Thursday, August 31, 2017

NantKwest panel decision on USPTO attorneys’ fees goes en banc at CAFC

An order at the CAFC on August 31, 2017 noted:

A sua sponte request for a poll on whether to reconsider this case was made. A poll was conducted and a majority of the judges who are in regular active service voted for sua sponte en banc consideration.

The question presented:

The parties are requested to file new briefs. The briefs should address the following issue: Did the panel in NantKwest, Inc. v. Matal, 860 F.3d 1352 (Fed. Cir. 2017) correctly determine that 35 U.S.C. § 145’s “[a]ll the expenses of the proceedings” provision authorizes an award of the United States Patent and Trademark Office’s attorneys’ fees?

See previous post on IPBiz

CAFC in Nantkwest: “[a]ll expenses of the proceedings” under § 145 includes the pro-rata share of the attorneys’ fees the USPTO incurred to defend applicant’s appeal.


Kevin Noonan at Patent Docs begins his post on the en banc order:

The first scene in the iconic dystopian 1985 sci-fi movie Brazil by Terry Gilliam (one of the Monty Python troop) is of a peaceful citizen being snatched from his comfy chair by jackbooted, black-clad members of a SWAT team, who unceremoniously stuff him into a body bag-restraint as they take him away. As a final insult, they leave something behind for his wife and family -- a bill, for the cost of taking him into custody.

Of the word "dystopian," one finds mention in case law. For example, from footnote 4 of the 7th Circuit case, National Power, 864 F.3d 529 (CA7 2017) :

National Power cites to a Wikipedia article about Judge Dredd to claim that the penalty imposed was arbitrary and capricious and as if "a police officer arrested a bank robber, summarily declared the robber's guilt and sentenced him to prison time ... ." Judge Dredd, both in the pages of comic books and on the screen, is a "street judge" in a dystopian future who is empowered to summarily arrest, convict, sentence, and execute offenders. See (visited July 18, 2017). It is obvious to us that the Administrator did not engage in the type of justice Judge Dredd embodies. The Administrator did not arbitrarily declare, "I am the law!" and hand down a penalty without considering all of the relevant factors.

In the context of copyright [320 F. Supp. 2d 84 ]:

Finally, it bears emphasis that The Forest's alteration of the tone, lyrics and musical features of Wonderful World makes clear that the song itself is a target of parodic criticism, and that the creators of The Forest are not merely using the original song as an ironic or satirical device to comment on what they view as a less than wonderful world. The latter kind of use, which typically requires licensing, can be illustrated by the song's use in certain films. For example, in Terry Gilliam's 12 Monkeys, the Armstrong recording of Wonderful World is played over the final credits, ironically contrasted with the film's depiction of a distinctly dystopian science fiction future, and in Barry Levinson's Good Morning, Vietnam, the song is played on the sound track accompanying scenes of wartime violence and destruction. In these cases, the original song itself is used (essentially in its entirety) to comment on negative aspects of the real or imagined worlds depicted by the filmmakers, but the song itself is not parodied.
Sony concedes that Wonderful World is a significantly creative work, and therefore resides within the core of copyright protection. (Def. Mem. at 14-15.) This does not weigh heavily against a finding of fair use, however, because in the context of parody, HN15Go to this Headnote in the case.this factor "is not much help … in separating the fair use sheep from the infringing goats … since parodies almost invariably copy publicly known, expressive works." Campbell, 510 U.S. at 586; Leibovitz, 137 F.3d at 115.

[In passing, recall "We'll meet again," at the end of Dr. Strangelove.]

Also in the context of copyright [ 2016 U.S. Dist. LEXIS 92516 ]:

Accordingly, the elements of a dangerous maze and robotic creatures are unprotectable scenes a faire, as these elements often recur in science fiction, dystopian, and horror genres. The Court, therefore, finds the Complaint lacks any allegations, beyond Plaintiffs' conclusory statement, that Defendants infringed on Plaintiffs' protectable expressions of a giant maze and robotic creatures. Thus, Plaintiffs' Count I is subject to dismissal with prejudice under Rule 12(b)(6). See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) ("A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.").

Separately, the word "dystopian" appeared in an August 31, 2017 post by K. Hill:

Deliberately manipulating search results to eliminate references to a story that Google doesn’t like would be an extraordinary, almost dystopian abuse of the company’s power over information on the internet. I don’t have any hard evidence to prove that that’s what Google did in this instance, but it’s part of why this episode has haunted me for years: The story Google didn’t want people to read swiftly became impossible to find through Google.

This sort of thing would be like what IPBiz has referenced as a Sikahema, in homage to the disappearance of the "Rutgers is Wrong" rant.


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