This week in Other Barks & Bites: Marybeth Peters, formerly the Register of Copyrights from 1994 to 2010, passes away at the age of 83; Director Vidal allows OpenSky to remain a “silent understudy” in VLSI IPRs; the USPTO requests comments on agency initiatives designed to ensure robust and reliable patent rights; the White House Office of Science and Technology Policy publishes a Blueprint for an AI Bill of Rights; the U.S. Supreme Court denies cert to several patent cases but asks the U.S. Solicitor General to brief the Court on the “skinny label” issues in Teva v. GlaxoSmithKline; Micron announces plans to invest up to $100 billion over the next 20 years in constructing a computer chip manufacturing campus in a suburb of Syracuse, NY; Amgen files a supplemental brief with the U.S. Supreme Court arguing that the U.S. government’s own brief calling enablement a mixed question of law and fact supports review of Amgen’s appeal; and Arizona’s State AG reaches an agreement with Google to settle a lawsuit over deceptive practices in user device tracking.
Marybeth Peters, Second-Longest Tenured Register of Copyrights, Passes Away – On Thursday, September 29, Marybeth Peters, formerly the Register of Copyrights from 1994 through 2010 and the second-longest tenured Register behind Thorvald Solberg (1897-1930), the first Register of Copyrights in the United States, passed away at the age of 83. American Intellectual Property Law Association (AIPLA) Executive Director Vince Garlock issued a statement saying that, “Register Peters… was a champion of the copyright system, and deeply admired for her keen intellect, and caring and gregarious demeanor. Marybeth will be greatly missed by the entire creative community.”
Director Vidal Allows OpenSky to Remain ‘Silent Understudy’ to Intel in VLSI IPR – On Tuesday, October 4, U.S. Patent and Trademark Director Kathi Vidal issued a decision determining an abuse of process and issuing sanctions against OpenSky for its attempts to extort patent owner VLSI by manipulating its petition for inter partes review (IPR) on a patent supporting a $2 billion infringement verdict against Intel in U.S. district court. IPWatchdog President and CEO Gene Quinn strongly criticized Director Vidal’s ruling, arguing that the decision to allow OpenSky to remain a “silent understudy” in the IPR to Intel, which is now the lead petitioner despite the fact that it was added to the IPR after its statute of limitations for filing a petition had run, would lead to further attempts to extort patent owners at the Patent Trial and Appeal Board (PTAB).
White House OSTP Issues Blueprint for AI Bill of Rights – On Tuesday, October 4, the White House Office of Science and Technology Policy (OSTP) released a Blueprint for an AI Bill of Rights reflecting the Biden Administration’s vision on principles for private companies and governmental agencies to encourage the adoption of artificial intelligence (AI) technologies in ways that mitigate risks involving data privacy, algorithmic bias and notice of the use of automated systems. Representative Eddie Bernice Johnson (D-TX), Chair of the House Committee on Science, Space, & Technology, called the blueprint “a critical step to ensure that the development and use of artificial intelligence and automated technologies adhere to our democratic values and civil rights.”
Amgen Files Supplemental Brief With SCOTUS, Says Government’s Arguments Support Review – On Tuesday, October 4, American biopharmaceutical firm Amgen filed a supplemental brief with the U.S. Supreme Court responding to a brief by the U.S. Solicitor General that argued against granting a petition for writ of certiorari filed by Amgen to challenge the Federal Circuit’s treatment of Section 112 enablement issues as a question of law when Amgen argues that Supreme Court precedent treats enablement as a question of fact to be decided by the jury. Amgen argued that the Solicitor General’s brief, which treated enablement as a mixed question of law and fact, provided further support for the Supreme Court to grant review to clarify the legal standard for enablement.
USPTO Requests Comments on Initiatives to Ensure Robust and Reliable Patent Rights – On Tuesday, October 4, the USPTO issued a request for comments in the Federal Register seeking public input on several initiatives being established at the agency to bolster “the robustness and reliability of patents,” including enhanced collaboration between the USPTO and other federal agencies like the U.S. Food & Drug Administration (FDA), increasing time and resources for patent examiners, and applying a higher degree of scrutiny to continuation applications. The request for comments also seeks public input on issues related to so-called “patent thickets” in the drug industry raised by a letter from several U.S. Senators to the USPTO this June.
SCOTUS Denies Patent Cases But Asks Solicitor General to Brief Teva’s “Skinny Label” Case – On Monday, October 3, the U.S. Supreme Court issued an order list showing that the nation’s highest court had denied petitions for writ of certiorari in several patent cases: Biogen International GmbH v. Mylan Pharmaceuticals Inc., challenging the Federal Circuit’s Section 112 invalidation of Biogen’s patent claims covering a method of treating multiple sclerosis (MS); Worlds Inc. v. Activision Blizzard Inc., challenging the District of Massachusetts’ Section 101 invalidation of Worlds’ patent claims covering client-server computer network architecture for three-dimensional (3D) worlds; and CustomPlay, LLC v. Amazon.com, Inc., challenging the Patent Trial and Appeal Board’s (PTAB) institution decision framework as violating the text of the America Invents Act (AIA) as well as constitutional due process. The Supreme Court also asked the U.S. Solicitor General to brief the Court on the views of the U.S. government pertaining to the issues involved in Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline, LLC, which will ask the court to decide Teva’s appeal of the Federal Circuit’s induced infringement ruling over Teva’s carve-out label for generic carvedilol.
U.S.-UK Data Access Agreement on Info Sharing in Criminal Investigations Enters Into Force – On Monday, October 3, the U.S. Department of Justice announced that the Agreement on Access to Electronic Data for the Purpose of Countering Serious Crime (Data Access Agreement) with the government of the United Kingdom officially entered into force. Under the Data Access Agreement, law enforcement officials from either the U.S. or the UK can respond to lawful orders for electronic data from the other country without triggering restrictions on cross-border disclosures.
Fifth Circuit Affirms Dismissal of US Inventor’s USPTO Suit for Lack of Article III Standing – On Friday, September 30, the U.S. Court of Appeals for the Fifth Circuit issued a decision in US Inventor Inc. v. Vidal in which the appellate court affirmed the Eastern District of Texas’ dismissal of a lawsuit seeking injunctive relief to force USPTO Director Kathi Vidal to promulgate rules on discretionary denials of PTAB petitions through notice-and-comment rulemaking procedures under the Administrative Procedures Act (APA). The Fifth Circuit agreed that US Inventor and other plaintiffs lacked Article III standing on either an individual or an organizational basis, and declined to decide whether jurisdiction over US Inventor’s appeal properly rested with the Fifth Circuit or the Federal Circuit.
EPO Joint Study Shows U.S. Leading International Patent Filings for Space-Borne Sensing – On Thursday, October 6, the European Patent Office (EPO) issued the results of a study completed in partnership with the European Space Agency (ESA) and the European Space Policy Institute (ESPI) showing that filings for space-borne sensing technologies with green applications have increased by 1800 percent from 2001 to 2020, with the United States leading in international patent applications while China leads in terms of overall patent applications filed.
US Synthetic May Appeal USITC’s Section 101 Invalidation of PDC Patent Claims – On Wednesday, October 5, drilling technology developer US Synthetic announced that it is considering filing an appeal of the U.S. International Trade Commission’s (USTIC) decision this Monday to terminate a Section 337 proceeding requested by US Synthetic after finding that US Synthetic’s patent claims covering polycrystalline diamond compacts (PDCs) for use as superabrasive cutting edges in power tools were invalid under 35 U.S.C. § 101 as directed to an abstract idea.
USPTO Decreases PCT Fees for Use of EPO, IP Australia as ISAs – On Tuesday, October 4, the U.S. Patent and Trademark Office issued an email alert announcing that the agency had decreased certain fees related to Patent Cooperation Treaty (PCT) patent applications filed at the agencies where the international searching authority (ISA) for the PCT application is either the EPO or IP Australia.
EPO Permanently Extends PPH Program With Colombia’s SIC – On Tuesday, October 4, the EPO announced that it had reached an agreement with the Superintendence of Industry and Commerce (SIC) of Colombia to make permanent the Patent Prosecution Highway (PPH) program between the agencies that was first launched in February 2016.
USPTO Extends PTAB Motion to Amend, Fast-Track Appeals Pilot Programs – On Tuesday, October 4, the USPTO issued a pair of notices in the Federal Register, one notice extending the motion to amend pilot program for patent owners facing America Invents Act (AIA) validity trials at the Patent Trial and Appeal Board (PTAB) until September 16, 2024, and another notice extending the fast-track appeals program for expediting review of ex parte appeals at the PTAB until July 2, 2024.
Judge Burroughs Nixes Eli Lilly’s SJ Motion for Section 112 Invalidation of Teva Patents – On Monday, October 3, U.S. District Judge Allison D. Burroughs of the District of Massachusetts issued an order on cross-motions for summary judgment in which Eli Lilly’s motion to invalidate Teva’s headache treatment patent claims was denied. Judge Burroughs also denied Teva’s motion for summary judgment on Eli Lilly’s defense that Teva’s patent claims were unenforceable because they were obtained after Teva intentionally withheld prior art references and intentionally delayed filing paperwork to correct defective patent applications.
USPTO Suspends Trademark Attorney Accounts Over Foreign Sponsorship Scam – On Monday, October 3, the USPTO issued an email alert announcing that the agency had suspended the accounts of two trademark attorneys over their role in working with an Indian law firm using the attorneys’ names to represent clients in trademark registration matters at the USPTO.
Take-Two Entertainment Fails to Make Fair Use Defense in Tattoo Copyright Case – On Friday, September 30, a jury verdict entered in the Southern District of Illinois awarded $3,750 in damages to tattoo artist Catherine Alexander after finding that Take-Two Entertainment failed to prove that its use of Alexander’s tattoos on WWE wrestler Randy Orton for its WWE 2K video game series constituted a fair use.
This Week on Wall Street
Micron to Invest Up To $100B to Build Computer Chip Factory in Clay, NY – On Tuesday, October 4, American semiconductor manufacturer Micron Technology announced that it would invest up to $100 billion over the next 20 years to create a semiconductor manufacturing campus in Clay, NY, a suburb of Syracuse. Micron CEO Sanjay Mehrotra cited the recent passage of the Creating Helpful Incentives for Producing Semiconductors (CHIPS) and Science Act as instrumental to the company’s construction plans.
Arizona AG Reaches $85M Settlement With Google Over Opaque Device Tracking Tactics – On Tuesday, October 4, Arizona State Attorney General Mark Brnovich announced that his office had entered into a settlement agreement with Internet services giant Google, which will pay $85 million to settle a lawsuit filed by Brnovich alleging that Google employed deceptive practices in order to continue tracking user devices even if users believed they had turned off device tracking.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2020 rank in parentheses):
- Monday: None
- Tuesday: Nanya Technology Corp. (t-295th)
- Wednesday: None
- Thursday: Taiwan Semiconductor Manufacturing Co. (7th)
- Friday: JPMorgan Chase & Co. (t-275th); Wells Fargo & Co. (114th)
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