Other Barks & Bites for Friday, December 5: Tillis Blasts Lutnick Proposal on Government Share in Profits from Federally Funded Inventions; The Times Sues Perplexity AI; and USPTO Updates MPEP to Reflect Desjardins Decision

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This week in Other Barks & Bites: The U.S. Patent and Trademark Office announced it has updated the Manual of Patent Examining Procedure to reflect recent eligibility guidance; The New York Times has sued Perplexity AI for copyright and trademark infringement; AGs from seven U.S. states sent a letter to the College Sports Commission calling out its “cartoonishly villainous” university participation agreement; Senator Thom Tillis (R-NC) made negative remarks about the Commerce Department’s proposals on government equity in federally-funded inventions; the Federal Circuit vacated a dismissal by Western Texas for failure to address the plaintiff’s claim construction arguments; the EU’s highest court ruled that EU member states have jurisdiction over transactions in app stores designed for their countries regardless of the physical location of the transaction; Bobcat kickstarted a patent enforcement campaign against Caterpillar’s infringing skid-steer loaders; Korean choreographers organized and pushed for better rights under Korea’s copyright laws; and Meta said that it will reduce its budget for metaverse initiatives by up to 30% following tens of billions in investments over the past five years.

Bites

USPTO Updates MPEP Subject Matter Eligibility Guidance – The U.S. Patent and Trademark Office announced Friday, December 5, that it has issued an advanced notice of change to the Manual of Patent Examining Procedure (MPEP) to reflect the Appeals Review Panel (ARP) decision in Ex parte Desjardins, Appeal 2024-000567 (Decided September 26, 2025). In Desjardins, Squires vacated the Board’s decision and found the claims at issue eligible, in part highlighting the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) decision in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337–38 (Fed. Cir. 2016) as instructive. According to a USPTO press release, the guidance is meant “to distinguish subject matter eligibility from patentability, as §§ 102, 103, and 112 remain the primary statutory bases for assessing novelty, nonobviousness, and disclosure requirements” and also complements the two memos issued yesterday regarding Subject Matter Eligibility Declarations (SMEDs) under Rule 132.

New York Times Company Sues Perplexity AI – The New York Times Company (the Times) on Friday, December 5, filed a lawsuit against Perplexity AI, claiming “large-scale, unlawful copying and distribution of The Times’s copyrighted content.” The suit charges that Perlexity’s “answer engine” Perplexity chatbot infringes the Times’ copyrighted works via both inputs and outputs and also violates its trademark rights under the Lanham Act “when Perplexity’s GenAI Products generate fabricated content or ‘hallucinations’ and falsely attribute them to The Times by displaying them alongside The Times’s famous, registered trademarks,” said the complaint. Dow Jones, the publisher of The Wall Street Journal and The New York Post, also filed a copyright infringement lawsuit against Perplexity in October 2024.

CAFC Faults Western Texas for Implicit Claim Construction Leading to Dismissal – On Friday, December 5, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Adnexus, Inc. v. Meta Platforms, Inc. vacating a Federal Rule of Civil Procedure 12(b)(6) dismissal by the Western District of Texas, which had concluded that Adnexus failed to adequately allege direct patent infringement because the claimed “contact information” of the patented method of online advertising was sufficiently distinct from the claimed “delivery method preference” over Adnexus’ allegations that Meta’s Lead Ads service retrieved such preferences from prefilled contact information in Facebook user profiles. The Federal Circuit found that, although district courts have wide discretion in how they conduct claim construction, the Western Texas court erred by implicitly construing the claim terms against non-movant Adnexus without giving the plaintiff a proper opportunity to be heard on the issue of proper construction.

Senator Tillis Urges PERA Enactment, Blasts Lutnick Proposal – On Thursday, December 4, the Making Medicine podcast published an episode featuring U.S. Senator Thom Tillis (R-NC), Ranking Member of the U.S. Senate Committee on the Judiciary’s Subcommittee on Intellectual Property, and John Stanford, Founder and Executive Director of the venture capital network Incubate. Sen. Tillis urged strong action to counteract the threat of rising foreign economic rival China, especially in the field of life sciences innovation, including passage of the Patent Eligibility Restoration Act, which is necessary to counteract the “dampening effect on innovation” of current subject matter eligibility law in the United States. Tillis also excoriated proposals from the U.S. Department of Commerce that would give the U.S. federal government an equity stake in companies holding patents on inventions developed through federal funding, calling the idea “nonsense” and adding, “I am tired of Republicans calling themselves conservatives if they condone that sort of action… That is not the proper role of the government at all.”

CJEU Says Originality Requirement for Applied Art Same as Other Copyrightable Matter – On Thursday, December 4, the Court of Justice for the European Union (CJEU) issued a judgment on questions referred to the CJEU in cases from Swiss and German courts involving furniture manufacturers claiming copyright infringement by retailers selling identical versions of their modular furniture. Recalling that the subject matter in these cases can be protected both as a design and as a copyrightable work of applied art, the CJEU clarified that “there is no relationship of rule and exception between these distinct types of protection,” leading the EU’s highest court to find that the originality of applied art, such as the furniture at issue in these cases, must be assessed in the same manner as other copyrightable subject matter and not simply afford protection for the “mere possibility of a similar creation.”

K-Pop Choreographers Push for Better Copyright Protections Under Korean Law – On Thursday, December 4, public remarks made by Lia Kim, a choreographer with the acclaimed 1Million Dance Studio and the inaugural President of the Korea Choreography Copyright Association (KCCA), called out practices in the wider K-Pop music industry involving the failure to properly credit choreographers working on published music videos in the same way that composers are lyricists are credited. Those remarks were delivered during a public lecture featuring a series of panelists including Korean Representative Jin Jong-oh, a former Olympic gold medalist in shooting and Korean lawmaker who recently proposed a bill to explicitly include choreography as a protected work under Korean copyright law.

CJEU Holds that EU States Have Jurisdiction Over Virtual Space of App Stores – On Tuesday, December 2, the CJEU issued a preliminary ruling on a question referred from the District Court of Amsterdam in a case brought by a pair of consumer advocacy foundations from the Netherlands over alleged anticompetitive conduct by American electronics giant Apple, including excessive commissions charged by Apple to list third-party apps sold in App Store NL. Dismissing Apple’s arguments that the Dutch court only had jurisdiction over app store transactions that were conducted while the user was physically within the Netherlands, the CJEU held that the virtual space of the App Store NL, which “is designed specifically for the Netherlands market and uses Dutch to offer apps for sale to users who have an Apple ID associated with the Netherlands,” is within the jurisdiction of the Amsterdam district court regardless of where users were situated at the time of transaction.

Magistrate Judge Wang Orders Production of 20M ChatGPT Logs to News Plaintiffs – On Tuesday, December 2, U.S. Magistrate Judge Ona Wang of the Southern District of New York issued an opinion and order denying a motion for reconsideration filed by generative artificial intelligence developer OpenAI, which had challenged Magistrate Judge Wang’s previous order directing OpenAI to produce 20 million de-identified consumer ChatGPT output logs in a copyright infringement lawsuit filed by The New York Times and several other news publishers. While finding as an initial matter that OpenAI’s motion should be denied for failing to put forth law or facts to compel a different conclusion, Magistrate Judge Wang found that the 20 million output logs that had been retained by OpenAI were relevant to show fair use considerations even in instances where they don’t reproduce the news publishers’ copyrighted works.

Barks

Seven State AGs Call CSC Participation Agreement “Elaborate Effort” to Advance SCORE Act – On Wednesday, December 3, a letter signed by state attorneys general (AGs) from Tennessee, Florida, New Jersey, Ohio, Pennsylvania, Texas and Virginia was sent to Bryan Seeley, CEO of the College Sports Commission (CSC) and several commissioners of major collegiate athletic conferences, “express[ing] grave concern” over the CSC’s “cartoonishly villainous” University Participation Agreement, which threatens sanctions for schools associated with litigation challenging the agreement so enormous that “we are forced to wonder if this is all just an elaborate effort to lose on purpose to give the NCAA an argument in support of the similarly flawed SCORE Act.”

Ninth Circuit Nixes Ripeness Argument Raised in OpenAI “IO” Trademark Appeal – On Wednesday, December 3, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished ruling in IYO Inc. v. IO Products, Inc. affirming the Northern District of California’s temporary restraining order (TRO) preventing IO and its parent company OpenAI from using the “IO” trademark on products similar to IYO’s AI-based audio computer, dismissing IO’s argument that the trademark claims weren’t ripe because IO did not have plans to release an infringing product this year.

Bobcat Pursues USITC, Eastern Texas Actions Against Caterpillar Skid-Steer Loaders – On Tuesday, December 2, American construction equipment manufacturer Bobcat filed a Section 337 complaint  at the U.S. International Trade Commission (USITC) and a patent infringement complaint  in the Eastern District of Texas accusing skid-steer loaders and other compact heavy vehicles sold by Caterpillar of infringing several patents owned by Bobcat. 

USPTO Surpasses FY2025 Goals for First First Trademark Action, Total Processing Times – On Tuesday, December 2, the U.S. Patent and Trademark Office announced that it had surpassed all of the agency’s major trademark performance goals for the 2025 fiscal year ending September 30, reducing the average pendencies for first actions to 5.6 months and total processing time to 11.2 months while also lowering the inventory of unexamined application classes to less than 350,000.

EPO Seeks Research Proposals on Forecasting Patent Filings, Local Academic Ecosystems – On Tuesday, December 2, the European Patent Office (EPO) announced a call for research proposals for new tools making use of the agency’s Technology Intelligence Platform (TIP) and PATSTAT systems for a pair of research streams, one seeking advanced methods for forecasting patent applications across jurisdictions and technology fields, and another researching the performance of local ecosystems of academic inventors and universities.

EUIPO Begins Accepting Applications for CIGIs Under New IP Protection System – On Monday, December 1, the European Union Intellectual Property Office (EUIPO) announced that it had begun accepting applications to register the names of craft and industrial products as geographical indications (CIGIs), which would allow registered producers to utilize the EU symbol for protected GIs and safeguard the authenticity of their goods.

This Week on Wall Street

Meta to Reduce Budget for Metaverse Initiatives by 30% in FY2026 – On Thursday, December 4, news reports indicated that high-level executives at social media giant Meta had agreed to reduce the company’s budget for metaverse projects by up to 30% during the upcoming fiscal year following $60 billion of investments made by Meta CEO Mark Zuckerberg into metaverse initiatives since 2020.

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: None
• Wednesday: Adobe Inc. (112th); Oracle Corp. (56th); Synopsys, Inc. (274th)
• Thursday: Broadcom Inc. (88th)
• Friday: None