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CAFC Vacates Preliminary Injunctions Against Online Hoverboard Sellers

In two separate precedential opinions issued Friday, October 28, the U.S. Court of Appeals for the Federal Circuit (CAFC) vacated two separate preliminary injunction orders granted by the U.S. District Court for the Northern District of Illinois against hoverboard products alleged to infringe four design patents due to “substantive defects” in the court’s reasoning for granting the injunctions. Judges Dyk, Taranto and Stoll heard both appeals.

Other Barks & Bites for Friday, October 28: Tillis and Coons Seek Establishment of National Commission on AI, Japan’s Supreme Court Says No Copyright Fees for Student Music Lessons, and CAFC Reverses Hoverboard Injunction for Erroneous Legal Standard

This week in Other Barks & Bites: the Supreme Court of Japan rules that students taking lessons at music schools are not subject to copyright fees for in-lesson performances for instructors; the England and Wales Court of Appeal denies Apple’s request to set aside an injunction in its SEP/FRAND case with Optis Cellular; Retired Chief Judge Paul Michel urges the Federal Circuit to issue more en banc decisions to clarify patent law; the Federal Circuit reverses a district court’s preliminary injunction for applying the improper legal standard in determining the plaintiff’s likelihood of success in a design patent suit against Gyroor hoverboards; Elon Musk’s takeover of Twitter begins by firing executives linked to misreported bot accounts; Senators Thom Tillis and Chris Coons ask the U.S. Patent and Trademark Office and the U.S. Copyright Office to collaborate on a national commission on AI; and more.

What’s in a Pose? When it Comes to Brand Protection, Quite a Lot

Usain Bolt filed a recent U.S. trademark application depicting his widely recognized victory pose. The trademark has been applied for in relation to items such as clothing, jewellery, shoes and restaurant and bar services. As Bolt has retired from athletics, he is clearly hoping to add more strings to his bow.

P.S., I Don’t Love You: UK Court Delivers Blow to Apple in FRAND Fight with Optis But Laments ‘Dysfunctional’ SEP Dispute System

The England and Wales Court of Appeal this morning said that Optis Cellular Technology is entitled to an injunction before a lower court has set fair, reasonable and non-discriminatory (FRAND) terms for a license to Optis’ standard essential patents (SEPs) if Apple refuses to take a court-determined FRAND license. But in a post script to the ruling, Lord Justice Arnold said both Apple’s appeal and Optis’s cross-appeal “illustrate yet again the dysfunctional state of the current system for determining SEP/FRAND disputes” and that the European Telecommunications Standards Institute (ETSI) and other standards development organizaitons (SDOs) should “make legally-enforceable arbitration of such disputes part of their IPR policies” to curb the problem.

Patent Filings Roundup: Another Slow Week in the Courts; Discretionary Denials Drop to Near-Zero in Q3

It was another surprisingly light week in patent filings, compared at least with recent memory—just 29 new suits and 17 new filings at the Patent Trial and Appeal Board (PTAB), all inter partes reviews (IPRs). The filings include a few challenges against patents asserted by the Fortress-funded Neo Wireless and Netlist, as well as a slew of filings by Apple against Mullin Industries, LLC. After a week’s respite there were five new IP Edge suits—not as many as usual, but still enough to represent almost a fifth of all suits filed this week.

Striking a Balance between Quality and Value in a Patent Portfolio

Without unlimited funds, a constant issue for developing and maintaining a patent portfolio is how to balance between obtaining the highest quality patents and obtaining patents at a lower cost to grow a portfolio. When biasing towards a reduced cost, some aspects of a well-written patent application may also be sacrificed. Some of these items may be more critical to a patent that is likely to be enforced, whereas other items may be more valuable to building a robust patent family based on that disclosure. In any event, there is always an opportunity to pursue a patent with a strategic focus. The below non-exhaustive list includes some common items that may be included in a more comprehensive patent application preparation and prosecution process that aims for higher quality and other items that may be sacrificed in a more cost-sensitive patent application process. Of course, the approach here does not recommend removing or foregoing any items from the patent application process, but these items are available for consideration when there are budgetary constraints.

Presenting the Evidence for Patent Eligibility Reform: Part IV – Uncertainty is Burdening Litigants and Courts, Threatening U.S. Competitiveness and National Security

The current unreliability of patent-eligibility law, documented thus far here, here and here, has also created undue burdens on litigants and the courts. In this final installment, we detail how the current unreliability burdens litigants and the courts and how it is a fundamental threat to U.S. competitiveness and national security. Patent infringers now routinely raise Section 101 as a defense, often merely as a strategy to complicate and prolong the litigation, rather than as a good-faith defense with a likelihood of success. For example, one analysis found that, from 2012 to 2014 (when Alice was decided), Section 101 was raised in just two Rule 12(b)(6) motions across the country each year. In the year after Alice, that number rose to 36 motions, and by 2019, accused infringers were filing over 100 such motions each year.

Johnny Depp and Jeff Beck Sue Folklorist Accusing Them of Stealing Lyrics to ‘Hobo Ben’ Poem

Johnny Depp and guitarist Jeff Beck filed a lawsuit last Friday against folklorist and SUNY Buffalo professor Bruce Jackson, who accused the pair of plagiarizing a song on their latest album, “18”. In two demand letters the folklorist sent in August, Jackson alleged that Depp and Beck infringed the copyright of the poem “Hobo Ben” by copying entire passages. However, in their lawsuit filed in the U.S. District Court for the Western District of New York, Depp and Beck’s lawyers argue that Jackson never owned the copyright to “Hobo Ben,” as it was “part of an oral tradition passed down for generations and performed by an unidentified individual.” Therefore, they are asking the judge for a declaration of noninfringement, so the pair can “preserve their rights, defend their good names, and protect their business and business relationships.”

Copyright Office Issues NPRM to Correct MLC’s ‘Erroneous’ Dispute Policy on Post-Termination Blanket License Royalties

On October 25, the U.S. Copyright Office issued a notice of proposed rulemaking (NPRM) in the Federal Register to clarify the application of the derivative works exception to copyright termination rights within the context of blanket licenses administered under the Music Modernization Act (MMA). The Office is hoping to correct what it sees as a legally erroneous dispute resolution policy established by the Mechanical Licensing Collective (MLC), which administers the MMA’s blanket licenses to digital music providers, regarding the payment of royalties after songwriters exercise their termination rights to regain copyright ownership from music publishers.

Michel Calls Out CAFC for ‘Tremendous Failure’ to Provide Clarity on Eligibility Law

During IPWatchdog’s Life Sciences Masters 2022 today, Retired Chief Judge of the U.S. Court of Appeals for the Federal Circuit (CAFC) Paul Michel said a lot could be fixed by the CAFC itself with respect to patent eligibility law if it would just go en banc more often. “By my recollection the Federal Circuit hasn’t gone en banc on a major patent case in a decade,” Michel said. “And yet, all CAFC judges are on record saying that 101 law is a total mess and needs to be fixed.” Michel was speaking on a panel moderated by Laura Smalley of program sponsor, Harris Beach, and including Mike Cottler of biosimilars company Alvotech and Tom Stoll of Genentech. The panelists were discussing the effect of U.S. patent eligibility law on the life sciences industry, including the potential impact of current efforts to reform patent eligibility law, such as Senator Thom Tillis’ (R-NC) Patent Eligibility Restoration Act. While Michel said he believes it’s ultimately Congress’ job to make the kind of policy judgments the Supreme Court and Federal Circuit have been making in this sphere, there is still a lot more the Federal Circuit could be doing to help the situation

How the Unified Patent Court Will Shake Up the Landscape of Patent Courts Worldwide

The Unified Patent Court (UPC) plans to open for business on April 1, 2023. Its likely place among the world’s preeminent patent courts can be inferred, at least in part, from the territorial and subject matter jurisdiction of this novel court. In Europe, several courts enjoy established reputations for patent litigation, notably in France, Germany, the United Kingdom, Holland and Italy. These courts, as well as the European Patent Office (EPO), which also enjoys a strong reputation for its case law, are the preferred venues of plaintiffs for enforcing or seeking to invalidate European patents. Due to the size and economic weight of the region, the importance of European patents, and the bench of experienced patent judges and practitioners, Europe will without doubt continue to attract a substantial share of patent litigation worldwide.

What Vifor v. CCI Could Mean for the Intersection of Patent and Antitrust Laws in India

Patent laws and antitrust laws (known as competition laws or anti-competitive laws in other jurisdictions), may seem antithetical to each other at first glance. Antitrust law is concerned with ensuring the existence of a free and fair market by promoting fair competition practices and discouraging monopolies, which often stagnate business innovation. In contrast, patent law grants inventors a limited period of exclusivity in exchange for disclosing their invention- i.e., a monopoly of sorts. These opposing objectives may not, however, be quite as conflicting as they initially appear to be. Both of these laws aim to balance individual interests with the greater public interest. In the July 2022 case of Vifor International Ltd. v. CCI, we see this intersection of patent and competition laws in India. The case highlights how these laws can exist in tandem and provide relief to the aggrieved.

BIO and Vaccine Manufacturers Group Sign on to Berlin Declaration on Vaccine Access

Two major trade organizations representing global vaccine manufacturers are officially backing a proposal submitted to the G20 and G7 countries in July that they claim offers practical solutions for future pandemics to avoid the inequities that have been highlighted by the COVID-19 pandemic. The Berlin Declaration was proposed in July 2022 by the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA) and calls on industry to commit to “reserve an allocation of real-time production of vaccines, treatments and diagnostics for priority populations in lower income countries and take measures to make them available and affordable.”

This Week in Washington IP: IPWatchdog’s Life Science Masters 2022, Cybersecurity Efforts at the DHS and Quarterly Update on Chinese IP Law Developments

This week in Washington IP news, both houses of Congress remain quiet during regularly scheduled work periods, but IPWatchdog debuts its new headquarters in Ashburn, VA with Life Science Masters 2022 on Monday and Tuesday. In Seoul, South Korea, the Information Technology & Innovation Foundation’s Global Trade and Innovation Policy Alliance hosts a two-day summit to focus on strengthening strategic ties in innovation economies among member countries. ITIF also hosts an event this week to explore the upcoming COP 27 climate change conference and how stronger innovation policies can lead foreign governments to meeting climate commitments established at this meeting. Elsewhere, the Center for Strategic & International Studies hosts a pair of events taking a look at cybersecurity efforts within the U.S. Department of Homeland Security, while the U.S. Patent and Trademark Office hosts a regular quarterly update of recent legislative and case law developments on intellectual property in China.

PTAB Reverses Course in Code200 IPR Under Director’s ‘Compelling Evidence’ Memo

Last week, the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) decided to institute inter partes review (IPR) in Code200, UAB v. Bright Data, Ltd., IPR2022-00861, following a sua sponte Director Review decision ordering the Board to reconsider its original ruling denying institution. USPTO Director Kathi Vidal issued a precedential sua sponte Director Review Decision in the case in August, clarifying the application of Gen. Plastic Indus. Co. v. Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 (PTAB Sept. 6, 2017) when denying decisions to institute IPRs.