This week in IP: WSOU most litigious NPE, UK appoints new IP judge, Trump appointees resign
Managing IP rounds up the latest trademark, copyright and patent news, including some stories you might have missed
District court 2020 rankings revealed
This week, Managing IP compiled and analysed data from the Docket Navigator database that showed patent litigation in the district courts rose for the first time since 2015.
This increase was probably due to the growing popularity of the District Court for the Western District of Texas among patent litigators, particularly non practising-entities. Western Texas was by far and away the most popular district court venue for patent cases in 2020.
One of the biggest users of that court was WSOU Investments (which trades as Brazos Licensing & Development), which filed more than twice the number of patent cases of any other business across the US.
Other Managing IP stories published this week include:
High Court appoints new IP specialist judge
The England and Wales High Court has appointed James Mellor as a new judge for the Chancery Division, it was announced on Wednesday, January 20.
Mellor, 59, a barrister at 8 New Square who specialises in intellectual property law, will start his new role on February 8, after which he will become the Honourable Mr Justice Mellor.
His appointment will come as a relief to UK IP attorneys because of the lack of IP specialist judges left in the High Court after judges Colin Birss and Christopher Nugee were elevated to the England and Wales Court of Appeal in 2020.
Mellor was called to the bar in 1986 and became a queen’s counsel in 2006. He was appointed as a High Court deputy judge in 2020 and as an appointed person for trademark and design appeals in 2015.
In his spare time, he enjoys surfing, skiing and cycling.
Trump’s last day: IP appointees resign and Levandowski pardoned
Donald Trump’s last days as US president ushered in a few predictable resignations within IP-focused federal departments, and one surprising pardon of a man famously convicted of trade secret theft.
Makan Delrahim, the head of the Department of Justice’s antitrust division, handed in his resignation letter on January 13, and officially resigned on Tuesday, January 19.
The now former assistant attorney general, who was both admired and loathed by standard essential patent stakeholders for his antitrust policies, told Managing IP before the presidential election that he intended to resign in early 2021, whether Trump won or lost.
USPTO director Andrei Iancu also tendered his resignation on January 19. In a letter to office staff, Iancu bid his colleagues farewell, noting that it was a privilege to serve with them for the past three years. Patents commissioner Drew Hirshfeld stepped in as acting director.
It was expected that the now former USPTO head would resign after Joe Biden won the presidency. In-house counsel told Managing IP as much back in December, and opined on what they wanted to see from a new director.
USPTO deputy director Laura Peter also resigned, noting that it was customary to leave office after a change of administration. In a LinkedIn post, she said she was proud of the USPTO’s achievements and to work alongside Iancu and her other colleagues.
In a more shocking turn of events, also on Tuesday, Trump pardoned Anthony Levandowki, a former Google engineer who was convicted of stealing trade secrets related to autonomous vehicles before starting a new job at Uber.
Levandowki, 40, was sentenced to 18 months in prison in August 2020. The White House cited the support of 13 individuals in its pardon statement, including the billionaire Facebook board member and a fervent supporter of Trump in his 2016 president campaign, Peter Thiel.
Levandowki, who featured in Managing IP’s top 50 list of most influential people in IP in 2018 and 2019, was one of 143 people to be granted clemency by Trump on his last day in office.
IPO 300 report published: IBM gets top spot (again) and HKC grows the most
The Intellectual Property Owners Association (IPO) published its annual IPO 300 report last week for 2020.
IBM was once again the undisputed top patent filer, with 9,435 patents granted by the USPTO last year, and the HKC Corporation was the biggest grower, having increased its patent portfolio by 245%.
Samsung was the patent owner runner up, with 8,539 patents granted, followed by LG (5,112), Canon (3,689) and Intel (3,284).
Oher big growers were Alibaba, which increased its patent grants by 150%, ServiceNow (116%), RealTek (102%) and Wells Fargo (82%).
Capital One led the way in fintech patents for the second year running, having secured 747 grants in 2020, a 20% increase on the previous year.
The report was produced in collaboration with Harrity Analytics and was based on data obtained from the USPTO.
SCOTUS rejects bid to revive record patent damages award
On Tuesday, January 19, the US Supreme Court (SCOTUS) refused to hear arguments that a patent owned by Merck was improperly invalidated, scuppering the pharma company’s final bid to revive a record $2.5 billion damages decision against Gilead.
The record award was given to Merck-subsidiary Idenix in 2016 by a jury at the District Court for the District of Delaware. It was the largest ever awarded in a US patent case to date.
But the verdict was overturned by Delaware chief judge Leonard Stark in 2018, and his decision was later affirmed by the Court of Appeals for the Federal Circuit in October 2019.
The pharma company petitioned for a writ of certiorari in September 2020. SCOTUS’s rejection of that petition cuts off Merck’s last chance for an appeal in its favour.
Merck had claimed that Gilead’s Hepatitis C drugs Sovaldi (ledipasvir/sofosbuvir) and Harvoni (sofosbuvir) infringed its patent, US number 7,608,597.
MJ Dairies get cheesy win in EU for Halloumi trademark
A Bulgarian dairy business won a hard-fought trademark battle against an association of Cypriot Halloumi producers at the EU General Court on Wednesday, January 20, upholding a previous decision from the EUIPO.
MJ Dairies applied for an EU trademark for the word and figurative mark BBQloumi in 2014, which was opposed by the Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi on the basis of the group’s earlier collective EU mark, Halloumi.
The EUIPO’s opposition division rejected this bid, reasoning that there was little chance of consumer confusion when it came to the two marks because ‘Halloumi’ was weak in its inherent distinctiveness.
That decision was affirmed by the EUIPO’s Board of Appeal in 2017, and then by the General Court in 2018.
But the Court of Justice of the EU (CJEU) ruled in 2020 that the General Court had erred in its decision by failing to examine whether the mark’s low degree of similarity would be offset by a high degree of similarity of the goods in question.
The CJEU referred the case back to the lower court to properly assess the likelihood of confusion.