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This week in Other Barks & Bites: the Federal Circuit clarifies “teaching away,” “commercial success” and “blocking patents” doctrine in PTAB reversal; a trio of Republican Senators introduce the FAIR Contributions Act to study the feasibility of collecting Big Tech revenues to fund the Universal Service Fund; the Cleveland MLB team announces new name; the EPO issues a study showing a three-fold increase in space tech patent filing between 2007 and 2017; the FTC votes unanimously to increase antitrust enforcement against companies who use copyright protections and other methods to restrict user repairs; USPTO updates its guidance for implementing the Supreme Court’s mandate for Director reviews of PTAB decisions from Arthrex; Honeywell’s earnings report shows a strong second quarter based on growth in the company’s commercial space division; India’s High Court clears the way for diabetes generics after dismissing an AstraZeneca appeal; and Ericsson and TCL Communications settle their ongoing patent litigation in Texas and California.
Cleveland’s Baseball Team Announces New Logo – Formerly known as the Indians, Cleveland, Ohio’s, Major League Baseball team announced on July 23 that they will now be known as the Cleveland Guardians. The team said in 2018 that it would stop using the logo on uniforms and signage, but held onto the name, trademark and logo until last year, when a racial reckoning in the United States, spurred by the murder of George Floyd, convinced team owner, Paul Dolan, to change the name.
CAFC Rules PTAB Erred on Secondary Considerations, Blocking Patent Doctrine – On Thursday, July 22, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Chemours Company FC, LLC v. Daikin Industries, Ltd. in which the appellate court reversed an obviousness finding by the Patent Trial and Appeal Board (PTAB) in part because of errors in the Board’s legal analysis of commercial success as an objective indicia of non-obviousness and its application of blocking patents doctrine. Circuit Judge Timothy Dyk penned a dissent-in-part arguing that the majority’s finding that an asserted prior art reference taught away from Chemours’ invention was contrary to court precedent.
GOP Senators Introduce FAIR Contributions Act to Collect USF Contributions From Big Tech – On Thursday, July 22, Senators Shelley Moore Capito (R-WV), Roger Wicker (R-MS) and Todd Young (R-IN) introduced the Funding Affordable Internet with Reliable (FAIR) Contributions Act into Congress. If passed, the bill would direct the Federal Communications Commission (FCC) to conduct a feasibility study regarding the collection of Universal Service Fund (USF) contributions from Big Tech edge providers like YouTube and Netflix by collecting revenue from those companies’ digital advertising and user fees.
FTC Votes Unanimously to Increase Enforcement Efforts Against Repair Restrictions – On Wednesday, July 21, the U.S. Federal Trade Commission (FTC) voted 5-0 to increase antitrust enforcement efforts against manufacturers who implement methods into their business activities that makes it difficult or impossible to fix or maintain various products, including manufacturers who rely on copyright protections to prevent circumvention of important software controls and diagnostics on vehicles and farm equipment.
EPO Study Shows Surge in Space Tech Patenting Driving By Private Firms – On Wednesday, July 21, the European Patent Office issued a report on global patenting trends in space technologies showing that such filing activities had increased by three-fold between 2007 and 2017 driven in large part by patent applications from private firms, which comprised about 85 percent of patent applications filed by European entities, although Chinese firms owned 50 percent of all patent families in the field as of 2018.
India’s High Court Dismisses AstraZeneca Appeal, Clears Way for Forxiga Generics – On Tuesday, July 20, the High Court of Delhi dismissed an appeal filed by British-Swedish pharmaceutical firm AstraZeneca, which had sought relief preventing the introduction of generic versions of its diabetes treatment Forxiga (dapagliflozin) by several drugmakers, in part due to the fact that AstraZeneca had filed for two patents to protect the pharmaceutical, one of which had previously expired and the other having been deemed by the court as failing to “yield any product capable of commercial exploitation.”
USPTO Updates Guidance on Requests for Rehearing Post-Arthrex – On Tuesday, July 20, the U.S. Patent and Trademark Office announced that it had adjusted its guidance regarding requests for rehearing from final decisions of the Patent Trial and Appeal Board (PTAB) following the U.S. Supreme Court’s recent decision in Arthrex v. Smith & Nephew as a result of feedback given to the agency during the interim rulemaking process. These updates include the ability to request a rehearing either from the USPTO Director or the original PTAB panel, and a requirement that requests for rehearing must be 15 pages or fewer in length.
U.S. Grand Jury Indicts Four Chinese Nationals in Global IP Theft Conspiracy – On Monday, July 19, a federal grand jury in the Southern District of California indicted four Chinese nationals who were charged with two counts of coordinating and conducting cyber attacks of various private firms, government entities and university research programs involved in developing areas of tech including autonomous vehicles, infectious disease research and specialty chemical formulas, on behalf of the Chinese government.
Second Circuit Affirms Dismissal of Copyright Claims Against Billions TV Series – On Monday, July 19, the U.S. Court of Appeals for the Second Circuit issued a decision in Shull v. TBTF Productions, Inc. in which the appellate court affirmed the district court’s dismissal of copyright infringement claims filed against the producers of the CBS/Showtime television series Billions after finding that claimed similarities between the plot and characters of the show and Schull’s book Market Mind Games are non-protectible elements under U.S. copyright law.
Northern California Verdict Finds Novartis Liable for $178M in Skin Cancer Treatment Case – On Thursday, July 22, a jury verdict entered into the Northern District of California awarded $178 million in damages to American cancer drug developer Plexxikon, a subsidiary of Japan’s Daiichi Sankyo pharmaceutical research and development firm, after finding that Swiss pharma firm Novartis infringed on a pair of patents that reduce cell growth for certain cancers, including melanoma, through sales of its Tafinlar and Mekinist cancer treatments.
USITC Institutes Section 337 Investigation into Bosch, Continental Integrated Circuit Products – On Wednesday, July 21, the U.S. International Trade Commission announced that it had instituted a Section 337 investigation based on a complaint for patent infringement filed by Taiwanese tech firm MediaTek regarding the importation of certain products containing integrated circuits imported for sale into the U.S. by a series of companies including Dutch chipmaker NXP Semiconductors, German engineering firm Robert Bosch GmbH and German automaker Continental AG.
EUIPO, EURADA Sign Collaborative Agreement to Support Small Business – On Wednesday, July 21, the European Union Intellectual Property Office (EUIPO) and the European Association of Development Agencies (EURADA) announced that the two agencies signed a collaborative agreement promote small businesses by providing additional services in intellectual property training, knowledge sharing and other IP-related business strategies.
Producers of 2019 Film Ad Astra Face Copyright Infringement Claims from Sci-Fi Writer – On Wednesday, July 21, Phillip Madison Jones, a multi-genre writer who publishes science fiction works under the name Billy Majestic, filed a lawsuit in the Central District of California against Twentieth Century Studios and other producers of the 2019 film Ad Astra based on allegations that the film incorporated protectible elements of Jones’ Cosmic Force screenplay that was shared with defendant film producers prior to the completion of Ad Astra’s screenplay.
EUIPO Alerts IP Owners About Fake Payment Reminder Scam – On Wednesday, July 21, the European Union Intellectual Property Office (EUIPO) issued a press release alerting agency customers about a fraudulent letter being circulated regarding purported payment reminders to the EUIPO, including a demand to send a registration payment to a Polish bank account.
Puma Settles Trademark Claims Filed By Brooklyn Artist Over “Roar Mark” – On Tuesday, July 20, a voluntary dismissal was filed in the Southern District of New York terminating a trademark case filed by Brooklyn-based artist Christophe Roberts, who had alleged that German athletic apparel firm Puma had infringed Roberts’ “Roar Mark” on products that Puma had been marketing on its officially licensed National Basketball Association (NBA) products.
Nike Files Trademark Suit Over Air Force 1 Knockoffs, Custom Sneakers – On Monday, July 19, American footwear and athletic apparel firm Nike filed a lawsuit in the Central District of California against Customs by Ilene, doing business as Drip Creationz, alleging claims of trademark infringement both by making knockoff versions of Nike’s Air Force 1 shoes and enabling people to order customized sneakers that feature Nike’s iconic swoosh logo.
Ericsson, TCL Settle Ongoing Patent Infringement Litigation in Central California – On Friday, July 16, Swedish mobile broadband developer Ericsson and Chinese consumer electronics giant TCL Corporation jointly filed a voluntary dismissal in a patent infringement case filed in the Central District of California. The dismissal came one day after Ericsson filed a voluntary dismissal of a patent case it filed against TCL in the Eastern District of Texas.
This Week on Wall Street
Honeywell Beats Expectations on EPS, Revenues Thanks to Commercial Space Growth – On Friday, July 23, American industrial conglomerate Honeywell International reported its earnings for the second quarter of 2021, which showed that the company beat analyst expectations on earnings per share ($2.02 EPS over a consensus $1.94 EPS) and revenues ($8.8 billion over a consensus $8.6 billion) thanks in large part to solid performance in Honeywell’s commercial aerospace and energy divisions.
AT&T Beats on EPS Despite $4.6B Write-Down in Latin American Division – On Thursday, July 22, American telecom and media entertainment firm AT&T reported its earnings for the second quarter of 2021 showing that the company earned revenues of $44 billion, $10 billion greater than analyst estimates, and 89 cents earnings per share, a 10 cent beat over analyst expectations, despite a $4.6 billion write-down in the value of the company’s Latin America business.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2020 are announcing quarterly earnings next week (2020 rank in parentheses):
- Monday: Fujitsu Ltd. (42nd); Koninklijke Philips N.V. (48th); Lockheed Martin Corp. (t-163rd); Realtek Semiconductor Corp. (t-216th)
- Tuesday: 3M Co. (71st); Alphabet, Inc. (15th); Boston Scientific Corp. (82nd); Corning Inc. (100th); General Electric Co. (14th); Hubbell Inc. (t-278th); Juniper Networks, Inc. (t-166th); MediaTek Inc. (109th); Microsoft Corp. (8th); Raytheon Technologies (6th); Rockwell Automation, Inc. (272nd); Samsung SDI Co., Ltd. (t-153rd); Shimano, Inc. (t-269th); SK Group (43rd); Stryker Corp. (t-114th); Visa, Inc. (204th); Xerox Holdings Corp. (149th)
- Wednesday: BASF SE (95th); The Boeing Co. (26th); Bristol Myers Squibb (t-216th); Canon Inc. (4th); Facebook, Inc. (23rd); Ford Motor Co. (19th); Nissan Motor Co., Ltd. (102nd); PayPal Holdings Inc. (159th); Qualcomm Inc. (17th); Samsung Electro-Mechanics (101st); TE Connectivity Ltd. (t-163rd); Thermo Fisher Scientific (131st); United Microelectronics (t-151st); Xilinx Inc. (t-170th)
- Thursday: Airbus SE (89th); Amazon.com, Inc. (16th); Caterpillar Inc. (113th); Comcast Corp. (t-120th); Denso Corp. (36th); Edwards Lifesciences Corp. (264th); Fanuc Corp. (78th); Konica Minolta, Inc. (83rd); Kyocera Corp. (47th); LG Corp. (3rd); Mastercard Inc. (143rd); Merck & Co., Inc. (297th); Mitsubishi Electric Corp. (33rd); Nielsen Holdings plc (185th); Nokia Corp. (58th); Northrop Grumman Corp. (t-287th); Omron Corp. (138th); Panasonic Corp. (20th); Renesas Electronics (118th); Samsung Electronics Co., Ltd. (2nd); Sanofi S.A. (211th); Skyworks Solutions Inc. (t-232nd); STMicroelectronics N.V. (74th); Textron Inc. (150th)
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