Other Barks & Bites for Friday, November 14: WIPO Study Shows IP Awareness Growing in Asia-Pacific; EPO Says Influencers Respect IP But Fear Open Discussions; CNIPA Patent Filings Increase Nearly 10% in 2024

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This week in Other Barks & Bites: Huawei announces that it earned $630 million USD in patent licensing revenues last year; the U.S. Supreme Court nixes CPC Patent’s cert petition challenging the Federal Circuit’s Rule 36 practice on the same day that it faces another Rule 36 ruling; WIPO’s World Intellectual Property Indicators report shows that patent application filings at China’s patent office increased nearly 10% last year while WIPO’s IP awareness report shows major strides in the Asia-Pacific region; Bloomberg reports on a trend of trademark cancellation cases in Russia against Western brands; a German regional court in Munich finds that OpenAI violated the country’s copyright laws by training its AI model on copyrighted German song lyrics; the Federal Circuit awards unicycle maker Ninebot a new trial on lost profits after finding that the district court erred in excluding evidence of noninfringing substitutes; and the EPO issues its first-ever study on social media influencers and IP, finding a high percentage of influencers who verify branded content but also a significant subset who fear losing followers if they discuss IP.

Bites

Ninebot Wins New Trial at CAFC After District Court Excludes Noninfringing Substitutes – On Friday, November 14, the U.S. Court of Appeals for the Federal Circuit issued a ruling in Inventist Inc. v. Ninebot Inc. (USA) affirming the Western District of Washington’s summary judgment ruling of noninfringement, agreeing with the district court that Ninebot’s electric unicycles did not include claimed surfaces for leg contact protruding from the sides of the wheel, and dismissing Ninebot’s appeal for a new trial for insufficient evidence of marking as required by 35 U.S.C. § 287(a) after finding that it lacked jurisdiction because Ninebot did not file an additional or amended notice of appeal including the grounds from its post-trial motion for a new trial. However, the appellate court found that the Western Washington district court improperly excluded evidence of noninfringing substitutes offered by Ninebot, reversing- and remanding-in-part for a new trial on lost profits after holding that the proper standard on noninfringing substitutes must consider alternative actions the infringer foreseeably would have taken, including the simple redesign offered by Ninebot which the district court rejected because it wasn’t currently on the market.

CAFC Considers Expert Testimony on Ordinary Observer Perspectives in Design Patent Cases – On Thursday, November 13, the Federal Circuit issued a precedential ruling in Smartrend Manufacturing Group, Inc. v. Opti-Luxx Inc. vacating a design patent infringement ruling awarded by the Western District of Michigan after finding that the district court erroneously construed the claim term “transparency” as being equivalent with “translucent,” which was contrary to the plain and ordinary meaning of the claim term. Although the Federal Circuit separately found that Opti-Luxx had forfeited its challenge to Smartrend’s expert testimony on the perspective of ordinary observers, the appellate court noted that “[i]t seems logical” that principles on expert testimony submitted to show the perspective of persons of ordinary skill in the art (POSAs) from the utility patent context would likely apply to design patent cases as well, “provided the expert can establish familiarity with that perspective.

WIPO IP Awareness Study Shows Progress in Asia-Pacific Region Since 2023 – On Thursday, November 13, the World Intellectual Property Organization (WIPO) published its WIPO Pulse 2025 report on global awareness of and trust in intellectual property systems, which this year reached 35,500 respondents across 74 countries, becoming the world’s most comprehensive survey on IP perceptions. This year’s survey showed major progress in increased awareness of IP rights among respondents from the Asia-Pacific region, with copyright awareness increasing from 32% to 40% and trademark awareness increasing from 26% to 34% since the inaugural WIPO Pulse study was released two years ago, although Asia-Pacific remains with Western Europe among the lowest scoring regions in the study.

Worldwide Trademark Filings Stay Flat During 2024, Chinese Patent Filings Up Nearly 10% – On Wednesday, November 12, WIPO published its annual World Intellectual Property Indicators (WIPI) report showing that worldwide trademark filings remained essentially the same between 2023 and 2024, which the report called a sign of recovery in trademark filings following a two-year slowdown. Design filings at intellectual property offices across the globe increased 2.2% during 2024 up to 1.6 million while global patent filings were up 4.9% to 3.7 million last year, an increase driven in large part by a 9.3% growth rate in patent filings at China’s National Intellectual Property Administration, which reached 1.8 million applications during 2024.

EUIPO Study Shows Influencers Respect IP Despite Fears Over IP Discussions – On Monday, November 10, the European Union Intellectual Property Office (EUIPO) published a study entitled Influencers and IP, the first study of its kind examining the engagement between social media influencers in the EU and IP rights, surveying 300 influencers active on Instagram, TikTok and YouTube from across all 27 EU member states. Among the study’s findings include that, despite 92% of influencers reporting that they verify brands before posting and only 5% admitting to promoting infringing goods over the past 12 months, 1 in 6 influencers responding to the survey feared losing followers from their accounts if they discussed intellectual property matters openly on their channels.

CPC Patent Gets Another Chance at PTAB, But SCOTUS Stonewalls Rule 36 Challenge – On Monday, November 10, the Federal Circuit issued a pair of rulings impacting patent claims to biometric card security systems owned by CPC Patent. In one, a panel majority reversed the Patent Trial and Appeal Board’s (PTAB) obviousness determination in an inter partes review (IPR) proceeding petitioned by ASSA ABLOY after finding that the Board erred in its determination that a prior art system that associated data met a claim limitation for setting or establishing a memory location where the data is stored over a dissent from Circuit Judge Evan Wallach arguing that the CAFC majority improperly substituted the PTAB’s factual findings with its own. In the second, the Federal Circuit issued a Rule 36 summary affirmance of the PTAB’s invalidation of other claims owned by CPC Patent in an IPR petitioned by Apple. On the same day, the U.S. Supreme Court issued an order list in which it denied cert to CPC Patent’s petition for writ challenging the Federal Circuit’s Rule 36 practice as violating statutory mandates that the Federal Circuit provide an opinion when reviewing agency decisions.

Barks 

U.S. Chamber to Honor IP Champions Following Digital Piracy Symposium Next Tuesday – Next Tuesday, November 18, the U.S. Chamber of Commerce will host its second annual digital piracy symposium, which will explore issues of digital IP theft that cut across several industries, after which the Chamber’s Global Policy Innovation Center will host an IP Champions Reception honoring those demonstrating exceptional commitment to IP rights, including Senator Thom Tillis (R-NC), Representative Hank Johnson (D-GA), North Carolina Secretary of State Elaine Marshall, and Brazilian anti-piracy organization Operation 404.

Western Brands Under Increasing Trademark Cancellation Threat in Russia – On Thursday, November 13, Bloomberg Businessweek reported on analysis of Russian court documents showing that, since the beginning of 2024, more than 300 companies from the United States and Europe have faced trademark cancellations in Russia following a significant increase in such filings by Russian companies and nationals.

ClaimsHero Files Opposition to Order Limiting Communications in Anthropic Class Settlement – On Wednesday, November 12, consumer justice organization ClaimsHero filed an opposition to a motion filed by counsel representing the author class covered by the landmark $1.5 billion copyright settlement with Anthropic, rejecting allegations that it had tricked authors into opting out of the settlement and allowing ClaimsHero to represent their interests.

Munich Regional Court Finds Copyright Violation in Training OpenAI on Lyrics – On Tuesday, November 11, a German regional court in Munich ruled that generative artificial intelligence developer OpenAI had violated German copyright laws by training its AI model on copyrighted songs in a case brought by the music rights group GEMA, ordering OpenAI to pay an undisclosed amount of damages.

Huawei Reports $630M in Patent Licensing Revenue During 2024 – On Tuesday, November 11, Chinese telecommunications giant Huawei announced at its sixth Innovation and Intellectual Property Forum that the company earned $630 million USD in patent revenue licensing during 2024 and that it had filed another 6,600 patent applications under the Patent Cooperation Treaty that same year, making Huawei one of the most active PCT filers over the past decade.

BluSky Files Latest Trade Secret Lawsuit Against Former Employees – On Friday, November 7, disaster recovery company BluSky filed a lawsuit in the Middle District of Tennessee pressing federal and state trade secret claims against a pair of former employees over customer referral lists they allegedly misappropriated while working for BluSky, making Tennessee the fourth state where BluSky has pursued trade secret claims against former employees.

This Week on Wall Street

Toyota to Build First Battery Plant Outside Japan in Randolph County, NC – On Wednesday, November 12, Japanese automaker Toyota announced plans to construct a $13.9 billion facility in Randolph County, North Carolina, which will manufacture 14 lines of batteries for the company’s electric vehicle models and create up to 5,100 jobs in the region.

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: None
• Tuesday: Baidu, Inc. (131st); Dolby Laboratories, Inc. (t-161st); Xiaomi Inc. (92nd)
• Wednesday: Deere & Co. (100th); Nvidia Corp. (77th)
• Thursday: Intuit Inc. (t-215th); Lenovo Group Ltd. (74th); Walmart Inc. (158th)
• Friday: None