Bite (noun): more meaty news to sink your teeth into.
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USPTO Director Kathi Vidal‘s Belgian Shepherd – Oliver
This week in Other Barks & Bites: the Federal Trade Commission (FTC) appeals a Florida court’s ruling on its proposed ban on noncompete agreements; two Nobel Prize winners ask to cancel their groundbreaking CRISPR patent to avoid a potential legal cancellation of the patent; and the Trademark Trial and Appeal Board (TTAB) invalidates four superhero trademarks owned by comic giants DC and Marvel.
Bites
USPTO Says Coding Error Has Affected PTA Determinations for Some Patents
The U.S. Patent and Trademark Office (USPTO) announced Friday, September 27, that a recent update to its software “introduced a coding error into the patent term adjustment software the agency uses to perform patent term adjustment (PTA) determinations.” The error impacts certain patents issued between March 19, 2024 and July 30, 2024, “and it may have caused an incorrect calculation of the delay under 35 U.S.C. 154(b)(1)(A) and the amount of overlap under 35 U.S.C. 154(b)(2)(A).” To request a revised PTA determination based on the error “patentees should submit a timely request for reconsideration of the PTA indicated in the patent under 37 CFR 1.705(b),” said the USPTO’s alert. More information is available on the Office’s Patent Related Notices webpage.
TTAB Cancels DC and Marvel’s Superhero Trademarks
On Thursday, September 26, the Trademark Trial and Appeal Board (TTAB) cancelled four SUPER HERO trademarks owned by Marvel and DC after a comic writer challenged the validity of the trademarks. Superbabies comic writer S.J. Richold challenged the validity of the patents, the earliest filed in 1967, after DC accused the writer of infringing on the SUPER HEROES mark. Marvel and DC failed to answer Richold’s motion to dismiss the trademarks, so the TTAB granted the cancellation.
Nobel Prize Winners Ask to Cancel CRISPR Patent to Preempt Patent Being Thrown Out
On Wednesday, September 25, MIT Technology Review reported that Nobel Prize winners Emmanuelle Charpentier and Jennifer Doudna are asking for their patents on the groundbreaking CRISPR to be canceled after unfavorable legal rulings. The decision comes in response to an August ruling that found the CRISPR patents failed to properly describe CRISPR as an invention. The strategy is an attempt to prevent an unfavorable ruling from entering the record of a court.
HELP Committee Questions Novo Nordisk CEO on Ozempic Pricing
Novo Nordisk President and Chief Executive Officer Lars Fruergaard Jørgensen was grilled by members of the Senate Committee on Health, Education, Labor and Pensions (HELP) on Tuesday, September 24, about the high price of its blockbuster diabetes and weight loss drugs, Ozempic and Wegovy. Committee Chair Bernie Sanders (I-VT) acknowledged that the problem of drug pricing in the United States is multi-layered and complex but pushed Jørgensen to commit to sitting down with the three largest Pharmacy Benefit Managers (PBMs) to lower the cost of the drugs at the counter. Sanders said the PBMs committed in writing not to drop the drugs if Novo Nordisk drops the list price. In advance of the hearing, the U.S. Chamber of Commerce published a letter to Sanders in which it criticized the title of the hearing—“Why Is Novo Nordisk Charging Americans with Diabetes and Obesity Outrageously High Prices for Ozempic and Wegovy?”—as blatantly biased. “It is clear you have already formed your conclusions and are now using an official Congressional proceeding to berate, vilify, and intimidate a private company because you disagree with their decisions,” the letter said.
FTC Appeals Exemption to its Proposed Noncompete Ban in Florida
On Tuesday, September 24, the Federal Trade Commission (FTC) filed an appeal in a Florida district court against a ruling that exempted a Florida retirement home from the Commission’s ban on noncompete agreements. The FTC approved a new rule banning noncompete agreements in April, which has since been subject to multiple legal battles, including the Florida retirement home The Villages’ real estate broker filing a lawsuit in Florida. “The FTC’s proposed ban will now be tied up in the appellate courts for months if not years and the chances that it will ever become law remain slim,” said John Chun, partner at Herrick, Feinstein LLP. However, FTC Chair Lina Khan appeared on 60 Minutes earlier this week to defend the proposed noncompete ban.
OpenAI Reaches Agreement with Authors to Make Training Data Available in Copyright Lawsuit
On Tuesday, September 24, OpenAI revealed that it had reached an agreement with a group of prominent authors suing the ChatGPT maker for the inspection of its training data, according to The Hollywood Reporter. Authors have accused ChatGPT in three separate lawsuits of infringing copyright by training its generative AI models by using copyrighted materials without the authors’ consent. According to the agreement, OpenAI will make its training datasets available at its office in San Francisco on a secured computer. It marks the first time that the controversial training data has been made viewable to those outside of the company.
Barks
FTC Announces Crackdown on Deceptive AI Claims
On Wednesday, September 25, the FTC announced a crackdown on companies that make deceptive AI claims in a law enforcement sweep called Operation AI Comply. DoNotPay, one of the companies named by the FTC, is accused of claiming its AI services could substitute human lawyers yet failing to live up to that goal. According to the FTC, DoNotPay did not conduct testing to see if their AI bot was equal to a human lawyer. “The FTC’s enforcement actions make clear that there is no AI exemption from the laws on the books. By cracking down on unfair or deceptive practices in these markets, FTC is ensuring that honest businesses and innovators can get a fair shot and consumers are being protected,” said FTC Chair Lina Khan.
Nicotine Pouch Company Files Trademark Infringement Lawsuit Against Competitor
On Tuesday, September 24, 2ONE Labs and Performance Plus Marketing filed a trademark infringement lawsuit and preliminary injunction against two subsidiaries of Imperial Brands PLC. The two subsidiaries, including ITG Brands the third-largest tobacco manufacturer in the United States, are accused of infringing on 2ONE’s tobacco-free nicotine pouch brand, Zone. The companies are asking the court to cancel the defendants’ trademark, recover all profits, and levy punitive damages.
Library of Congress Announces New Membership for Copyright Public Modernization Committee
On Tuesday, September 24, the Library of Congress announced the 13 new members of the Copyright Public Modernization Committee. The Committee is set to begin its second three-year term with the goal of enhancing communication with stakeholders and providing a public forum for the U.S. Copyright Office modernization. The members were selected from public applicants and have affiliations ranging from academic institutions, the entertainment industry, and copyright nonprofits.
Intel Gets Qualcomm Power Amplifier Patent Claims Nixed at CAFC
The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday, September 23, affirmed the Patent Trial and Appeal Board’s (PTAB’s) finding that multiple claims of Qualcomm’s U.S. Patent No. 9,608,675 for power amplifier technology were obvious. The opinion, authored by Judge Stark, also dismissed Intel’s cross-appeal of two separate inter partes reviews (IPRs) in which the PTAB had found claims of the same patent not obvious. Intel petitioned the PTAB for six IPRs of the patent; four of them relied on European Patent Application Publication 2,442,440 A1 (“Yu”) while two of them relied on a prior art research paper by Wenhua Chen et al. (“Chen”). After a claim construction dispute on which the CAFC weighed in, the PTAB eventually on remand narrowed its original construction of the term “plurality of carrier aggregated transmit signals,” but ultimately said “an ordinarily skilled artisan would have…been motivated to modify Yu to operate on mobile devices” and therefore found the claims obvious over Yu. In the other two IPRs, the Board found Intel had not proven it would have been obvious to modify Chen for use in a mobile device and therefore that it had not shown the claims to be unpatentable. The CAFC ultimately agreed and declined to address the cross-appeal since Intel said it would only press it if the court did not affirm the PTAB’s finding on the Yu IPRs.
USPTO Kicks off Create & Innovate Tour
On Monday, September 23, the U.S. Patent and Trademark Office (USPTO) announced the Create & Innovate Tour which will visit libraries across the country to discuss the impact of Patent and Trademark Resource Centers (PTRCs). The tour began Tuesday in Salt Lake City for the 40th anniversary event of the University of Utah PTRC. The tour will make four more stops in October and November culminating in the grand opening of Mississippi State University’s Patent and Trademark Resource Center on November 19.
This Week on Wall Street
OpenAI to Move to For-Profit Structure, Offer CEO Equity
On Thursday, September 26, Reuters first reported that OpenAI plans to restructure its business, remove its non-profit status, and offer CEO Sam Altman equity in the burgeoning AI giant. According to a company report obtained by Reuters, the move to a for-profit structure is designed to make the company more attractive to outside investors. Estimates have put OpenAI’s potential value at up to $150 billion.
DOJ Sues Visa for Illegal Monopolization of Debit Card Market
On Tuesday, September 24, the Department of Justice (DOJ) filed a civil antitrust lawsuit against Visa accusing the company of monopolizing the debit card market. According to the lawsuit, over 60% of debit card transactions take place on Visa’s network, which accounts for $7 billion in fees. “Visa fears competition and innovation, and instead chooses unlawful cooperation and monopolization,” said Principal Deputy Assistant Attorney General Doha Mekki of the Justice Department’s Antitrust Division.
Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2023 are announcing quarterly earnings next week (2023 rank in parentheses):
- Monday: None
- Tuesday: Nike (100)
- Wednesday: None
- Thursday: None
- Friday: None
