Other Barks and Bites for Friday, May 3: FTC Adds Ozempic and 300 Drugs to FDA’s Orange Book; Eight Major Newspapers Sue OpenAI, Microsoft for Copyright Infringement

Bites (noun): more meaty news to sink your teeth into.

Barks (noun): peripheral noise worth your attention.

bitesThis week in Other Barks and Bites: the Department of Commerce releases a plan to increase women’s employment in the semiconductor sector in order to meet CHIPS goals; the FTC adds 300 drugs to the FDA’s Orange Book of junk patent listings; and eight major U.S. newspapers sue OpenAI and Microsoft for copyright infringement related to ChatGPT.


Federal Circuit Partially Reverses PTAB Due to Error in Applying ‘Printed Matter Doctrine’

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday issued a precedential decision in part reversing and in part affirming a series of decisions from the Patent Trial and Appeal Board (PTAB) in inter partes review decisions challenging a number of IOENGINE’s storage and data processing patents. While the court affirmed the Board’s findings of unpatentability of most of the claims, it reversed the unpatentability determinations as to certain claims of two of the three asserted patents because it said the PTAB incorrectly interpreted the claimed “encrypted communications” to constitute printed matter under the “printed matter doctrine.” That doctrine, said the CAFC, applies to “matter that is claimed for its communicative content—i.e., the content specifically being communicated. The fact that there is a communication itself is not content; content is what the communication actually says.”

Department of Commerce Release Plan to Increase Women Employment in Semiconductor Industry

On Thursday, May 2, the U.S. Department of Commerce announced the CHIPS Women in Construction Framework, part of the Department’s strategy to double the number of women in construction. The framework is a set of five best practices to support the completion of projects funded by the landmark CHIPS and Science Act. Semiconductor manufacturers can voluntarily adopt the list of best practices, and Intel and Micron Technology have already announced that they will implement the framework. “If we are going to meet the national and economic security imperatives of the CHIPS Program, we are going to have to figure out how to fill the hundreds of thousands of jobs we are creating, and we won’t fill those jobs without growing our construction workforce to include more women,” said U.S. Secretary of Commerce Gina Raimondo.

CAFC Issues Precedential Ruling in Amazon Product Listing Patent Infringement Case

On Thursday, May 2, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential ruling that revived SnapPower’s lawsuit to clear its name after Lighting Defense Group accused the company of patent infringement. LDG originally sued SnapPower accusing the lighting company of copying its products through Amazon product listings, SnapPower filed for declaratory judgment of noninfringement, but LDG claimed its competitor lacked personal jurisdiction. The case before the CAFC revolved around the question of whether a complaint filed through Amazon’s Patent Evaluation Express program establishes personal jurisdiction allowing the company to sue in their home-state court. The CAFC ruled, “because we conclude LDG purposefully directed extra-judicial patent enforcement activities at SnapPower in Utah, we reverse and remand for further proceedings.”

FTC Adds 300 Junk Listings to FDA’s Orange Book, Including Ozempic

On Tuesday, April 30, the Federal Trade Commission (FTC) expanded the FDA’s Orange Book by adding 300 junk patent listings for diabetes, weight loss, asthma, and COPD drugs, including the popular weight loss drug Ozempic from Novo Nordisk. As part of the action, the FTC sent warning letters to 10 prominent pharmaceutical companies including GlaxoSmithKline, AstraZeneca, Novo Nordisk, Teva, and Novartis. “By filing bogus patent listings, pharma companies block competition and inflate the cost of prescription drugs, forcing Americans to pay sky-high prices for medicines they rely on,” said FTC Chair Lina M. Khan. “By challenging junk patent filings, the FTC is fighting these illegal tactics and making sure that Americans can get timely access to innovative and affordable versions of the medicines they need.” Click here for full IPWatchdog coverage.

Major U.S. Newspapers Sue OpenAI, Microsoft for Copyright Infringement

On Tuesday, April 30, eight major U.S. newspapers filed a lawsuit accusing OpenAI and Microsoft of copyright infringement. The newspapers accuse OpenAI and Microsoft of using their copyright-protected articles to train ChatGPT. the New York Daily News, Chicago Tribune, Orlando Sentinel, South Florida Sun Sentinel, San Jose Mercury News, Denver Post, Orange County Register, and St. Paul Pioneer Press filed the lawsuit. The lawsuit is the second of its kind with The New York Times suing OpenAI and Microsoft in late 2023. The newspapers filed the lawsuit in the same jurisdiction as the Times case.


USPTO Issues Update to Amino Acid Sequence Patent Application Disclosures

On Thursday, May 2, the United States Patent and Trademark Office (USPTO) issued a final rule that updates regulations concerning patent application disclosures containing nucleotide and/or amino acid sequences. The regulation adopts the World Intellectual Property Organization (WIPO) of version 1.7 of its Standard ST.26. The new rule will go into effect on Monday, July 1, 2024.

PTAB Invalidates Patent Involved in $142 Million Infringement Ruling Against Samsung

On Tuesday, April 30, the Patent Trial and Appeal Board (PTAB) invalidated a G+ Communications patent that was part of a $142 million patent infringement ruling against Samsung. The South Korean conglomerate was able to convince the PTAB that several claims in the 5G technology patent are unpatentable due to obviousness. The ruling throws the $142 million patent infringement verdict handed down by a Texas jury into question.

Judge Restricts Former DraftKings Executive’s Role at Rival Gambling Firm After Trade Secrets Theft

On Tuesday, April 30, a Massachusetts district judge issued a preliminary injunction limiting what a former DraftKings executive could do in his new role at gambling company rival Fanatics after his former employer accused him of taking trade secrets to his new employer. The injunction does not stop the executive from working for Fanatics, but the new employee is not allowed to work on elements of the business related to what he was doing at his former employer. The judge said, “DraftKings has established a substantial likelihood of success on its claims that Hermalyn breached his contractual commitments and misappropriated its trade secrets.”

Nike and BAPE Settle Shoes Design Copyright Infringement Lawsuit

On Monday, April 29, Nike and fashion brand A Bathing Ape (BAPE) settled a lawsuit filed by Nike accusing the Japanese brand of illegally copying sneaker designs. BAPE agreed to drop or redesign the shoe designs as part of the agreement. Nike claimed that the designs infringed on its copyright and caused consumer confusion.

This Week on Wall Street

Federal Reserve Pushes Back Rate Cut

On Wednesday, May 1, Federal Reserve Chair Jerome Powell announced that the Fed is delaying plans to cut interest rates in an attempt to further curtail inflation. The Fed kept interest rates at a 23-year high of 5.25 percent to 5.5 percent, claiming that there has been a lack of progress on inflation reduction. In a statement, the Federal Reserve said, “the Committee does not expect it will be appropriate to reduce the target range until it has gained greater confidence that inflation is moving sustainably toward 2 percent.”

Tesla Fires Team Developing Fast Chargers

On Monday, April 29, The Information first reported that Tesla CEO Elon Musk informed employees that the nearly 500-person team in the EV manufacturer’s Supercharger department is being laid off. Just two weeks ago, Musk fired 14,000 at the company and his latest email left the door open for more layoffs. The move left consumers who rely on the faster Superchargers as well as other EV manufacturers surprised.

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: Palantir (219)
  • Tuesday: Walt Disney Company (272)
  • Wednesday: Toyota (7), Emerson Electric (158)
  • Thursday: Honda (28)
  • Friday: None


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