witnesses later testified, including a man who lost $100,000 in the collapse of Bankman-Fried’s FTX.

Federal Reserve Governor Says Higher Interest Rates Needed to Decrease Inflation

On Monday, October 2, Federal Reserve Governor Michelle Bowman said the interest rate will likely be increased to fight rising inflation at an event sponsored by the Mississippi Bankers Association and the Tennessee Bankers Association. “Inflation continues to be too high, and I expect it will likely be appropriate for the Committee to raise rates further and hold them at a restrictive level for some time to return inflation to our 2 percent goal in a timely way,” said Bowman. Bowman continued by arguing that the economy has remained strong despite recent interest rate hikes. The governor is one of the 12 voting members of the panel that sets interest rates, which increased to a range of 5.25% to 5.5%, a 22-year high.

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: None
• Wednesday: None
• Thursday: None
• Friday: Wells Fargo (109), J P Morgan Chase & Co (183)