Other Barks and Bites for Friday, April 5: Newman Brief Urges Court to Deny Judicial Council’s Motion to Kill Suspension Challenge; Over 200 Artists Ask AI Companies to Stop Devaluing Music; Spicy Condiment Trademark Battle Heats Up

This week in Other Barks and Bites: Judge Pauline Newman responds in district court challenge to her suspension; Over 200 musical artists sign letter imploring tech companies to stop using AI to devalue artists’ work; a California district court denies a motion from tech giants, including Google and Apple, that sought to challenge USPTO IPR rule; and George Carlin’s estate successfully settles copyright infringement lawsuit with podcast that impersonated the comedian’s voice using AI.

Bites

Judge Newman Tells District Court to Deny Judicial Council Motion for Judgment on the Pleadings

Judge Pauline Newman’s counsel, the New Civil Liberties Alliance (NCLA) announced on Friday that they have filed a brief with the U.S. District Court for the District of Columbia telling the court to deny the Judicial Council of the Federal Circuit’s March bid to dismiss Judge Pauline Newman’s remaining challenges to the Council’s decision to suspend Newman indefinitely from her duties with the U.S Court of Appeals for the Federal Circuit (CAFC). Newman’s Memorandum of Law filed Friday argued that the Council “misunderstand[s] the nature of facial challenges in Fourth Amendment cases”; that it “misapprehends” the case on which it relies to refute Newman’s argument that the Judicial Conduct and Disability Act is void for vagueness and that its other arguments for dismissal lack merit.

Federal Circuit Vacates PTAB Order Due to Mootness

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday, April 5, vacated and remanded a Patent Trial and Appeal Board (PTAB) order holding all 75 claims of U.S. Patent No. 9,815,827 to be unpatentable for obviousness. On appeal to the CAFC, just prior to oral argument, the patent expired and the CAFC thus concluded that the patent owner’s “concrete interest” in the patent right no longer existed. As a result, “any concrete stake Sumitomo has in a reversal on the merits of the patentability ruling” had “extinguished,” said the CAFC. The opinion went on to explain that the Supreme Court has not yet clarified whether vacatur of a Board order for mootness requires dismissal, but in this case deemed it appropriate to vacate and remand with direction to dismiss the inter partes review (IPR), “reserving for another case a full consideration of the issue of when such a direction might be inappropriate in a case coming from the Board.”

Celebrity Chef David Chang’s Momofuku Attempts to Enforce Chili Crunch Trademark

On Thursday, April 4, celebrity chef David Chang’s Momofuku sent multiple cease-and-desist letters demanding smaller food companies to stop infringing on its “chili crunch” trademark, according to The Guardian. Michelle Tew, founder of the food brand Homiah, received one of the letters and described it as “a punch in the gut” on her Instagram. Momofuku registered the trademark with the USPTO on March 29. Homiah’s lawyer described Momofuku as a “trademark bully” in the dispute over the popular spicy condiment.

Over 200 Artists Including Billie Eilish and Stevie Wonder Write to Tech Companies Asking Them to Stop Devaluing Artists Using AI

On Tuesday, April 2, the Artist Rights Alliance, an interest group representing musical artists, published a letter asking tech companies and music platforms to stop using artificial intelligence to devalue artists rights. The letter was signed by over 200 artists including stars Billie Eilish, Stevie Wonder and the estates of Bob Marley and Frank Sinatra. The artists acknowledged the potential of AI, but they stated when misused it can undermine artists. “Unchecked, AI will set in motion a race to the bottom that will degrade the value of our work and prevent us from being fairly compensated for it,” wrote the Artists Rights Alliance.

Court Rules California Authors Cannot Join ChatGPT Copyright Cases in New York

On Monday, April 1, a New York district court ruled that a group of California-based authors with a pending copyright infringement case against ChatGPT in California cannot join a group of similar cases in New York. The cases involve accusations that ChatGPT used copyright books and texts to train their language models. The district judge ruled that the cases were not similar enough and disagreed that rulings in the different cases could contradict each other.

Tech Companies Lose Before District Court in Bid to Challenge USPTO IPR Rule

On Sunday, March 31, a California district court issued an order denying a motion for summary judgment from Apple, Cisco, Google, and Intel, saying the tech companies failed to present a convincing argument that the USPTO was required to ask for public comment before implementing a new rule that reduced the number of patent-validity reviews that the USPTO hears. The lawsuit stems from a long-standing beef that began in 2020 between the USPTO and some of the country’s largest tech firms and patent holders. The district court concluded, “Because the NHK-Fintiv standard is a general statement of policy, rather than a substantive or legislative rule, the Director was not required to conduct notice-and-comment rule making prior to designating the NHK and Fintiv decisions as precedential, and the lack of such rule making does not render the NHK-Fintiv standard unlawful.”

Barks

USPTO Releases Updates to Patent and Trademark Datasets

On Thursday, April 4, the U.S. Patent and Trademark Office (USPTO) Office of the Chief Economist updated its Patent Litigation Docket Reports Data. The dataset now includes data from 96,966 unique U.S. district court cases filed between 1963 and 2020. The USPTO worked in conjunction with San Diego Law School to update the dataset. The USPTO also released an updated Trademark Case Files Dataset on Wednesday.

Delaware District Court Adopts Arbutus Biopharma Claim Construction in Patent Infringement Dispute with Moderna

On Wednesday, April 3, a Delaware district court issued a memorandum in which it mostly adopted the claim constructions of Arbutus Biopharma in its patent infringement lawsuit against Moderna. The claim construction relates to six vaccine-delivery patents that Arbutus accused Moderna of infringing on in a 2022 lawsuit. The lawsuit was the first significant patent lawsuit relating to mRNA technology.

USPTO Proposes Patent Fee Changes for 2025

On Tuesday, April 2, the USPTO proposed new patent fee changes for the 2025 fiscal year. The notice of proposed rulemaking for the changes includes extensive detail on the proposed changes.  The USPTO said, “these fees provide our agency with the ability to implement programs and initiatives driving our 2022–2026 Strategic Plan, including enhancing our work to drive down pendency, issuing robust and reliable patent rights, and supporting employees and stakeholders with reliable IT infrastructure.”

Comedian George Carlin’s Estate Settles Deepfake Copyright Infringement Case with Podcast that Replicated the Comedian’s Voice

On Tuesday, April 2, comedian George Carlin’s estate and a podcast that used AI to replicate Carlin settled their copyright infringement lawsuit before a California district court. Carlin’s estate filed the lawsuit against actor Will Sasso and comedian Chad Kultgen after the pair released a podcast using AI to replicate George Carlin’s voice and comedic style. As part of the settlement agreement, the podcast has to delete the episode with Carlin’s AI replication and is barred from using his image or likeness in the future.

This Week on Wall Street

Samsung Projects 931% Profit Increase in Q1 Due to Increased Chip Demand

On Friday, April 5, Samsung released a Q1 earnings report that expects a 931% boost in profits in large thanks to the growth in chips sales. The Korean electronics firm is expecting to turn a profit of around $4.89 billion in the first quarter of 2024. “We expect the strong AI-driven memory upturn cycle will drive earnings in 2024-25E,” said SK Kim, executive director and analyst at Daiwa Securities.

DHS Releases Report Detailing How Microsoft Could Have Prevented Email Hack

On Tuesday, April 2, the Department of Homeland Security (DHS) released a report on the 2023 hacking of Microsoft Exchange Online that stated the tech giant could have prevented the breach of government emails. The DHS’s Cyber Safety Review Board compiled the report and characterized the breach as a “cascade of security failures” that allowed hackers allegedly sponsored by China to access the email inboxes of more than 500 U.S. government employees. “I am confident that the findings and recommendations from the Board’s report will catalyze action to reduce risk to the critical infrastructure Americans rely on every day,” said Jen Easterly, Director of the Cybersecurity and Infrastructure Security Agency (CISA).

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: None
• Wednesday: None
• Thursday: None
• Friday: Wells Fargo (76), JP Morgan Chase (189)

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