“Bite” (noun): more meaty news to sink your teeth into.
“Bark” (noun): peripheral noise worth your attention.
This week in Other Barks & Bites: the USPTO promulgated a final rule aligning the agency’s code of conduct with the ABA’s Model Rules, as well as a notice of proposed rulemaking to allow high-capacity physical media submissions for certain patent applications; China’s drug patent linkage system, similar to the U.S. system enacted under the Hatch-Waxman Act, goes into effect next Tuesday; the EUIPO released a study showing that IP-intensive industries, although among the most harmed by the COVID-19 pandemic, are expected to bounce back quickly from economic shutdowns; the Second Circuit affirms a district court’s dismissal of copyright infringement claims involving a 2016 Super Bowl commercial aired by Pepsi; Senator Tillis sends letters to the Copyright Office asking Register Perlmutter to study state bills on compulsory copyright licenses as well as the feasibility of deferred examination for copyright registrations; and strong earnings for Nvidia, Dell and HP this week show that computer and GPU sales have not been negatively impacted by the global chip shortage.
Chinese Drug Patent Linkage System to Go Into Effect on June 1 – Next Tuesday, June 1, China’s national government will officially launch its drug patent linkage system, creating a regulatory mechanism to balance the patent rights of pharmaceutical drugmakers with the public’s interest in making low-cost generic drugs available similar to the system established in 1984 through the passage of the Hatch-Waxman Act.
EUIPO Study Shows IPR-Intensive Industries Expected to Bounce Back Quickly From COVID-19 – On Friday, May 28, the European Union Intellectual Property Organization (EUIPO) published a study showing that an economic analysis of industries suffering from economic shutdowns during the COVID-19 pandemic, in light of similar analyses conducted after the 2009 global financial crises, showed that while intellectual property right (IPR) intensive industries suffered the most, they are also the industries best poised for a quick comeback as global economies continue to open up through the summer of 2021.
Tillis Sends Letters to Copyright Office on Digital Deposits, State Compulsory Licensing Laws – On Wednesday, May 26, Senator Thom Tillis (R-NC) sent a letter addressed to Register of Copyrights Shira Perlmutter asking the U.S. Copyright Office to examine recently passed state laws creating compulsory licenses for public libraries, which Tillis argues encroaches upon federal copyright law. A few days earlier, on May 24, Sen. Tillis sent a letter to Register Perlmutter asking the Copyright Office to conduct studies on the feasibility of decoupling Section 407 “best edition” deposit requirements from Section 408 copyright registration requirements to permit low-resolution digital deposits, the feasibility of deferring examination of applications for copyright registration so applicants can benefit from earlier effective filing dates, and to provide a report on the Office’s ongoing study on the definition of “publications” in the modern context.
EU Council Includes IP Crime Among Top Priorities in Addressing Organized Crime – On Wednesday, May 26, the European Union’s Council of Ministers adopted a list of 10 priorities to address in organized crime between 2022 and 2025, including a new priority on economic crime that covers intellectual property crime and counterfeiting of both goods and currencies.
USPTO Issues Final Rule Aligning Agency Conduct Rules With ABA Model Rules – On Wednesday, May 26, the U.S. Patent and Trademark Office issued a final rule in the Federal Register aligning the agency’s Rules of Professional Conduct regarding legal practice and representation in front of the USPTO with the American Bar Association’s (ABA) Model Rules of Professional Conduct, as well as clarifying provisions related to revocation of an individual’s registration as well as reinstatement.
CAFC Gives Intel Another Chance to Prove Obviousness of VLSI Patent at PTAB – On Wednesday, May 26, the U.S. Court of Appeals for the Federal Circuit issued a decision in Intel Corp. v. VLSI Technology, LLC in which the appellate court reversed a determination by the Patent Trial and Appeal Board (PTAB) finding that Intel did not prove the obviousness of challenged patent claims owned by VLSI, which recently won $2.175 billion in patent infringement damages in the Western District of Texas.
Inventor Advocacy Groups Urge Opposition to Leahy-Tillis Amendments on Endless Frontier Act – In recent days, inventor advocacy group US Inventor has called for those supporting strong patent rights for independent inventors and small businesses to contact their elected Senators and ask them to oppose passage of the Endless Frontier Act, a bill on maintaining U.S. technological dominance over China containing amendments from Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC) which would expand ex parte reexaminations to determine if patent claims are unenforceable for inequitable conduct and creating a registration requirement for patents that are owned in part by foreign entities.
SCOTUS Denies Cert to Appeal of CAFC’s Rule on Contributions Significant to Conception – On Monday, May 24, the U.S. Supreme Court issued an order list showing that the nation’s highest court had denied a petition for writ of certiorari which asked SCOTUS to overturn the Federal Circuit’s application of a bright-line rule holding that the novelty and nonobviousness of an invention over alleged contributions within the prior art are not probative of whether the alleged contributions are significant to the invention’s conception.
CBP, U.S. Chamber of Commerce Announce Partnership on Combating Counterfeits – On Thursday, May 27, U.S. Customs and Border Protection and the U.S. Chamber of Commerce announced a joint initiative to create a public-private collaborative framework that would facilitate information sharing regarding known or suspected intellectual property rights violations to prevent the importation of counterfeit and pirated goods.
USPTO Issues NPRM on Permitting High-Capacity Physical Media Submissions – On Wednesday, May 26, the USPTO issued a notice of proposed rulemaking in the Federal Register that would amend the rules of agency practice to allow for the submission of physical media with higher data capacity than compact discs (CDs) for submitting electronic versions of amino acid and nucleotide sequence information, information compiled in large tables or computer program listing information to aid agency examiners in determining the patentability of inventions in patent applications.
Judge Albright Denies Uber Motion to Transfer Due to Limited Patent Enforcement Region – On Wednesday, May 26, U.S. District Judge Alan D. Albright of the Western District of Texas dismissed a motion to transfer venue filed by Uber in a patent infringement suit brought to Western Texas by Ikorongo Texas, in part because Ikorongo Texas’ patent assignment agreement with parent company Ikorongo Technology only gave the Texas subsidiary the right to enforce against patent infringement claims in a specified region of counties within Texas.
“The Process” Mark for CNBC’s Lemonis Nixes TTAB Appeal for 76ers’ Embiid – On Wednesday, May 26, the Trademark Trial and Appeal Board (TTAB) affirmed a USPTO trademark examiner’s refusal to register the mark “TRUST THE PROCESS” for Philadelphia 76ers’ basketball star Joel Embiid after agreeing that Embiid’s mark was too similar to an earlier registered mark for “THE PROCESS” covering apparel filed by CNBC television host Marcus Lemonis.
USPTO Issues Request for Nominations for PPAC, TPAC Members – On Tuesday, May 25, the USPTO issued a request for nominations in the Federal Register seeking to fill three openings each on the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC), each member serving a three-year term that will begin on December 1 of this year.
USITC Receives Section 337 Complaint Against Power Inverters Sold by Major Automakers – On Monday, May 24, the U.S. International Trade Commission announced that it had a received a complaint filed by Arigna Technology Ltd. seeking the agency to institute a Section 337 investigation for patent infringement into certain power inverters and converters and vehicles containing the same imported into the U.S. for sale by major automakers including General Motors, Volkswagen, BMW, Porsche, Mercedes-Benz, Daimler and Lamborghini.
USPTO Announces Recipients of 2020 Pro Bono Achievement Certificates – On Monday, May 24, the USPTO announced that it had issued certificates to more than 100 patent practitioners and more than 25 corporations and law firms recognizing their achievement of completing more than 50 hours of pro bono service during 2020, leading to the pro bono filing of 273 patent applications with the agency last year.
Second Circuit Says Pepsi Super Bowl Commercial Infringed No Copyright in Pitch Materials – On Friday, May 21, the U.S. Court of Appeals for the Second Circuit issued a summary order in Betty, Inc. v. Pepsico, Inc. in which the appellate court affirmed a district court’s grant of summary judgment on copyright infringement claims against Pepsi after finding that the soft drink maker’s 2016 Super Bowl commercial did not copy any copyrightable elements from Betty’s pitch materials presented to Pepsi’s advertising team.
This Week in Wall Street
Strong Earnings for Dell, HP Show Growth in PC Sales Despite Global Chip Shortage – On Thursday, May 27, Dell Technologies reported earnings for the first quarter of 2021 showing a 12 percent rise in revenues over 2020’s first quarter up to $24.5 billion thanks in large part to a 42 percent revenue increase in sales of desktops and notebooks. The same day, HP also reported earnings for 2021’s second quarter showing a 27 percent increase in sales over 2020’s second quarter thanks to strong demand in computers and printing; HP CEO Enrique Lores expected sales to be robust through 2021 thanks to increased demand driven by the global chip shortage.
Nvidia Posts 84% Sales Growth in First Quarter on Strong Gaming, Crypto Mining Demand – On Wednesday, May 26, U.S. tech company Nvidia Corp. reported earnings for the first quarter of its 2022 fiscal year, posting an 84 percent increase in sales growth over 2021’s first quarter thanks to strong consumer demand of graphics processing units (GPUs) for video gaming platforms as well as cryptocurrency mining GPU units known as CMPs.
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: None
- Tuesday: Hewlett Packard Enterprise Co. (53rd)
- Wednesday: None
- Thursday: Broadcom Inc. (148th)
- Friday: None