Other Barks and Bites for Friday, February 16: CAFC Precedential Order Chides Counsel for Incorporation by Reference; Meta Must Face Search Engine Patent Infringement Case; Valentine’s Day Drama for WTO

This week in Other Barks and Bites: The World Trade Organization adopts two reports meant to advance work leading up to the 13th WTO Ministerial Conference (MC13), where the Council will in part decide whether to extend a waiver of IP rights for COVID vaccines to therapeutics and diagnostics; a Valentine’s Day patent poem gets the WTO in hot water with public health advocates; the U.S. Court of Appeals for the Federal Circuit rules that Meta will once again face a search engine patent lawsuit and also rebukes counsel for Comcast in a precedential Order regarding incorporation by reference; and a group of music publishers claim a chatbot was knowingly trained to produce copyright-protected lyrics.

Bites

Federal Circuit Scolds Comcast Counsel for Incorporation by Reference in Sua Sponte, Precedential Order

In a precedential Order issued Friday, February 16, the U.S. Court of Appeals for the Federal Circuit (CAFC) slammed counsel for Comcast, Mark Perry of Weil, Gotshal, & Manges, for attempting to incorporate by reference “almost 2,000 words from a brief in a separate case—exceeding the total word count for its response brief…by more than 1,300 words.” The Order was issued sua sponte and stopped short of awarding sanctions against Comcast or Perry but warned future litigants that “1) it is improper to incorporate material from one brief by reference into another unless in compliance with Fed. R. App. P. 28; (2) in no event is such incorporation permitted if it would result in exceeding the applicable word count; and (3) violating these provisions in the future will likely result in sanctions.”

In a separate precedential opinion, the court reversed-in-part, vacated-in-part and affirmed-in-part a district court finding of no infringement for Comcast, holding that the district court had improperly construed certain claim terms of Promptu Systems Corp.’s patents and thus vacating and remanding the judgment.

CAFC Overturns District Court Ruling, Remanding Meta Patent Infringement Case for Further Proceedings

On Thursday, February 15, the U.S. Court of Appeals for the Federal Circuit (CAFC) ruled that Meta must face a patent infringement case launched by MasterObjects. The Dutch company filed the original suit in 2020 accusing Meta’s predictive search engine of infringing on its patents. A California district court granted Meta a summary judgment of non-infringement, however the CAFC disagreed with the district court’s interpretation of two claim constructions and incorrectly disregarded MasterObjects’s proposed language for a third. Therefore, the CAFC reversed the district court’s ruling and remanded it for further proceedings.

Copyright Office Issues NPRM on Group Option for Two-Dimensional Artwork Registrations

On Thursday, Februray 15, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) to create a group option for registering published two-dimensional artwork. According tot he NPRM, the option would “allow applicants to register up to ten works published within a thirty-day time period by submitting a single online application with a digital deposit copy of each work.” The Office is seeking public comments, which must be received no later than April 1, 2024, at 11:59 p.m. eastern time.

Europol/ EUIPO’s Operation SHIELD Cracks Down on Fake Meds

The European Union Intellectual Property Office (EUIPO) announced on Wednesday, February 14, that Europol’s Operation SHIELD, targeting fake medicines in cooperation with the EUIPO, resulted in charges against 1,284 individuals, investigations into 52 organized crime groups, and total seizures worth above 64 million EUR, “including fake tablets and pills, illegal packages of illegal pharmaceuticals, powders and raw material, litres of active ingredients, vials and ampoules.”

Music Publishers Argue Claude Chatbot Trained to Produce Copyrighted Lyrics

On Wednesday, February 14, a group of music publishers filed a reply in support of a motion for preliminary injunction in their lawsuit against Anthropic. The publishers, including Universal Music, said Anthropic’s chatbot Claude was knowingly trained on copyright-protected lyrics and that Anthropic’s own training data belies the fact that the chatbot was trained to produce copyrighted lyrics, since it was fed questions such as “What are the lyrics to American Pie by Don McLean?”

WTO Adopts Reports in Advance of Meeting on COVID IP Waiver Extension, Gets No Love for V-Day Patent Poem

On Tuesday, February 13, the World Trade Organization (WTO) announced that members of the TRIPS council had adopted two reports addressing 1) whether to extend the Ministerial Decision on the TRIPS Agreement (WT/L/1141) to COVID-19 therapeutics and diagnostics, and 2) the Council’s current and future work under paragraphs 23-24 of the Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics (WT/L/1142). The announcement was made ahead of the WTO’s 13th Ministerial Council, which will take place in Abu Dhabi on February 26-29.

One day later, on Valentine’s Day, the WTO received sharp criticism from public health campaigners for a now-deleted Valentine’s Day love poem dedicated to IP rights. The poem was quickly pulled and replaced with another (patent-free) poem, shown below:

Also on February 13, as reported in Politico, The People’s Vaccine Alliance posted a fake press release purported to be written jointly by the European Union and United States governments committing to reversing their positions on waiver of IP rights for COVID vaccine technologies, among other measures. The NGO later apologized to those who “felt tricked,” but said, “However, we make no apologies for highlighting the deadly double standard of the US and EU positions.”

District Judge Grants Partial Victory to OpenAI in Copyright Infringement Case

On Monday, February 12, a California district judge dismissed parts of a copyright lawsuit filed by a group of authors accusing OpenAI of using their copyrighted works to train its generative AI model ChatGPT. The judge agreed with OpenAI that the authors failed to show a sufficient similarity between ChatGPT’s output and the copyrighted works. Thus, the judge dismissed the authors’ vicarious copyright claim as well as DMCA claims. Three separate lawsuits filed by different groups of authors must now be consolidated, and the judge gave the group until March 13 to file an amended complaint.

Barks

NAI Announces Top Utility Patent Universities

On Thursday, February 15, the National Academy of Investors released a list of the Top 100 universities based on how many utility patents they received in 2023. “The Top 100 Worldwide list highlights the essential role universities across the globe play in creating patented technologies that beneficially impact society”, said Dr. Paul Sanberg, President of the National Academy of Inventors. U.S. universities made up eight of the top 10, with the Regents of the University of California and MIT leading the way.

Ex-Apple Engineer Sentenced to 120 Days for Trade Secret Theft

On Tuesday, February 13, a California district judge sentenced a former Apple engineer to 120 days in jail for stealing trade secrets, according to Bloomberg. Zhang Xiaolang was accused of downloading a 25-page document related to an autonomous vehicle and taking it to his next employer, a Chinese car company. He pled guilty to the charge in 2022 and will serve his 120 in a minimum-security prison.

Deque Systems Sues BrowserStack for Copyright Infringement

On Tuesday, February 13, Deque Systems filed a lawsuit against BrowserStack accusing the company of replicating Deque’s copyright-protected accessibility testing product. According to Deque, “similarities between the products reveal that the copying was intentional, pervasive and blatant.” The products in question allow those with disabilities to access online websites and content. “The facts here are simple: BrowserStack engineers licensed our axe DevTools® browser extension, accessed our code, blatantly copied it into their product, and then tried to market their stolen product as better than ours,” said Dylan Barrell, Deque’s Chief Technology Officer.

Epic Games and Choreographer Dismiss Their Fortnite Dance Copyright Dispute

On Monday, February 12, Fortnite creator Epic Games and a choreographer told a California district court that they had agreed to dismiss the choreographer’s lawsuit that accused the video game company of copying his copyrighted dance moves. The choreographer Kyle Hanagami originally claimed that Epic Games infringed on his copyright through several popular dances available in the game. Similar lawsuits have been filed against the game company but were dismissed by courts.

This Week on Wall Street

Japanese Economy Falls from Number 3 Spot

On Thursday, February 15, the Japanese government released a report showing that its economy shrank 0.4% and was overtaken by Germany for the world’s third-largest economy. The contraction was a far cry from Japan’s expected 1.4% growth in the quarter, and it was the second quarter in a row where the Japanese economy shrunk. Germany overtaking Japan for the world’s third-largest economy was not a surprise to many with Japan’s economic indicators faltering in recent months.

Bezos Sells $4 Billion in Amazon Stock

On Tuesday, February 13, Jeff Bezos continued selling off Amazon stock with the total the founder sold reaching $4 billion. It is the first time the billionaire has sold Amazon stock since 2021 and comes several months after Bezos announced his move from Seattle, Washington to Miami, Florida. Many suspected the move and sale were connected with Florida having significantly lower taxes.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2023 are announcing quarterly earnings next week (2023 rank in parentheses):

• Monday: None
• Tuesday: Medtronic (21)
• Wednesday: NVIDIA (95), Analog Devices (173)
• Thursday: Intuit (179)
• Friday: Berkshire Hathaway (199)