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This week in Other Barks & Bites: the Federal Circuit issues several precedential decisions, including one reinstating a jury verdict’s finding that Teva induced infringement of a reissue patent by its labeling on a Coreg generic; Senators introduce the Better Cybercrime Metrics Act; the Fourth Circuit reverses a class certification in antitrust litigation over an allegedly unlawful reverse payment delaying the entry of generic Zetia; the USPTO denies the first two requests for Director rehearing filed through the interim process for handling such reviews under the Supreme Court’s Arthrex decision; Huawei earnings for the first half of 2021 show that Trump-era sanctions continue to harm the company’s revenues; a bipartisan coalition from the House of Representatives send a letter to Twitter CEO Jack Dorsey asking about the company’s plans to address rampant copyright infringement; and the U.S. Department of Commerce files trademark applications to protect USPTO branding and enforce against third parties sending malicious solicitations to registered trademark owners.
Better Cybercrime Metrics Act Introduced Into Congress to Improve Cyber Crime Data Collection – On Thursday, August 5, the Better Cybercrime Metrics Act was introduced with bipartisan sponsorship into both houses of Congress with Reps. Abigail Spanberger (D-VA), Blake Moore (R-UT), Andrew Garbarino (R-NY) and Sheila Jackson Lee (D-TX) leading the effort in the House while Sens. Brian Schatz (D-HI), Thom Tillis (R-NC), John Cornyn (R-TX) and Richard Blumenthal (D-CT) co-sponsoring in the Senate. If enacted, the bill would direct the U.S. Department of Justice to work with the National Academy of Sciences to develop a taxonomy on cybercrime, and increase cybercrime reporting responsibilities at the Federal Bureau of Investigations (FBI) and the Government Accountability Office (GAO).
CAFC Reinstates Induced Infringement Finding Against Teva Over Prost Dissent – On Thursday, August 5, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA, Inc. in which the appellate court overturned the District of Delaware’s grant of judgment as a matter of law (JMOL) after finding that Teva’s generic carvedilol compound infringed claims of a reissue patent granted to GSK after the U.S. Food and Drug Administration (FDA) had approved Teva’s abbreviated new drug application (ANDA) and advised Teva to include the infringing use on labels after GSK delisted other patents from the Orange Book. Circuit Judge Sharon Prost wrote a dissent taking issue with the per curiam decision’s analysis on the intentional-encouragement and causation prongs of induced infringement.
Fourth Circuit Reverses District Court’s Class Certification in Zetia Antitrust Litigation – On Wednesday, August 4, the U.S. Court of Appeals for the Fourth Circuit issued a decision in In re Zetia (Ezetimibe) Antitrust Litigation in which the appellate court reversed a district court ruling that had certified a class of purchasers of brand-name and generic versions of the cholesterol drug Zetia who alleged that Merck’s settlement of a patent dispute delaying market entry of Zetia generics constituted an unlawful reverse payment. The Fourth Circuit vacated and remanded the decision for a proper numerosity analysis to determine if the class certification requirements set forth by Federal Rule of Civil Procedure 23 have been met.
CAFC Denies LG’s Appeal as Untimely, Liability Issues Were Decided September 2019 – On Tuesday, August 3, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Mondis Technology Ltd. v. LG Electronics Inc. in which the appellate court dismissed an interlocutory appeal from LG Electronics challenging the district court’s denial of several post-trial motions on invalidity, infringement and willfulness. The Federal Circuit ruled that LG’s appeal was timely as of the district court’s September 2019 denial of LG’s post-trial motions; LG had appealed after an April 2020 order for a new trial on damages.
CAFC Finds Eastern Texas Improper Venue for Victoria’s Secret Under In re Cray Test – On Tuesday, August 3, the Federal Circuit issued a decision in Andra Group, L.P. v. Victoria’s Secret Stores, L.L.C. in which the appellate court affirmed the Eastern District of Texas’ dismissal of patent infringement claims against the parent company of Victoria’s Secrets stores, as well as its website operation and branded apparel subsidiaries. The Federal Circuit ruled that these non-store defendants did not meet the test under In re Cray as Victoria’s Secret stores within the district were not “regular and established place[s] of business” for the patent venue statute in 28 U.S.C. § 1400(b).
Eleventh Circuit Reverses Mark Cancellation in Pinnacle Trademark Case – On Monday, August 2, the U.S. Court of Appeals for the Eleventh Circuit issued a decision in Pinnacle Advertising and Marketing Group, Inc. v. Pinnacle Advertising and Marketing Group, LLC in which the appellate court reversed the district court’s grant of a post-trial motion to cancel trademarks owned by plaintiff Pinnacle Illinois, finding that the court improperly disregarded jury findings that the asserted marks were distinctive and protectable. Although monetary damages claims against Pinnacle Florida were time-barred, the Eleventh Circuit remanded with instructions for the district court to determine if injunctive relief would protect against consumer confusion.
Bipartisan House Coalition Tells Twitter to Address Copyright Infringement – On Monday, August 2, a bipartisan group of 22 members of the House of Representatives, led by Reps. Kelly Armstrong (R-ND) and Hakeem Jeffries (D-NY), sent a letter addressed to Twitter CEO Jack Dorsey asking for information on how the social media platform plans to address rampant copyright infringement that drives Twitter engagement despite Twitter’s failure to acquire licenses ensuring that content creators are compensated for the use of their works.
CAFC Finds No Assignment of Patent Rights Over Judge Newman Dissent – On Monday, August 2, the Federal Circuit issued a decision in Omni MedSci, Inc. v. Apple Inc. in which the appellate court affirmed a ruling from the Northern District of California that denied a motion to dismiss for lack of standing, finding that provisions of an employment agreement with the University of Michigan did not effectuate an automatic present assignment of the inventor’s patent rights. Circuit Judge Pauline Newman dissented, finding that the university’s employment agreement was unambiguous that patent rights “shall be the property of the University.”
Commerce Department Files for USPTO Trademarks to Address Scam Solicitations – On Thursday, August 5, the U.S. Patent and Trademark Office’s Director’s Forum blog published a post authored by Commissioner of Trademarks David S. Gooder announcing that the U.S. Department of Commerce had filed trademark applications at the USPTO to protect the USPTO’s logos. The applications were filed to enable the Commerce Department to take action against infringing third parties sending misleading notices to trademark owners soliciting fees to prevent mark cancellations.
USITC Institutes Section 337 Investigation Into Optical Enclosures for 3D Mapping Instruments – On Wednesday, August 4, the U.S. International Trade Commission announced that it had instituted a Section 337 investigation into claims of trade secret infringement raised by precision plastics manufacturer Criterion Technology against certain optical enclosures and components thereof useful for protecting sensitive 3D mapping and imaging equipment that are imported into the U.S. for sale by Fujian Fran Optics of Fuzhou, China, and Velodyne Lidar of San Jose, CA.
USPTO Announces Appointees to Performance Review Board – On Wednesday, August 4, the USPTO published a notice in the Federal Register announcing the appointment of members to the agency’s Performance Review Board, including Coke Stewart, performing the functions and duties of the USPTO Deputy Director; David S. Gooder, Commissioner of Trademarks; Mary Critharis, Chief Policy Officer and Director for International Affairs; and Scott R. Boalick, Chief Administrative Patent Judge at the Patent Trial and Appeal Board (PTAB).
Apple Faces Western Texas Suit Over User-Selectable Security and Unlock Features – On Wednesday, August 4, patent owner Altpass LLC filed a lawsuit in the Western District of Texas asserting claims of patent infringement against consumer tech giant Apple, alleging that the company’s computing devices with user-selectable signatures and other security features for unlocking devices, including various generations of iPhones, infringe on the patents-in-suit.
Ninth Circuit Affirms Dismissal of Copyright Claims Over Bilal, Reverses Denial of Attorneys’ Fees – On Tuesday, August 3, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision in Abbas v. Vertical Entertainment, LLC in which the appellate court affirmed the dismissal of copyright infringement claims filed against foreign individuals and entities regarding the 2015 English-language Arabic film Bilal: A New Kind of Hero. On cross-appeal, the Ninth Circuit reversed the district court’s denial of attorneys’ fees, holding that the proper legal standard was whether a successful defense of the action serves the purposes of the Copyright Act, not whether the award itself so serves.
Xiaomi Signs Agreement to License Cellular Wireless, WiFi and Video SEPs – On Tuesday, August 3, mobile and video tech developer InterDigital announced that it had entered into a multi-year royalty bearing agreement with Chinese smartphone manufacturer Xiaomi, with Xiaomi taking a license to incorporate InterDigital’s standard essential patents (SEPs) covering cellular wireless, WiFi Internet and HEVC video technologies into Xiaomi’s cellular-enabled mobile devices.
USITC Receives Section 337 Complaint Targeting Major Laptop and Mobile Manufacturers – On Monday, August 2, the U.S. International Trade Commission announced that it had received a Section 337 complaint from Sonrai Memory seeking a limited exclusion order against certain laptops, desktops, servers, mobile phones, tablets, and components thereof, allegedly violating Sonrai’s intellectual property rights and imported into the U.S. for sale by Amazon.com, Dell, EMC Corporation, Lenovo, LG Electronics and Samsung.
USPTO’s Hirshfeld Denies First Two Requests for IPR Rehearing Filed Under Arthrex – On Monday, August 2, the USPTO announced that Drew Hirshfeld, performing the functions and duties of the USPTO Director, issued a pair of decisions denying requests for Director review of final decisions of the PTAB in inter partes review proceedings under the interim process for handling such requests following the U.S. Supreme Court’s recent decision in Arthrex v. Smith & Nephew.
This Week on Wall Street
Trump-Era Sanctions Put Dent in Huawei’s Revenues During First Half of 2021 – On Friday, August 6, Chinese consumer electronics giant Huawei announced that it had taken in revenues of 320.4 billion yuan ($49.6 billion USD) during the first half of 2021, a significant decrease from the first half of 2020 when the company earned 454 billion yuan ($70 billion USD) in part owing to Huawei’s placement on a business blacklist back in 2019 by the Trump Administration.
Qualcomm Tries to Outbid Magna to Acquire Autonomous Driving Firm Veoneer – On Thursday, August 5, American semiconductor developer Qualcomm announced that it has submitted a bid worth a reported $4.6 billion to acquire driving-assistance and autonomous driving firm Veoneer in an all-cash value worth $37 per share. The offer is $5.75 per share greater than an earlier bid by Canadian mobility tech firm Magna International to acquire Veoneer.
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: Siemens AG (31st)
- Tuesday: Bridgestone Corp. (t-214th); Softbank Group Corp. (65th); Wistron Corp. (t-290th)
- Wednesday: eBay, Inc. (200th); Hyundai Motor Corp. (21st); Lenovo Group Ltd. (80th); Thyssenkrupp AG (t-298th)
- Thursday: Baidu, Inc. (117th); Deutsche Telekom AG (t-140th); Doosan Group (t-295th); Hon Hai Precision Industry (116th); SK Group (43rd); Toshiba Corp. (34th); The Walt Disney Company (t-188th)
- Friday: Fujifilm Holdings Corp. (30th)