Other Barks & Bites for Friday, November 6: USPTO Appoints Former Newman Counsel New Solicitor; CAFC Hears Arguments in Moderna’s COVID-19 Vaccine Appeal; and FTC Complaint Over Amazon’s Deceptive Ad Pricing Unsealed

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This week in Other Barks & Bites: The U.S. Patent and Trademark Office (USPTO) has sworn in former counsel to Judge Pauline Newman as Solicitor; Reuters reports that this week’s massive tech selloff could delay the anticipated initial public offering of Anthropic stock; the Western District of Washington releases an unredacted version of the Federal Trade Commission’s complaint over Amazon’s covert price shifting for ad auctions; a Government Accountability Office Report shows that backlog reduction efforts at the USPTO are contributing to patent examiner attrition, in turn making agency goals unsustainable; Circuit Judge Kurt Engelhardt argues that a Fifth Circuit majority misconstrued several likelihood of confusion factors in reversing a district court ruling against Casa Azul’s trademark infringement claims; the Second Circuit affirms a $4 million statutory damages award over a luxury good reseller’s sale of counterfeit Chanel goods not found in the company’s internal inventory database; the Federal Circuit hears oral arguments on Moderna’s government-supplier defense in a patent infringement case brought over its COVID-19 vaccine; and the Copyright Office extends the deadline for initial comments responding to its notice of inquiry on music streaming fraud to mid-December. 

Bites

Greg Dolin Sworn in as USPTO Solicitor – Greg Dolin, former attorney with the New Civil Liberties Alliance (NCLA), where he served as counsel to Judge Pauline Newman in her battle against U.S. Court of Appeals for the Federal Circuit Chief Judge Kimberly Moore, has been sworn in as the new U.S. Patent and Trademark Office Solicitor, according to IPWatchdog sources. The role would mean Dolin is in charge of representing the Office at the CAFC, which he actively challenged on behalf of Newman during his tenure as Senior Litigation Counsel with the NCLA. Following that role, Dolin joined the Department of Justice (DOJ) as Senior Counsel in the Civil Rights Division. He is also a Professor of Law at the University of Baltimore, where he has been on the faculty since 2011. Dolin has also served as clerk to Judge Newman and as Associate Justice of the Supreme Court of the Republic of Palau.

GAO Report Says USPTO Backlog Reduction Efforts Creating Unsustainable Examiner Attrition – On Thursday, November 5, the U.S. Government Accountability Office (GAO) issued a report requested by Representatives Jamie Raskin (D-MD) and Hank Johnson, Jr. (D-GA) into efforts at the U.S. Patent and Trademark Office to reduce the backlog of unexamined U.S. patent applications from the January 2025 high mark of 838,000 patent applications down to a stated goal of 599,000. According to USPTO data and survey feedback, the GAO’s report found that the agency’s backlog reduction goal is unsustainable due to current high levels of attrition among the agency’s patent examiner workforce, which itself is being caused due to workplace strain from increased examiner workloads, the adoption of AI tools that are currently ineffective for prior art searching, reductions in patent examiner training and less flexible remote work policies.

CAFC Mulls Moderna’s Government-Supplier Defense on COVID-19 Vaccine Appeal – On Thursday, November 5, the U.S. Court of Appeals for the Federal Circuit heard oral arguments in COVID-19 vaccine developer Moderna’s appeal from a ruling by the District of Delaware that it was not immune from patent infringement liability over claims asserted by rival vaccine developers Arbutus and Genevant to a share of royalties from the sale of the COVID vaccine Spikevax. Questioning from the Federal Circuit panel, including Circuit Judges Richard Taranto and Jimmie Reyna, focused on Moderna’s defense that its vaccine shots were made for the U.S. federal government and thus the government should stand in as the defendant in the patent infringement proceedings, a position backed by the U.S. government in briefing during the Delaware district court proceedings.

Unredacted FTC Complaint Alleges Amazon Covertly Raising Ad Prices By 250% – On Thursday, November 5, the Federal Trade Commission (FTC) announced that the agency had recently filed an updated version of a complaint filed in the Western District of Washington against e-commerce giant Amazon along with attorneys general (AGs) or consumer protection divisions from 22 states over Amazon’s alleged use of deceptive and unfair practices to secretly inflate prices for its online search advertising auctions. Among the unredacted allegations are included Amazon’s secret raising of auction prices by 50% on normal auction days up to as much as 250% on major holidays like Black Friday or Prime Day, with some advertisers experiencing average cost-per-click increases of over 200% during the 2021 holiday season.

Circuit Judge Engelhardt Dissents From Fifth Circuit Vacatur in Casa Azul Trademark Case – On Thursday, November 5, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Casa Tradición S.A. de C.V .v. Casa Azul Spirits, L.L.C. in which a panel majority vacated the Southern District of Texas’ judgment that Casa Azul failed to show a likelihood of confusion between its own tequila product and Casa Tradición’s “CLASE AZUL”-branded tequila after the appellate court found clear error in the district court’s analysis of several likelihood of confusion marks, including that “CLASE AZUL” was suggestive rather than descriptive. Writing in partial dissent was Circuit Judge Kurt Engelhardt who would affirm the district court’s finding of no likelihood of confusion, charging the appellate panel majority with misapplying the clear error standard of review and misconstruing several likelihood of confusion factors including strength of the mark, including the district court’s findings of conceptual and commercial weakness that Judge Engelhardt found to be supported by the trial record.

Fifth Circuit Affirms Dismissal of IP Claims Due to Valid TTRPG Licensing Agreement – On Wednesday, November 4, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Thomas v. Leyline Publishing, L.L.C. affirming a summary judgment ruling by the Northern District of Texas dismissing a lawsuit including trademark and other intellectual property claims filed by tabletop role playing game (TTRPG) developer Shawn Thomas following a disagreement with game publisher Leyline over a licensing agreement to Thomas’ game “Realms of Kymoria.” The Fifth Circuit found that Leyline Publishing did not breach the licensing agreement for failure to pay for certain content before using it, including content for which Thomas had not yet billed Leyline, and that the district court correctly inferred a trademark license from the agreement’s language allowing Leyland to share the content it purchased under its own branding.

AG Szpunar Tells CJEU That Google Gemini Chatbots May Infringe Press Rights – On Tuesday, November 3, Advocate General (AG) Maciej Szpunar of the Court of Justice for the European Union (CJEU) issued an opinion in the first generative artificial intelligence (AI) case to reach the CJEU, involving Google Gemini’s of retrieval-augmented generation (RAG) technology to collect information in real-time from Internet sources to improve the reliability and accuracy of AI chatbot answers. Clarifying the circumstances under which such a process could infringe the rights of press publishers under EU law, AG Szpunar urged the CJEU to find that, as limited to answers provided by chatbots and not within the broader context of AI training, the reuse of content from a press publisher’s website may infringe those rights when the chatbot circumvents effective technical measures protecting the content, such as a paywall, or reuses any of the publication’s expression in a recognizable manner.

Barks

Copyright Office Extends Comment Period on Music Streaming Fraud NOI to December 18 – On Thursday, November 5, the U.S. Copyright Office announced that the agency was extending the deadline for the submission of public comments in response to its October notice of inquiry (NOI) on streaming music fraud, with initial comments due December 18 and reply comments due January 29, 2027.

Copyright Office Hits Milestone of 25,000 Digitized Copyright Historical Record Books – On Thursday, November 5, the U.S. Copyright Office announced that a total of 25,238 bound copyright historical record books have been digitized for inclusion in the Copyright Historical Record Books Collection, which now contains more than 21.7 million images of copyright applications and other records bound in books dating from 1870 to 1977.

Trademark Suit Filed in District of Minnesota Between “JOHNNIES” Collegiate Athletic Programs – On Thursday, November 4, the Collegeville, MN-based school Saint John’s University filed a lawsuit alleging claims of trademark infringement in the District of Minnesota against New York City-based St. John’s University alleging a likelihood of consumer confusion over the use of the “JOHNNIES” trademark, registered by Minnesota’s Saint John’s school and used by both universities to refer to teams within their respective athletic departments.

Second Circuit Affirms Willful Counterfeiting Verdict, $4M Statutory Damages for Chanel – On Tuesday, November 3, the U.S. Court of Appeals for the Second Circuit issued a summary order in Chanel, Inc. v. What Goes Around Comes Around LLC affirming an award of $4 million in statutory damages to Chanel for What Goes Around’s use of a counterfeit mark over sales of stolen or otherwise missing Chanel merchandise removed from that company’s ORLI internal inventory system.

Tenth Circuit Dismisses Copyright Damages Appeal for Lack of Appellate Jurisdiction – On Tuesday, November 3, the U.S. Court of Appeals for the Tenth Circuit issued a ruling in The Capture Eleven Group v. Otter Products, LLC dismissing cross-appeals from a jury verdict awarding Capture Eleven $3 million in profit disgorgement and $114,000 in actual damages for copyright infringement after finding the district court’s order granting a stipulated motion for certification under Federal Rule of Civil Procedure 54(b) as the order did not clearly articulate reasons and make careful statements regarding finality in light of third-party litigation in the case.

Second Circuit Affirms Prison Sentence, Restitution in Criminal Counterfeiting Case – On Tuesday, November 3, the Second Circuit issued a ruling in United States v. Sow affirming the Southern District of New York’s judgment sentencing Adama Sow to 24 months’ imprisonment, three years’ supervised release and more than $111,000 in restitution after pleading guilty to one count of trafficking in counterfeit goods related to trafficking at least $3.1 million in counterfeit luxury goods through a Gotham Mini-Storage facility in Manhattan.

This Week on Wall Street

Massive Tech Stock Selloff on AI Regulatory Concerns Could Delay Anthropic IPO – On Thursday, November 5, international news agency Reuters reported on comments provided to Reuters from those familiar with discussions between potential investors and AI company Anthropic that this week’s massive tech stock selloff following this year’s midterm elections, leading to concerns in the data center business world over enhanced regulatory scrutiny by Democrats, which could delay Anthropic’s intention to launch an initial public offering (IPO) of company stock at the company’s current $1.5 trillion valuation.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2025 are announcing quarterly earnings next week (2025 rank in parentheses):

• Monday: None
• Tuesday: Honda Motor Co., Ltd. (32nd); Sonos, Inc. (t-227th)
• Wednesday: Corteva, Inc. (83rd)
• Thursday: Applied Materials, Inc. (50th); Cisco Systems, Inc. (35th)
• Friday: None