This week in IP: Apple v Ericsson trial date set, Dolby IP chief joins Via, and more

The European Commission began gathering evidence on Monday, February 14, to inform a new policy on the standard-essential patent licensing market, which it says lacks transparency and is unpredictable.

The highly anticipated initiative will combine a public consultation on the problems in the SEP licensing sector, as well as an impact assessment of potential policy interventions.

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Apple and Ericsson’s 5G patent trial will begin in June 2023, Chief Judge Rodney Gilstrap at the District Court for the Eastern District of Texas announced on Tuesday, February 15.

The landmark 5G case began when Ericsson sued Apple at the eastern Texas court in October 2021, seeking a declaration that it had complied with its commitment to license standard essential patents on fair, reasonable, and non-discriminatory (FRAND) terms.

Apple then sued Ericsson in the same district in December of that year, claiming that the latter’s actions violated the agreement with the iPhone company and its FRAND commitments.

Gilstrap also announced several other important deadlines in his scheduling order.

He said there would be a scheduling conference on March 16 2022 in Marshall, Texas.

Ericsson is supposed to identify and give notice of trial witnesses on April 3 2023, and defendant Apple is supposed to do the same by April 10.

The parties will have a pre-trial conference on May 22 2023.

Via Licensing named Heath Hoglund as its new president on Wednesday, February 16, marking the end of his 15-year stretch as vice president for intellectual property and standards at parent company Dolby.

Via, a wholly owned Dolby subsidiary, offers licensing programmes for technical audio standards including advanced audio coding (AAC) and MPEG-4.

In a recent interview with Managing IP, Hoglund said patent licensing through pool programmes like Via was a “very significant” revenue source for Dolby, and singled out Via’s AAC programme as one of the biggest success stories for patent pools in the audio-visual sector.

Despite the success of the programme, however, hold-out remains a challenge, he added.

“We still see companies that decide to hold out for whatever reason and require active litigation to drive them to licences for technologies, for which the pool programmes are [already] extraordinarily well accepted,” Hoglund said.

Andy Sherman, chairman of Via’s board of directors, said in response to Hoglund’s move: “Heath has a tremendous track record of collaborating across the global ecosystem to advance technology standards and adoption.”

“I’m confident Heath’s leadership and IP insights will further accelerate Via’s growth as it continues to develop new IP licensing approaches.”

Hoglund, who is based in San Francisco, had global responsibility for patents, trademarks and copyright in his former role, and for the strategic development of Dolby’s patent portfolio.

A new report on 5G patents from the USPTO revealed on Tuesday, February 15, that a dominant player in the wireless technology space had yet to emerge.

The report, which examined the companies that had applied for the most patents for 5G technologies at the USPTO, found that six firms – Ericsson, Huawei, LG, Nokia, Qualcomm, and Samsung – equally and consistently competed in patent activity.

The relevant technological spaces that the USPTO considered were management of local wireless resources, multiple use of transmission path, radio transmission systems, and information error detection or error correction in transmission systems.

While Huawei filed the most 5G-related patent families, the report revealed, Qualcomm topped in triadic patent families covering the US, the EU, and Japan. Qualcomm’s patent claims had the greatest legal breadth during the examination period, the report said.

The report also revealed that LG and Qualcomm were the most active for ETSI-declared filings, which accounted for approximately half of all 5G patent applications. Ericsson and Nokia, however, ranked highest in terms of radicalness, which indicated fewer prior art citations.

ZTE is sometimes cited as a seventh competitor in the 5G space, the USPTO noted, but the Chinese technology company’s patents and applications were more focused on its home market than foreign territories during the examination period considered.

The US Court of Appeals for the Federal Circuit announced on Tuesday, February 15, that it would resume in-person arguments in March, bringing an end to nearly two years of a remote argument system instituted in response to COVID.

The court said it would continue to limit attendees to those attorneys arguing for parties in cases and a single “necessary attendee”.

The announcement also indicated that attendees would still have to provide a negative PCR test within 72 hours of their appearance as part of ongoing COVID protocols.

Attendees were advised to adhere to the court’s Revised Protocols for In-Person Arguments. The court issued these guidelines in December, noting that they would apply from January 2022.

The Federal Circuit shut its doors to the public, as did most other US courts, in March 2020. While most district courts have reopened (some several times) for in-person proceedings since then, the appellate court has stayed shut.

Since the court shut its doors, it has either decided cases on the briefs or heard arguments by telephone.

The CNIPA announced on Monday, February 14, that it had clamped down on and would continue to target suspected malicious trademark applications related to the Winter Olympics.

According to the Chinese IP office, applications related to the official mascot and some athletes’ names infringed the personality rights and other legitimate IP of others and had “damaged the good image of China’s strict protection of IP rights”.

The CNIPA said it had rejected 429 Olympic-related trademark applications, including those for US-born Chinese skier Eileen Gu. Gu, who won gold in the women’s big air freestyle skiing competition at the games, is hugely popular in China.

Other applications rejected included ‘Bingdundun’ – a play on Bing Dwen Dwen, the official mascot of the 2022 Winter Olympics.

The CNIPA said it attached great importance to the IP protection for the Winter Olympics and the Winter Paralympics.

This year’s Winter Olympics, taking place in Beijing, began on February 4 and will end February 20.

The US Court of Appeals for the Federal Circuit denied panel rehearing and rehearing en banc of GSK’s dispute with Teva on Friday, February 11.

Federal circuit judges Sharon Prost, Timothy Dyk and Jimmie Reyna dissented from the majority.

Prost said the court’s decision not to rehear the case was disappointing, expressing concern that the decision would cause more skinny-label generics to go to trial, even though Congress enacted  skinny-label provisions to allow businesses to avoid inducement liability.

“Now, no skinny-label generic is safe,” she wrote.

The Federal Circuit said Teva induced infringement of GSK’s patented indication for carvedilol despite using a skinny label in August 2021.

Counsel at generics companies subsequently expressed concerns that the ruling could have some serious implications for them.

But there have been some indications that the effects of GSK v Teva might be limited, including Judge Richard Andrews’ dismissal of a skinny label case at the District Court for the District of Delaware against generic company Hikma on January 4.

The New York Stock Exchange applied to register the term ‘NYSE’ as a trademark covering non-fungible tokens on Thursday, February 10, indicating a move towards the online trading space.

According to the application at the USPTO, the mark would cover an online marketplace for buyers, sellers and traders of downloadable digital goods authenticated by NFTs.

The application lists classes 9, 35, 36 and 42 and specifies a range of virtual reality goods including digital currency, virtual currency, cryptocurrency, digital tokens, crypto tokens and utility tokens.

But a spokesperson for the NYSE said it had no immediate plans to launch cryptocurrency or NFT trading, noting that the exchange regularly considers new products and protects its IP rights accordingly.

The NYSE’s filing also hints at a metaverse expansion, suggesting that the organisation seeks to provide “virtual reality, augmented reality and mixed reality software”.

Many in the IP sector have recently debated where and how they should protect their rights to take account of developments such as NFTs and the metaverse.

China remains the leading patent filer under the Patent Cooperation Treaty system, new figures from WIPO confirmed last Thursday, February 10.

It is the third year in a row that China has soared to the top of WIPO’s PCT rankings, with the country accounting for 69,540 filings, representing a year-on-year increase of 0.9%.

The US followed in second place with 59,570 applications (+1.9%), and Japan in third with 50,260 (-0.6%).

South Korea (20,678 applications, +3.2%) and Germany (17,322 applications, -6.4%) rounded out the top five, while the Asia region accounted for a majority of all PCT filing activity.

Chinese telecoms company Huawei was the most prolific individual filer, with 6,952 published applications. US-based chipmaker Qualcomm lagged behind with 3,931 filings, and South Korean electronics manufacturer Samsung made 3,041.

Computer technology accounted for 9.9% of all total applications, the most of any individual technology field, followed by digital communication (9%) and medical technology (7.1%).

Overall, global PCT filings grew by 0.9% to reach a record number of 277,500.

"These figures show that human ingenuity and entrepreneurial spirit remain strong despite the disruptions caused by the pandemic,” said WIPO director general Daren Tang.