Ninth Circuit Affirms Dismissal of FCA Claims Against Allergan; Motion to Compel Government Granted in E-Passport Reader Case; U.S. Patent Grants Increase 5.7% in 2024

This week in Other Barks & Bites: the U.S. Court of Appeals for the Federal Circuit applies its minimum contacts analysis from Acorda to find the constitutional exercise of personal jurisdiction over Samsung Bioepis in Regeneron v. Mylan; Judge Holte of the Federal Court of Claims grants-in-part motions to compel the government and third-party defendant Idemia in a patent infringement case over e-passport reader technology; the Copyright Office issues the second part of its AI report indicating limited copyright protections for outputs with expressive elements developed by AI using human prompts; a new patent data report from Anaqua shows that U.S. patent grants increased 5.7% during 2024; the Ninth Circuit affirmed the dismissal of False Claim Acts claims against Allergan over its alleged fraudulent procurement of drug patent rights; Apple’s latest earnings report shows that services earns 21% of corporate revenues; and the House Science, Space, and Technology Committee announces subcommittee leadership.

Bites

Cellspin Petitions SCOTUS to Overturn Federal Circuit’s Denial of Motion for Recusal – Cellspin Soft, Inc. filed a petition for writ of certiorari on Thursday, January 30, asking the court to review the Federal Circuit’s November 2024 decision affirming a district court’s grant of summary judgment of noninfringement and denial of a motion for recusal in favor of Fitbit LLC and a number of other defendants.

The petition asks the court to address three questions: “1. Should the merits as to the question of recusal under 28 U.S.C. § 455(a) be decided first, before reaching the merits of any potential abuse of discretion in excluding evidence in the district court? 2. Is the failure to rule on the merits under § 455(a) a due process violation, especially when the spouse of the district court judge has accepted $700 Million in part from Google (which is a party to ongoing litigation), and has five publicly-announced strategic partnerships with Google? 3. Should federal judges be allowed to hold investments of $5 Million and as much as a $25 Million in hedge funds under 28 U.S.C. § 455(d)?”

The petition also argues that the CAFC erred in ruling that “a structural error that the Federal Circuit expressly decided not to rule on cannot be considered ‘harmless.’”

Federal Circuit Finds Minimum Contacts Satisfied by FDA Filing Plus Distribution Agreement – On Wednesday, January 29, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Regeneron Pharmaceuticals, Inc. v. Mylan Pharmaceuticals Inc. in which the appellate court affirming rulings by the Northern District of West Virginia leading to the entry of preliminary injunction preventing Korean biotech firm Samsung Bioepis from marketing its Eylea biosimilar under the terms of a development agreement with Biogen. In particular, the Federal Circuit agreed that the district court could properly exercise personal jurisdiction over Samsung Bioepis due to the defendant’s U.S. Food & Drug Administration (FDA) filings for biosimilar market approval as well as its business plans with Biogen, adopting reasoning from the Federal Circuit’s 2016 ruling in Acorda Therapeutics v. Mylan Pharmaceuticals finding the minimum contacts requirement satisfied by similar facts in the Abbreviated New Drug Application (ANDA) context.

Part 2 of Copyright Office’s AI Report Says AI Prompts Are Not Human Authorship – On Wednesday, January 29, the U.S. Copyright Office finally released the second part of the agency’s planned four-part series of reports on copyright law issues implicated by the advance of artificial intelligence (AI) technologies. This second report focused on the legal requirements of human authorship, clarifying that while the degree of human intervention will have to be determined on a case-by-case basis, copyright protection should not extend to AI outputs where the expressive elements are generated by the AI system based on human prompts.

Ninth Circuit Applies Public Disclosure Bar to Silbersher FCA Claims Against Allergan – On Wednesday, January 29, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision in United States of America ex. rel. Silbersher v. Allergan, Inc. in which the appellate court affirmed the Northern District of California’s dismissal of a lawsuit filed alleging False Claims Act (FCA) violations against pharmaceutical company Allergan. The Ninth Circuit held that Silbersher waived the argument that the public disclosure bar does not apply to transactions alleged under his FCA claim because, unlike Silbersher’s successful FCA claim in U.S. ex. rel. Silbersher v. Valeant (2023), Silbersher conceded at a hearing on Allergan’s motion to dismiss that the relevant information regarding Allergan’s fraudulent obtainment of patent rights was available in the patent prosecution history.

Federal Circuit Affirms Dismissal of Broad Infringement Claims Against Consumer Device Industry – On Tuesday, January 28, the Federal Circuit issued a nonprecedential ruling in Huang v. Amazon.com, Inc. in which the appellate court affirmed the Northern District of California’s dismissal of amended complaints filed by independent inventor Xiaohua Huang following repeated inabilities to cure deficiencies in his pleading that failed to put Amazon.com and other alleged defendants from across the consumer device industry on notice as to the accused products that contained the allegedly infringing semiconductor technology covered by Huang’s patent claims.

Judge Holte Grants-in-Part Motions to Compel Government, Idemia in E-Passport Reader Patent Case – On Monday, January 27, Judge Ryan Holte of the U.S. Court of Federal Claims issued an opinion and order in Giesecke & Devrient GmbH v. United States granting-in-part motions to compel discovery filed by patent owner Giesecke & Devrient against both the U.S. government and third-party intervenor-defendant Idemia Identity & Security, finding that the source code for allegedly infringing e-passport reader devices was not irrelevant and that production of it by Idemia was not unduly burdensome.

Bayh-Dole Coalition Brief Calls on Trump Administration to End NIH Spending Cuts – On Monday, January 27, the Bayh-Dole Coalition published an issue brief calling on the newly established Trump Administration to end a research planning policy instituted in the final days of the Biden Administration that requires prospective licensees with the National Institutes of Health (NIH) to explain how they will make future products affordable and sustainable, arguing that the policy hinders licensing through micro-management in ways that Congress intended to end through passage of the Bayh-Dole Act.

Barks

U.S. Patent Grants Increase 5.7% During 2024 – On Thursday, January 30, a new report analyzing data published by the U.S. Patent and Trademark Office found that U.S. patent grants increased by 5.7% in 2024 up to 368,597 patents, with most of this growth being driven by high patenting activities in the semiconductor, AI, medical, 5G and virtual reality sectors.

EUIPO Announces Interagency #EUvsFakeMedicines Campaign – On Thursday, January 30, the European Union Intellectual Property Office (EUIPO) announced that it was taking part in a social media campaign under the hashtag #EUvsFakeMedicines to raise awareness in conjunction with Europol and the European Medicines Agency (EMA) about the importance of protecting both public health and intellectual property rights to reduce consumer purchases of counterfeit medicines.

Chairman Babin Announces Leadership of House SST Subcommittees – On Thursday, January 30, Representative Brian Babin (R-TX), Chairman of the House Committee on Science, Space, and Technology (SST), announced the membership of various subcommittees within the House SST Committee, including Representative Randy Weber (R-TX) to serve as the chair of the Energy Subcommittee, Representative Jay Obernolte (R-CA) to serve as the chair of the Research and Technology Subcommittee, and Mike Haridopolos (R-FL) to serve as the chair of the Space and Aeronautics Subcommittee.

EUIPO Draws 2,000 Participants to Hybrid Conference for Geographical Indications – On Wednesday, January 29, the EUIPO concluded its Geographical Indications Conference 2025, focusing on the latest developments in geographical indications for craft, industrial and agricultural products, having drawn nearly 2,000 participants to the hybrid event hosted both online and at the EUIPO headquarters in Alicante, Spain.

Ninth Circuit Reverses-in-Part Dismissal of Copyright Claims in Pro Se Action – On Tuesday, January 28, the Ninth Circuit issued an unpublished memorandum in Stebbins v. Doe reversing-in-part the Northern District of California’s dismissal of copyright infringement claims filed by pro se appellant David Stebbins, finding that Stebbins’ claims that the John Doe defendant reproduced a series of four videos for which Stebbins holds valid copyrights were sufficient to warrant an order that the defendant file an answer to Stebbins’ complaint.

Copyright Office to Host Webinar on Copyright Essentials for Visual Artists, Photographers – On Monday, January 27, the U.S. Copyright Office announced that the agency would host a three-part series of online webinars focused on copyright essentials for visual artists and photographers. The first session will take place at 1 PM Eastern on Wednesday, February 19, and will cover types of visual works that are registrable and registration application options. 

This Week on Wall Street

Apple Reports Highest Ever Gross Margin as Services Segment Flourishes – On Thursday, January 30, consumer electronics giant Apple Inc. reported earnings for the first quarter of its 2025 fiscal year, which showed that the company achieved a gross margin of 46.9%, beating the company’s previous record set last year, thanks in large part to a 4% rise in Apple’s services segment, which beat analyst revenue expectations and now accounts for 21% of Apple’s overall revenues.

Intel Reports Third Straight Revenue Decline in First Quarter Since CEO Gelsinger’s Departure – On Thursday, January 30, American semiconductor giant Intel Corp. reported earnings for the fourth quarter of 2024, the company’s first earnings report since the departure of CEO Pat Gelsinger, indicating that corporate revenues declined for the third straight quarter. However, Intel’s stock rose 3% in after-day trading as the company beat analyst expectations and gave favorable profit guidance for the first quarter of 2025.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2024 are announcing quarterly earnings next week (2024 rank in parentheses):

• Monday: Caterpillar Inc. (97th); Kyocera Corp. (57th); Mitsubishi Electric Corp. (36th); Mitsubishi Heavy Industries, Ltd. (123rd); NXP Semiconductors N.V. (t-139th); Palantir Technologies Inc. (t-275th); Rambus Inc. (t-258th); Toyota Motor Corp. (10th)
• Tuesday: Alphabet Inc. (8th); Asahi Kasei Corp. (188th); Edwards Lifesciences Corp. (t-233rd); Infineon Technologies AG (65th); Juniper Networks, Inc. (t-163rd); Panasonic Holdings Corp. (19th); Regeneron Pharmaceuticals, Inc. (t-263rd); Snap Inc. (51st); Sumitomo Electric Industries (t-60th)
• Wednesday: Boston Scientific Corp. (t-69th); Daikin Industries, Ltd. (136th); Emerson Electric Co. (t-238th); Ford Motor Co. (33rd); Mitsubishi Chemical Group Corp. (t-242nd); Qualcomm Inc. (4th); Realtek Semiconductor Corp. (t-172nd); Shimadzu Corp. (t-185th); Skyworks Solutions, Inc. (180th)
• Thursday:com, Inc. (20th); Becton, Dickinson & Co. (73rd); Illumina, Inc. (t-291st); Honda Motor Co., Ltd. (39th); Interdigital Inc. (91st); Kawasaki Heavy Industries, Ltd. (t-215th); Nikon Corp. (t-268th); Philip Morris International Inc. (t-200th); Renesas Electronics Corp. (t-255th); Siemens AG (40th); Sonos, Inc. (t-211th); Subaru Corp. (150th); Tokyo Electron Ltd. (90th)
• Friday: AB Volvo (t-114th); Mediatek Inc. (121st); Sharp Corp. (55th)