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This week in Other Barks & Bites: Congress members urge the Biden Administration to protect vaccine IP; the CAFC once again denies an inventor’s push to list an artificial intelligence (AI) machine as a sole inventor on a patent; Microsoft receives a favorable ruling in patent infringement battle; a U.S. Patent and Trademark Office (USPTO) report finds the number of women patent applicants is growing across the country; and legislation passes Congress to stimulate young people’s participation in art and coding.
Senators Urge Biden Administration to Protect Vaccine IP
On Thursday, October 20, a bipartisan group of senators led by Pat Toomey (R-Pa.) and Tom Carper (D-Del.) wrote to U.S. Trade Representative Katherine Tai asking the Biden administration to guard U.S. pharmaceutical companies’ IP rights related to COVID-19 vaccines. The statement comes as the World Trade Organization negotiates potential waivers under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement for the COVID-19 Vaccine. Civil society groups have been critical of vaccine inequality and called for sharing of vaccine IP. However, the group of senators’ statement highlights Washington’s backing of American firms. “Strong protections for intellectual property are the bedrock of American innovation, as evidenced by the record development of multiple vaccines to combat COVID-19,” said the group in a statement.
CAFC Declines to Review ‘AI Inventor’ Case
On Thursday, October 20, the CAFC shot down Stephen Thaler’s request for a panel rehearing in his bid to list his AI machine as the sole inventor on a patent. Thaler had previously argued that his AI machine, DABUS, should be allowed to be listed as a sole inventor on patents, but the CAFC denied that request on the basis that the inventor must be an “individual”. However, Thaler contends that “individual” should be interpreted more broadly. The judgment pushes the case closer to the Supreme Court and is being closely watched due to its implications for AI and IP.
Biotech Company Files Patent Infringement Suit in Fight Over Gene Analysis
On Thursday, October 20, biotech company NanoString Technologies, Inc. filed a complaint against 10x Genomics, Inc. for infringement of their patents related to tissue analysis. The filing is a response to multiple lawsuits from 10x Genomics in which the company accuses NanoString of patent infringement. Nanostring’s accusations relate to the company’s “Digital Spatial Profiler” which “offers a spatial profiling method for RNA and/or protein in a tissue sample of much higher plex and sensitivity.” The complaint was filed in the U.S. District Court for the District of Delaware.
Tillis, Leahy Legislation Supporting Creative Students Signed into Law
On Wednesday, October 19, the ARTS Act, new legislation that directs the Register of Copyrights to waive the copyright registration fee for winners of the Congressional Art Competition and the Congressional App Competition, was signed into law. The House of Representatives sponsors these two competitions to incentivize students to participate in art and coding. The bipartisan legislation was introduced by Senators Thom Tillis (R-NC) and Patrick Leahy (D-VT) three years ago. Senator Leahy said in a press release, “I look forward to continuing to work with Senator Tillis on getting our other intellectual property priorities to the President’s desk.”
China Promises to Improve IP Protection
On Wednesday, October 19, the Communist Party of China promised to improve IP protection laws at the Party’s 20th National Congress. Justice He Rong told the Congress “it is necessary to strengthen the legal protection of intellectual property rights and accelerate the realization of high-level scientific and technological self-reliance and self-improvement.” China has commonly found itself in hot water internationally over IP infringement. Chinese authorities have promised to crackdown on patent fraud in the past, but Chinese individuals and firms remain the main recipient of USPTO punishments.
CAFC Revises Opinion to Remove Reference to Deference
On Monday, October 17, the United States Court of Appeals for the Federal Circuit (CAFC) removed language on deference from a previous patent dispute between Nature Simulation Systems, Inc. (NSS) and Autodesk Inc. In a January decision, the CAFC reversed the United States District Court for the Northern District of California to invalidate claims to two patents held by NSS. In the majority opinion, Judge Newman gave deference to the USPTO examiner in the case. But another judge dissented on the matter of deference. The defendant, Autodesk Inc., therefore filed a petition for rehearing on the court’s ruling on deference in the case. The CAFC reissued a modified opinion on Monday which upheld the validity of NSS’s patents, but it removed all reference to USPTO examiner deference.
CAFC Rules in Favor of Microsoft in Patent Dispute with Uniloc
On Thursday, October 20, the CAFC reversed a previous decision by the Patent Trial and Appeal Board in Microsoft’s legal battle to overturn a patent from Uniloc 2017. Microsoft appealed the PTAB decision, which stated that the technology company failed to show that claims of Uniloc’s U.S. patent No. 6,467,088 are unpatentable.
USPTO Finds Increase in Women Filing Patents
On Wednesday, October 19, the UPSTO released a report that found a 32% increase in U.S. counties where a woman filed a patent from 1990 to 2019. Currently, women file about 12-13% of patents in the United States, but the USPTO plans to increase that number. “We plan to use this study and other data as we focus on bringing more women into the innovation and patenting ecosystem,” said USPTO Director Kathi Vidal.
European Unified Patent Court Names 85 New Judges
On Wednesday, October 19, the European Unified Patent Court (UPC) confirmed the appointment of 85 new judges. German Federal Court of Justice Judge Klaus Grabinski will lead the court as president of the Court of Appeal. Most judges will serve part-time, but the court has ambitious goals as part of a 2023 roadmap. The UPC is the common patent court among the 24 EU Member States.
Chinese Government Announces Further Patent Subsidies
On Wednesday, October 19, the Foshan Intellectual Property Protection Center in Guangdong Province, China, announced plans to give local firms a subsidy of more than $275,000 for protection in overseas patent disputes. The organization stated the goal of the subsidies is to “reduce the cost of enterprises’ overseas rights protection or disputes.” The national government and local municipalities offer Chinese innovators a range of subsidies to increase the number of patent and trademark applications abroad.
U.S. Navy Contractor Wins Patent Suit Against Polycom
On Wednesday, October 19, the United States District Court for the Northern District of California ruled in favor of Fullview, Inc., a U.S. Navy contractor, in a patent infringement case against Polycom, Inc. District Judge Edward Chen found that Polycom infringed on a group of Fullview’s patents related to their 360° panoramic cameras used on aircraft carriers.
Early Research Finds Trademarks Filed by Chinese Applicants are Dropping in EU
On Tuesday October, 18, researchers at Inventa, a Portuguese IP law firm, released a report showing that the number of requested trademarks from Chinese applicants in the European Union (EU) is down in 2022. From January to September 5, about 18,000 trademarks have been requested from Chinese applicants, but in the same period last year 29,835 were requested. The downward trend in Chinese trademark applications could be an early indication of China’s technology sector adapting to a more unsure economy in the wake of Russia’s invasion of Ukraine.
USPTO Seeking Public Feedback on Increasing Ability to Practice Before the Agency
On Monday, October 16, The United States Patent and Trademark Office (USPTO) requested public input on two new Federal Register Notices (FRNs) that attempt to expand opportunities to practice in front of the agency. Currently, only members of the USPTO patent bar may appear before as lead counsel in some proceedings, but the office plans to “expand the admission criteria of our patent bar to encourage broader participation and to keep up with the ever-evolving technology and related teachings that qualify someone to practice before the USPTO.” You can submit comments on the two proposals on the Federal eRulemaking Portal until January 17, 2023.
This Week on Wall Street
Pfizer Predicts Vaccine Price Hike
On Wednesday, October 19, Pfizer executive Angela Lukin said the company expects the COVID-19 vaccine price to quadruple to $110 to $130 following expiration of the U.S. government’s purchase program. Pfizer also said it expects the annual COVID-19 vaccine market to be similar to the market for the flu shot.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2021 are announcing quarterly earnings next week (2021 rank in parentheses):
- Monday: Koninklijke Philips N.V. (46)
- Tuesday: Microsoft (12), Alphabet (17), Visa (148), Texas Instruments Incorporated (42), Raytheon (9), General Electric (21), 3M (74), Illinois Tool Works (124), General Motors (58)
- Wednesday: Meta (31), Thermo Fisher Scientific (154), Bristol-Myers Squibb (239), Boeing (27), Boston Scientific Corporation (83), Ford (20)
- Thursday: Apple (11), Amazon (15), Mastercard (125), Merck (212), Comcast (122)
- Friday: Exxon (135), Sanofi (239)
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