Posts in IP News

ITIF Report: The U.S. Underestimates China as an ‘Imitator’ Rather Than an Innovator at Its Own Peril

On January 23, the Information Technology & Innovation Foundation (ITIF) published a report entitled Wake Up, America: China is Overtaking the United States in Innovation Output, which applies innovation and industrial performance metrics for comparing relative innovation outputs from foreign technological rivals China and the United States. The report, produced by ITIF’s Hamilton Center on Industrial Strategy, is the latest indicator that China is close to surpassing the United States in terms of innovation output per capita and calls upon U.S. policymakers to develop a national economic and technology policy to restore U.S. dominance in innovation.

New York Court Finds Playlist Patent Ineligible as Abstract

On January 24, the U.S. District Court for the Southern District of New York held EscapeX IP LLC’s U.S. Patent No. 9,009,113 patent ineligible as being directed to an abstract idea. The patent covers a process for allowing users to upload “dynamic albums” to be stored on their devices. The district court granted Block, Inc.’s (better known as music streaming platform Tidal) motion to dismiss the patent infringement suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. According to the district court opinion, the patent’s specification states that “the patent seeks to remedy certain problems that currently exist with music streaming, including artists’ inability to effectively monetize their music, their lack of control over content once users have downloaded it, and the disconnect between streaming services and artists’ social media pages.”

Bristol Myers Says AstraZeneca’s Imjudo Infringes Yervoy Patent

Bristol Myers filed a lawsuit Monday claiming AstraZeneca has infringed on a patent related to its Yervoy cancer drug. The pharmaceutical company launched the suit in the United States District Court for the District of Delaware. Bristol Myers claimed AstraZeneca’s Imjudo cancer treatment infringes on its patent and that AstraZeneca failed to first obtain a license or permission. The cancer treatment in question is known as cancer immunotherapy, which according to the lawsuit “represents a scientific breakthrough that has revolutionized cancer treatment by manipulating a patient’s immune system to eliminate cancer cells.” Yervoy has been approved by the U.S. Food and Drug Administration (FDA) to treat melanoma, renal cell carcinoma, colorectal cancer, hepatocellular carcinoma, non-small cell lung cancer (NSCLC), malignant pleural mesothelioma, and esophageal cancer, either alone or in combination with the company’s drug, Opdivo.

‘Shenanigans’ Gone ‘Off the Rails’: PQA Asks CAFC to Step in on Vidal Director Review Sanctions

Following United States Patent and Trademark Office (USPTO) Director Kathi Vidal’s December 2022 precedential decision that Patent Quality Assurance (PQA) abused the inter partes review (IPR) process in its case against VLSI Technology, PQA has filed a petition seeking mandamus relief in the matter with the U.S. Court of Appeals for the Federal Circuit (CAFC). Vidal ruled in December that PQA abused the IPR process by filing an IPR and threatening to join a separate IPR against VLSI in order to receive a payout from the technology firm. Vidal also found that PQA misrepresented an “exclusive engagement” with a witness, Dr. Adit Singh, who was involved in another IPR petition against VLSI from OpenSky. She wrote in the decision dismissing PQA from the IPR that, “though the behavior here may not be as egregious as that of OpenSky… I find that PQA’s behavior, nonetheless, amounts to an abuse of process.”

New Federal Law and FTC Rule Will Imperil Trade Secret Protection

When Adam Smith spoke about an “invisible hand,” he was talking about a good thing – the way that free markets harness the laws of competition, supply and demand and self-interest to improve the economy. But he also could have been thinking of another law. The law of unintended consequences: that actions of people, and especially of governments, always have unanticipated effects. Sometimes these effects can be perverse, reflecting a profound failure of “second-order thinking” (in other words, thinking ahead about “how could this possibly go wrong?”). On January 5, 2023 – a day that may go down in IP infamy – we saw two bold actions. First, the “Protecting American IP Act” became law; and second, the Federal Trade Commission (FTC) proposed a new rule that would invalidate noncompete agreements across the United States. But wait, you might say, that actually sounds great! What’s the problem with protecting American IP, and making the rest of the country join California in unleashing talent to go where it likes? Well, don’t be too hasty. Stay with me on this, and you will see just how shortsighted our government can be.

DOJ and Attorneys General Say Google’s Tactics Have ‘Broken’ Ad Tech Competition

The U.S. Department of Justice (DOJ) and the Attorneys General of eight U.S. states on Tuesday announced they are suing Google for antitrust violations of the Sherman Act with respect to the tech company’s monopoly on digital advertising technology. The Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia joined the suit. In a 155-page complaint filed in the Eastern District of Virginia, the DOJ and Attorneys General explained that Google “has corrupted legitimate competition in the ad tech industry by engaging in a systematic campaign to seize control of the wide swath of high-tech tools used by publishers, advertisers, and brokers, to facilitate digital advertising.”

Novartis Asks SCOTUS to Rein in CAFC and Ninth Circuit Approach to Panel Rehearing Decisions

Last week, Novartis Pharmaceuticals followed through on its  September 2022 promise that it would appeal the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) June 2022 decision invalidating its patent for a dosing regimen for its multiple sclerosis drug Gilenya to the U.S. Supreme Court, after the CAFC denied its request to rehear the case.

Copyright Office Pilot Public Records System Mistakenly Reflects Cancellation of Registration for AI Graphic Novel

On Monday, January 23, the U.S. Copyright Office (USCO) Copyright Public Records System (CPRS) reflected that the registration for a graphic novel that was made using the AI text-to-image tool, Midjourney, had been cancelled. The Office has since clarified that the update was a system error (see above note). The USCO previously registered the work in September 2022. However, a month later, and following significant press attention, the Office issued a notice indicating that the registration may be cancelled. With Monday’s development, the cancellation seemed to be final.

Brooks Convinces Indiana Court to Transfer Dispute with Puma to Washington

Brooks Sports, a sports apparel company that was sued by Puma SE and Puma North America, Inc. (for patent and trademark infringement in Indiana, won its motion to transfer the case to a new district court on January 20. Judge Richard L. Young of the United States District Court for the Southern District of Indiana ruled Friday that the case will be transferred to the Western District of Washington. Brooks Sports’ headquarters is based in Seattle, Washington. Brooks argued that moving the case closer to its base would be convenient for both parties as well as witnesses. Judge Young agreed and cited Puma’s lack of presence in Indiana as another supporting reason to move the case to Washington.

Federal Circuit Upholds Albright’s Ruling on Denial of Transfer for GM

The U.S. Court of Appeals for the Federal Circuit (CAFC) today denied General Motors’ petition for a writ of mandamus seeking to compel Judge Alan Albright to transfer a patent infringement case brought against GM by Intellectual Ventures (IV) to the U.S. District Court for the Eastern District of Michigan. IV sued GM in Albright’s Western District of Texas court for infringing 12 patents covering services and products installed in GM cars, including certain features of GM’s OnStar service. GM moved to transfer the case to Michigan, arguing that “the employees most knowledgeable about the design and development of the accused products and certain third-party component suppliers” are based there. IV countered that GM has “an IT Innovation Center” in Austin, Texas, where employees knowledgeable about the accused technology work.

Darrell Issa Doesn’t Understand That He is the Problem

US Inventor is publicly opposing the appointment of Representative Darrell Issa (R – CA) to Chair the IP Subcommittee due to Issa’s record of IP reforms that are harmful to independent inventors and startups. To accomplish these IP reforms, Issa squelches the voices of independent inventors and startups while amplifying the voices of Big Tech and Chinese Communist Party (CCP) controlled multinationals. Now, in a recent statement, Issa argues that his IP reforms have made the patent system more fair for everyone, even as the facts show he is completely wrong. Issa is unfit to be IP Subcommittee Chair.

This Week in Washington IP: FTC’s Non-compete Proposal, Competition in Ticketing Services, and the Effectiveness of AI in Content Moderation

This week in Washington IP news, Congress is back in session with a light week of hearings including a Senate Judiciary hearing on competition in live entertainment. Elsewhere, there is a U.S. Patent and Trademark Office (USPTO) training session on the patent appeals process, and a discussion about President Biden’s tech agenda from the ITIF.

Amici Urge SCOTUS to Reverse Overly Broad Definition of ‘Expressive Work’ in Jack Daniel’s v. VIP Products

Last November, the U.S. Supreme Court granted a petition for writ of certiorari filed by famed whiskey brand owner Jack Daniel’s Properties. The petition filed by Jack Daniel’s appealed the U.S. Court of Appeals for the Ninth Circuit’s March 2020 ruling that a “Bad Spaniels” dog toy marketed by VIP Products was an expressive work entitled to First Amendment protections against trademark infringement liability under the Rogers test. On January 18, a series of 16 amicus briefs were filed with the Supreme Court, the vast majority of which urged the nation’s highest court to reverse the Ninth Circuit’s ruling and limit the application of the Rogers test to clearly artistic works and exclude consumer products that happened to have some humorous expression. Several amici also pushed back on the Ninth Circuit’s ruling that VIP Products’ use of Jack Daniel’s marks was noncommercial.

New USPTO Tool Aims to Help IP Newbies Identify Their Rights

At the U.S. Patent and Trademark Office’s (USPTO) Women’s Entrepreneurship (WE) event in Naples, Florida, on Wednesday, January 18, USPTO Director Kathi Vidal announced that the Office has a new tool, called the Intellectual Property (IP) Identifier, intended to assist those “less familiar with IP” in identifying what IP they have and what rights they need to protect it. The tool also provides basic information on patents, trademarks, trade secrets and copyright. Vidal said in a press release Wednesday that anyone “considering starting a business or trying to grow one” should use the tool and that “it’s another example of our work to bring more people into the innovation ecosystem to increase American competitiveness, grow the economy, and solve world problems.” 

Other Barks & Bites for Friday, January 20: Getty Images Files Lawsuit Against AI Art Company; USPTO Extends Deadline for Strategic Plan Input; and the U.S. Solicitor General Files a Brief in Support of Jack Daniel’s in Trademark Dispute

This week in Other Barks & Bites: The U.S. Copyright Office appoints a new Deputy Director of Policy & International Affairs; Getty Images launches a lawsuit against an AI art company; the United States Patent and Trademark Office pushes back the deadline for comments on its Draft 2022-2026 Strategic Plan; and the U.S. Solicitor General supports Jack Daniel’s in its Supreme Court trademark case.

Varsity Sponsors

IPWatchdog Events

PTAB Masters™ 2023
January 31 @ 8:00 am - February 1 @ 1:30 pm EST
Software Masters™ 2023
March 7 @ 8:00 am - March 8 @ 1:00 pm EST
International Trade Commission Masters™ 2023
April 11 @ 8:00 am - April 12 @ 3:00 pm EDT
Patent Litigation Masters™ 2023
May 16 @ 8:00 am - May 17 @ 3:00 pm EDT
Patent Prosecution Masters™ 2023
June 20 @ 8:00 am - June 21 @ 5:00 pm EDT

From IPWatchdog