Other Barks and Bites for Friday, June 27: EGC Says ‘NERO CHAMPAGNE’ Unduly Exploits Protected Designation of Origin; SCOTUS Seeks SG Views on Skinny Label Issues in Hikma; and a Big Week for Copyrights and AI

Want to have your doggie(s) featured in one of our future Barks & Bites Columns?  Send your dogs photo(s) along with their name, breed (if you know it) and their age to [email protected].  All photos will be added to the IPWatchdog Dog Wall at IPWatchdog Studios and will be added to the queue of images we select from each week.

Irina Pomestchenko’s Golden Lab – Walter

This week in Other Barks & Bites: the U.S. Supreme Court seeks the U.S. Solicitor General’s views in the latest cert petition involving induced infringement claims stemming from skinny label indications for generic pharmaceuticals; former Under Secretary for Science Paul Dabbar is confirmed as the Deputy Secretary of Commerce; Samsung wins a FRAND determination on a request for declaratory judgment in its case against ZTE in England’s High Court; the European General Court finds that the EUIPO’s Board of Appeals erred in not considering any evidence that a trademark registration for “NERO CHAMPAGNE” unduly exploited the reputation of a protected designation of origin; Getty Images drops copyright infringement claims from its case against Stability AI in British courts; an India-based trademark firm faces sanctions from the USPTO for false signatory and attorney information; and House Science, Space, and Technology Committee leadership ask the Government Accountability Office to increase oversight of security standards implemented at American research institutions.

Bites

EGC Nixes “NERO CHAMPAGNE” Trademark for Unduly Exploiting PDO Reputation – On Wednesday, June 25, the European General Court (EGC) issued a ruling reversing the European Union Intellectual Property Office’s (EUIPO) partial rejection of an opposition challenging an application for the registration of the trademark “NERO CHAMPAGNE” by Italian luxury experience company Nero Lifestyle. The EGC found that the EUIPO’s Board of Appeal (BoA) erred in failing to consider evidence rebutting the presumption that a trademark containing the name of a protected designation of origin (PDO) does not unfairly exploit that PDO if it only covers products complying with the PDO, faulting the EUIPO BoA for not explaining why evidence presented by professional champagne bodies was not capable of rebutting this presumption and finding that the applied-for mark could contain misleading information, as “Nero” is the Italian word for “black,” leading consumers to think that a black champagne could be available on the market.

Dabbar Brings Science Background to New Role as Deputy Secretary of Commerce – On Wednesday, June 25, members of the U.S. Senate voted 56-40 to confirm Paul Dabbar to serve as the Deputy Secretary of the U.S. Department of Commerce, where he will oversee day-to-day management of 47,000 employees across 12 units operating on a total budget of $11.4 billion. Previously, Dabbar worked in the first Trump Administration as the Under Secretary for Science at the U.S. Department of Energy, leading nuclear energy and advanced computing research programs at the U.S. National Labs, and returns to government having most recently served as the CEO of emerging quantum network developer Bohr Quantum Technology.

England’s High Court Grants Interim License to Samsung in For ZTE’s Unnecessary Injunctions – On Wednesday, June 25, the High Court of Justice for England & Wales issued a ruling granting South Korean tech conglomerate Samsung’s application for declaratory relief establishing that Samsung has made a fair, reasonable and non-discriminatory (FRAND) licensing offer to ZTE’s mobile phone standard-essential patents (SEPs), denying ZTE’s attempts to ensure that the High Court’s FRAND determination takes place in accordance with final FRAND determinations in related proceedings ongoing in China. In large part, the High Court’s reached its determination after finding that ZTE’s serial attempts to obtain injunctive relief forcing Samsung to litigate in China rather than England was not behavior consistent with a willing licensor, who would otherwise want to proceed as speedily as possible to the FRAND trial.

House SST Leaders Call on GAO for Better Oversight of U.S. Research Security – On Tuesday, June 24, House Science, Space, and Technology Committee Chairman Brian Babin (R-TX), along with Research and Technology Subcommittee Chairman Jay Obernolte (R-CA) and Investigations and Oversight Chairman Rich McCormick (R-GA), sent a letter addressed to U.S. Comptroller General Gene Dodaro asking the U.S. Government Accountability Office (GAO) to conduct a review of federal agency and research institution implementation of research security guidelines promulgated by the White House’s Office of Science and Technology Policy (OSTP). The House SST leaders urge the GAO to conduct this review to counteract efforts by foreign rivals including China and Iran to recruit American scientists for covert research and otherwise improperly acquire American innovation.

SCOTUS Asks for SG’s Views to Parse Skinny Label Induced Infringement Issues – On Monday, June 23, the U.S. Supreme Court invited the U.S. Solicitor General to file a brief reflecting the views of the U.S. federal government on the induced patent infringement issues at play in Hikma Pharmaceuticals v. Amarin Pharma, on appeal to the nation’s highest court following the Federal Circuit’s decision last June reversing the district court’s dismissal of Amarin’s patent infringement claims after finding that Hikma’s silence on cardiovascular indications for its generic version of omega-3 fatty acid product Vascepa, taken in combination with public statements on equivalency to Vascepa, supported Amarin’s plausible claim for patent infringement. As Hikma’s petition for writ argues, this case is the first time the Federal Circuit has allowed induced infringement claims against a defendant marketing a product that undisputedly lacks instructions to perform the patented use, and that at best Amarin’s infringement theory supports passive infringement as the theory speculates that physicians would determine uses of the generic treatment from Vascepa’s label, not the generic skinny label that indicates off-patent uses.

Judge Alsup: AI LLMs ‘Like Any Reader Aspiring To Be a Writer’ in Major Fair Use Ruling – On Monday, June 23, U.S. District Judge William Alsup of the Northern District of California issued a partial grant of summary judgment in favor of generative artificial intelligence (AI) developer Anthropic, finding that Anthropic’s use of copyrighted content to train large language models (LLMs) was quintessentially transformative, noting that the use of this content to train LLMs in the creation of new works was “[l]ike any reader aspiring to be a writer.” However, Judge Alsup denied Anthropic’s request for summary judgment regarding pirated works that were incorporated into Anthropic’s trading model, allowing those copyright infringement claims and the potential of enhanced damages for willfulness to proceed toward trial.

Barks

USPTO Seeks Comments on Requirements for Nucleotide and Amino Acid Sequences – On Thursday, June 26, the U.S. Patent and Trademark Office (USPTO) issued a request for comments in the Federal Register seeking public input on the agency’s requirements for the disclosure of nucleotide and amino acid sequences that serve as written description support for certain inventions claimed in patent applications, which are also submitted to distinguish the claimed invention from the prior art.

EPO, Ireland Sign Working Agreement on Search, Written Opinion Collaboration – On Thursday, June 26, the European Patent Office (EPO) and the Intellectual Property Office of Ireland (IPOI) signed a working agreement under which the two agencies will collaborate on conducting searches and providing written opinions relevant to Irish national patent applications, with the agreement becoming effective July 1.

Getty Images Drops Copyright Claims from British Case Against Stability AI – On Wednesday, June 25, news reports indicated that American visual media company Getty Images agreed to dismiss its copyright infringement claim from its lawsuit against British artificial intelligence company Stability AI, eliminating a key count from Getty’s lawsuit against the generative AI firm likely owing to jurisdictional issues stemming from Stability AI’s use of Amazon computers located outside of England to conduct the alleged infringement.

USPTO Enters Sanctions Against Indian Trademark Firm for False Signatures – On Wednesday, June 25, the USPTO announced that it had issued a precedential administrative ruling entering sanctions against India-based trademark firm Stelcore Management Services for that company’s improper entry of trademark applicant and attorney signatures, including false signatory and attorney information, terminating trademark application proceedings related to those acts.

U.S. Copyright Office’s Copyright Public Records System Replaces Legacy Search Platform – On Tuesday, June 24, the U.S. Copyright Office announced that the agency’s Online Public Catalog had been officially replaced by the Copyright Public Records System, which offers advanced search capabilities and improved interfaces for public users and agency staff providing access to registration and recordation information going back to 1978 as well as searchable metadata for 3.8 million registrations applications filed between 1898 and 1945.

USPTO Seeks Comments on Info Collected as Receiving Office for PCT Applications – On Monday, June 23, the USPTO issued a request for comments in the Federal Register seeking public input evaluating the effectiveness of the agency’s information collection practices for international patent applications filed under the Patent Cooperation Treaty (PCT) when the USPTO serves as the receiving office.

This Week on Wall Street

Novo Nordisk, Hims & Hers Stock Down Following Public Semaglutide Spat – On Monday, June 23, Danish pharmaceutical firm Novo Nordisk terminated an agreement to sell its blockbuster weight loss drug Wegovy through American telehealth company Hims & Hers just days after the U.S. Food & Drug Administration’s (FDA) decision to remove semaglutide from its list of drugs in shortage, with Hims CEO Andrew Dudum accusing Novo Nordisk of diverting customers by controlling clinical standards through public posts on X.