Other Barks & Bites for Friday, February 6: Counterfeit Study Shows 41% Fail Product Safety Standards; USPTO De-Designates PTAB Precedentials on RPI Amendments

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This week in Other Barks & Bites: Senator Ted Cruz (R-TX) calls for a federal framework for deploying self-driving cars to replace the state patchwork negatively impacting U.S. dominance in the field; a major apparel industry organization releases a study showing that nearly half of counterfeit products test positively for high levels of hazardous chemicals; Novartis issues guidance calling for its first annual operating profit loss in a decade due to patent expirations to blockbusters Entresto and Xolair; Universal Music grants special permission for a Spanish figure skater to use a Minions-themed skating routine at the Olympics; the House Science Committee reaffirms NASA’s commitment to a manned mission to Mars and commercial development of space in passing NASA’s reauthorization bill out of committee; the Patent Trial and Appeal Board de-designates two precedential decisions that allowed inter partes review (IPR) petitioners to maintain original petition filing dates when identifying new real-parties-in-interest; and Amazon warns certain AWS customers that they could be facing third-party infringement claims over media codec patents.

Bites 

AAFA Study Shows 41% of Counterfeits Failed Product Safety Tests for Hazardous Chemicals – On Wednesday, February 4, the American Apparel & Footwear Association (AAFA) issued a study into consumer health impacts posed by counterfeit goods, finding that 41% of counterfeit products including apparel and footwear failed to comply with product safety standards enforced in the United States and around the world, with many products containing excessive levels of harmful phthalates, bisphenol-A (BPA), formaldehyde and heavy metals. The report also highlights how counterfeiters leverage social media channels to reach consumers with one-quarter of the counterfeit products collected for the study were either purchased or marketed over social media channels on the Meta platform.

House SST Passes NASA Reauthorization Bill Promoting Mars Mission, Commercial Low-Orbit Space – On Wednesday, February 4, the U.S. House of Representatives’ Science, Space, and Technology Committee passed H.R. 7273, the NASA Reauthorization Act of 2026, out of committee during a markup session with several amendments added to the bill via voice vote. Among the key provisions of the bill include continued support for NASA’s Artemis mission to the Moon, the Space Launch System and Orion spacecraft for the agency’s manned mission to Mars, as well as authorization for NASA to transition its low-Earth orbit space to commercial partners for development.

Senator Cruz Urges Clear Federal Framework for AV Deployment to Increase Adoption – On Wednesday, February 4, Senator Ted Cruz (R-TX), Chairman of the Senate Commerce, Science, and Transportation Committee, urged the establishment of a clear federal framework for the deployment of autonomous vehicles (AVs) through passage of the upcoming surface transportation reauthorization bill during his opening remarks at a Commerce Committee hearing on the future of self-driving cars. Calling Congressional inaction on the issue unsafe, Sen. Cruz noted that the patchwork of state laws and regulation on AVs has made it difficult for American carmakers to test, develop and commercialize AVs in the United States and elsewhere.

USPTO Removes Precedential Designation from PTAB Rulings on RPI Amendments – On Tuesday, February 3, the U.S. Patent and Trademark Office announced that the agency had de-designated a pair of decisions by the Patent Trial and Appeal Board (PTAB) previously designated as precedential regarding timing considerations involved with amended petitions for inter partes review (IPR) proceedings that identify new real-parties-in-interest (RPIs) to the IPR proceedings. Those decisions were de-designated as they conflicted with the precedential ruling in Corning Optical Communications RF, LLC v. PPC Broadband, Inc., a 2015 ruling designated precedential last October holding that an IPR’s filing date is measured from the date which the IPR petition was amended to identify new RPIs.

First Circuit Reopens Claims in Legal Malpractice Case Over Cheated Patent Prosecution – On Monday, February 2, the U.S. Court of Appeals for the First Circuit issued an opinion in BlueRadios, Inc. v. Hamilton, Brooks, Smith & Reynolds, P.C. reversing-in-part a summary judgment ruling issued by the District of Massachusetts, which had found legal malpractice claims filed by BlueRadios barred by the statute of limitations and for lack of an attorney-client relationship with HBSR. The First Circuit found that BlueRadio’s theory that knowledge of improper amendments made to patent applications filed under a development agreement with another company that was also represented by HBSR to the advantage of that company should have been allowed to proceed to a jury, and that the district court erred in finding that BlueRadio’s patent communications with HBSR and its execution of a power of attorney were not requests for specific assistance under their contract for legal services.

CAFC Affirms Design Patent Noninfringement SJ Ruling Over Chief Judge Moore Dissent – On Monday, February 2, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Range of Motion Products, LLC v. Armaid Co. affirming the District of Maine’s summary judgment ruling that Armaid’s massage product did not infringe claims of a Range of Motion (RoM) design patent after agreeing with the district court that certain features claimed as ornamental in RoM’s design patent were functional for being previously claimed by RoM in a utility patent directed to a limb massager. Chief Judge Kimberly Moore authored a dissent arguing that the district court erred in removing factual questions raised by the ordinary observer test and added that meaningful changes to substantial similarity wrought by the Federal Circuit in Egyptian Goddess v. Swisa (2008) has caused courts to increase the rate at which they affirm summary judgment in design patent cases without allowing factual questions to proceed to the jury.

Barks

Universal OKs Minions-Themed Routine for Spanish Figure Skater Ahead of Milan Cortina – On Tuesday, February 3, Spanish figure skater Tomàs-Llorenç Guarino Sabaté announced via social media that Universal Studios had granted special permission for Sabaté to use music from the company’s Minions movie franchise during the 2026 Winter Olympic Games in Milan Cortina, with officials from the International Skating Union calling for structural changes to music licensing for international skating competitions to prevent future legal threats that could prevent skaters from using their preferred routines at major competitions.

Copyright Office to Hold Next Copyright Public Modernization Meeting on Feb. 25 – On Tuesday, February 3, the U.S Copyright Office announced that the agency would be hosting the next meeting of the Copyright Public Modernization Committee on Wednesday, February 25 at 1 PM, during which Office leadership will provide an update to the public on progress toward development of the agency’s Enterprise Copyright System.

Amazon Warns AWS Users of Third-Party Patent Litigation Over Media Codec Technology – On Monday, February 2, news reports indicated that e-commerce and cloud services giant Amazon sent out a notification to relevant customers of Amazon Web Services (AWS) informing them that the company would be changing its AWS service terms to specify that the company will not defend AWS users against third-party patent infringement claims, adding that certain media codec patent owners are either unwilling to license or are licensing on terms that do not indemnify customers.

Fifth Circuit Affirms SJ Dismissal of Third-Party Beneficiary Claims to Patent Settlement – On Monday, February 2, the U.S. Court of Appeals for the Fifth Circuit issued an unpublished opinion in Dentons US L.L.P. v. Stairway Legacy Assets, L.P. affirming the Eastern District of Texas’ summary judgment ruling against Dentons and other law firms filing third-party beneficiary claims to a patent settlement earned by patent owner Eidos Display after finding that Dentons did not cite sufficient evidence in the record to show that its predecessor firm McKenna was a third-party beneficiary to the settlement under the terms of a patent purchase agreement executed by Eidos in 2008.

EUIPO Launches SME Fund for Voucher-Based Reimbursement of IP Costs – On Monday, February 2, the European Union Intellectual Property Office (EUIPO) announced that it had established a new SME Fund scheme designed to support small- and medium-sized enterprises in the EU by providing a voucher-based reimbursement model for qualifying SMEs to recoup IP-related costs involving patents, trademarks, designs or community plant varieties.

Judge Robinson Sanctions Lawyers for AI Hallucinations in Patent Case Briefing – On Monday, February 2, U.S. District Judge Julie Robinson of the District of Kansas entered a memorandum and order fining counsel of record representing patent owner Lexos Media IP for submitting briefs including fake court citations hallucinated by generative AI used to create the briefs, fining all six lawyers a combined $12,000 even though the incorrect material was only submitted by one member of Lexos’ litigation team.

This Week on Wall Street

Novartis Warns of First Annual Profit Loss in Past Decade Due to Patent Expirations – On Wednesday, February 4, Swiss drugmaker Novartis published shareholder guidance for 2026 in which the pharmaceutical developer indicated that it was preparing for its first operating profit loss over an entire fiscal year since 2016 due in large part to loss of patent protections for blockbuster drugs like its heart failure treatment Entresto or its allergy treatment Xolair.

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: ON Semiconductor Corp. (t-229th); Softbank Group Corp. (141st)
• Tuesday: Edwards Lifesciences (t-233rd); Ford Motor Co. (33rd); Honda Motor Co., Ltd. (39th); Koninklijke Philips N.V. (53rd); Winbond Electronics (t-247th)
• Wednesday: Cisco Systems, Inc. (32nd); GlobalFoundries, Inc. (t-226th); Siemens Energy AG (149th)
• Thursday: Applied Materials, Inc. (46th); Kubota Corp. (225th); Lenovo Group Ltd. (74th); Nissan Motor Co., Ltd. (t-125th); Rakuten, Inc. (t-268th); Siemens AG (40th); Zebra Technologies Corp. (t-255th);
• Friday: Magna International Inc. (t-139th); Olympus Corp. (109th); Terumo Corp. (t-285th)