Other Barks & Bites for Friday, February 14: EU Commission Scraps SEP Draft Regulations

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This week in Other Barks & Bites: the European Commission discards a draft proposal on standard essential patent regulation in a move heralded by R&D firms; former U.S. Patent and Trademark Office Director Kathi Vidal challenges Section 101 jury instructions in Eastern Texas; US Inventor endorses former Rep. Dana Rohrabacher for Director of the USPTO; the leadership of the House Science Committee sent a letter to the GAO seeking independent review of

Bites

CAFC Faults ITC for Overly Narrow Section 101 Application to Magnetic Properties – On Thursday, February 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in US Synthetic Corp. v. International Trade Commission in which the appellate court overturned the ITC’s finding that patent claims to a polycrystalline diamond compound owned by US Synthetic were invalid under 35 U.S.C. § 101. The Federal Circuit determined that the ITC’s application of Alice/Mayo was too narrowly focused on the “loose and generalized” connection between disclosed magnetic properties of the compound and the composition of matter claims, holding that no perfect proxy is required between those properties and the claimed compound.

EU Scraps Draft SEP Regulations in Move Heralded by R&D Companies – On Wednesday, February 12, the European Commission announced that it was rescinding draft proposals to regulate the licensing of standard essential patents (SEPs) in the telecommunications and connected cars sectors across Europe, a move lauded by research and development companies like Nokia and Ericsson who had opposed the rules backed by major carmakers BMW and Tesla as well as consumer device giants Apple and Google.

House Science Leadership Requests Independent Review of Commercial Space Licensing – On Wednesday, February 12, Reps. Brian Babin (R-TX) and Zoe Lofgren (D-CA), respectively the Chairman and Ranking Member of the House Science, Space, and Technology Committee, sent a letter to the Comptroller General seeking an independent review of federal processes for licensing commercial space launch and reentry activities and the implementation of Part 450 regulations by the U.S. Department of Transportation, which has reportedly resulted in delays in issuing licenses and other challenges for industry compliance.

Full Senate Commerce Committee to Explore Job Loss from Spectrum Auction Delays – On Wednesday, February 12, the Senate Committee on Commerce, Science, and Transportation announced that it would host a hearing to examine the role of spectrum policy on the U.S. economy and the impact that spectrum auction delays due to difficulties in procuring spectrum from the Pentagon has on reducing levels of domestic investment and prevents the creation of American jobs.

Former Director Vidal Files CAFC Brief Over EDTX Jury Instructions on Section 101 – On Tuesday, February 11, former U.S. Patent and Trademark Office Director Kathi Vidal, now with Winston & Strawn, filed an amicus brief with the Federal Circuit arguing that model jury instructions on Section 101 patent eligibility issues in the Eastern District of Texas improperly state the legal standard for determining an inventive concept at Step 2 of Alice/Mayo, including the district court’s failure to inform the jury when it finds a patent claim directed to patent-ineligible subject matter at Step 1 of Alice/Mayo.

Revised Judge Bibas SJ Ruling Finds No Transformative Use in AI Search Tool – On Tuesday, February 11, U.S. Circuit Judge Stephanos Bibas, sitting by designation in the District of Delaware, issued a revised ruling on summary judgment reflecting Judge Bibas’ reconsideration of copyright infringement and fair use defense issues at play in a copyright suit by Thomson Reuters against AI-powered legal search tool provider Ross Intelligence. The ruling, limited to the non-generative AI accused product before the court, now grants summary judgement to Thomson Reuters on both infringement and fair use in large part because the competing legal search tool was not a transformative use of the Westlaw case headnotes copied to develop bulk memos including questions with right and wrong answers.

Barks

US Inventor Says USPTO Director Rohrabacher Would Bring Fairness to Patent System – On Thursday, February 13, inventor advocacy group US Inventor announced its endorsement of former Rep. Dana Rohrabacher (R-CA) to serve as the next Director of the U.S. Patent and Trademark Office. US Inventor President Randy Landreneau gave warm support to the former Chairman of the House Subcommittee on Space and Aeronautics, saying that “Dana Rohrabacher is the leader we need to bring fairness back to the patent system and ensure that American innovation remains the world’s gold standard.”

North American News Publishers Sue Cohere for Republishing Articles, Tarnishing Brands – On Thursday, February 13, members of the News Media Alliance including Los Angeles Times Communications, Conde Nast and Toronto Star Newspapers Limited filed a lawsuit in the Southern District of New York alleging claims of copyright and trademark infringement committed by Canadian AI firm Cohere for providing a large language model trained on news articles published by News Media Alliance members and fake articles republished under the names of real authors that tarnish the brands of those newspapers.

Copyright Office Issues Report on Economic Implications of AI on Copyright – On Wednesday, February 12, the U.S. Copyright Office published a report compiled by an ad hoc committee of economic scholars exploring several areas where artificial intelligence (AI) developments are impacting the economics behind current levels of U.S. copyright protection, including name, image and likeness rights as well as the economic impacts to rightsholders that are posed by the ingestion of data during training phases for AI models.

USPTO Launches Open Data Portal as Part of Agency’s Data Accessibility Efforts – On Wednesday, February 12, the U.S. Patent and Trademark Office announced that it had established a new Open Data Portal replacing the agency’s legacy Patent Examination Data System (PEDS) and Bulk Data storage System (BDSS) as part of the USPTO’s efforts to improve data accessibility for stakeholders.

C4IP Establishes Advisory Board With Six IP Experts, Former Government Officials – On Tuesday, February 11, the Council for Innovation Promotion (C4IP) announced that it had added six experts from intellectual property fields to its newly formed advisory board, including Etienne Sanz de Acedo, CEO of the International Trademark Association; F. Scott Kieff, former Commissioner of the International Trade Commission (ITC); Keith Kupferschmid, President & CEO of the Copyright Alliance; Steven Caltrider, Chief IP Counsel of the Dana Farber Cancer Institute; Stephen Susalka, CEO of AUTM; and Walter Copan, former Under Secretary of Commerce for Standards and Technology and Director of the National Institute of Standards and Technology (NIST).

Copyright Office Seeks Public Input on Performing Rights Organizations – On Monday, February 10, the U.S. Copyright Office published a notice of inquiry seeking input from the public on recent increases in the number of performing rights organizations (PROs) in the United States, including any issues related to their licensing revenue distribution practices.

This Week on Wall Street 

Moderna’s Q4 Earnings Report Disappoints Due to Lower Demand for COVID Vaccines – On Friday, February 14, Cambridge, MA-based pharmaceutical firm Moderna reported earnings for the fourth quarter of 2024, beating analyst expectations on revenue but posting a net loss of $1.12 billion for the quarter in large part due to reduced demand for the company’s COVID vaccine from increased competition and reduced vaccination and boosting rates.

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: Baidu, Inc. (67th); Fresenius Medical Care AG (t-261st); Medtronic plc (21st)
• Wednesday: Analog Devices, Inc. (t-173rd); Koninklijke Philips N.V. (t-61st)
• Thursday: Airbus SE (86th); Alarm.com, Inc. (t-258th); Globus Medical Inc. (t-193rd); Innolux Corp. (t-145th); Lenovo Group Ltd. (77th)
• Friday: None