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TPP, Cuozzo, Bikram Yoga, hedge fund IPRs, Samsung, Nvidia – the week in IP

The Trans-Pacific Partnership agreement being announced then leaked, Cuozzo taking its inter partes review appeal to the Supreme Court, a ruling that copyright does not cover yoga, a good week for hedge funds at the PTAB, and the ITC dealing Nvidia a blow in its fight with Samsung were in the IP headlines this week

TPP agreement leaked

The biggest news last week was that an agreement on the Trans-Pacific Partnership (TPP) had been reached. The agreement is the result of more than five years of negotiations. The partnership covers 12 nations representing 40% of the world’s economy: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States and Vietnam.

Observers keen to know what exactly had been agreed were disappointed to hear they would have to wait until at least after the Canadian election. However, Wikileaks a few days later came to their rescue when it leaked what it claimed was the full final intellectual property chapter of the TPP.

The controversial agreement faces strong opposition. For example, US Democratic presidential hopefuls Hilary Clinton and Bernie Sanders have announced their opposition to the TPP. Many are unhappy with what they see as pandering to big pharma, although there was some compromise. The Obama administration had proposed granting 12 years of legal protections for biologics, but the final TTP grants between five and eight years.

EFF logoThe Electronic Frontier Foundation said the leaked chapter “confirms our worst fears about the agreement, and dashes the few hopes that we held out that its most onerous provisions wouldn't survive to the end of the negotiations”.

The EFF noted “perhaps the biggest overall defeat for users” is the extension of the copyright term to life plus 70 years. It also includes provisions that: prohibit the circumvention of digital rights management or the supply of devices for doing so; provide for rightsholders to submit “any legitimate measure of value” to a judicial authority for determination of damages; criminalise those who gain “unauthorised, wilful access to a trade secret held in a computer system”; stipulate that countries must provide online public access to a reliable and accurate database of contract information concerning domain-name registrants; and require most countries to adopt a version of the US’s DMCA notice-and-takedown system.

Cuozzo petitions Supreme Court

After narrowly being denied in its petition for an en banc rehearing of its inter partes review appeal at the Federal Circuit in July, Cuozzo is taking its challenge to the Supreme Court.

Patently-O reports the petition in Cuozzo Speed Tech v Lee asks two questions:

1.       - Whether the [Federal Circuit erred in holding that, in IPR proceedings, the Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning.

             Supreme Court- Whether the [Federal Circuit] erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the Board’s decision whether to institute an IPR proceeding is judicially unreviewable.

Patently-O’s Dennis Crouch noted: “Answers to these questions will fundamentally alter the inter partes review system. The petition does a good job of walking through the importance of the case and then separately explaining their legal argument.” The petition was filed by Sullivan & Cromwell’s Jeffrey Wall.

When the Federal Circuit denied Cuozzo’s petition for an en banc petition in a 6-5 decision, Chief Judge Prost wrote a strong dissent.  “This conclusion cannot stand, as it does, on a silent statute, a contrary legislative history, and a line of case law that counsels an opposite result,” she wrote.

Prost also found unclear the majority’s claim that this particular case "does not involve any restriction on amendment opportunities that materially distinguishes IPR proceedings from their predecessors in the patent statute".

In other Supreme Court IP news, Vringo this week failed in its efforts to get the high court to review the Federal Circuit’s reversal of a judgment against Google.

Copyright does not stretch to yoga

The Ninth Circuit this week declared that yoga poses are not entitled to copyright, reports the Wall Street Journal.

Bikram Choudhury, the pioneer of hot yoga in the 1990s, lost his battle against the founders of Evolution Yoga, which he claimed set up a “copy-cat yoga” system based on his intellectual property. Choudhury’s method consists of 26 positions that must be performed in a set sequence in a room heated to 105 degrees.

Judge Kim McLane Wardlaw affirmed the Central District of California in her opinion this week.

“The panel held that under 17 USC § 102(b), the ‘Sequence,’ developed by Bikram Choudhury and described in his 1979 book, Bikram’s Beginning Yoga Class, was not a proper subject of copyright protection because it was an idea, process, or system designed to improve health, rather than an expression of an idea,” said the opinion. “Because the Sequence was an unprotectible idea, it was also ineligible for copyright protection as a compilation or choreographic work.”

The Electronic Frontier Foundation thought the case could have implications for the Oracle v Google fight over whether APIs should be covered by copyright.

“Significantly, the Ninth Circuit stated that it made ‘no difference that similar results could be achieved through a different organization of yoga poses and breathing exercises’,” said the EFF in a blog post. Choudhury argued that he could have chosen hundreds of different yoga postures, with “countless” arrangements of those postures. Judge Wardlaw rejected that argument, holding that ‘the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright”.

The EFF added: “That analysis matters for software, because it suggests that a recent computer copyright opinion by the US Court of Appeals for the Federal Circuit, Oracle v Google, completely misread the Copyright Act… The Federal Circuit used different reasoning to achieve the opposite result from yesterday’s Ninth Circuit opinion. Specifically, the Federal Circuit held that because Oracle had ‘unlimited options’ and ‘alternative expressions’ of how to write its Java packages, Oracle’s particular choice was copyrightable expression – the exact opposite of what the Ninth Circuit held.”

It concluded: “Yesterday’s opinion makes clear, as we’ve argued before, that Oracle’s claim would have failed under Ninth Circuit law.”

Kyle BassA good week for hedge funds at the PTAB

This week’s biggest Patent Trial and Appeal Board news was the institution of an inter partes review petition from Kyle Bass’s Coalition for Affordable Drugs, after three previous failures. The Board will review a Cosmo Technologies patent covering a treatment for Crohn’s disease and ulcerative colitis. 

But that was not the only hedge fund news. As reported by Bloomberg, shortly before Bass’s petition was instituted the Board also gave the green light to petitions from Nathaniel August’s Mangrove Partners challenging two patents owned by VirnetX.

“An economic motive for challenging a patent claim does not itself raise abuse of process issues,” said Judge Stephen Siu.

The patents had been upheld by the Federal Circuit in VirnetX’s dispute with Apple.

ITC deals Nvidia a blow

An administrative judge at the International Trade Commission has ruled that Samsung and Qualcomm did not violate US law when importing certain Samsung products into the US.

ITC buildingJudge Peter Pender determined that two Nvidia patents were not infringed, and that a third patent was but is not valid.

This will not be the end of the matter. According to Reuters, the ruling will be reviewed by the full commission, with a final decision coming in February.

“We now intend to ask the full commission (which is made up of six commissioners) to review this initial determination and to confirm the previous judgment of the US Patent Office – that the third patent is valid,” said Nvidia on its blog. “If they agree, the ITC would issue an order that would preclude Samsung from importing into the US infringing Samsung mobile devices and smart TVs.

“We are continuing this case by proceeding to the next step in the process because we believe our patents are valid and have been infringed.”

Also on the blog this week:

Looking ahead to the AIPPI Congress

IP Stars surveys now underway

In our news and analysis this week:

Congressional trade mark caucus kicks off with first briefing

Australia takes genetic material patenting ban even further

The impact of insolvency on licence agreements

PTAB institutes Kyle Bass IPR challenging Cosmo Technologies patent

Changes to IP procedures in Latvia

Acquired distinctiveness in a multilingual Europe

Which IP practitioners are moving firms in the Americas?

Wearables – fit for a patent war?

Judge Hacon celebrates small-claim procedure

How changes to US civil procedure rules will affect patent litigation

The legal aspects of 3D printing in Brazil

Demand letters, design patent damages, PTAB institution appeals, reputation damage for employee inventors – the Federal Circuit week in review

Is granting a trade mark government speech?

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