Posts in District Courts

Biden Admin and U.S. Chamber Clash Over IRA Drug Pricing Impact

Today, the U.S. Department of Health and Human Services (HHS) made its initial offers to pharmaceutical companies pursuant to the Biden Administration’s Inflation Reduction Act of 2022 (IRA), which allows the U.S. Government to “negotiate” Medicare drug prices under a set framework based upon the amount of time a drug has spent on the market. Opponents of the program, including the U.S. Chamber of Commerce, which is suing the government over the plan, argue it cannot be characterized as a voluntary negotiation since the affected companies would be subject to onerous excise taxes for refusing to participate and because it would have devastating consequences for patients if companies were to actually pull the affected drugs. The amounts of today’s initial offers were not revealed.

Patent Filings Roundup: ‘Schedule A’ Filings Continue; Uptick in Discretionary Denials

It was an average week for patent filings at the Patent Trial and Appeal Board (PTAB) and a slightly above-average week in district courts, with 62 district court complaints filed and 21 new PTAB petitions—one petition for Post Grant Review (PGR), and 20 for Inter Partes Review (IPR). The PTAB instituted 13 cases; iInstitution was denied in 12 cases and 15 cases settled. In district courts, 62 new cases were filed and 12 cases were terminated.

Richard Prince Effectively Settles, Dodging Post-Warhol Fair Use Ruling

On Thursday, final judgments were issued in a pair of copyright infringement cases that arose from a now infamous 2014/2015 project New Portraits, where appropriations artist Richard Prince displayed Instagram photos and user comments as a purported commentary on social media and art. The two nearly identical final judgments were entered in favor of the photographer plaintiffs’ claims that Prince and the exhibiting galleries willfully infringed on their photographs, and the court dismissed all the defenses raised – including the fair use defense – with prejudice.

Patent Filings Roundup: End to the New Year Lull; Torchlight Patent IPRs Instituted

Filings began picking up again this week after a slow start in the new year in both the Patent Trial and Appeal Board (PTAB) and district courts. The PTAB had a busy week with 31 new filings—one Post Grant Review (PGR) and the rest Inter Partes Reviews (IPRs). Nearly half of all new PTAB filings came from just two entities: Apple and Neurent Medical…. The PTAB was also busy issuing 27 institution decisions (21 instituted and 6 not instituted).

Patent Filings Roundup: A Light Week to Kick Off the New Year

The first week of 2024 was a light one for patent filings. The Patent Trial and Appeal Board (PTAB) had a slightly below average 21 new petitions—all petitions for inter partes review (IPR), while there were only 34 new filings in district court. The PTAB saw new IPRs filed against Advanced Coding (filed by Samsung), XR Communications (filed by Ericsson) and Semiconductor Design (filed by Cadence Design Systems). Four new IPRs challenging three Senko Advanced Components Inc. [associated with Senko Group Holdings Co, Ltd.] patents were filed by US Conec Ltd. After low activity throughout 2023, Askeladden has filed three new IPRs challenging three Calabrese Stemer LLC patents and four new IPRs challenging three Intercurrency Software LLC patents.

G+ Communications v. Samsung: No Requirement to Atone for Past Transgressions of Prior Owners

In the book / movie “The Shining”, the Overlook hotel is haunted by ghosts involved in past wrongs committed on the property, presumably to make the current inhabitants atone for such sins. Notwithstanding this transcendental precedent, Judge Rodney Gilstrap recently declined to extend such a notion to patents subject to Fair, Reasonable and Non-Discriminatory (FRAND) licensing related obligations.

Seattle Metropolitans Hockey Owner Sues NHL’s Kraken Over Jersey Logos

On December 27, less than one week before the National Hockey League’s (NHL) Seattle Kraken defeated the Vegas Golden Knights in the 2024 Winter Classic, a lawsuit was filed in the Western District of Washington against the Kraken. The lawsuit alleges that Seattle’s NHL franchise wore an infringing jersey during the Winter Classic, and has sold infringing merchandise, after shutting out the legitimate business interests of a passionate Seattle-area fan who revived that city’s championship legacy more than 90 years after the previous franchise folded.

Patent Filings Roundup: New NPE Campaign Dominates December; Calls Against Fintiv Continue

Looking back over the final few weeks of 2023, patent filings were typical at the Patent Trial and Appeal Board (PTAB) and slightly above average in district courts, with the last weeks of the year seeing 68 district court complaints filed and 25 new PTAB petitions [December 11-17]; followed by 57 district court complaints filed and 29 new PTAB petitions [December 18-24]; and wrapped up with 24 district court complaints filed and 13 new PTAB petitions [December 25-31].

CAFC Distinguishes Forum Selection Clause Language from Precedential Cases in Win for Abbott

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential ruling that affirmed a district court’s denial of preliminary injunction to DexCom, Inc., holding that the language of the governing contract’s forum selection clause expressly allowed for the filing of inter partes review (IPR) proceedings in certain circumstances. DexCom and Abbott Diabetes Care, Inc. entered into a settlement and license agreement in 2014, following years of patent litigation over their competing glucose monitoring system patents. The governing agreement included a Covenant Period and a forum selection clause that DexCom argued was breached by Abbott’s filing of eight IPR petitions following the expiration of the Covenant Period and 10 months after DexCom filed an infringement suit against Abbott in the Western District of Texas.

New York Times Takes on OpenAI, Microsoft

On December 27, the New York Times Company became the latest complainant to accuse OpenAI’s Large Language Model, ChatGPT, as well as Microsoft’s GPT-4-powered Bing Chat, of widespread copyright infringement. The Times alleges that Microsoft and OpenAI reproduce Times content verbatim and also often attribute false information to the Times. OpenAI has been sued by numerous creators and authors for training its chatbots on content found online, including non-public or copyright-protected content. For example, the Times included examples in its complaint in which prompts to ChatGPT asking it to reproduce paywalled content resulted in verbatim excerpts from the article in question.

CAFC Says District Court Erred in Claim Construction of ‘Barcode’

On December 26, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in K-fee System GmbH v. Nespresso USA, Inc., reversing a claim construction ruling and summary judgment of noninfringement issued by the Central District of California. In construing the claim term “barcode” de novo, the Federal Circuit found that the district court erred in finding that its definition expressly excluded “bit codes” in light of the patent owner’s representations during European patent opposition proceedings.

The Top U.S. FRAND / RAND Licensing Developments of 2023 Part I: Everybody into the Pool!

With respect to patents subject to a commitment to license on a Fair Reasonable and Non-Discriminatory (FRAND) or Reasonable and Non-Discriminatory (RAND) basis, 2023 saw many interesting developments. This includes several new pool-based licensing programs being launched, and others gaining traction, various interlocutory decisions, the dismissal of some antitrust suits, and, as always, the specter of possible government intervention.

Great Concepts; Not So Great Reasoning

In October of 2023, a divided panel of the U.S. Court of Appeals for the Federal Circuit ruled in Great Concepts, LLC v. Chutter, Inc., 84 F. 4th 1014 (Fed. Cir. 2023) that a fraudulent filing for incontestability under Section 15 of the Lanham Act is not a proper ground for the Trademark Trial and Appeal Board (TTAB) to cancel a registration under Section 14 of the Act. In so holding, it endorsed prior rulings to the effect that fraud in filing a Section 8 affidavit of continuing use, or a renewal application under Section 9—acts of “maintaining” a registration—constitutes “obtaining” a registration within the meaning of Section 14, while rejecting earlier TTAB decisions that had treated Section 15 affidavits the same way.

Jury Awards Photographer Max Damages in Copyright Suit Against Senior Living Giant

A California jury on Monday awarded what is reportedly the “largest maximum statutory damages verdict for photography infringement in U.S. history,” according to a press release issued by the plaintiff’s counsel in the case. Scott Hargis is an architectural photographer who sued Pacifica Senior Living Management LLC in September 2022 for damages and injunctive relief related to infringement of 43 of Hargis’ photos that Pacifica used to advertise and market its senior living facilities.

Copyright Fright-Night: Where Should We Stand on the Outputs of AI Image Generators?

From SAG-AFTRA strikes to the class action lawsuit of McKernan against Stability AI, Stability Diffusion and Midjourney, the creative industries are concerned with the ability of AI systems to produce outputs in the likeness of their original works. Earlier this year, a class action lawsuit against popular generative AI developers Stability AI, Midjourney, and DeviantArt was filed in the United States alleging copyright infringement. McKernan and others claimed that generative AI outputs have reproduced a significant portion of their original work.