Steve Brachmann

Today, the U.S. Supreme Court granted a petition for writ of certiorari filed by nitro cold brew coffee company RiseandShine Corporation, doing business as RISE Brewing, challenging the U.S. Court of Appeals for the Second Circuit’s application of the likelihood of confusion test in RiseandShine’s trademark infringement case against PepsiCo’s “Mtn DEW Rise Energy” energy drinks. Going against the U.S. Solicitor General’s calls to deny cert even though the Second Circuit erred in treating a trademark’s inherent strength as a question of law, the Supreme Court will answer whether this sub-factor of the consumer confusion analysis presents questions of fact that should be submitted to a jury.

Last week, U.S. Patent and Trademark Office (USPTO) Director John Squires issued a decision denying institution of inter partes review (IPR) proceedings petitioned by tech giant Apple to challenge patent rights owned by WeCrevention, the intellectual property holding subsidiary of Taiwanese semiconductor developer Etron Technology. Director Squires’ ruling continues the ongoing crackdown against gamesmanship at the Patent Trial and Appeal Board (PTAB) by petitioners pursuing positions inconsistent with district court litigation to increase their odds of invalidating competitor patent rights.

Last week, economic consulting firm Cornerstone Research published a report, titled Intellectual Property Litigation: U.S. Trends in Global Perspective, detailing global diversification in patent litigation and indicating that the United States is no longer the dominant forum for patent disputes. This shift away from a U.S.-centric infringement landscape has taken place at the same time that intangible assets now represent the vast majority of corporate value with many intellectual property (IP) owners increasingly choosing trade secret protection for domestic disputes, a trend being driven by advances in artificial intelligence (AI) technology.

This week in Other Barks & Bites: Senators Chuck Grassley and Amy Klobuchar introduced the American Innovation and Choice Online Act into Congress; the U.S. Patent and Trademark Office waived the petition fee for the Streamlined Claim Set pilot program; the Council for Innovation Promotion publishes a study on the impacts of intellectual property rights in cultivating technology ecosystems;

Last week, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Ollnova Technologies Ltd. v. ecobee Technologies ULC vacating judgments entered by the Eastern District of Texas and remanding to determine patent-eligibility issues under 35 U.S.C. § 101. The Federal Circuit remanded primarily due to the district court’s erroneous jury instructions regarding the subject matter eligibility test under Alice, and dismissed ecobee’s patentability challenge to Ollnova’s patents directed to building automation systems (BAS) that address technical challenges present in wireless networks.