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This week in IP: Biden wins, EU wants more counterfeits action, USPTO appoints general counsel

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

Joe Biden has won the US presidency, pending legal challenges by Donald Trump, and practitioners must now look to see what kind of effect his election will have on intellectual property.

As Managing IP's Americas editor Patrick Wingrove reports, Biden will have to decide whether to keep, increase or get rid of tariffs levied against China by Trump. He will also have to determine whether to keep the first phase of the US’s trade deal with China.

Beyond China, Biden will probably replace USPTO director Andrei Iancu and will have to approve a new head of the Department of Justice's Antitrust Division.

Click here to read more.

Other Managing IP stories we published this week include:

·       Female IP leaders divulge COVID-created career challenges

·       How Brexit changes SPCs in the UK – and the EU

·       Meet Cristian Fracassi, the man behind the COVID snorkel mask

·       Every IP subcommittee senator wins re-election – what now?

·       DABUS applicant: ‘it would be criminal to list myself as inventor’

·       Podcast: Finnegan wins two honours at the LMG Life Sciences Awards

·       Five IP-savvy judges reveal how they transitioned to US courts

USPTO appoints new general counsel

The USPTO has appointed David Berdan as general counsel. Berdan is taking over from acting general counsel, Nicholas Matich, who replaced Sarah Harris. The office announced his appointment on Tuesday, November 10.

Berdan joined the office from Gaming Arts, where he was general counsel and compliance officer. He has also worked as patent counsel at Corning, vice president and IP counsel at The Coleman Company, IP chief counsel at Invista and vice president of legal at International Game Technology.

“America’s inventors, creators, and innovators will be well served with David Berdan as general counsel at the USPTO,” said director Andrei Iancu in a statement. “With his leadership experience and knowledge of so many aspects of technology and the law, Berdan will help guide the USPTO as we endeavour to expand innovation and support a growing and dynamic US economy.”

Apple snags motion to transfer from Federal Circuit

The US Court of Appeals for the Federal Circuit granted Apple permission to move a case from the District Court for the Western District of Texas to the Northern District of California on Monday, November 9.

Non-practising entity (NPE) Uniloc, which is suing Apple for patent infringement, originally filed in the Western District of Texas, which denied Apple’s motion to transfer.

One factor that courts weigh when considering motions to transfer is the relative ease of access to sources of proof. The Federal Circuit ruled that the Western District of Texas erred when considering witnesses as a source of proof.

The Federal Circuit added that the Western District misapplied the law when it analysed the location of relevant documents. The appellate court wrote: “The district court’s errors resulted in a patently erroneous result.”

Judge Kimberly Moore dissented, saying. “I believe the only patently erroneous result here is the one reached by the majority.” 

She added: “Though the standard of review is not de novo, because the majority has approached the case as though it is, let me add – I agree with the district court and I would have denied transfer de novo.”

Western Texas attracts a lot of NPEs because of Judge Alan Albright’s experience and promise to adjudicate proceedings faster than the Patent Trial and Appeal Board. Although Uniloc lost on venue issues, plaintiffs are often less likely to run into these issues in this district because a lot of tech companies have established places of business there.

Twitch apologises for handling of DMCA issues

Twitch, a video-streaming service, apologised to users for its handling of Digital Millennium Copyright Act issues.

Twitch received some criticism from users because the platform removed content without giving them the ability to file counter-notices, and didn’t give enough information about the takedown process.

Twitch acknowledged that the warning emails it sent users didn’t contain all the information they would normally get in a DMCA notification. It admitted that the only option it gave creators was a mass deletion tool, and that it only gave users a three-day notice to use this tool.

“We could have developed more sophisticated, user-friendly tools a while ago. That we didn’t is on us,” the website wrote. “And we could have provided creators with a longer time period to address their VoD and Clip libraries – that was a miss as well. We’re truly sorry for these mistakes, and we’ll do better.”

The website reported that until May this year, streamers received fewer than 50 DMCA notifications annually. But since May, record label representatives have sent thousands of notices each week, with many aimed at Twitch users’ archives.

The platform told creators that they needed to stop playing recorded music in their streams, and delete older posts that have recorded music. Twitch added that it had paused its processing of copyright strikes associated with batches of notifications to give users tools and time to deal with them.

European Council wants more action on counterfeits

The European Council wants the European Commission to do more to curtail counterfeits.

The council noted on Tuesday, November 10, that there were an unacceptably high number of counterfeits available, including some that threaten the health and safety of consumers.

It encouraged the commission to provide country-by-country data on levels of counterfeiting and piracy and to establish principles to increase collaboration between rights owners, intermediaries and law enforcement authorities. 

It added that the commission should propose measures requiring online platforms to take proportionate measures addressing fakes.

US and Brazil partner against piracy

US law enforcement partnered with Brazil’s Secretariat of Integrated Operations at the country’s Ministry of Justice and Public Security to execute seizure warrants against three domain names allegedly engaged in piracy. 

The domain names are megatorrentshd.biz, comandotorrentshd.tv, and bludv.tv. Website visitors will find a seizure banner that informs them that federal authorities have seized the domain name and that wilful copyright infringement is a federal crime.

According to the US Department of Justice, megatorrentshd.biz had about 84 navigation pages, with 20 film titles per page and 21 navigation pages with about 16 television series titles per page.

Bludv.tv offered around 670 navigation pages with approximately 14 titles per page, and comandotorrentshd.tv displayed about 124 navigation pages with 10 titles per a page.

TiVo and Comcast reach licensing agreement

TiVo and Comcast have announced a 15-year patent licence agreement that resolves all outstanding litigation. 

The companies’ previous agreement had expired in 2016. The new contract provides broad coverage under TiVo’s patent portfolios into 2031.

“We are very pleased to conclude this agreement with Comcast, one of the world’s leading media and technology companies that is widely recognised for its innovative products and solutions,” said Samir Armaly, president of IP at Xperi, which merged with TiVo in June this year. 

In his statement, he added: “The agreement illustrates our ability to execute key renewals with our largest customers as the video market continues to experience significant technological and business evolution.”

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