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This week in Other Barks & Bites: the Third Circuit affirms a partial denial of preliminary injunctive relief in a trade secret case involving processors for cremation equipment; Netherlands’ patent office announces that oil and gas patents held by major Russian energy firms are unenforceable in that country; the Federal Circuit finds that patent claims covering methods of digital recording physical activity survive Alice/Mayo at step two on the pleadings over a dissent from Judge Hughes; a joint study by the European Patent Office and the European Union Intellectual Property Office shows that 82 million EU jobs are being supported by IP-intensive industries; the U.S. Patent and Trademark Office announces a webinar on its request for comments on initiatives for robust and reliable patent rights; and both the Federal Trade Commission and U.S. Department of Justice participate in policy dialogues on digital competition with counterparts in the European Union and the Group of Seven.
Netherlands Declare Patents for Major Russian Gas Companies Unenforceable – On Friday, October 14, English-language Netherlands news outlet NL Times reported that the Octrooicentrum Nederland, or the Netherlands Patent Office, had issued information indicating that oil and gas patents owned by major Russian firms Gazprom, Rosneft and Transneft have been frozen and cannot be enforced against any Dutch firms practicing the technologies covered by those patents, which include seismic sensor and gas turbine design technologies.
CAFC Majority Reverses Section 101 Invalidity Ruling Over Judge Hughes Dissent – On Thursday, October 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Weisner v. Google LLC that reversed the Southern District of New York’s grant of Google’s motion to dismiss Weisner’s patent infringement suit after the appellate court found that Weisner had plausibly alleged an inventive concept in patent claims covering methods for digitally recording a person’s physical activities, surviving the Alice/Mayo test for Section 101 subject matter eligibility at step two. Circuit Judge Todd M. Hughes authored a dissent in which he argued that Weisner’s second amended complaint admitted that algorithms used by the invention to incorporate location data are routine and conventional and that the claims do not solve a problem inherent to computers.
FTC, DOJ Hold Digital Technology Competition Policy Dialogues With EU, G7 Partners – On Thursday, October 13, Federal Trade Commission (FTC) Chair Lina Khan, U.S. Department of Justice (DoJ) Antitrust Division Assistant Attorney General Jonathan Kanter, and European Commission Executive Vice President Margrethe Vestager met in Brussels for the second meeting of the U.S.-EU Joint Technology Competition Policy Dialogue to discuss collaborative efforts between the U.S. and EU to promote fair competition in the digital economy. The previous day, Khan and Kanter took part in a G7 Joint Competition Policy Makers & Enforcers Summit, which discussed efforts made by G7 governments to promote digital competition.
Third Circuit Affirms Limited Injunctive Relief in Cremation Processor Trade Secret Case – On Wednesday, October 12, the U.S. Court of Appeals for the Third Circuit entered a decision in Matthews International Corp. v. Lombardi in which the appellate court affirmed the district court’s partial denial of preliminary injunction against former employees of Matthews that allegedly misappropriated trade secrets on processors for cremation equipment when they were hired by a rival firm. The appellate court found no error in the lower court’s conclusion that it could not enjoin defendant employees from competing at the preliminary injunction stage absent an enforceable non-compete agreement under either Matthews’ trade secrets or breach of contract claims.
SCOTUS Hears Oral Arguments in Fair Use Case Over Andy Warhol’s Prince Series – On Tuesday, October 11, the U.S. Supreme Court heard oral arguments in The Andy Warhol Foundation v. Lynn Goldsmith, a case asking the nation’s highest court whether Andy Warhol’s unlicensed silkscreen reproductions of Goldsmith’s photographs of pop star Prince, which the Andy Warhol Foundation later licensed to Condé Nast for a 2016 article on Prince, constituted a fair use of Goldsmith’s photo. The Justices of the Supreme Court were very engaged with the arguments according to witnesses and had several questions regarding the application of Campbell v. Acuff-Rose Music’s language on the new meaning or message created by a transformative work that tilts factor one of the fair use test toward a finding of fair use.
Tenth Circuit Says Stock Transfer to Avoid IP Judgment Was Invalid – On Tuesday, October 11, the U.S. Court of Appeals for the Tenth Circuit issued a ruling in Atlas Biologics, Inc. v. Kutrubes in which the appellate court affirmed a district court ruling on a declaratory judgment claim filed by Atlas seeking to void a stock transfer effectuated by Kutrubes, a former employee of Atlas. Atlas filed the declaratory action alleging that Kutrubes had entered into the stock transfer agreement with Atlas’ rival firm Biowest in order to avoid a judgment on trademark and trade secret claims filed by his former employer over attempts to compete in the bovine serum-based product market.
EUIPO-EPO Joint Report Shows IP Intensive Industries Support 82 Million EU Jobs – On Tuesday, October 11, the European Patent Office (EPO) and the European Union Intellectual Property Office (EUIPO) published the results of the fourth edition of a joint report showing that industries making intensive use of intellectual property rights directly employed 61 million EU residents from 2017 to 2019, accounting for 29.7 percent of all EU jobs during that period, while creating an additional 20 million jobs during the study period among firms that supply goods and services to firms in IP-intensive industries. Compared to the third edition of the report, the contribution of IPR-intensive industries to European GDP grew by .9%, to direct employment by .8% and to exports by 1%.
CNIPA Issues Draft Measures to Crack Down on Fraudulent Patent Applications – On Saturday, October 8, China’s National Intellectual Property Administration (CNIPA) published draft measures to enforce against illegal and untrustworthy acts committed by domestic patent agencies. The measures create a ranking system under which Chinese patent agencies would lose points based on negative information coming out about the agency’s actions, or gain points based on social contributions coming from the agency.
USPTO Announces Webinar on RFC for Robust and Reliable Patent Rights – On Friday, October 14, the U.S. Patent and Trademark Office sent an email alert in which the nation’s patent agency announced that it would host a webinar on Friday, November 4 from 1 PM to 2 PM discussing the USPTO’s recently issued request for comments on initiatives to ensure the robustness and reliability of patent rights.
CAFC Issues Public Advisory and Schedule for November Session in Philadelphia – On Friday, October 14, the U.S. Court of Appeals for the Federal Circuit issued a public advisory regarding the court’s upcoming November 2022 session during which it will be sitting in Philadelphia, PA, for three days from Nov. 1 to Nov. 3, as well as a schedule of arguments. Arguments at the James A. Byrne U.S. District Courthouse on Nov. 3 will be open to the general public
USPTO Delays Implementation of TMA Office Action Response Deadlines – On Thursday, October 13, the U.S. Patent and Trademark Office issued a final rule in the Federal Register delaying the effective date of Trademark Modernization Act (TMA) provisions reducing trademark applicants’ deadline for responding to office actions issued during trademark examination. The shorter response deadlines will now be effective for trademark applications filed as of December 3 of this year instead of December 1. Similar provisions for post-registration office action responses will go into effect on October 7, 2023.
ALJ McNamara Finds SharkNinja Infringed Two iRobot Patents in Section 337 Proceeding – On Tuesday, October 11, robotics developer iRobot announced that administrative law judge (ALJ) MaryJoan McNamara at the U.S. International Trade Commission (USITC) entered an initial determination in a Section 337 investigation finding that electronics firm SharkNinja had infringed claims of two iRobot patents in importing into the U.S. for sale certain vacuum floor cleaning devices.
SACEPO Working Party Meets to Refine EPC, PCT-EPO Guidelines – On Tuesday, October 11, the Standing Advisory Committee of the European Patent Office (SACEPO) held its second annual meeting during which it held debate to refine the final versions of guidelines under the European Patent Convention (EPC), especially rules surrounding missing disclosures and drawings as well as biotech inventions, and Patent Cooperation Treaty (PCT) procedures at the EPO, including clarifications to non-unity and representation.
Judge Castner Denies MTD in Copyright Case Case Over BitTorrent Copies of “Rambo V” – On Tuesday, October 11, U.S. District Judge Georgette Castner of the District of New Jersey denied a motion to dismiss filed by defendant RCN Telecom Services after finding that movie production company plaintiffs bringing the suit had plausibly alleged that RCN had failed to terminate the piracy of “Rambo V: Last Blood” by its users over BitTorrent networks.
PayCargo Announces $11.5M Trademark Ruling Awarded Against CargoSprint – On Tuesday, October 11, payment logistics firm PayCargo announced that U.S. District Judge Lauren Louis of the Southern District of Florida had issued a ruling awarding $11.5 million in damages for trademark infringement against rival firm CargoSprint, along with prejudgment interest and attorneys’ fees, after finding that CargoSprint and its CEO Joshua Wolf engaged in willful trademark infringement for continuing to use the business name “PayAirCargo” following a 2016 settlement agreement with PayCargo.
USPTO Issues Final Rule Adopting Nice Agreement Trademark Classification Changes – On Tuesday, October 11, the USPTO issued a final rule in the Federal Register revising the agency’s rules in order to incorporate recent changes to international trademark classifications under the Nice Agreement, including minor changes to classes 36 and 45.
Virgin Group Seeks Minimum $8M Annual Royalty Until 2039 Against Alaska Airlines – On Monday, October 10, London’s High Court heard the first day of trial arguments in a lawsuit brought by Virgin Group against Alaska Airlines in which Virgin claims that Alaska Airlines owes a minimum annual royalty payment of $8 million until the year 2039 pursuant to a trademark agreement reached in 2014 with Virgin Group and Virgin America, the latter of which was later acquired by Alaska Airlines.
This Week on Wall Street
Wells Fargo Beats on Revenue, EPS Despite Increase to Loan Loss Reserves – On Friday, October 14, American financial institute Wells Fargo issued its earnings report for the third quarter showing that the company beat analyst predictions on both revenues ($19.51 billion vs. $18.78 billion expected) and earnings per share ($1.30 per share vs. $1.09 expected), though the company acknowledged that profits were lower on the quarter because of a decision to increase its reserves for loan delinquencies.
Netflix to Begin Ad-Supported Tier in Early November, Nielsen Ratings Sometime in 2023 – On Thursday, October 13, streaming media giant Netflix announced that its ad-supported subscription tier, which will be available for $6.99 per month beginning on November 3, will incorporate Nielsen digital audience measurement techniques sometime in 2023, the first time that Netflix will use Nielsen ratings on any of its content.
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: Bank of America Corp. (86th)
- Tuesday: Johnson & Johnson (22nd); Lockheed Martin Corp. (t-289th)
- Wednesday: Abbott Laboratories (121st); ASML Holding N.V. (157th); Baker Hughes Co. (112th); International Business Machines (1st)
- Thursday: ABB Ltd. (132nd); AT&T Inc. (36th); Danaher Corp. (285th); Disco Corp. (t-265th); Dow Inc. (115th); Telefonaktiebolaget LM Ericsson (26th); Volvo AB (196th); Whirlpool Corp. (201st)
- Friday: Schlumberger N.V. (100th); Verizon Communications Inc. (60th)
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