Other Barks & Bites for Friday, September 6: House Version of PERA Introduced; Judicial Council Confirms Extension of Newman Suspension; OpenAI Asks Court to Dismiss Claims and Focus on Fair Use in Copyright Battle

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This week in Other Barks & Bites: A House version of the Patent Eligibility Restoration Act (PERA) is introduced; Judge Pauline Newman’s suspension from hearing cases at the Federal Circuit, on which she has served for 40 years, is officially extended by the court’s Judicial Council; OpenAI asks a New York court to dismiss several claims in one of its copyright infringement lawsuits in order to focus on fair use; China strengthens IP ties with Belt and Road Initiative Partners; and a Texas startup accuses tech giants Nvidia and Microsoft of “rampant infringement” of its patents.

Bites

House PERA Bill Introduced

Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA) on Friday, September 6,  introduced the House version of the Patent Eligibility Restoration Act of 2024, which, like the Senate bill introduced last year, would explicitly eliminate all judicially-created exceptions to U.S. patent eligibility law.

Senators Thom Tillis and Chris Coons (D-DE) last introduced the bill in June of 2023. Tillis first introduced the bill in August 2022, and Coons announced he would co-sponsor the legislation in September 2022 at a Council for Innovation Promotion (C4IP) event.

In a statement, Kiley said: “The U.S. has one of the most restrictive patent systems in the world due to confusing rulings from the Supreme Court. The Patent Eligibility Restoration Act will allow American inventors to patent a wider variety of inventions that foreign nations, like China, already allow their own innovators to patent. This will spark economic growth, create jobs, and provide significant technological advancement for all Americans.”

Following introduction of the Senate version of PERA last year, US Inventor opposed the bill “as written,” charging that it “codifies the same eligibility morass under new language, potentially making it even worse.”

IPWatchdog founder and CEO Gene Quinn called this a “blatant mischaracterization” that is “an enormous mistake that will have tragic consequences unless those who have the most to lose become willing to accept a win, even if that win does not provide them with 100% of what they want.”

Former USPTO Directors and C4IP Board Co-Chairs Andrei Iancu and David Kappos called the introduction of the House version of the bill “a pivotal moment for American inventors.” “By establishing a clear legal framework, PERA will empower inventors to push the boundaries of innovation with confidence, driving forward the next generation of transformative technologies and life-saving medicines,” the C4IP statement added.

Judicial Council Extends Newman Suspension

On Friday, September 6, the Judicial Council of the Federal Circuit adopted the report and recommendation of the Special Committee of the U.S. Court of Appeals for the Federal Circuit (CAFC) that has been investigating Judge Pauline Newman’s alleged misconduct since last year. The Council’s Order means Newman will be suspended from hearing cases at the panel or en banc level for another year.

The Committee consists of CAFC Chief Judge Moore and Judges Prost and Taranto. In August 2023, the panel issued a 319-page report recommending the sanction of suspension and characterizing Newman’s refusal to submit to medical testing by the Committee’s selected doctors as “serious misconduct” that has “[t]hwarted the process Congress created for determining whether a life-tenured judge suffers from a disability.”

Newman’s counsel, Greg Dolin of the New Civil Liberties Alliance (NCLA), has argued previously that this sanction amounts to a “floating” period of punishment that constitutes “coercive” action, rather than remedial, as required by the rules, and effectively equates to Newman’s removal from the court.

Startup Sues Nvidia and Microsoft for Rampant Patent Infringement

On Thursday, September 5, startup Xockets filed a lawsuit in a Texas court against Nvidia and Microsoft accusing the tech giants of “rampant infringement” of its patents. In the lawsuit, the startup claims the tech companies’ strategy is “predatory infringement” in which the larger companies “look to hand off the IP theft to lawyers to “clean the mess up” later.” The Texas-based company claims Nvidia and Microsoft have infringed on their patented technology which offloads tasks that would overburden processors throughout the development of their cutting-edge AI technologies.

China Strengthens IP Ties with Belt and Road Initiative Partners

On Wednesday, September 4, a spokesman for the China National Intellectual Property Administration said at a news conference that China and its Belt and Road Initiative Partners have increased IP ties over the last decade. The spokesman cited statistics that show that China has increasingly filed more patents in BRI partner countries with a 20% annual growth rate in patent applications. The biggest filers in these countries include large corporations like Huawei, Xiaomi, and Alibaba.

OpenAI Asks Court to Dismiss Claims and Focus on Fair Use in Copyright Infringement Case

On Tuesday, September 3, OpenAI asked a New York court to dismiss claims in a copyright lawsuit filed by the Center for Investigative Reporting against Open AI and Microsoft. According to the AI giant, it wants to dismiss several claims in the lawsuit to “appropriately narrow the case and limit the litigation to the core issue.” The core issue at stake according to Open AI is whether it and other AI training companies are covered against copyright infringement by the fair use doctrine.

Trump Campaign Claims Estate of Isaac Hayes Does Not Own Copyright to Song Played on Campaign Trail

On Saturday, August  31, the Trump campaign filed a 23-page opposition to Isaac Hayes’s estate in a copyright infringement battle over the song “Hold On, I’m Comin”. The Trump campaign has been playing the 1966 song on the campaign trail, and in its filing, the campaign claims that the estate does not own the copyright to the song. The musician’s estate sued the campaign for illegally profiting off of Hayes’s identity and accused the former president’s campaign of 134 counts of copyright infringement. Trump’s campaign claimed they have a legal license to play the song for political events. For the latest developments on this story, click here for further IPWatchdog coverage.

Barks

On Thursday, September 5, the International Trade Commission (ITC) announced it is launching an investigation after JBS Hair Inc. filed a complaint that imported products are violating three of its patents. The Georgia-based hair company accused 30 companies of importing hair products that infringe on its patents.

Delaware Court Unseals Documents in AI Trade Secrets Case

On Tuesday, September 3, a Delaware court unsealed court documents revealing that it was unpersuaded by Cummins Inc.’s arguments that a trade secrets lawsuit filed by C3.ai should be dismissed. The AI company filed the lawsuit last year accusing Cummins of using confidential information about a C3.ai product to develop its own product. According to the court, the AI company had done enough to show that its AI tools are trade secrets and the timing of a Cummins product release supported the claim that the company misappropriated trade secrets.

USPTO Starts Free Education Clinic Staffed by Former PTAB Judges

On Tuesday, September 3, the U.S. Patent and Trademark Office (USPTO) launched a free education clinic staffed by former Patent Trial and Appeal Board (PTAB) judges who will offer free guidance to inventors and companies. The former judges will answer questions on PTAB proceedings in one-on-one sessions. If you want to attend a session, you must submit an appointment request, and clinics will be held on September 12, October 10, November 14, and December 12.

USPTO Partially Rejects Meghan Markle’s American Riviera Orchard Trademark Application

On Saturday, August 31, the USPTO partially rejected Meghan Markle’s trademark application for her lifestyle brand American Riviera Orchard. The Office rejected the former Duchess of Sussex’s application because it is primarily geographically descriptive. The trademark and company name are a common name for Markle and her husband Prince Harry’s primary residence Santa Barbara, California, according to the USPTO. 

This Week on Wall Street

Dutch Government Increases Export Regulations on Semiconductor Equipment

On Friday, September 6, the Dutch government announced that it is increasing the export restrictions on advanced semiconductor manufacturing equipment in line with the United States. Companies now have to apply for a license from the Dutch government to export such equipment out of the country. The Netherlands is home to ASML, one of the largest semiconductor companies in the world. In a statement, ASML said, “since this is a technical change, this announcement is not expected to have any impact on our financial outlook for 2024 or for our longer-term scenarios.”

Volkswagen Weighs Plant Closures in Germany

On Monday, September 2, Volkswagen Group CEO Oliver Blume said the company can no longer rule out plant closures in Germany due to the uncertain economic conditions looming over the car industry. Blume said the car giant needed to cut back $4.25 billion and was considering layoffs as well as plant closures. German trade unions immediately responded with some calling the statements irresponsible. “The European automobile industry currently finds itself in a challenging and serious position,” said Blume.

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: Oracle (48)
• Tuesday: None
• Wednesday: None
• Thursday: Adobe (98)
• Friday: None