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Oracle, FCC, IP-intensive industries report, biosimilars, PTAB, Scotch whisky – the week in IP



Michael Loney


Oracle’s denial of a retrial in its copyright fight with Google, disagreement over proposed FCC rules on set-top boxes, a US Department of Commerce report, FDA approval of Amgen’s Humira biosimilar, the top inter partes review petitioners ever and Scotch whisky’s registration as a trade mark in Taiwan were in the recent intellectual property news

Also on the blog in the past week were:

Guest post: New thoughts on South Africa's IP policy

We’ve also posted the following articles in the past week (log in via subscription or free trial):  

10 highlights from the MARQUES Annual Conference in Villaitana

Australia: Evidence is vital

Litigation in the ITC: a guide for trade mark owners

How to obtain effective evidence in China

10 issues to watch at the PTAB

Federal Circuit rules it cannot review PTAB assignor estoppel

How to avoid the FTC not “liking” your next campaign

DLA Piper (Canada) and Dimock Stratton combine, and other Americas people moves

Oracle denied retrial

Judge William Alsup of the Northern District of California has refused Oracle’s request for a retrial of its long-running copyright dispute with Google over Java software, reports Techdirt.

Oracle argued that Google withheld information about planning to expand the Android operating system to laptop and desktop computers.

Alsup said: “Oracle’s purported ‘game changer’ would not have changed anything at all, because the scope of the ‘game’ was smartphones and tablets, postponing new and later uses to a later contest. ARC++ was not yet on trial. Thus, any failure to produce such evidence could not have substantially interfered with Oracle’s preparation for our trial. On the contrary, it clearly and convincingly would have been inconsequential.”

This followed Alsup last week ruling that Oracle’s attorney would not be held in contempt or sanctioned because that would be “heavy handed”. However, as Ars Technica reports, Alsup did criticise Oracle’s lawyer, Orrick’s Annette Hurst, for revealing that Google paid Apple $1 billion in 2014 to include Google search on iPhones.

He told Hurst’s lawyer Melinda Haag: "I think you're afraid to come out and admit that [Hurst] screwed up and she never should have done what she did. If the shoe was on the other foot, you would be jumping up and down."

The judge added that he "hopes" that "someone raises this" when Orrick lawyers ask for confidential information in other cases.

Fight over set-top box copyright

The Hill has run two opposing views on the Federal Communications Commission (FCC) considering rules that would free cable and satellite television subscribers from the set-top box.

In an op-ed called “Don’t let copyright box us in”, professor Mark Lemley of Stanford Law School (left) says the Motion Picture Association of America “has told the FCC that it can’t allow copyrighted movies to be displayed without a set-top box, because doing so would amount to a compulsory copyright license”.

He added: “The MPAA’s argument that studios have the right to control the device on which you view your content reflects a fundamental misunderstanding of copyright law. Copyright gives its owner the right to control the making of copies and public performances of a work. But it does not give them control over any use of a work. That’s no accident. Once the copyright owner has been paid once for a particular copy, its control over that copy ends. That’s why I can lend a book to friends, or sell my used record collection outright.”

He said the cable companies have paid the MPAA for the right to deliver their movie into a home, and the MPAA loses control over how the viewer choose to watch their movie in the privacy of their own home.

“The MPAA is, reasonably, worried about piracy.  But allowing personal viewing of a show on an iPhone doesn’t promote piracy any more than allowing a DVR does,” concluded Lemley.

Keith Kupferschmid, CEO for the Copyright Alliance, said Lemley was using old-fashioned scare tactics in support of FCC's set-top box proposal.

“The FCC’s proposed set-top box mandate wouldn’t open that door for the ‘FCC to bring the cable and satellite industries along’ as Lemley says. That door has already been opened and professional creators are walking right through it and into a bright future. Rather, placing the FCC in a position to dictate licensing terms would threaten that very promising future by creating a de facto compulsory licensing regime that requires creators to allow their work to be shared across multiple platforms without compensation and without regard to the creators’ rights to determine the methods of distribution,” said Kupferschmid.

IP-intensive industries’ value estimated  

Dept of Commerce report coverThe US Department of Commerce has released a report finding that IP-intensive industries support at least 45 million US jobs and contribute more than $6 trillion dollars to US GDP, or 38.2%. The report is a joint product of the USPTO and the Economics and Statistics Administration (ESA).

The report identifies 81 industries that use patent, copyright, or trade mark protections most extensively.

Among the report’s findings are:

-          Trade mark-intensive industries are the largest in number and contribute the most employment with 23.7 million jobs in 2014 (up from 22.6 million in 2010). Copyright-intensive industries supplied 5.6 million jobs (compared to 5.1 million in 2010) followed by patent-intensive industries with 3.9 million jobs (3.8 million in 2010).

-          While jobs in IP-intensive industries increased between 2010 and 2014, non-IP-intensive jobs grew at a slightly faster pace. Consequently, the proportion of total employment in IP-intensive industries declined slightly to 18.2% (from 18.8% in 2010).

-          In contrast, the value added by IP-intensive industries increased substantially in both total amount and GDP share between 2010 and 2014. IP-intensive industries accounted for $6.6 trillion in value added in 2014, up more than $1.5 trillion (30%) from $5.06 trillion in 2010. Accordingly, the share of total U.S. GDP attributable to IP-intensive industries increased from 34.8% in 2010 to 38.2% in 2014.

-          Revenue specific to the licensing of IP rights totalled $115.2 billion in 2012, with 28 industries deriving revenues from licensing.

-          Total merchandise exports of IP-intensive industries increased to $842 billion in 2014 from $775 billion in 2010.

The full report can be viewed here.

Amgen’s Humira biosimilar approved

The FDA has approved Amjevita, Amgen’s biosimilar to AbbVie’s Humira, reports Patent Docs. This is the fourth biosimilar approved by the FDA.

Amjevita is approved for all indications requested by Amgen: moderately to severely active rheumatoid arthritis; active psoriatic arthritis; active ankylosing spondylitis; moderately to severely active Crohn's disease; moderately to severely active ulcerative colitis; and moderate to severe plaque psoriasis.

“Notwithstanding the approval, it is unlikely that Amgen will begin marketing Amjevita anytime soon,” noted Patent Docs. The reason is AbbVie has filed suit against Amgen in the District of Delaware pursuant to the Biologics Price Competition and Innovation Act.

As we previously reported, the suit is the first filed under the BPCIA in which two parties have disagreed upon which patents should be in dispute, and raises a question about the efficacy of the "patent dance" process established by the BPCIA.

Top IPR petitioners ever

Patexia IPR petitioners
Source: Patexia
Patexia has revealed the 25 most active IPR petitioners. From September 2012 through to the end of June 2016, the top 25 were responsible for 28% of IPRs filed. More than 1,100 different petitioners filed 4,705 IPRs in that time.  

Apple filed 213 IPRs or 5% of all challenges.

Communication was the area with the most petitions, with almost 20% of cases.

Scotch whisky registered in Taiwan

Scotch whisky has been registered as a certification trade mark in Taiwan. The Scotch Whisky Association described the news as “a major legal breakthrough”.

Taiwan is the fourth biggest market for Scotch by value, with exports worth £75 million in the first six months of the year

The Scotch Whisky Association, which applied for the trade mark, says the existence of the UK Customs' Spirit Drinks Verification Scheme, which was introduced in 2014, was an important factor in meeting the requirements necessary to secure protection.

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