USPTO Commissioner for Trademarks is Leaving; FTC Seeks Public Comments on Tech Censorship; CAFC Affirms Descriptiveness Refusal Over Estoppel Arguments

This week in Other Barks & Bites: the U.S. Patent and Trademark Office’s (USPTO’s) trademark leadership is changing as of next week; the USPTO also announces that it will move to a new multifactor authentication security system for online logins in May; the Federal Trade Commission issues a request for information regarding shadow banning and demonetizing techniques employed by major tech companies; the Senate Commerce Committee announces a hearing to vet the nomination of Michael Kratsios to serve the Trump Administration as Director of OSTP; the Federal Circuit nixes estoppel arguments in an appeal of a trademark application refusal; and the Second Circuit affirms the dismissal of copyright infringement claims over Amazon’s distribution of Teri Woods’ novels to Audible subscribers. 

Bites

USPTO Commissioner for Trademarks to Leave Agency – IPWatchdog has learned that the USPTO’s current Commissioner for Trademarks, David Gooder, will step down next week and Deputy Commissioner for trademarks Dan Vavonese will take the helm as Acting Commissioner for Trademarks. Gooder joined the USPTO in 2020 as Commissioner for Trademarks and before that worked as the founding Managing Director and Chief Trademark Counsel at Jack Daniel’s Properties and in various roles with the International Trademark Association (INTA). Deputy Commissioner for Trademark Operations Dan Vavonese will step into the role of Acting commissioner for Trademarks; he has served as the Deputy Commissioner for Trademark Operations since 2021and first joined the USPTO as a Trademark examining attorney in 1995.

CAFC Affirms TTAB Descriptiveness Ruling Over Waiver and Estoppel Arguments – On Thursday, February 20, the U.S. Court of Appeals for the Federal Circuit issued a decision in In re: Agadia Systems Inc. in which the appellate court affirmed a ruling by the Trademark Trial and Appeal Board (TTAB) upholding a trademark examiner’s refusal to register the mark “FORMULARYHUB” to cover Agadia System’s software hub for formulary collections. Although the Federal Circuit acknowledged that there are some instances in which separate trademark application proceedings can impact each other, the appellate court dismissed waiver, judicial estoppel and equitable estoppel arguments raised by Agadia Systems as the descriptiveness refusal withdrawn from a separate “FORMULARYHUB.com” trademark application was withdrawn for technical reasons and not the merits of Agadia’s arguments on descriptiveness.

FTC Issues RFI Seeking Public Comments on Technology Platform Censorship – On Thursday, February 20, the Federal Trade Commission (FTC) issued a request for information (RFI) seeking public comment on circumstances under which technology platform providers have censored the content of their users through “shadow banning” and “demonetizing” techniques, which are often employed through opaque internal practices at tech companies that leave no meaningful opportunity for platform users to challenge improper determinations, and which the FTC indicates is anti-competitive conduct that may be illegal under U.S. law.

Senate Commerce Committee Debates Jobs, National Security Impacts of Spectrum Auctions – On Wednesday, February 19, the full Senate Commerce Committee held a hearing on the impacts that delays in spectrum auctions have on American competitiveness, with Commerce Committee Chair Ted Cruz (R-TX) and other Republican members of the committee raising concerns in his opening remarks that delays in spectrum auctions during the Biden Administration has ceded technological superiority in communication networks as well as jobs to foreign economic rival China. In response, Commerce Committee Ranking Member Maria Cantwell (D-WA) argued that the need for innovation in wireless networks must be balanced with national security concerns, including aviation security and essential federal capabilities, that require dedicated spectrum access.

CAFC Agrees Undue Experimentation Needed to Practice SARS-CoV-2 Treatment Claims – On Tuesday, February 18, the Federal Circuit issued a decision in In re: McLeay in which the appellate court affirmed the Patent Trial and Appeal Board’s (PTAB) decision to uphold a patent examiner’s rejection of a patent application filed by independent inventor Matthew McLeay claiming the use of ribavirin for the treatment of respiratory conditions including SARS-CoV-2. The Federal Circuit found that the PTAB’s undue experimentation findings were supported by substantial evidence, including the application’s own recognition that the use of ribavirin was not expected by skilled artisans to have success against COVID-19, and a lack of any other disclosures showing efficacy for the 50% ribavirin formulation claimed by McLeay.

FTC Will Continue to Observe DOJ-Joint Merger Headlines From 2023 – On Tuesday, February 18, recently installed FTC Chair Andrew Ferguson announced that the nation’s competition regulator would continue to observe merger guidelines adopted jointly with the U.S. Department of Justice in 2023 to serve as the framework for the FTC’s merger analysis. This announcement comes after industry insiders in recent weeks have voiced their belief that the Trump Administration would move away from the 2023 merger guidelines, which have resulted in increased costs and uncertainty for proposed corporate mergers.

Senate Commerce Committee to Hold Hearing Vetting Kratsios Nomination for OSTP – On Tuesday, February 18 the Senate Commerce Committee announced that it would convene a hearing to examine the nomination of Michael Kratsios to serve the Trump Administration as the Director of the Office of Science and Technology Policy (OSTP). Kratsios formerly served the OSTP as Chief Technology Officer during the first Trump Administration. The Senate Commerce nomination hearing will also consider President Trump’s choice of antitrust attorney Mark Meador to serve as a Federal Trade Commissioner.

Barks

EPO Launches CodeFest 2025 to Create Automated System for Classifying Patent Data – On Thursday, February 20, the European Patent Office (EPO) announced that the agency had launched the spring edition of CodeFest 2025, which invites software coding enthusiasts to create automated systems for the classification of patent data in alignment with United Nations Sustainable Development Goals that promote accessibility to the more than 150 million patent documents maintained by the EPO.

Second Circuit Finds No Per-Unit Sale Limitation in Teri Woods’ Licensing Agreement – On Wednesday, February 19, the U.S. Court of Appeals for the Second Circuit issued a summary order in Teri Woods Publishing, LLC v. Amazon.com, Inc. in which the appellate court affirmed the Eastern District of New York’s dismissal of copyright infringement and breach of contract claims filed by the publishing rights entity for urban fiction author Teri Woods over the distribution of her novels to Audible subscribers. The Second Circuit found that the distributions to subscribers were covered by language in Teri Woods’ licensing agreement allowing copies via “other contrivances… capable of emitting sounds,” and that provisions on royalty payments did not limit distributions to per-unit sales. 

U.S. Companies Make Up Nearly Half of LexisNexis Top 100 Global Innovators 2025 – On Tuesday, February 18, legal data analytics company LexisNexis issued its Top 100 Global Innovators list for 2025, providing an analysis of patent portfolio strength for companies across the globe based on shifts in portfolio quality over two years, showing that the United States led all nations with 47 companies on the Top 100 list, followed by Germany (12), China (7) and Japan (5). The announcement also coincided with the release of an Innovation Momentum Report Heatmap showing technology overlap among the Top 100 Global Innovators.

Second Circuit Affirms Dismissal of Copyright Suit Against HBO, Warner Sitcoms – On Tuesday, February 18, the Second Circuit issued a summary order in Lee v. Warner Media, LLC in which the appellate court affirmed the Western District of New York’s dismissal of copyright infringement claims asserted by pro se appellant LeTicia Lee, finding that her claims that several popular sitcoms including Friends and Sex and the City infringed upon her own copyrighted materials in a sitcom named Girlfriends were focused on unprotectable scènes à faire, such as a group of friends living in the city and confronting life challenges.

USPTO to Transition to New Multifactor Authentication System for Online Logins This May – On Tuesday, February 18, the U.S. Patent and Trademark Office announced that the agency would be transitioning to a new multifactor authentication system to increase security surrounding access to systems that require a USPTO.gov login, with the agency expecting to phase out authentication methods relying on Short Messaging Service (SMS) text messages and voice phone calls by May 1.

CRB Announces Intent to Audit Alpha Media, Univision Over Statutory License Royalties – On Tuesday, February 18, the Copyright Royalty Board (CRB) published a notice in the Federal Register announcing that the CRB had received notices of intent to audit from collective rights management organization SoundExchange concerning royalty payments made by Alpha Media LLC and Univision Communications Inc. pursuant to statutory licenses codified at 17 U.S.C. § 112(e) and 17 U.S.C § 114(f) between 2022 and 2024.

This Week on Wall Street

Alibaba Touts AI-Driven Strategies as Major Driver for Q4 Profit Beat – On Thursday, February 20, Chinese e-commerce giant Alibaba posted its earnings report for the fourth quarter of 2024, showing that the company beat analyst expectations on net income by $770 million USD for the quarter, with company executives touting the company’s refocus on core businesses as well as its AI and cloud user-first strategies implemented in recent years.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2024 are announcing quarterly earnings next week (2023 rank in parentheses):

• Monday: Berkshire Hathaway Inc. (t-217th); Zoom Video Communications, Inc. (t-211th)
• Tuesday: Fresenius Medical Care AG (202nd); Intuit Inc. (t-215th)
• Wednesday: Baidu, Inc. (131st); Delta Electronics, Inc. (189th); Deutsche Telekom AG (t-69th); eBay Inc. (t-261st); Echostar Corp. (t-132nd); Nvidia Corp. (77th); Salesforce.com, Inc. (102nd)
• Thursday: Dell Technologies Inc. (15th); HP Inc. (84th)
• Friday: BASF SE (110th); ZTE Corp. (67th)