Other Barks & Bites for Friday, April 4: CAFC Corrects Date of Public Accessibility in Trade Secret Appeal; Sixth Circuit Issues Divided Opinion in Data Privacy Appeal; and OpenAI Urges Broad Copyright Exception in UK

Bette Muirhead‘s prettiest goof ever, RAAVA

This week in Other Barks & Bites: the Federal Circuit issues precedential opinions clarifying that patents must be granted with exclusionary rights to receive provisional rights to reasonable royalties, and correcting the Eastern District of Texas court’s analysis on the date of public accessibility in a trade secret misappropriation case; Ericsson and Lenovo reach a cross-licensing agreement the same week that Nokia and Amazon settle all litigation; the Dow Jones dips 1,300 points for the second straight day following global trade war fears spiked by President Trump’s tariff announcements; Nokia files patent suits against Asian device makers following its settlement with Amazon; Lamar Jackson files another notice of opposition against Troy Aikman over “EIGHT” trademark applications; the Sixth Circuit issues a divided opinion on the scope of data privacy protections under the Video Privacy Protection Act, also known as the “Bork bill”; and generative AI developer OpenAI urges the UK to adopt broad copyright exceptions to AI model training to take the lead among European nations in AI adoption.

Bites

CAFC Affirms Disgorgement Award After Finding Error in Date of Public Accessibility – On Friday, April 4, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in ams-OSRAM USA Inc. v. Renesas Electronics America, Inc. affirming monetary awards entered by the Eastern District of Texas in a trade secret misappropriation and breach of contract case. In affirming the $8.5 million profits disgorgement award for trade secret misappropriation against Renesas, formerly named Intersil, the Federal Circuit found that the district court erred in finding that ams-OSRAM’s, formerly TAOS, trade secret became publicly accessible in January 2006, finding that “the evidence makes clear that Intersil… could have accessed TAOS’s trade secret by the end of February 2005.”

Lenovo and Ericsson Reach Cross-Licensing Agreement – On Thursday, April 3, Lenovo and Ericsson announced they
have entered into a global patent cross license agreement settling all pending litigation worldwide, including at the International Trade Commission (ITC). The companies will enter into binding arbitration to determine the final terms of the new agreement, a statement said. 

Sixth Circuit Issues Divided Opinion Over Definition of “Consumer” in VPPA – On Thursday, April 3, a panel majority in the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Salazar v. Paramount Global affirming the Middle District of Tennessee’s dismissal for failure to state a claim of a lawsuit filed by Salazar against Paramount Global, dba 247Sports, under the Video Privacy Protection Act (VPPA) for 247Sports’ use of Facebook’s Pixel ad tracker in linking Salazar’s viewing history of 247Sports’ newsletters with his Facebook ID. While the Sixth Circuit majority found that Salazar did not qualify as a “consumer” under the VPPA’s definition of that term, U.S. Circuit Judge Rachel Bloomekatz authored a dissent arguing that a plain text reading of the VPPA leads to the conclusion that Salazar, a “subscriber” to a newsletter constituting “goods or services” published by Paramount, a “video tape services provider,” is a “consumer” under the VPPA despite the fact that the newsletters themselves lacked audio-visual media content.

CAFC Says Patent Must Be Granted With Exclusionary Rights to Receive Provisional Rights – On Thursday, April 3, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re: Forest, dismissing an appeal from the Patent Trial and Appeal Board (PTAB) from an inventor challenging an obviousness rejection to his patent application, which claimed priority to a parent application filed in March 1995. “Effectively, Mr. Forest asks the Patent Office to grant him an expired patent,” the Federal Circuit wrote. Although Forest sought provisional rights to reasonable royalties under 35 U.S.C. § 154(d), and not exclusionary rights available during the life of the patent, the Federal Circuit held that Section 154(d)’s provisional rights are only granted to a patentee when a patent is issued with exclusionary rights.

OpenAI Urges Broad Text and Data Mining Exception Over Opt-Out Approach in UK – On Wednesday, April 2, generative artificial intelligence (AI) developer OpenAI published its official response to the UK’s consultation on copyright law, which focuses on issues related to the use of copyrighted content in training generative AI models. “For the UK to establish itself as the AI capital of Europe,” OpenAI urges the nation’s government to adopt a broad text and data mining exception as described in Option 2 of the consultation proposal instead of the opt-out framework put in place by the European Union, which OpenAI says has created confusion for AI developers and copyright owners alike.

Nokia Follows Amazon Licensing Deal With German Patent Suits Against Asian Device Makers – On Monday, March 31, Finnish telecommunications company Nokia announced that it had entered into a confidential agreement with American e-commerce and streaming giant Amazon.com to settle outstanding patent litigation ongoing between those two parties, including Nokia suits filed across multiple jurisdictions accusing Amazon of infringing upon video streaming patents. The following day, Nokia announced that it had filed patent infringement lawsuits in Munich regional court and the Munich division of the Unified Patent Court against Taiwanese electronics manufacturers Acer and Asus and Chinese electronics company Hisense based on video codec technologies covered by Nokia’s European patent claims.

IP Ownership Dispute Dooms Shareholder Derivative Action in Ninth Circuit Ruling – On Friday, March 28, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Bigfoot Ventures Ltd. v. Knighton in which the appellate court found that the Central District of California did not abuse its discretion in vacating a trial in order to hear a motion to dismiss, ultimately affirming the district court’s dismissal of the shareholder derivative action filed by Bigfoot Ventures. The Ninth Circuit ruled that several prior lawsuits in state and federal court between Bigfoot Ventures and NextEngine, which Knighton founded and serves as CEO, over ownership disputes to patents and trademarks included as collateral in promissory notes between the parties were “outside entanglements” making it probable that the interests of shareholders would be disregarded during Bigfoot’s management of the suit.

Barks

Lamar Jackson Files Latest Opposition to Troy Aikman’s “EIGHT” Trademarks – On Wednesday, April 2, Baltimore Ravens QB Lamar Jackson filed a first 90-day request to extend time to oppose a trademark application covering “EIGHT” for beer, restaurant and bar services filed by FL101, the holding company for trademarks owned by Troy Aikman relating to his time as a quarterback in the National Football League. The filing is the most recent action in a series of opposition proceedings that have played out between the NFL’s recent three-time MVP and the former Super Bowl MVP quarterback for the Dallas Cowboys. 

Nielsen Files New Patent Suit in Delaware Following Section 101 Invalidation – On Wednesday, April 2, global audience analytics company Nielsen filed a patent infringement lawsuit in the District of Delaware against audience measurement company VideoAmp alleging that VideoAmp’s out-of-home viewership measurement product infringes Nielsen’s patents. The new lawsuit comes two days after U.S. District Judge Richard Andrews issued an order dismissing a separate Nielsen patent lawsuit against VideoAmp after finding that Nielsen’s patent claims were directed to the unpatentable abstract idea of collecting information, analyzing it and then displaying the results.

KMCA Threatens Royalty Postponement, Copyright Cancellation for AI Music – On Tuesday, April 1, South Korean news outlet The Korean Herald reported that the Korea Music Copyright Association (KMCA), the nonprofit copyright collective administering broadcast and reproduction rights for Korean musical works, recently implemented a “0 percent contribution” policy for artificial intelligence (AI) which requires songwriters to confirm that works have been completed without the use of AI, with royalty postponement and copyright registration cancellation as potential penalties for parties who misrepresent the level of AI involvement in creating their work.

CRB Seeks Comments on 2022 Cable and Satellite Statutory License Royalty Distributions – On Tuesday, April 1, the Copyright Royalty Board (CRB) published notices requesting comments in the Federal Register regarding motions of Allocation Phase claimants for partial distributions of royalties collected pursuant to statutory licenses under 17 U.S.C. § 111 for cable retransmissions via over-the-air television or radio broadcast and 17 U.S.C. § 119 for retransmission to satellite subscribers via over-the-air television broadcasts.

DOJ Unseals Criminal Complaint Detailing Iranian Theft of U.S. Attack Drone Tech – On Tuesday, April 1, the U.S. Department of Justice unsealed a criminal complaint against a pair of Iranian nationals and an Iranian company who allegedly conspired to procure U.S. parts to unmanned aerial vehicles to provide as material support to the Islamic Revolutionary Guard Corps, a designated foreign terrorist organization.

Copyright Office Moves Royalty Fee Payments for All Statutory Licenses to Pay.gov – On Monday, March 31, the U.S. Copyright Office published a final rule in the Federal Register that requires the submission of payments through Pay.gov to cover all royalty fees associated with statutory licenses for cable operators under 17 U.S.C. § 111, satellite providers under 17 U.S.C. § 119, and manufacturers and importers of digital audio recording devices and digital audio recording media under 17 U.S.C. § 1003 and 17 U.S.C. § 1004.

This Week on Wall Street

Wall Street Sees Major Selloff in Days Following Trump’s Tariff Announcements – On Friday, April 4, the Dow Jones Industrial Average dipped 1,300 points, in addition to the more than 1,600 points shed on Thursday, and the S&P 500 also lost 15% of its value from recent highs with fears of a global trade war setting in following the Trump Administration’s recent announcement of reciprocal tariffs on countries across the globe, including a 34% levy on all Chinese imports that is expected to result in a similar tariff being put in place by the Chinese government in the days to come.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2024 are announcing quarterly earnings next week (2023 rank in parentheses):

• Monday: None
• Tuesday: None
• Wednesday: None
• Thursday: Nanya Technology Corp. (175th)
• Friday: JPMorgan Chase & Co. (t-183rd); Wells Fargo & Co. (81st)

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