Other Barks & Bites for Friday, September 19: John Squires Confirmed as USPTO Director; Divided Fifth Circuit Affirms Injunction on Noncompete Clauses; EPO Reports Threefold Increase in Digital Agriculture Tech Since 2000

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This week in Other Barks & Bites: John Squires was officially confirmed as the next Director of the U.S. Patent and Trademark Office following a series of moves by Senate Republicans to confirm Executive Branch nominees advanced by President Donald Trump in a bloc vote; the Second Circuit affirms a district court’s ruling that former U.S. Representative George Santos’ copyright infringement claims against Jimmy Kimmel are barred by fair use; the European Patent Office issues a report showing a threefold increase in digital agriculture technologies since the turn of the century; Nvidia announces a $5 billion investment in Intel as part of an agreement to develop AI-powered CPUs; USPTO Acting Director Coke Morgan Stewart issues a memorandum ordering the Patent Trial and Appeal Board to explain findings of fact and law that differ from prior validity adjudications in U.S. district court; and a majority panel at the Fifth Circuit affirms a grant of injunctive relief on noncompete clauses between hotel entertainment rivals over a dissent regarding the lack of evidentiary basis for the required showing of irreparable harm.

Bites

Squires Confirmed by Senate to Serve as USPTO Director – On Thursday, September 18, the U.S. Senate officially confirmed John Squires to be Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO) in an en bloc vote confirming nearly 50 nominees selected by President Donald Trump to serve positions within the Executive Branch. Squires accedes to the Director role after months of reforms to the Patent Trial and Appeal Board (PTAB) wrought by current Acting Director Coke Morgan Stewart and in the midst of calls within the Commerce Department to recoup federal funding spent on university R&D leading to patent rights and implement valuation-based frameworks for determining patent fees.

Ninth Circuit Denies Rehearing in Peloton “Bike+” Trademark Case – On Thursday, September 18, the U.S. Court of Appeals for the Ninth Circuit denied a petition for panel rehearing and rehearing en banc filed by World Champ Tech, which challenged a Ninth Circuit decision from July affirming the Northern District of California’s ruling that Peloton’s Bike+ home exercise bike was not likely to cause consumer confusion with World Champ Tech’s “BIKE+” branded mobile app. The Ninth Circuit also amended its July decision to underscore the fact that consumers are presented with the names of app developers when they download apps from the Apple App Store, which reduces the potential for consumer confusion as to which company produces each app.

EPO Digital Agriculture Report Finds Surging Growth in Plant Agriculture – On Thursday, September 18, the European Patent Office (EPO) published a technology insight report analyzing European and Latin American patent filings in digital agriculture technologies since 2000, finding a 9.4% compound annual growth rate (CAGR) in such inventions in the decade leading up to 2022, three times faster than the average rate of invention across all technical fields. In particular, plant agriculture inventions including imaging and sensing technologies saw a three-fold increase over the 22 years of the study, increasing at a rapid 13% CAGR between 2012 and 2022.

Fifth Circuit Affirms Noncompete Injunction Over Judge Dennis Dissent – On Tuesday, September 16, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in WorldVue Connect Global, L.L.C. v. Szuch affirming the Southern District of Texas’ grant of preliminary injunction enforcing non-compete and non-solicitation provisions between former hotel in-room entertainment business partners, although the panel majority remanded to clarify the alleged confidential information in WorldVue employees that were recruited by Szuch following the termination of the business relationship. Circuit Judge James Dennis dissented to the injunctive relief ruling, arguing that the district court’s irreparable harm finding was improperly based on a contractual stipulation without any independent evidentiary findings.

CAFC Dismisses Appeal of Wig Apparatus Claim Construction for Prosecution Estoppel – On Tuesday, September 16, the U.S. Court of Appeals for the Federal Circuit issued a ruling in NG LLC v. CreatedHair Designs, LLC affirming the Central District of California’s ruling that NG’s patent claims for a wig apparatus were not infringed by CreatedHair because the claim term “the wig apparatus terminates at the forward periphery” had the plain and ordinary meaning that the mesh element’s forward periphery is the most forward point of the wig apparatus. The Federal Circuit dismissed NG’s argument that the district court improperly read a limitation into that term, finding support for the district court’s claim construction in amendments made by NG during prosecution at the U.S. Patent and Trademark Office that added the termination claim term to overcome a 35 U.S.C. § 112 indefiniteness rejection.

Second Circuit Affirms Fair Use Finding in George Santos Copyright Suit Against Jimmy Kimmel – On Monday, September 15, the U.S. Court of Appeals for the Second Circuit issued a ruling in Santos v. Kimmel affirming the Southern District of New York’s dismissal of copyright infringement and state law claims filed by former U.S. Representative George Santos against Jimmy Kimmel over the late night television host’s regular “Will Santos Say It?” segment featuring personalized videos recorded by Santos for fictitious entities created by Kimmel. The Second Circuit found that Santos’ complaint showed that Kimmel was motivated by criticism and commentary instead of supplanting any commercially valuable right in Santos’ videos, agreeing with the district court that fair use barred Santos’ copyright claims at the pleading stage.

Barks

C4IP Publishes Website Addressing Misinformation Published by I-MAK – On Thursday, September 18, the Council for Innovation Promotion (C4IP) announced that it had launched a website titled I-MAK Exposed that addresses misinformation based on flawed methodology that has been advanced by the Initiative for Medicines, Access, and Knowledge (I-MAK) in support of efforts to weaken U.S. patent rights in the pharmaceutical sector.

EUIPO Advances Partnerships with Chinese, Japanese IP Offices – On Thursday, September 18, the European Union Intellectual Property Office (EUIPO) announced that it had concluded a pair of successful missions to enhance cooperation with both China’s National Intellectual Property Administration (CNIPA) and the Japan Patent Office (JPO) as part of the EUIPO’s recently launched IP Alliances initiative. 

Creative Legal Alliance Established for IP Mentorship During Artist Residencies – On Wednesday, September 17, intellectual property law firm JAYARAM announced that its founder, Vivek Jayaram, would partner with Kenneth Anand, former General Counsel of Yeezy, to offer nine-month artist residencies through the newly established Creative Legal Alliance, providing early stage business and legal advice on intellectual property and other infrastructure for fashion and design businesses.

Judge Williams Confirms $5.2 Million Award for American Axle Against Neapco – On Wednesday, September 17, U.S. District Judge Gregory Williams of the District of New Jersey issued a memorandum awarding both pre- and post-judgment interest totalling $5.2 million for patent owner American Axle in patent infringement proceedings against Neapco’s accused propshaft product.

Fourth Circuit Affirms Dismissal of Claims Against USPTO for Withholding Evidence – On Tuesday, September 6, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in Polidi v. Mendel affirming the Eastern District of Virginia’s dismissal of claims filed against the USPTO for allegedly withholding exculpatory evidence regarding Polidi’s disbarment by both the USPTO and the North Carolina State Bar.

Acting Director Stewart Tells PTAB To Explain Prior Adjudications in IPR Rulings – On Tuesday, September 16, Coke Morgan Stewart, Acting Director of the U.S. Patent and Trademark Office, issued a memorandum announcing that final written decisions of the Patent Trial and Appeal Board (PTAB) must include explanations of findings of law or fact that differ from previous validity adjudications on the same patent claims conducted before the Office, the U.S. International Trade Commission, or U.S. district court.

EPO’s CodeFest Seeks Proposals on Assessing Economic Value of Patents – On Tuesday, September 16, the European Patent Office (EPO) announced that it had launched the agency’s fourth CodeFest competition, which will welcome proposals on automated systems that can leverage EPO data sources to assess the economic value of patents in ways that enable startups and inventors to attract investment.

This Week on Wall Street

Intel, Nvidia to Collaborate on Integrating AI and CPU Architectures – On Thursday, September 18, American computing chip developers Intel and Nvidia announced that they had entered into a joint development agreement through which Nvidia will purchase $5 billion of Intel common stock, while Intel will build custom central processing units (CPUs) for personal computing platforms incorporating Nvidia’s artificial intelligence technologies.

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: Micron Technology Inc. (16th)
• Wednesday: None
• Thursday: Accenture plc (t-281st)
• Friday: None