Other Barks & Bites for Friday, November 7: CJEU Action Against EU Commission Referred Over SEP Regulation; Ninth Circuit Affirms CoComelon Copyright Win; and C4IP Urges USTR to Address IP Concerns in USMCA Joint Review

Hans & Tina Sauer’s two-year-old Schnauzer. MILO. 

This week in Other Barks & Bites: the Federal Circuit finds that Motorola failed to demonstrate a protectable property interest in its challenge to the U.S. Patent and Trademark Office’s (USPTO’s) rescission of former Director Vidal’s “compelling merits” memo; the EU Parliament’s legal affairs committee voted to refer the EU Commission to the EU’s highest court over its withdrawal of a proposed regulation on standard-essential patents; Samsung gets hit with a $191.4 million jury verdict over OLED display technologies; the Council for Innovation Promotion asks the U.S. Trade Representative to address specific shortcomings in IP protections among America’s trading partners during joint review of the U.S.-Mexico-Canada Agreement; the Ninth Circuit affirms a $23.5 million jury verdict for CoComelon after finding that the district court did not err in assessing the copyrightability of a baby character in a series of online children’s videos; and the USPTO orders reexamination of a Nintendo patent that protects in-game features utilized by the company’s popular Pokemon gaming series.

Bites 

CAFC Nixes APA, Due Process Challenges to Discretionary Denial Changes at PTAB – On Thursday, November 6, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in In re Motorola Solutions, Inc. denying Motorola’s petition for mandamus relief challenging then-U.S. Patent and Trademark Office Acting Director Coke Morgan Stewart’s decisions this May to deinstitute several inter partes review (IPR) proceedings challenging patents owned by Stellar, LLC. The Federal Circuit ruled that Acting Director Stewart’s rescission of the “compelling merits” memo promulgated by former USPTO Director Kathi Vidal did not require notice-and-comment rulemaking under the Administrative Procedures Act (APA), and that Motorola did not demonstrate a property interest protected by the Due Process clause of the Fifth Amendment because Vidal’s “compelling merits” memo did not mandate an outcome on IPR petitions but rather directed the Patent Trial and Appeal Board (PTAB) to consider certain factors in deciding IPR institutions.

Ninth Circuit Finds No Error in ‘Thick’ Copyright for JJ Character in Affirming Copyright Verdict – On Thursday, November 6, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished decision in Moonbug Entertainment Ltd. v. BabyBus Co., Ltd. affirming the Northern District of California’s final judgment and entry of a $23.5 million jury verdict against Chinese children’s entertainment video producer BabyBus over its Super JoJo show, which the jury found copied dozens of characters, plot devices and other protectable elements from CoComelon shows depicting an original baby character named JJ. Among the Ninth Circuit’s findings was that the district court did not err in finding that JJ was an especially distinctive character due to several unique character traits, and that the district court did not err by finding thick copyright protection in JJ, noting that the jury found illicit copying under the thin-protection standard advanced by BabyBus.

EU Parliament’s JURI Committee Votes to Sue EU Commission Over Withdrawn SEP Regulation – On Tuesday, November 4, the European Parliament’s Committee on Legal Affairs (JURI) voted in favor of referring the European Commission to the Court of Justice for the European Union (CJEU) to challenge the EU Commission’s withdrawal earlier this year of a proposed regulation for administratively determining licensing rates for standard-essential patents (SEPs) in the 4G and 5G telecommunications space. The referral from JURI heads to the desk of Roberta Mensola, President of the European Parliament, who has until November 14 to decide whether to file a case with the CJEU or to send JURI’s referral out for further votes.

UK High Court Avoids Primary Infringement Questions in Mixed Ruling Favoring Stability AI – On Tuesday, November 4, the United Kingdom’s High Court of Justice issued a ruling authored by Mrs Justice Joanna Smith DBE which dismissed the majority of trademark infringement allegations made by visual media company Getty Images against generative artificial intelligence (AI) developer Stability AI after finding that Getty did not provide evidence of real-world written prompts used to generate its trademarks and that Stability had taken actions to filter Getty’s image watermarks out of its results. The UK High Court’s ruling also found for Stability on Getty’s copyright infringement claims, dismissing secondary copyright infringement allegations because Stability’s AI models are not themselves copies of Getty’s works after Getty’s primary copyright infringement allegations were narrowed from the case due to a lack of evidence that Stable Diffusion was developed within the UK.

C4IP Urges USTR to Use USMCA Joint Review to Address Shortcomings on IP Protections – On Monday, November 3, the Council for Innovation Promotion (C4IP) sent a comment addressed to U.S. Trade Representative (USTR) Jamieson Greer urging the USTR’s office to leverage the upcoming joint review of the United States-Mexico-Canada Agreement (USMCA) to address a lack of compliance with intellectual property provision among both of the United States’ trading partners under the agreement. In particular, C4IP highlights Mexico’s failure to implement promised copyright and industrial property regulations and Canada’s lack of border enforcement relative to e-commerce piracy.

Samsung Faces $191.4M Eastern Texas Jury Verdict in OLED Patent Case – On Monday, November 3, a jury verdict entered in the Eastern District of Texas found that South Korean electronics conglomerate Samsung had infringed two of five patents asserted by Irish company Pictiva Displays, the successor to the patent portfolio owned by organic light-emitting diode (OLED) pioneer OSRAM, awarding a lump sum royalty of $191.4 million and finding that Samsung’s infringement of both OLED patents was willful. Pictiva had accused a range of Samsung products of infringing its OLED patents, including smartphones, TVs, computers and wearables with enhanced resolution and improved efficiency, and was represented in the Eastern Texas proceedings by counsel from Irell & Manella.

Barks

USPTO Extends Comment Period on Revisions to IPR Institution Practices – On Friday, November 7, the U.S. Patent and Trademark Office issued a notice in the Federal Register announcing that the agency would extend the public comment period on its notice of proposed rulemaking (NPRM) that would change several aspects of institution practice surrounding IPR proceedings at the PTAB, including requiring petitioners to stipulate that they will not pursue invalidity in other forums and foreclosing institution when another forum has already adjudicated validity.

EPO Meeting With CNH Industrial is Agency’s 22nd With Large Applicants This Year – On Tuesday, November 4, the European Patent Office (EPO) announced that it held a high-level online meeting with representatives from Italian-American multinational CNH Industrial, which is among the top 10 patent applicants at the EPO among companies headquartered in the Netherlands, marking the 22nd such meeting with a large patent applicant during 2025 as part of the agency’s industry cooperation efforts for its Quality Action Plan 2025.

Judge Kronstadt Approves Joint Stipulation to Consolidate Midjourney Copyright Cases – On Tuesday, November 4, U.S. District Judge John Kronstadt filed an order pursuant to a joint stipulation consolidating copyright infringement cases brought in the Central District of California by Hollywood movie studios Warner Bros. and Disney against generative AI firm Midjourney over that company’s image and video generation platform.

USPTO Orders Reexamination of Nintendo’s Pokemon Patent for Summoning Subcharacters – On Monday, November 3, the U.S. Patent and Trademark Office announced that Director John Squires had ordered the reexamination of U.S. Patent No. 12403397, issued to video game company Nintendo and protecting a game program configured to allow a user to summon subcharacters like Pokemon.

EUIPO Launches AI-Powered Early TM Screening Pre-Filing Tool – On Monday, November 3, the European Union Intellectual Property Office (EUIPO) announced that the agency was launching a new trademark pre-filing tool called Early TM Screening, which uses artificial intelligence to provide assessments of registration issues with prospective trademark applications before they are filed.

Adeia Files Semiconductor Patent Infringement Suit Against AMD in Western Texas – On Monday, November 3, San Jose, CA-based semiconductor developer Adeia filed patent infringement lawsuits against rival chip company Advanced Micro Devices (AMD) in the Western District of Texas asserting claims from a series of 10 patents, including seven covering hybrid bonding technology and three covering advanced process node technology.

This Week on Wall Street

Microsoft AI Head Suleyman to Lead New MAI Superintelligence Team – On Thursday, November 6, a blog post on the official website Microsoft AI authored by Microsoft AI CEO Mustafa Suleyman announced the formation of a new MAI Superintelligence Team to be led by Suleyman that will conduct advanced AI research to address a range of non-domain specific problems facing humanity.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2024 are announcing quarterly earnings next week (2023 rank in parentheses):

• Monday: Kawasaki Heavy Industries Ltd. (t-215th); Sharp Corp. (55th)
• Tuesday: Softbank Group Corp. (141st); Sony Corp. (11th)
• Wednesday: Bayer AG (108th); Bridgestone Corp. (t-263rd); Cisco Systems, Inc. (32nd); Hon Hai Precision Industry Co., Ltd. (290th); Infineon Technologies AG (65th); Terumo Corp. (t-285th)
• Thursday: Applied Materials, Inc. (46th); Deutsche Telekom AG (t-69th); LG Corp. (2nd); Merck Group (271st); Rakuten, Inc. (t-268th); Siemens AG (40th); Tencent Holdings Ltd. (34th)
• Friday: None