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Kasia Kryca’s Pumpkin, Moby.

This week on Other Barks & Bites: Vice Chief Administrative Patent Judge for the Patent Trial and Appeal Board (PTAB) Michael Kim says institution issued by Director John Squires will be a “thumbs up or down”; the Federal Circuit clarifies the meaning of “by another” from pre-America Invents Act Section 102 in the joint inventor context; Amazon beats analyst expectations on third quarter revenue thanks to strong cloud computing demand by AI services; President Donald Trump petitions the U.S. Supreme Court to stay the D.C. Circuit’s injunctive relief allowing Shira Perlmutter to return to her role as Register of Copyrights; the Second Circuit again rules that defendants in copyright cases dismissed for forum non conveniens are not prevailing parties for the purposes of awarding attorneys’ fees under the Copyright Act; Senator Ted Cruz announces his intention to introduce a bill that will provide a right of redress for citizens censored online by Big Tech platforms under pressure from government officials; and the University of Southern California sues Google in Western Texas over imaging technologies incorporated into Google Maps, Earth and Street View.

Bites

CAFC Clarifies Pre-AIA Section 102 ‘By Another’ in the Joint Inventor Context – On Thursday, October 30, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Merck Serono S.A. v. Hopewell Pharma Ventures, Inc. affirming obviousness findings by the Patent Trial and Appeal Board on a pair of patents over prior art including a patent listing as an inventor one of the joint inventors listed on Merck’s patents. Clarifying the application of statutory language from pre-America Invents Act (AIA) 35 U.S.C. § 102(a), (e), which provides that a person is entitled to a patent unless the invention was known or described “by another,” the Federal Circuit found that Merck did not meet its burden of proving that the inventor on its patents provided the inventive contribution asserted from the prior art reference that Merck was attempting to exclude under Section 102.

Director Institution Decisions Will Be Thumbs Up or Down – The Vice Chief Administrative Patent Judge for the Patent Trial and Appeal Board (PTAB) Michael Kim told attendees of the latest USPTO Hour on Wednesday, October 29, that decisions on institution issued by Director John Squires will not contain reasoning or indication of the issues that factored into the ruling. Instead, “notices will be a proverbial thumbs up or thumbs down unless there’s a need for more detailed treatment.” Kim was joined by Acting Chief Judge for the Patent Trial and Appeal Board (PTAB), Kaylan Deshpande, and the two answered a series of questions about the recently-announced process by which Squires will personally decide whether to institute all inter partes review (IPR) or post-grant review (PGR) validity trials in order to address perceptions that the PTAB is incentivized to institute America Invents Act (AIA) trials. 

FDA Draft Guidance Seeks to Relax Requirements for Biosimilar Applications – On Wednesday, October 29, the U.S. Food and Drug Administration (FDA) published draft guidance on scientific considerations in demonstrating biosimilarity to a reference product in biologics license applications (BLAs) submitted to the FDA for market approval. In particular, the draft guidance elevates the importance of comparative analytical assessments, which the FDA said were “generally more sensitive than” costly comparative efficacy studies, in an effort to increase the number of biosimilars seeking market approval within the United States.

Kenneth Quinn’s (Sun IP) Wheaten Terrier – Daisy

Senator Cruz Announces Anti-Censorship JAWBONE Act as Part of AI Leadership Framework – On Wednesday, October 29, Senator Ted Cruz (R-TX), Chair of the Senate Commerce Committee, announced during a committee hearing on Big Tech censorship that he plans to introduce the Justice Against Weaponized Bureaucratic Outreach to Network Expression (JAWBONE) Act as part of his Legislative Framework for American Leadership in Artificial Intelligence. According to remarks made by Cruz at the committee hearing, the JAWBONE Act would provide a right of redress for private citizens whose online speech is targeted by those companies under pressure from American government officials.

Second Circuit Confirms No Attorney’s Fees for Forum Non Conveniens Copyright Dismissal – On Monday, October 27, the U.S. Court of Appeals for the Federal Circuit issued a summary order in Paulo v. Agence France-Presse affirming the Southern District of New York’s denial of attorney’s fees and costs to defendant news agency Agence France-Presse after copyright infringement claims filed by Portuguese photographer Leong Francisco Paulo were dismissed under the forum non conveniens doctrine. The Second Circuit found that attorneys’ fees and costs were not available under the Copyright Act for defendants obtaining a dismissal on forum non conveniens, which are not prevailing parties as the appellate court has long held, and avoided answering a question of first impression on whether Federal Rule of Civil Procedure 41(d) entitled Agence France-Presse to costs for Paulo’s dismissal of an action based on the same claim in “any court” including a foreign tribunal by noting the permissive nature of ordering costs under FRCP 41(d) and finding that the district court did not abuse its discretion in choosing not to award attorneys’ fees under the rule.

CAFC Finds Clearly Implied Redefinition of Claim Term in Specification’s Interchangeable Uses – On Monday, October 27, the Federal Circuit issued a precedential decision in Aortic Innovations LLC v. Edwards Lifesciences Corp. affirming most of a non-infringement ruling entered by the District of New Jersey in a patent infringement case over transcatheter heart valves with expanding frames. Finding that the district court did not err in construing the claim term “outer frame” to mean “self-expanding frame” instead of its plain and ordinary meaning, the Federal Circuit ruled that Aortic acted as its own lexicographer by making continuous interchangeable uses of those two terms throughout the patent’s specification despite the lack of an explicit redefinition of that claim term.

President Trump Asks SCOTUS to Prevent Perlmutter’s Return to Copyright Office – This week, the Office of the U.S. Solicitor General filed an application to stay an interlocutory injunction with the U.S. Supreme Court, asking the nation’s highest court to overturn an order by the U.S. Court of Appeals for the D.C. Circuit which allowed former Register of Copyrights Shira Perlmutter to return to her position working at the U.S. Copyright Office in her lawsuit over her removal from that office by President Donald Trump. The Solicitor General argues that the injunctive relief upheld by the D.C. Circuit is improper judicial interference with the President’s powers to remove executive officers, asking the Supreme Court to act to prevent litigants from claiming that Copyright Office actions are ultra vires for being issued by an official removed from office.

Barks

Marlene Valderrama’s pup, Raven.

Trilateral Offices Establishing AI Working Group to Report at 44th Conference – On Thursday, October 30, representatives of the Trilateral Offices of the European Patent Office, the U.S. Patent and Trademark Office, and the Japan Patent Office met for the 43rd annual Trilateral Conference, during which those agencies agreed to establish a Trilateral AI Working Group to report at next year’s conference on a Trilateral AI Vision.

Perplexity Launches Beta Version of AI-Powered Patent Database – On Thursday, October 30, artificial intelligence (AI) developer Perplexity announced that it was launching Perplexity Patents, an AI-powered database designed to help engineers and the general public search patented inventions using natural language search functions. 

CAFC to Modify Public Counter Hours During Shutdown Effective November 12 – On Wednesday, October 29, the Federal Circuit announced that, effective November 12, the public intake counter at the court clerk’s office will be open from 10 AM to 2 PM on days during which the Federal Circuit will not be hearing cases, and that the modified hours will continue through the duration of the U.S. federal government shutdown.

Third Circuit Affirms Dismissal of IP Theft Claims by Former Cornell Researcher – On Tuesday, October 28, the U.S. Court of Appeals for the Third Circuit issued an opinion in Zirvi v. Illumina, Inc. affirming the District of New Jersey’s dismissal of federal trade secret and legal malpractice claims filed by a former researcher at Cornell University after finding that his claims of intellectual property theft by Illumina, Thermo Fisher and others had previously been litigated and dismissed with prejudice.

USPTO Seeking Input on Outreach Offices to Replace Rocky Mountain Regional – On Tuesday, October 28, the U.S. Patent and Trademark Office announced that it is seeking public input on potential locations for community outreach offices to serve the eight states that were formerly serviced by the Rocky Mountain Regional Outreach Office, which the agency is permanently closing.

USC Sues Google in Western Texas Over Map Imaging Technologies – On Monday, October 27, the University of Southern California (USC) filed a lawsuit in the Western District of Texas alleging claims of patent infringement against Internet services giant Google over map imaging technologies overlaying two-dimensional images over three-dimensional models incorporated into Google Earth, Maps and Street View.

This Week on Wall Street

Strong Cloud Computing Sales Lead Amazon to Q3 Earnings Beat – On Thursday, October 30, e-commerce giant Amazon.com reported earnings for the third quarter of 2025, posting revenues of $180.17 billion and beating analyst expectations thanks to robust demand for cloud computing services by the growing artificial intelligence sector.

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: ON Semiconductor Corp. (t-229th); Sumitomo Chemical Co., Ltd. (t-194th)
• Tuesday: Advanced Micro Devices, Inc. (79th); Corteva, Inc. (224th); Eaton Corp. (t-183rd); Koninklijke Philips N.V. (53rd); Skyworks Solutions, Inc. (180th); Stanley Black & Decker, Inc. (t-285th); Toyota Motor Corp. (10th)
• Wednesday: Bayerische Motoren Werke AG (137th); Daikin Industries, Ltd. (136th); Emerson Electric Co. (t-238th); Fresenius SE & Co. KGaA (202nd); Johnson Controls International PLC (118th); Konica Minolta, Inc. (t-217th); Qualcomm Inc. (4th); Seiko Epson Corp. (38th); Snap Inc. (51st); Softbank Group Corp. (141st); Sonos, Inc. (t-211th); Winbond Electronics Corp. (t-247th)
• Thursday: Becton, Dickinson & Co. (73rd); Continental AG (t-169th); Fujifilm Holdings Corp. (25th); Nikon Corp. (t-268th); Nissan Motor Co., Ltd. (t-125th); Rockwell Automation, Inc. (t-244th)
• Friday: Kubota Corp. (225th); Nidec Corp. (171st); Olympus Corp. (109th); Omron Corp. (t-146th); Ricoh Co., Ltd. (78th); Shimadzu Corp. (t-185th)

HAPPY ‘HOWL’OWEEN FROM IPWATCHDOG!!!!

One of the latest IPWatchPuppies, Odie!

Eileen McDermott’s pup, Colby: Halloween through the years.