Other Barks & Bites for Friday, March 13: Former USPTO Patent Examiner Settles Conflict Allegations; EU Parliament Endorses EUIPO Register of Works Used to Train AI; U.S.-Based Operations Become Discretionary Denial Factor at PTAB

Want to have your doggie(s) featured in one of our future Barks & Bites Columns? Send your dogs photo(s) along with their name, breed (if you know it) and their age to [email protected]. All photos will be added to the IPWatchdog Dog Wall at IPWatchdog Studios and will be added to the queue of images we select from each week. This week in Other Barks & Bites: the U.S. Department of Justice announces a six-figure settlement with a former U.S. Patent and Trademark Office patent examiner over conflict of interest allegations for the second time in two weeks; Sandoz establishes biosimilar unit to take advantage of “golden decade” of lost exclusivity for blockbuster drugs; USPTO Director John Squires issues a memo establishing U.S.-based operations as a discretionary denial consideration for petitions at the Patent Trial and Appeal Board; the EU Parliament formally adopts a recommendation to create a register of copyrighted works that have been used to train AI models to ensure creators are remunerated; Albania becomes the first World Intellectual Property Organization member nation to accede to the Riyadh Design Law Treaty; and the Fifth Circuit reverses the dismissal of a trademark case after finding minimum contacts by the defendant credit union despite low membership levels in Texas. Former USPTO Patent Examiner Pays Six-Figure Settlement Over Conflict Allegations – On Wednesday, March 11, the U.S. Department of Justice (DoJ) announced that Christine Tu, a former patent examiner at the U.S. Patent and Trademark Office (USPTO), agreed to pay $122,480 to resolve allegations that she violated agency conflict of interest rules by working substantially on one patent application filed by a company in which Tu had a disqualifying financial interest, and by reviewing more than 20 patent applications filed by a commercial competitor of a company in which Tu owned more than $125,000 worth of stock. The DoJ’s announcement follows about two weeks after it revealed that a different USPTO patent examiner agreed to pay $500,000 to settle similar allegations of substantially working on patent applications filed by companies in which the examiner held a direct financial stake. Squires Memo Establishes U.S.-Based Operations as Discretionary Denial Factor – On Wednesday, March 11, USPTO Director John Squires issued a memorandum to all users of the Patent Trial and Appeal Board (PTAB) informing those parties that the agency would begin looking at the extent of U.S.-based operations for both patent owners and PTAB petitioners when analyzing factors for discretionary denial of America Invents Act (AIA) validity challenges at the PTAB. Those considerations would include the extent to which products accused of infringement are made in the U.S., the extent to which products sold or licensed by the patent owner and competing with the accused products are made in the U.S., and whether the petitioner is a small business that has been sued for infringing the patent at issue. GAO Report Advising Against March-In Rights Highlighted in U.S. Chamber Blog – On Tuesday, March 10, the U.S. Chamber of Commerce published a blog post authored by John Manchester, Director of IP Policy at the U.S. Chamber’s GIPC, highlighting several key findings from a recent report by the U.S. Government Accountability Office (GAO) providing guidance on the assertion of government march-in rights under the Bayh-Dole Act of 1980 based on the market price of pharmaceuticals developed in part through federal research funding. Among the GAO’s key findings highlighted by the U.S. Chamber include that march-in rights were designed to ensure market availability and not as a price regulation measure, and that the exercise of march-in rights would only impact a very low percentage of medicines, as few as 2% of medicines that have been commercialized over the past 40 years, while threatening the early-stage funding necessary for turning basic research into medicines available for patient use. EU Parliament Endorses EUIPO Register Listing Copyrighted Works Used to Train AI – On Tuesday, March 10, the European Parliament adopted several recommendations stemming from a report issued by the Legal Affairs Committee (JURI) seeking to address questions raised about the interplay of generative AI and copyright. In a move seen as strongly backing EU artists and creators groups, members of EU Parliament approved proposals to, among other things, create a register at the European Union Intellectual Property Office (EUIPO) of copyrighted works used to train generative AI models in an effort to ensure that copyright owners are remunerated for such uses of their works.