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This week in Other Barks & Bites: USPTO Director Kathi Vidal issues guidance clarifying the use of applicant admitted prior art in IPR proceedings at the PTAB; the EUIPO issues an IP Youth Scorecard showing that young people in the EU have significantly increased their intentional purchase of counterfeit products; the Seventh Circuit affirms a denial of a motion to compel arbitration in a copyright and trade secret case involving insurance software; the Ninth Circuit dismisses an appeal asking the appellate court to overturn or modify the Rogers test; Senators Patrick Leahy and Thom Tillis ask the USPTO and the Copyright Office to conduct a joint study on the impact of NFTs on IP rights; Disney’s senior TV content chief is fired due to a poor fit with Disney’s culture, according to sources; the USPTO, DOJ and NIST withdraw from all joint policy statements on SEPs; and the EU General Court dismisses appeals filed by Apple challenging the EUIPO’s cancellation of its “THINK DIFFERENT” trademark.
Senators Tillis, Leahy Ask USPTO and Copyright Office to Conduct NFT Study – On Thursday, June 9, Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC), respectively the Chair and Ranking Member of the Senate IP Subcommittee, sent a letter addressed to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal and Register of Copyrights Shira Perlmutter asking them to direct their agencies to conduct a joint study on non-fungible tokens (NFTs) and the impact that this emerging technology has on the world of intellectual property rights.
Director Vidal Clarifies Guidance on AAPA in IPR Proceedings Post-Qualcomm v. Apple – On Thursday, June 9, USPTO Director Kathi Vidal issued updated guidance to the members of the Patent Trial and Appeal Board (PTAB) regarding the use of applicant admitted prior art (AAPA) during inter partes review (IPR) proceedings following the U.S. Court of Appeals for the Federal Circuit’s recent decision in Qualcomm v. Apple. While AAPA cannot form the basis of a validity challenge in an IPR petition under Qualcomm, Director Vidal noted that AAPA can be permissible evidence when examining grounds for invalidity based upon prior art or printed publications.
Joint SEP Policy Statements Withdrawn by USPTO, NIST and DOJ – On Wednesday, June 8, the USPTO, National Institute of Standards and Technology (NIST) and the U.S. Department of Justice (DoJ) announced that they would be withdrawing the 2019 draft joint policy statement on standard-essential patents (SEPs), with the implication that they would also scrap the Draft Statement that the agencies released late last year. The announcement of the statement’s withdrawal noted that the DOJ would review SEP holder conduct for anticompetitive uses of market power on a case by case basis.
EGC Dismisses Apple Appeals From EUIPO Revocation of “THINK DIFFERENT” Mark – On Wednesday, June 8, the European General Court (EGC) issued a decision dismissing a trio of actions filed by American consumer tech giant Apple challenging the European Union Intellectual Property Office’s (EUIPO) decisions to cancel “THINK DIFFERENT” trademarks opposed by Swatch. The EGC found that Apple had failed to demonstrate that the EUIPO was wrong to conclude that the consuming public would carelessly overlook packaging including the contested mark or that the agency improperly overlooked EU sales figures for iMac computers.
EUIPO IP Youth Scorecard Shows Significant Increase in Intentional Counterfeit Purchases – On Wednesday, June 8, the EUIPO published the results of the IP Youth Scorecard, an EU wide survey of the intersection between IP rights and youth purchasing habits, showing that 37 percent of young people in the EU had intentionally purchased counterfeit products in the year prior to the survey, a significant increase over the 13 percent of EU youths that had intentionally purchased counterfeits online as shown in the EUIPO’s 2019 IP Youth Scorecard.
Fourth Circuit Affirms Civil Contempt Ruling for Violation of Probiotic Labeling Injunction – On Tuesday, June 7, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in De Simone v. VSL Pharmaceuticals, Inc. in which the appellate court affirmed a district court’s ruling that VSL Pharmaceutical and Alfasigma’s failure to remove materials from the Internet that misrepresented the impacts of a permanent injunction previously issued against those firms preventing them from marketing their probiotic as equivalent to a probiotic formulation that had been licensed by Italian inventor De Simone to VSL prior to termination of the licensing agreement in 2015.
USPTO Director Vidal Grants Director Review in IPR Institution Decisions Against VLSI Patents – On Tuesday, June 7, USPTO Director Kathi Vidal issued an order granting Director review of decisions by the Patent Trial and Appeal Board (PTAB) to institute inter partes review (IPR) proceedings challenging patent claims owned by VLSI Technology based on controversial IPR petitions filed by OpenSky Industries and Patent Quality Assurance, which have been the subject of recent calls by members of Congress to address abuses of legal proceedings at the PTAB.
Seventh Circuit Affirms Arbitration Denial in Insurance Algorithm Trade Secret Lawsuit – On Monday June 6, the U.S. Court of Appeals for the Seventh Circuit issued a ruling in CCC Intelligent Solutions Inc. v. Tractable Inc. in which the appellate court affirmed a district court’s ruling denying a motion to compel arbitration of copyright and trade secret claims filed by CCC Intelligent Solutions against Tractable, finding that Tractable was not a party to the insurance algorithm software copyright licensed by CCC to a Tractable employee posing as a representative of a firm called JA Appraisal for the purposes of giving Tractable access to CCC’s proprietary software platform.
Ninth Circuit Declines Invitation to Overturn Rogers v. Grimaldi – On Thursday, June 9, the U.S. Court of Appeals for the Ninth Circuit issued a decision in Diece-Lisa Industries, Inc. v. Disney Store USA, LLC, affirming a district court ruling finding that Disney’s use of Diece-Lisa Industries’ trademark was protected by the First Amendment and dismissing arguments raised by Diece-Lisa on appeal that the Ninth Circuit should overturn or modify its First Amendment precedent in Rogers v. Grimaldi.
Copyright Office Report Shows Increasing Share of Women Copyright Registrants Since 1978 – On Thursday, June 9, the U.S. Copyright Office issued a report entitled Women in the Copyright System: An Analysis of Women Authors in Copyright Registrations from 1978 to 2020 showing that women represented 38.5 percent of authors of works registered for copyright in 2020, up from 27.9 percent of authors of works registered in 1978.
Director Vidal Announces Start of Inventor Applications to PTAB Pro Bono Program – On Tuesday, June 7, the USPTO’s Director’s Blog published a post authored by USPTO Director Kathi Vidal announcing that the Patent Trial and Appeal Board (PTAB) Pro Bono Program, offered by the agency in collaboration with the PTAB Bar Association, had begun accepting applications from inventors seeking pro bono legal assistance to bring ex parte appeals of patent examiner rejections to the PTAB.
Ninth Circuit Affirms Denial of Motion to Reconsider “Exchange” Copyright Claim – On Tuesday, June 7, the Ninth Circuit issued a ruling in Frisby v. Sony Music Entertainment in which the appellate court affirmed a district court’s denial of a motion to reconsider a ruling dismissing Frisby’s sound recording copyright infringement claim against parties involved with the 2016 Bryson Tiller single “Exchange.” The Ninth Circuit also ruled that it lacked jurisdiction to consider Frisby’s appeal of musical composition copyright claim because Frisby failed to file a notice of appeal in a separate district court action in which that claim was raised.
USPTO to Host Inaugural AI/ET Partnership Meeting on June 29 – On Tuesday, June 7, the U.S. Patent and Trademark Office issued a notice of meetings in the Federal Register that announced a series of meetings among stakeholders in artificial intelligence (AI) and emerging technologies (ET), including academics, independent inventors and industry participants, that will begin with a virtual meeting taking place at 1 PM on June 29.
Heirs of “Top Gun” Magazine Story Writer Sue Paramount for Copyright Infringement – On Tuesday, June 7, family members of Ehud Yonay, who wrote an article published in the May 1983 issue of the magazine California that was licensed by Paramount Pictures for the motion picture Top Gun, filed a lawsuit in the Central District of California alleging that Yonay’s copyright agreement was properly terminated in 2020, two years before Paramount released the recent summer blockbuster Top Gun Maverick.
USPTO Requests Comments on Disclosure Requirements for Nucleotide, Amino Acid Sequences – On Tuesday, June 7, the USPTO issued a request for comments in the Federal Register soliciting public input on the effectiveness of the agency’s requirements related to disclosures of nucleotide and/or amino acid sequences claimed in patent applications filed at the USPTO.
Mariah Carey Faces Copyright Suit Over “All I Want For Christmas is You” – On Friday, June 3, songwriter Andy Stone filed a lawsuit in the Eastern District of Louisiana against American pop superstar Mariah Carey and other parties behind Carey’s 1994 holiday single “All I Want For Christmas is You,” alleging that the song is copied from Stone’s 1989 single with the same name that was recorded by Stone’s music group Vince Vance and the Valiants.
Earnings Miss Leads to Major Drop in DocuSign Stock Value – On Thursday, June 9, electronic document signature firm DocuSign reported earnings for the first quarter of fiscal year 2022, beating revenue expectations ($588.7 million earned vs. $581.8 million expected) but missing on earnings per share (38 cents per share vs. 46 cents per share expected). Shares of DocuSign stock had dropped by as much as 24 percent in extended trading following DocuSign’s earnings release.
Poor Fit With Disney’s Culture Led to TV Content Chief Executive’s Ouster – On Thursday, June 9, CNBC reported that sources close to American entertainment giant Disney confirmed that the company’s top television content executive, Peter Rice, was fired from the company after joining Disney in 2019 after that company’s acquisition of 21st Century Fox. Sources indicate that Rice was likely let go because of difficulties working collaboratively with other Disney employees working in the company’s television business.
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):
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