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This week in IP: Qualcomm beats FTC, Fed Circuit extends closure, Haier files constitutional case

Managing IP rounds up the latest patent, trademark and copyright news, including some stories you may have missed

Qualcomm licensing model not anti-competitive, rules Ninth Circuit

The US Court of Appeals for the Ninth Circuit ruled on Tuesday, August 11, that Qualcomm’s standard essential patent licensing model, including its insistence on licensing only to end-product manufacturers and ‘no chips, no licence’ policy, was not anti-competitive.

In its decision in FTC v Qualcomm, the court reversed a previous judgment from Judge Lucy Koh at the District Court for the Northern District of California in 2019 and held that Qualcomm’s OEM-level licensing policy, however novel, did not constitute a violation of the Sherman Act.

“The court of appeal's unanimous reversal, entirely vacating the district court decision, validates our business model and patent licensing programme and underscores the tremendous contributions that Qualcomm has made to the industry,” said Don Rosenberg, executive vice president and general counsel for Qualcomm.

Read more here.

Other Managing IP stories from this week include:

·       Corona owner: we have opposed 100 trademark applications

·       American Axle split opinion refuels drive to reform eligibility law

·       Survey: IP strategies remain intact despite COVID-19

·       In-house debate shift to US-style trademark law

·       Avanci 5G pool deep dive: its creation and potential influence

·       TC Heartland becoming 'major point of dispute' in ANDA cases

·       In-house: other brands' misfortunes offer important lessons

Federal Circuit extends courtroom closure to September

The US Court of Appeals for the Federal Circuit on Thursday, August 13, extended the closure of its courtrooms until September 14, having previously issued an administrative order that closed said courtrooms until August 13.

The joint order was issued with the Court of Federal Claims, which shared the National Courts Building complex in Washington DC with the Federal Circuit, and took immediate effect.

Building access will continue to be limited to court staff, with additional access being granted on a case-by-case basis. Circuit judges will continue to manage cases remotely until the court building reopens by conducting telephonic hearings and making decisions in the briefs.

The extension was issued because of the continued risk to public health imposed by COVID-19 and state-wide efforts to reduce transmission of the disease.

In an interview in June, Circuit Judge Kathleen O’Malley said she suspected that the court would go back to hearing oral arguments for most cases once the courtrooms could safely open again.

Haier files constitutional complaint over German FRAND judgment

Chinese electronics manufacturer Haier has filed a constitutional challenge against the German Federal Court of Justice’s ground-breaking ruling on standard essential patent licensing in Sisvel v Haier, it was reported on Friday, August 7.

Haier lawyers told Juve Patent last week that the company made the complaint to the German Federal Constitutional Court on August 4 because it believed that its constitutional rights were violated when the Federal Court of Justice sided with patent pool operator Sisvel.

Judge Peter Meier-Beck at the Federal Court of Justice ruled in May that implementers must accept an offer that is fair, reasonable and non-discriminatory (FRAND) from an SEP owner, even if a lower FRAND rate has been offered to a competitor. He followed up with a written justification for the ruling in July.

Should Germany’s highest court choose to hear the complaint, its decision will probably help shape the SEP licensing landscape in Europe.

Indian IPO supports calls to scrap patent appeal board

The Indian Controller General’s Office, also known as the Indian IP Office, has backed a petition to abolish the IP Appellate Board, according to the authors of the petition.

The blog Spicy IP reported on Monday, August 10, that the office largely agreed with a petition sent to the Ministry of Commerce in May asking the department to consider shutting down the IPAB because of its poor functionality and design.

Petition authors Prashant Reddy and Rahul Bajaj had suggested to the ministry, which forwarded their petition to the IP office, that the existing functions of the IPAB be shifted back to the high courts and commercial courts.

Reddy wrote in Spicy IP that he was pleasantly surprised by the IP office’s agreement and hoped that the Ministry of Commerce might share their vision for IP in India.

Senator Tillis presses USPTO to improve efficiency

In a letter sent to USPTO director Andrei Iancu on Monday, August 10, Republican senator Thom Tillis urged the office to make administrative changes that he felt would help improve the efficiency of the US patent system.

The chair of the Senate Judiciary Subcommittee on Intellectual Property referred to a paper on patent reform written by Stanford University professors Lisa Larrimore Ouellette and Heidi Williams, and asked that the USPTO to make two changes outlined in the academic article.

The first proposal was for patent applicants to more clearly label experimental data to distinguish hypothetical experimental data from data resulting from real experiments. The second was to clarify patent ownership information.

“These proposals would promote policy goals that you and I share: enhancing our patent system so that it provides optimal incentives for innovators and inventors while also minimising transactional costs that may discourage the development of new products,” wrote Tillis.

It is not yet known whether Iancu has replied to the letter or intends to make the suggested changes.

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