Other Barks & Bites for Friday, February 14: Federal Circuit Orders Case Against Google Out of Eastern Texas, DOJ Indicts Huawei on Trade Secrets, and USPTO Faces Backlash Over Email Address Requirement
Feb. 14, 2020
This week in Other Barks & Bites: The Federal Circuit issues precedential decisions in patent cases involving data centers as “regular and established place of business,” the Section 315 time-bar for PTAB proceedings and a settlement agreement rendering a summary judgment ruling moot; former Chief Judge Michel asks the Federal Circuit for an en banc rehearing of a panel decision raising the standards for patent owners proving that patent claims are non-obvious because of secondary considerations; the Department of Justice indicts Huawei on trade secret theft and RICO charges; the USPTO hosts job fairs for new patent examiners while the agency also takes flak for new email requirements for trademark applications; “Choose Your Own Adventure” trademark suit against Netflix moves forward; VirnetX stock sees positive response after the Federal Circuit denies Apple’s petition for rehearing; and Oracle files a respondent’s brief in its copyright case against Google in the U.S. Supreme Court.
CAFC Orders Mandamus to Transfer Patent Case Against Google Out of Eastern Texas – On Thursday, February 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in In re: Google LLC in which the appellate court found that the presence of Google data caches hosted on data centers within the Eastern District of Texas, but not owned by Google, did not constitute a “regular and established place of business.” The Federal Circuit then granted a petition for mandamus filed by Google ordering Eastern Texas to dismiss the case or transfer it to a proper venue.
DOJ Files Indictment Against Huawei Including Trade Secret, RICO Charges – On Thursday, February 13, the U.S. Department of Justice filed an indictment in the Eastern District of New York charging Huawei and the company’s CFO Meng Wanzhou, who is currently detained in Canada awaiting extradition to the United States., with various counts of fraud, trade secret theft, and charges under the Racketeer Influenced and Corrupt Organizations (RICO) Act related to trade secret theft in which the company has allegedly engaged since 2000.
USPTO Faces Attorney Backlash Over Requirement to Provide Email Addresses – On Monday, February 10, World Trademark Review reported on negative reactions by U.S. trademark counsel who have raised privacy concerns related to a recent trademark examination guide promulgated by the U.S. Patent and Trademark Office which requires trademark applicants to provide email addresses that are made publicly available through the Trademark Status and Document Retrieval (TSDR) system.
CAFC Finds Acoustic Technology Waived Arguments on Section 315 Time-Bar – On Thursday, February 13, the Federal Circuit issued a pair of precedential decisions in Acoustic Technology, Inc. v. Itron Networked Solutions in which the appellate court struck down Acoustic Technology’s challenges to inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB). Although original petitioner Silver Spring was acquired by Itron, which had been previously sued on the challenged patent claims six years before the IPR petitions, the Federal Circuit found that Acoustic Technology had waived its argument under the Section 315 one-year time-bar because it hadn’t presented that argument during proceedings at the PTAB.
CAFC Throws Out Summary Judgment of Non-Infringement After Settlement Agreement – On Thursday, February 13, the Federal Circuit issued a precedential decision in Serta Simmons Bedding, LLC v. Casper Sleep Inc. in which the appellate court vacated a summary judgment order entered in the Southern District of New York after finding that an agreement settling patent infringement claims filed by Serta Simmons rendered the summary judgment moot.
Sen. Tillis, Reps. Rouda and Deutch Increase Calls Against ALI Copyright Restatement – On Tuesday, February 11, Senator Thom Tillis (R-NC) and Representatives Harley Rouda (D-CA) and Ted Deutch (D-FL) authored a post published on The Hill which discusses their efforts to communicate concerns to the American Law Institute regarding that organization’s Restatement of Copyrights and the potential that the Restatement could cause courts to misinterpret federal statutory law.
Former Chief Judge Michel Urges CAFC to Rehear SRAM Panel Decision – On Monday, February 10, former Federal Circuit Chief Judge Paul Michel filed an amicus brief at the Federal Circuit in support of an en banc rehearing of a December panel decision in Fox Factory, Inc. v. SRAM LLC. Judge Michel argued that the CAFC’s new interpretation on determining nexus for secondary considerations shown by a patent owner to prove non-obviousness of patent claims “threaten to undercut patent law and its innovation promoting goals.”
USPTO Hosting Job Fairs to Hire Hundreds of New Examiners This Year – On Thursday, February 13, the USPTO announced that it was hosting a pair of job fairs later this month, one at the Georgia Institute of Technology on February 21 and 22 and another at the USPTO’s Alexandria headquarters on February 28 and 29, seeking upcoming graduates and professionals with engineering backgrounds who are interested in filling patent examiner openings at USPTO facilities in Alexandria, San Jose and Detroit.
Eighth Circuit Upholds Trade Secret Judgment Against Walmart – On Wednesday, February 12, the U.S. Court of Appeals for the Eighth Circuit issued a decision in Walmart Inc. v. Cuker Interactive LLC in which the appellate court upheld a $3 million ruling from the Western District of Arkansas which found, in part, that Walmart had misappropriated trade secrets from Cuker. However, the appellate court declined to follow Cuker’s arguments to overturn Western Arkansas’ dismissal of some trade secret claims after finding that Cuker didn’t take reasonable efforts to protect those alleged trade secrets.
Judge Koh Grants Summary Judgment of Non-Infringement to Uber – On Wednesday, February 12, U.S. District Judge Lucy Koh of the Northern District of California entered an order granting summary judgment to Uber Technologies after finding that X One failed to raise a genuine issue of material fact as to whether Uber infringed upon patent claims covering methods of exchanging location positioning data between wireless devices.
PTAB Tosses Intel Challenge to Patent Claims Asserted Against Core Processors – On Wednesday, February 12, the PTAB entered a final written decision in an IPR proceeding finding that Intel had failed to show the invalidity of patent claims covering computer memory circuits owned by VLSI Technology which have been asserted by VLSI in the Northern District of California against Intel’s Core i3, i5 and i7 processors.
TTAB Affirms Refusal to Register “Trump-It” Knife Trademarks – On Tuesday, February 11, the Trademark Trial and Appeal Board (TTAB) entered a decision affirming a trademark examiner’s refusal to register “Trump-It” trademarks for utility knives because the marks falsely suggest a connection with President Donald Trump and the written consent of Trump, the individual identified by the marks, wasn’t presented to the U.S. Patent and Trademark Office.
“Choose Your Own Adventure” Trademark Suit Against Netflix Survives Motion to Dismiss – On Tuesday, February 11, the District of Vermont entered a ruling finding that Chooseco LLC, publisher of the “Choose Your Own Adventure” book series, had presented sufficient factual detail about Netflix’s alleged infringement of its trademarks in the movie Black Mirror: Bandersnatch, allowing those claims to survive a motion to dismiss.
Patagonia Files Trademark Suit Against Oil-and-Gas Industry Merchandiser – On Monday, February 10, outdoor apparel company Patagonia filed a trademark infringement suit in the Central District of California against OC Media, a merchandiser for the oil-and-gas industry, against that company’s “Petrogonia” clothing line.
Brooks Brothers’ Move Into Athletic Footwear Spurs Trademark Suit From Brooks – On Monday, February 10, running apparel firm Brooks Sports filed a lawsuit in the Western District of Washington alleging trademark claims against 200-year-old clothier Brooks Brothers related to that company’s 2018 decision to begin marketing a line of athletic footwear.
This Week on Wall Street
Nvidia Posts Record $968 Million in Quarterly Data Center Sales – On Thursday, February 13, Nvidia Corporation posted its earnings for 2019’s fourth quarter in which it reported data center sales of $968 million, a major beat over analyst expectations of $825.8 million in such sales, thanks in large part to the implementation of artificial intelligence technology in recommendation engines leading to more sales in public and industry cloud services.
VirnetX Stock Pops After Federal Circuit Denies Apple Rehearing – On Tuesday, February 11, shares of VirnetX stock were up by 4.8 percent in morning trading one day after the Federal Circuit refused a rehearing request from Apple, leaving in place a district court’s finding that virtual private network technology implemented into Apple devices using FaceTime infringed upon VirnetX’s patent claims.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2018 are announcing quarterly earnings next week (2018 rank in parentheses):
Monday: Bridgestone Corp. (t-181st); Japan Display Inc. (64th)
Tuesday: Medtronic PLC (25th); Xperi Corp. (t-197th)
Thursday: InterDigital Wireless Inc. (122nd); Lenovo Group Ltd. (t-173rd)