CAFC Reverses RDOE Noninfringement Ruling; EU Challenges China’s Global SEP Rate Setting Practices; and SCOTUS Nixes Cert Petition Challenging PTAB Paneling

This week in Other Barks & Bites: LexisNexis issues a 5G patent report showing major gains by both China and patent assertion entities; the U.S. Supreme Court denies cert petitions in a trio of IP cases, two featuring copyright claims and another challenging panelling decisions at the Patent Trial and Appeal Board; Boeing tells investors to expect a $4 billion loss for 2024’s fourth quarter; the Federal Circuit reverses the District of Delaware’s noninfringement ruling under the reverse doctrine of equivalents for the lower court’s failure to credit expert testimony; the Trump Administration names Coke Stewart the Acting Director of the USPTO; the European Union files for dispute resolution proceedings at the WTO over Chinese courts setting global royalty rates for standard essential patents (SEPs); and German music copyright organization GEMA files a copyright infringement suit against Suno’s generative AI platform.

Bites 

CAFC Reverses JMOL of Noninfringement Under RDOE – On Friday, January 24, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling authored by Chief Judge Moore in Steuben Foods, Inc. v. Shibuya Hoppman Corp. reversing a pair of post-trial rulings entering judgment as a matter of law (JMOL) of noninfringement. The CAFC said the District of Delaware failed to properly credit expert testimony proffered by Steuben Foods, including with respect to its finding that Shibuya proved noninfringement under the reverse doctrine of equivalents (RDOE). The appellate court also vacated conditional grants of new trials for validity, infringement and damages, remanding the case to Delaware district court for further proceedings

China, PAEs Make Big Gains in 5G Patent Space – On Thursday, January 23, legal data analytics company LexisNexis published a report on leaders in the worldwide patent race for 5G telecommunications technologies, showing that granted patent declarations for 5G technologies have more than doubled over the past three years. Driving those increased patenting levels were both China, which now accounts for 40 percent of declared 5G patents, and patent assertion entities (PAEs), several of which have increased their rankings by more than 30 positions in this most recent report.

SCOTUS Cert Denials Nix Copyright Appeals, Challenge to PTAB Panel Practice – On Tuesday, January 21, the U.S. Supreme Court published an order list denying petitions for certiorari in copyright cases including King for Congress v. Griner, which challenged a denial of attorney’s fees and the district court’s implied license analysis stemming from a lawsuit over former Rep. Steve King (R-IA)’s use of the “Success Kid” meme during his 2020 reelection campaign, and Canadian Standards Association v. P.S. Knight Co., Ltd., which challenged the Fifth Circuit’s application of the government-edicts doctrine and merger doctrine in ruling that several developed standards having copyright protection under Canadian law were not enforceable against alleged infringement in the United States because those standards had been incorporated by reference into relevant Canadian statutes. The Supreme Court also denied a petition for cert in Arbor Global Strategies, LLC v. Samsung Electronics Co., Ltd., which challenged the Patent Trial of Appeal Board’s (PTAB) practice of having the same panel of administrative patent judges (APJs) decide both inter partes review (IPR) institutions and the ultimate merits of the IPR under the Administrative Procedures Act’s (APA) separation-of-functions provision codified at 35 U.S.C. § 554(d).

Coke Stewart Replaces Derrick Brent as Acting USPTO Director – On Monday, January 20, Coke Morgan Stewart was sworn in as the Deputy Undersecretary of Commerce for Intellectual Property and the Deputy Director of the U.S. Patent and Trademark Office, serving as Acting Director of the USPTO from the first day of the incoming Trump Administration and replacing outgoing Acting Director Derrick Brent. As of this writing, there is no indication of President Trump’s pick to serve as USPTO Director.

UK Court of Appeals Reaffirms L’Oréal in Major Decision Against Lookalike Packaging – On Monday, January 20, the UK Court of Appeals issued a ruling in Thatchers Cider Co. Ltd. v. Aldi Stores Ltd. in which the appellate court reversed a ruling by the Intellectual Property Enterprise Court (IPEC) that had dismissed Thatchers Cider’s trademark infringement allegations against a private label brand cloudy lemon cider marketed by Aldi that was modeled after Thatchers Cloudy Lemon Cider. In so ruling, the UK Court of Appeals reaffirmed that the Court of Justice for the European Union’s reasoning on unfair advantage from L’Oréal v. Bellure, which found that an unfair advantage could occur when a registered trademark’s image has been transferred to a product’s sign in a way that clearly exploits the goodwill of the registered trademark.

EU Challenges China’s Court-Ordered Global SEP Royalty Rates at WTO – On Sunday, January 19, the European Commission announced that it had officially begun dispute settlement procedures at the World Trade Organization (WTO) to challenge the practice of Chinese courts to set worldwide royalty rates for standard essential patents (SEPs) during infringement proceedings, alleging that the practice pressures European high-tech firms into lowering worldwide royalties to provide cheaper access to Chinese manufacturers, and that it interferes with the competence of EU courts to decide royalty rate issues for European patents.

Barks

CFC Says Vanda’s Proprietary Interest in Testing Data is Unfounded – On Wednesday, January 22, the U.S. Court of Federal Claims issued a ruling in Vanda Pharmaceuticals, Inc. v. United States in which the court granted the government’s motion for summary judgment, dismissing claims by Vanda that the U.S. Food & Drug Administration (FDA) had improperly disclosed trade secrets to generic drugmakers seeking market approval after finding that the dissolution specifications, impurities testing and micronization information was proposed and recommended to the FDA by Vanda as part of the FDA’s regulatory process for approving generics.

Eleventh Circuit Reinstates Copyright Claims from Condo Development Case – On Wednesday, January 22, the U.S. Court of Appeals for the Eleventh Circuit issued a ruling in McKinney v. Portico LLC in which the appellate court reversed the Northern District of Florida’s determination that defendant Portico had a license to practice McKinney’s materials and instruments of service related to a Florida condominium project after the appellate court found that the district court erred in determining that Portico’s termination of an architectural and engineering services agreement was not wrongful as a matter of law.

USITC Institutes Section 337 Investigation into Chinese Bulk Containers – On Tuesday, January 21, the U.S. International Trade Commission (USITC) announced that it had instituted a Section 337 investigation into certain composite intermediate bulk containers imported into the U.S. for sale by a series of Chinese entities based on a complaint for patent infringement filed by New Jersey-based Schütz Container Systems and Swiss materials firm Protechna.

German Songwriters Organization Files Copyright Suit Over Suno AI Outputs – On Tuesday, January 21, German music copyright organization GEMA filed a lawsuit in Munich regional court alleging copyright infringement claims against American generative AI company Suno over that company’s audio output platform generating music from simple prompts that are similar to well-known tracks like “Mambo No. 5” by Lou Bega.

APG Files Suit in Central California Over False Ownership Campaign on YouTube – On Tuesday, January 21, Warner Music Group record label subsidiary Artist Publishing Group (APG) filed a lawsuit in the Central District of California against Create Music Group alleging copyright infringement and tortious business interference over Create’s practice of claiming ownership to APG songs that are used in third-party videos on YouTube and then signing contracts to collect royalties from those videos.

Google Moves to Dismiss Copyright Infringement Case over AI Model Training – On Friday, January 17, Internet services giant Google filed a motion to dismiss in the Northern District of California asking the court to toss out copyright infringement claims filed by artists over the use of their copyrighted images to train generative artificial intelligence (AI) models, arguing that plaintiffs failed to plausibly allege registration of asserted works or any basis for requested equitable relief, and violated the plain statement requirement of Federal Rule of Civil Procedure 8 for failing to apprise Google of which products allegedly infringed plaintiffs’ copyright.

This Week on Wall Street

Meta’s Zuckerberg Announces Up to $65B in 2025 Capital Expenditures for AI Buildout – On Friday, January 24, Meta Platforms CEO Mark Zuckerberg made public remarks indicating that the company was planning to invest $60 billion to $65 billion in capital expenses during 2025 as the company improves its artificial intelligence infrastructure.

Boeing Guidance Warns of $4B Loss in Upcoming Q4 Earnings Report – On Thursday, January 23, Arlington County, VA-based aviation company Boeing issued a news release telling investors that the company would likely post a loss of $5.46 per share for the fourth quarter of 2024, representing a loss of about $4 billion dollars owing to several issues including order slowdown following mechanical failures and a months-long mechanics strike causing production delays.

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: AT&T Inc. (72nd); Fanuc Corp. (t-158th); Koninklijke Philips N.V. (t-61st)
• Tuesday: Boeing Co. (47th); Stryker Corp. (82nd); Xerox Holdings Corp. (t-160th)
• Wednesday: ASML Holding N.V. (t-182nd); Corning Inc. (74th); Dolby Laboratories, Inc. (217th); Fujitsu Ltd. (t-79th); Hitachi Ltd. (30th); International Business Machines (3rd); Makita Corp. (t-284th); Meta Platforms, Inc. (41st); Microsoft Corp. (17th); Rockwell Automation, Inc. (224th); Samsung Electronics Co., Ltd. (1st); Shin-Etsu Chemical Co., Ltd. (t-211th); T-Mobile US Inc. (58th); Western Digital Corp. (59th); Whirlpool Corp. (127th)
• Thursday: Aisin Corp. (216th); Amazon.com, Inc. (18th); Apple Inc. (9th); Caterpillar Inc. (92nd); Comcast Corp. (78th); Denso Corp. (50th); Dow Inc. (t-169th); Fuji Electric Co., Ltd. (t-272nd); Intel Corp. (12th); Kyocera Corp. (52nd); Mastercard Inc. (144th); Nokia Corp. (t-61st); Resmed Inc. (265th); Sanofi S.A. (215th); STMicroelectronics N.V. (56th); Visa Inc. (118th)
• Friday: Eaton Corp. (185th); Exxon Mobil Corp. (192nd); Komatsu Ltd. (281st)