CAFC Rejects Untimely Expert Testimony and Reassigns Case; CJEU Clarifies Online Marketplace Responsibilities Under GDPR; and IPWATCHPUPPIES ARE ON THE WAY!

This week in Other Barks & Bites: Senator Thom Tillis (R-NC) returns to lead the Senate IP Subcommittee during the 119th Congress; the Federal Circuit finds that Judge Boyle of Eastern North Carolina erred in admitting untimely expert reports and reassigns the case on remand for objectionable statements by the judge; the CJEU clarifies the rights of online marketplace operators to protect personal data under the General Data Protection Regulation; the European Patent Office issues a study showing that Europe outpaces the United States in total number of oncology startups; and the Ninth Circuit holds that inheritors who receive copyright interests through a will are not beholden to the copyright termination notice requirements of statutory heirs under the Copyright Act.

Bites

IPWatchdog is Expanding with IPWatchpuppies! – Gene and Renee Quinn’s five-year old German Shorthaired Pointer, and IPWatchdog’s Chief Barking Officer and Director of Employee Enrichment, Luna, along with her mate, Gene and Renee’s one-year old German Shorthaired Pointer and

IPWatchdog’s Director of Puplick Relations, Loki, are expecting six IPWatchPuppies any day now. Based off her x-ray taken on Thursday, January 30, her OBGYN veterinarian gave her an estimated expected due date of Tuesday, February 4, which has since come and gone. Luna continues to remain active, playful and happy and, as of the time of this publication, has yet to show any signs of labor.

IPWatchdog will certainly put out an official announcement once the puppies have been born. In the meantime, we wanted to share with you this very adorable video of the babies moving in her belly! And scroll to the end of this article to see the puppies on the inside!!

CAFC Says rHSA Patents Still Infringe Despite Albumin Aggregation During Import – On Friday, February 7, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Wuhan Healthgen Biotechnology Corp. v. International Trade Commission in which the appellate court found that recombinant human serum albumin (rHSA) products imported into the U.S. for sale by Wuhan Healthgen infringe U.S. patent claims requiring “less than 2% aggregated albumin,” finding that the U.S. International Trade Commission’s (ITC) determination was based on substantial evidence by albumin testing in China over Wuhan Healthgen’s arguments that the accused rHSA products accumulate albumin during transport. The Federal Circuit also affirmed the ITC’s economic prong analysis for the domestic industry requirement, finding that Section 337 complainant Ventria Biosciences demonstrated sufficient investment-to-revenue ratio for Ventria Biosciences’ Optibumin despite its quantitatively small market size.

CAFC Says Admission of Expert Testimony Untimely, Remands to New District Court Judge – On Friday, February 7, the Federal Circuit issued a precedential decision in Trudell Medical International Inc. v. D R Burton Healthcare, LLC in which the appellate court reversed the Eastern District of North Carolina’s decision to allow D R Burton to present expert testimony on noninfringement that was not timely included in an expert report as required by Federal Rule of Civil Procedure 26 because the expert’s report was submitted after the close of discovery. Remanding the case to the district court, the Federal Circuit also order that the case be reassigned from U.S. District Judge Terrance William Boyle due to several objectionable statements made by the judge undermining the appearance of justice and fairness.

CAFC Affirms PTAB Obviousness Ruling Despite Erroneous Claim Construction – On Thursday, February 6, the Federal Circuit issued a precedential decision in HD Silicon Solutions LLC v. Microchip Technology Inc. in which the appellate court affirmed the Patent Trial and Appeal Board’s (PTAB) determination that HD Silicon Solution’s integrated circuit patent claims are invalid for obviousness. Although the PTAB had erred in construing the claim term “comprising tungsten” as indicating tungsten compounds and not elemental tungsten, the Federal Circuit found that the use of elemental tungsten was taught by one of Microchip’s asserted prior art references.

CJEU Says Online Marketplaces Exempt from GDPR Violations if Neutral Processor – On Thursday, February 6,  Advocate General Maciej Szpunar of the Court of Justice for the European Union issued an opinion in a case involving claims that an online marketplace owned by Russmedia violated the General Data Protection Regulation (GDPR) by publishing an advertisement that made unauthorized use of a person’s image and telephone number. AG Szpunar found that, under the GDPR, operators of online marketplaces may be exempt from liability as to the contents of ads published on their websites without being obliged to systematically check ad content, provided that the online marketplace operator maintains a purely neutral and technical role.

Senator Tillis Returns to Serve as Senate IP Subcommittee Chairman for 119th Congress – On Tuesday, February 4, U.S. Senator Thom Tillis (R-NC) issued a press release indicating his excitement to receive the gavel for the Senate IP Subcommittee from his friend and colleague, outgoing Senate IP Chair Sen. Chris Coons (D-DE), as Tillis returns to the Chairman position for the subcommittee during the 119th Congress. According to the Senate Judiciary Committee’s subcommittee assignments, Sen. Adam Schiff (D-CA) will serve as Ranking Member for the Senate IP Subcommittee.

Ninth Circuit Says Contract Law Applies to Termination Notice Sent by Non-Statutory Heir – On Monday, February 3, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Aquarian Foundation, Inc. v. Lowndes in which the appellate court reversed-in-part the Western District of Washington’s dismissal of copyright infringement claims filed by religious organization Aquarian against Lowndes, who had published material from Aquarian’s founder online under a purported licensing agreement with the founder. The Ninth Circuit found the district court erred in finding that the requirements for copyright termination notices under 17 U.S.C. § 203(a) applied to a license termination letter sent by Aquarian’s counsel to Lowndes in 2021 as Aquarian’s interested was disposed of by will, thus Aquarian was not a statutory heir subject to the termination notice requirements of Section 203(a).

Barks

WIPO Report Finds 11% CAGR for Futuristic Green Transportation Technologies – On Thursday, February 6, the World Intellectual Property Organization (WIPO) issued a technology trends report exploring patenting activities surrounding futuristic transportation technologies including autonomous automobiles and reusable rockets. From 2000 to 2023, this sector saw an 11% compound annual growth rate, doubling the growth rate of overall patent filings during that period.

EPO Study Shows EU Leads in Total Oncology Startups Despite U.S. Lead in Patents – On Monday, February 3, the European Patent Office (EPO) published the findings of a study of patent filing trends in oncology innovations finding that, although the United States enjoyed the largest share of patent application filings in the sector at 43%, the European Union has nearly 1,500 oncology startups, about 175 more than the number of such startups in the U.S.

EPO Establishes New Searchable Database of Professional Representatives – On Monday, February 3, the EPO announced that it had established a new online searchable database of professional representatives authorized to practice at the EPO, replacing the agency’s former method of publishing monthly changes to the professional representative list in the EPO’s Official Journal.

U.S. Chamber Recaps Past Year of March-In Right Threats Under Bayh-Dole – On Thursday, January 30, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) published a blog post recapping several critical tech sectors threatened throughout 2024 by the Biden Administration’s threats of IP confiscation through the exercise of march-in rights under the Bayh-Dole Act, noting that these actions risk American dominance in incredibly important tech sectors like quantum computing and semiconductors.

Under Armour Earns Latest Trademark Victory at TTAB Against “OUTERARMOUR” – On Thursday, January 30, the Trademark Trial and Appeal Board (TTAB) issued a ruling  sustaining athletic apparel brand Under Armour’s opposition to a trademark application covering the standard character mark “OUTERARMOUR” covering goods including hats and T-shirts. The ruling marks Under Armour’s latest in a series of legal victories against several competitors and is significant for finding evidentiary support establishing strong protection for Under Armour without addressing its larger portfolio of related marks.

U.S. Chamber’s Annual Section 301 Statement Focuses on Lack of IP Enforcement Mechanisms – On Tuesday, January 28, the U.S. Chamber’s GIPC filed its annual Special 301 statement with the U.S. Trade Representative highlighting several areas of concern within the U.S. intellectual property system, including a lack of effective enforcement mechanisms for IP