Other Barks & Bites for Friday, April 11: CAFC Denies Transfer of EDTX Patent Case; Texas Leads Entire U.S. in IP Exports; and Google Declines to Respond to Cellspin Soft Cert Petition

Devon Grant’s three-year old fur baby, APOLLO.

This week in Other Barks & Bites: Google declines an opportunity to respond to Cellspin Soft’s allegations that a U.S. district judge’s financial ties to the Internet services giant should have necessitated the judge’s recusal; the U.S. Chamber of Commerce issues a report on the impact of IP on the U.S. economy showing that Texas leads all states in terms of intellectual property exports; the European Patent Office (EPO) and Brazil’s National Institute of Industrial Property (INPI) sign a work collaboration agreement; global markets are trending downward following President Donald Trump’s tariff announcements; the Federal Circuit denies SAP America’s petition for mandamus relief to randomly reassign a patent case within the Eastern District of Texas; the Fifth Circuit nixes overbroad injunctive relief in a trademark case between honor society companies; and the Council for Innovation Promotion lays out an agenda for the U.S. federal government to support domestic innovation.

Bites

CAFC Denies Petition to Transfer EDTX Patent Case from Marshall to Sherman – On Thursday, April 10, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re SAP America, Inc. denying SAP America’s petition for mandamus relief to transfer a patent infringement case filed by Valtrus Innovations from the Marshall division of the Eastern District of Texas to the Sherman division of that court. Although the Federal Circuit found that the district court erred in assigning weight to Valtrus’ separate AT&T litigation in Marshall, which had already been dismissed, and in analyzing the court congestion factor, the appellate court ruled that SAP America did not meet its burden to show that Sherman was a “clearly more convenient” forum, nor did the defendant show that the willing-witness factor clearly favors transfer of a case to a court located 180 miles away from the division where the patent infringement case was filed.

CAFC Affirms TTAB’s Opposition Dismissal But Tells USPTO to Reconsider “iVoters” Registration – On Wednesday, April 9, the Federal Circuit issued a precedential decision in Heritage Alliance v. The American Policy Roundtable affirming the Trademark Trial and Appeal Board’s (TTAB) dismissal of opposition proceedings brought by Heritage Alliance to challenge American Policy Roundtable’s application to register the marks “iVoters” and “iVoters.com.” The appellate court noted, however, that given the fact that American Policy Roundtable conceded consumer confusion between its trademark applications and Heritage Alliance’s “iVoterGuide” and “iVoterGuide.com,” which were found to be highly descriptive without acquiring distinctiveness, the U.S. Patent and Trademark Office (USPTO) should consider registration of the applied-for marks due to the same descriptiveness issues.

Texas IP Exports, Maryland IP Job Wages Among Highlights of U.S. Chamber IP Report – On Wednesday, April 9, the U.S. Chamber of Commerce published the findings of a new study into the critical role of intellectual property (IP) in supporting the American economy and workforce, finding that $5 trillion of existing IP supported jobs in all industries and states for businesses of all sizes. Among the report’s top findings are that Texas led all states with $32.5 billion in IP-related exports, while Maryland took the top spot among states for average wage of IP-intensive jobs, posting a wage premium of $26,000 for IP jobs.

CAFC Finds Clear Disclaimer in Negative Claim Limitations, Subsequent “Consisting Of” Amendments – On Tuesday, April 8, the Federal Circuit issued a precedential decision in Azurity Pharmaceuticals, Inc. v. Alkem Laboratories Ltd. affirming the District of Delaware’s non-infringement ruling in Hatch-Waxman litigation over a generic version of Azurity’s Firvanq drinkable antibiotic being developed by Alkem. The Federal Circuit found that Azurity clearly and unmistakably disclaimed propylene glycol from the formulation claimed by the asserted patents through negative claim limitations followed by closed “consisting of” language used in amendments made during prosecution at the U.S. Patent and Trademark Office. The appellate court dismissed statements disputing this disclaimer made by Azurity in prosecution of another patent application within the same family because that patent application was prosecuted in parallel with the patent-at-issue in the case, and the statement was filed after the USPTO issued the claims asserted in the case.

C4IP Publishes Pro-Innovation Government Agenda to Promote U.S. Innovation – On Monday, April 7, the Council for Innovation Promotion (C4IP) issued a report entitled Reaffirm and Refine: A Government Agenda for Intellectual Property that lays out a series of 18 key steps for the Trump Administration to follow, including passage of a series of Congressional bills that would restore injunctive relief and generally restore certainty to ownership of patent rights, that are critical to reclaim and maintain America’s dominant spot among the world’s innovation economies.

Google Declines to File Response to Cert Petition Challenging Judge’s Financial Interest in Case – On Thursday, April 3, the deadline to respond to content distribution developer Cellspin Soft’s petition for writ of certiorari at the U.S. Supreme Court passed for all respondents in the case. This includes Internet services giant Google, whose business agreements with the spouse of U.S. District Judge Yvonne Gonzalez Rogers created an alleged financial interest in the outcome of the case that, along with the judge’s own holdings in a hedge fund that owns a financial interest in Google, should have led to that judge’s recusal from the case under 28 U.S.C. § 455, according to Cellspin Soft’s petition.

Barks

USPTO Announces Information Collection for Patents and Trademarks for Humanity Programs – On Friday, April 11, the USPTO published a request for comments in the Federal Register seeking input on its information collection request with the Office of Management and Budget (OMB) regarding its Patents for Humanity Program, which has recognized patented technologies addressing humanitarian needs since 2012, and its more recent Trademarks for Humanity Program which the agency established in 2023.

EPO, INPI Brazil Sign Agreement to Further Collaboration on Patent Search and Examination – On Thursday, April 10, the European Patent Office (EPO) and Brazil’s National Institute of Industrial Property (INPI) announced that the two agencies have entered a new agreement to strengthen interagency collaboration on patent search and examination capabilities through INPI’s reuse of work product generated by the EPO when processing patent applications that have already been examined at the EPO.

Ninth Circuit Affirms Rejection of All Claims in “Smarternutrition” Trademark Case – On Wednesday, April 9, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished opinion in Nguyen v. Smartervitamins, LLC affirming the Central District of California’s rejection of all claims from a trademark case over use of a “Smarternutrition” trademark after finding that both parties in the case asserted claims to trademarks that were dismissed because the marks used by either party in the case failed to achieve secondary meaning.

Copyright Office Announces Public Webinar on Copyright Public Records System – On Wednesday, April 9, the U.S. Copyright Office announced that it would be hosting a webinar for members of the public on searching for office records using the Copyright Public Records System, which will replace the existing Copyright Office Online Public Catalog later this year, on Thursday, May 8, at 2 PM Eastern.

EPO Announces Pilot Program for AI-Powered Drafting of Oral Proceeding Minutes – On Tuesday, April 8, the EPO announced that, beginning this May, it would be launching a pilot program that will enable patent examiners in selected examining and opposition divisions to obtain minutes of oral proceedings generated by artificial intelligence (AI) created from audio recordings of those hearings.

Fifth Circuit Nixes Injunction in Trademark Case Between Honor Society Companies – On Monday, April 7, the U.S. Court of Appeals for the Fifth Circuit issued an unpublished opinion in Phi Theta Kappa Honor Society v. HonorSociety.org vacating an injunction entered by the Southern District of Mississippi in a trademark and trade dress case between rival community-college honor society companies, finding that the district court’s order to remove website matter and publish disclaimers on web pages was overbroad and compelled speech in violation of the First Amendment.

This Week on Wall Street

Trump Tariffs Send Global Markets on a Wild Whiplash Trending Downward – On Friday, April 11, global markets were continuing to come to terms with a massive package of reciprocal tariffs announced by the Trump Administration, with the Dow Jones Industrial Average shedding more than 1,000 points in consecutive days before rebounding nearly 3,000 points on Wednesday after President Donald Trump announced a 90-day pause on all tariffs except those placed upon foreign economic rival China.

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: Telefonaktiebolaget LM Ericsson (22nd)
• Tuesday: Bank of America Corp. (58th); Johnson & Johnson (21st); AB Volvo (t-114th)
• Wednesday: ABB Ltd. (155th); Abbott Laboratories (119th); ASML Holding N.V. (t-194th); Nokia Corp. (47th); Taiwan Semiconductor Manufacturing Corp. (3rd)
• Thursday: Innolux Corp. (145th); Realtek Semiconductor Corp. (t-172nd)
• Friday: None

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