Other Barks & Bites for Friday, January 23: USAA Petition on Section 101 Distributed for Conference; Fifth Circuit Says Trade Secret Claimants Must Apportion Damages; TRAIN Act Introduced in House

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This week in Other Barks & Bites: the First Circuit rules that some Lanham Act claims over the use of Roberto Clemente’s likeness in license plates can proceed against Puerto Rican government officials in their personal capacity; a petition for writ filed by USAA to challenge the Federal Circuit’s application of Section 101 is distributed for conference at the U.S. Supreme Court; the TRAIN Act is introduced into the U.S. House of Representatives to give copyright owners the right to subpoena records for generative AI training; Intel gives weak first quarter guidance due to supply constraints; the USPTO extends the Patent Prosecution Highway program with other IP5 offices; the Federal Trade Commission files a notice of appeal to challenge its unsuccessful antitrust suit against Meta’s acquisitions of WhatsApp and Instagram; and the Fifth Circuit rules expressly for the first time that parties claiming trade secret misappropriation must apportion their damages claims to exclude product value that is not attributable to the misappropriated trade secrets.

Bites

Reps. Dean, Moran Introduce TRAIN Act to Provide Training Data to Copyright Owners – On Thursday, January 22, U.S. Representatives Madeleine Dean (D-PA) and Nathaniel Moran (R-TX) introduced the Transparency and Responsibility for Artificial Intelligence Networks (TRAIN) Act for the first time into the House of Representatives, following a companion bill first introduced into the Senate in 2024. If enacted, the TRAIN Act would give copyright owners the right to request a U.S. district court clerk to issue a subpoena to the developer of a generative AI model requiring them to provide records of works likely owned by the copyright owner that were used to train the generative AI model.

Fifth Circuit Says Trade Secret Claimants Must Apportion Damages – On Wednesday, January 21, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in Trinseo Europe GmbH v. Kellogg Brown & Root, L.L.C. affirming rulings by the Southern District of Texas vacating a damages award entered by the jury for Trinseo but also entering a permanent injunction preventing defendant KBR from using polycarbonate manufacturing technologies developed by Trinseo and protected as trade secrets. In affirming the vacated damages award, the Fifth Circuit held that, “like in patent cases, trade secret misappropriation damages must reflect the value attributable to the information or technology that is misappropriated by the defendant,” noting that Trinseo never apportioned the value of the technology covered by its trade secrets, while also finding that the district court did not abuse its discretion in entering injunctive relief for Trinseo.

Lack of Description of How Invention is Achieved Leads CAFC to Affirm 101 Invalidation – On Thursday, January 22, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in U.S. Patent No. 7,679,637 LLC v. Google LLC affirming the Western District of Washington’s dismissal of a patent infringement lawsuit over web conferencing systems with time-shifting capabilities for failure to state a claim. The Federal Circuit, citing to Hawk Technology Systems v. Castle Retail (2023), noted that even if it narrowed the Western Washington district court’s characterization of the claims from “playing back recorded content” to “allowing asynchronous review of presentations,” the ‘637 patent’s claims would still be directed to a patent-ineligible abstract idea because the claims do not describe how that specific technological improvement is to be achieved.

USAA Petition for Writ on Section 101 Mobile Check Ruling Distributed for Conference – On Wednesday, January 21, a petition for writ of certiorari filed by patent owner United Services Automobile Association (USAA) was distributed for conference among the Justices of the U.S. Supreme Court, who will consider whether to grant USAA’s appeal of the Federal Circuit’s invalidation under 35 U.S.C. § 101 of its patent claims to systems for depositing checks via mobile device. USAA’s petition argues that the Federal Circuit systematically misapplies the Supreme Court’s Section 101 patent eligibility framework under Alice because it cannot determine what constitutes an “abstract idea,” and that the Supreme Court should clarify that improving a user’s experience while using a computer is not categorically patent-ineligible.

First Circuit Reverses Dismissal of Claims Over Use of Clemente’s Likeness by Puerto Rico – On Friday, January 16, the U.S. Court of Appeals for the First Circuit issued an opinion in Clemente Properties, Inc. v. Pierluisi-Urrutia reversing the dismissal of certain Lanham Act claims filed by the sons of famed baseball player Roberto Clemente against several government officials from Puerto Rico for the use of Clemente’s name and likeness on commemorative license plates and registration tags. While agreeing with the District of Puerto Rico that Clemente’s sons did not allege any invasion of physical property required for its claim under the Takings Clause, the First Circuit found that the district court erred in finding that appellants failed to allege the use of Clemente’s likeness in connection with goods, leading the appellate court to reverse the dismissal of trademark infringement, false association and dilution claims under the Lanham Act. Although those claims are barred against the Puerto Rican officials under the doctrine of sovereign immunity, the First Circuit held that the Lanham Act claims are not barred by qualified immunity from being pursued against the officials in their personal capacity.

Seventh Circuit Says District Court Erred in Genericness Test in Little Caesar’s Crazy Puffs Case – On Friday, January 16, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in Illinois Tamale Company, Inc. v. LC Trademarks, Inc. affirming the Northern District of Illinois’ denial of preliminary injunction against pizza chain Little Caesars’ use of the terms “Crazy Puffs” and “Puffs” to advertise its pizza cup products, and reversed the district court’s grant of injunctive relief against Little Caesars’ use of “Pizza Puffs” to advertise its product. The Seventh Circuit found that the district court erred in applying the primary significance test for genericness by improperly interpreting dicta from the Seventh Circuit’s 2007 ruling in Ty v. Softbelly’s, with the appellate court holding that 12.7% of respondents to a Teflon survey perceiving “Pizza Puff” as a brand name did not outweigh the strong evidence of genericness stemming from the 83.3% of respondents perceiving the term as generic.

Barks

Copyright Office Issues 22 Million Registration Records in Update to Bulk Dataset – On Thursday, January 22, the U.S. Copyright Office announced that the agency was releasing an updated version of its copyright registration and recordation bulk dataset to include an additional 22 million registration and recordations between January 1, 1978, and June 27, 2025, to the publicly available dataset.

Patagonia Files Trademark Claims Against Drag Artist in Central California – On Wednesday, January 21, outdoor clothing and gear company Patagonia filed a lawsuit in the Central District of California alleging claims of trademark infringement, dilution and unfair competition against Entrepreneur Enterprises and Wyn Wiley, a drag artist who performs under the stage name “Pattie Gonia.”

USPTO Extends PPH With IP5 Offices Into January 2029 – On Wednesday, January 21, the U.S. Patent and Trademark Office announced that it would be extending its Patent Prosecution Highway (PPH) with the other IP5 Offices of the European Union, South Korea, Japan and China through January 5, 2029, continuing the benefits of the work-sharing agreement for accelerated prosecution of patent applications receiving a positive ruling from an office within the PPH.

FTC to Appeal Antitrust Case Against Meta’s Instagram, WhatsApp Acquisitions – On Tuesday, January 20, the Federal Trade Commission (FTC) announced that it had filed a notice of appeal to challenge the U.S. District Court for the District of Columbia’s ruling following a bench trial last November finding that Meta did not have monopoly power, defining the market for personal social network broadly to include competitors such as YouTube and TikTok.

USITC to Investigate InterDigital Patent Claims Against Amazon Video Devices – On Tuesday, January 20, the U.S. International Trade Commission announced that the agency had instituted a Section 337 investigation into certain video-enabled electronic devices imported into the U.S. for sale by e-commerce giant Amazon.com based on a patent infringement complaint filed by American technology developer InterDigital.

Australian PCT Applicants Able to Designate EPO as Search and Examination Authority – On Monday, January 19, leaders of the European Patent Office (EPO) and IP Australia jointly announced that, beginning this March, Australian patent applicants looking to file international applications through the Patent Cooperation Treaty (PCT) pathway will be able to designate the EPO as their International Search Authority and International Preliminary Examining Authority.

This Week on Wall Street

Supply Concerns Lead to Weak Q1 Guidance From Intel – On Thursday, January 22, American semiconductor developer Intel reported earnings for the fourth quarter of 2025 posting a slight beat on revenue, earning $13.7 billion over analyst expectations of $13.4 billion, but Intel shares lost 13% in value in after-hours trading following weak guidance for the first quarter of 2026 due to supply issues constraining the ability to meet consumer demand.

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: Fanuc Corp. (t-281st); Shin-Etsu Chemical Co., Ltd. (199th)
• Tuesday: The Boeing Co. (49th); General Motors Co. (42nd); Texas Instruments Inc. (41st)
• Wednesday: ABB Ltd. (155th); AT&T Inc. (107th); Corning Inc. (86th); International Business Machines (7th); Meta Platforms, Inc. (95th); Microsoft Corp. (18th); Realtek Semiconductor Corp. (172nd); Textron Inc. (t-200th); United Microelectronics Corp. (153rd); AB Volvo (t-114th); Whirlpool Corp. (t-176th)
• Thursday: Altria Group, Inc. (191st); Canon Inc. (9th); Caterpillar Inc. (97th); Comcast Corp. (89th); Dolby Laboratories, Inc. (t-161st); Dow Inc. (124th); Fuji Electric Co., Ltd. (251st); Hitachi, Ltd. (23rd); Honeywell International Inc. (50th); Makita Corp. (t-279th); Mastercard Inc. (t-178th); Nokia Corp. (47th); Samsung Electronics Co., Ltd. (1st); Sanofi S.A. (181st); SAP SE (t-82nd); STMicroelectronics NV (64th); Stryker Corp. (75th); Thermo Fisher Scientific Inc. (t-161st); Visa Inc. (127th); Western Digital Corp. (t-60th); Xerox Holdings Corp. (t-196th)
• Friday: Charter Communications, Inc. (t-244th); Exxon Mobil Corp. (t-233rd); Komatsu Ltd. (210th); LG Electronics Inc. (2nd); Signify NV (t-163rd); Verizon Communications Inc. (122nd)