Other Barks & Bites for Friday, February 20: WIPO Report Shows Unprecedented Rates of Invention Diffusion; Tillis and Schiff Letters to ANSI and ALI Demand Transparency; and Judge Oldham Disputes Trade Secret Existence in Fifth Circuit Ruling

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This week in Other Barks & Bites: the Federal Circuit concludes that expert testimony did not properly support the patent owner’s equivalency argument; the World Intellectual Property Organization issues a report showing that technology diffusion is spreading across the world at historically high rates; Boeing returns its defense and security headquarters to St. Louis from the D.C. region; Senators Thom Tillis and Adam Schiff send letters seeking better transparency measures in standards development and answers regarding a controversial restatement of copyright laws; the University of Utah is selected as the site of the U.S. Patent and Trademark Office’s new community engagement office; the European Patent Office and International Energy Agency sign a memorandum of understanding on energy and innovation policy collaborative efforts; and Circuit Judge Andrew Oldham authors a concurrence in a Fifth Circuit ruling challenging the majority’s finding that an educator support organization failed to prove the existence of trade secrets in client and member data.

Bites

CAFC Says Patent Owner Did Not Show the Way to Equivalency in Game Controller Lawsuit – On Thursday, February 19, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Genuine Enabling Technology LLC v. Sony Group Corp. affirming the District of Delaware’s summary judgment ruling of noninfringement for Sony Group in a lawsuit brought by Genuine Enabling Technology over Sony’s game controller and console computer input devices having Bluetooth connections that synchronize button inputs with controller sensors, which Genuine argued met the encoding means limitation of its asserted patent claims. The Federal Circuit agreed with the district court that Genuine did not show structural equivalency between its asserted claims and the accused products, which did not account for every element in the claimed structure of its equivalency analysis because Genuine’s expert witness did not adequately describe the way that logic blocks in the specification identified as the encoding means achieved that claimed function.

Senators Tillis, Schiff Urge Transparency on Standards Development, ALI Resignations – On Thursday, February 19, Senators Thom Tillis (R-NC) and Adam Schiff (D-CA), respectively the Chair and Ranking Member of the U.S. Senate Committee on the Judiciary’s Subcommittee on Intellectual Property, sent a letter addressed to Diane Wood, Director of the American Law Institute (ALI), seeking information on mass resignations from ALI following the institute’s approval of a controversial Copyright Restatement. Two days prior, on Tuesday, February 17, Senators Tillis and Schiff signed a letter  addressed to Laurie Locascio, President and CEO of the American National Standards Institute (ANSI), urging ANSI to strengthen safeguards preventing any one stakeholder from exerting disproportionate influence during standards development. The Senators also encouraged ANSI to require ANSI-accredited standards developers to implement compliance measures for organizational interests of standards developers with voting and leadership roles and to implement active monitoring that maintains balanced committee representation.

Moderna Loses Invalidity Defenses, Faces New Infringement Suit Over COVID-19 Vaccine – On Thursday, February 19, German drugmaker BioNTech filed a patent infringement suit in the District of Delaware against American pharmaceutical developer Moderna alleging that Moderna’s mNEXSPIKE injectable vaccine approved for treating COVID-19 by the U.S. Food and Drug Administration (FDA), alleging that the vaccine infringes upon BioNTech’s patent claims to messenger RNA-based (mRNA) vaccine technology. The suit comes two days after U.S. District Judge Joshua Wolson partially denied Moderna’s motion to dismiss for obviousness and derivation in another District of Delaware patent lawsuit filed by American drugmaker Arbutus Biopharma over Moderna’s mRNA COVID-19 vaccine, although Judge Wolson did allow an enablement defense raised by Moderna to proceed toward trial.

World IP Report 2026 Finds New Technologies Spreading at Historically High Rates – On Tuesday, February 17, the World Intellectual Property Organization (WIPO) released a global intellectual property report titled Technology On The Move, which analyzed 250 years of historical data on technology use and 50 years of patent scientific publication data and found that international knowledge flows have doubled in speed over the past five decades. The report also found that new technologies are reaching consumers across borders at historically high rates across periods of time that can be measured in days, whereas older technologies like the telegraph and automobiles took decades to reach global markets at the same magnitude.

Judge Oldham Disputes Existence of Trade Secret in Fifth Circuit’s Educator Trademark Ruling – On Tuesday, February 17, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Associated Professional Educators of Louisiana v EDU2020, L.L.C. reversing- and vacating-in-part summary judgment rulings entered by the Western District of Louisiana, finding genuine disputes of material fact related to the likelihood of confusion created by a co-founder of EDU2020, who was also a former employee of educator support organization A+PEL, who gave presentations at educator conferences that used A+PEL’s logo. Concurring in the Fifth Circuit’s decision that A+PEL’s trade secret claims failed was Circuit Judge Andrew Oldham, who disagreed with the majority that A+PEL failed to prove the existence of trade secrets in its client list and member database but concurred because the district court’s record showed no evidence that A+PEL’s former employee used those records in any way that misappropriated them.

CAFC Says IPR Claim Construction Does Not Preclude Damage Recovery in District Court – On Tuesday, February 17, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Willis Electric Co. v. Polygroup Ltd. affirming the District of Minnesota’s denial of Polygroup’s post-trial motion for judgment as a matter of law that Willis Electric’s patent claims directed to pre-lit artificial Christmas trees were invalid for obviousness. The Federal Circuit found substantial evidence that a person of ordinary skill in the art would not be motivated to combine prior art references, and dismissing Polygroup’s argument that Willis Electric’s expert witness on damages failed to apportion damages to exclude those attributable to a dependent claim as construed during inter partes review (IPR) proceedings, with the appellate court noting the different claim construction standards used in U.S. district courts and at the Patent Trial and Appeal Board (PTAB) before ruling that the district court’s damages ruling was not controlled by claim construction during IPR proceedings.

Barks

EPO, IEA Sign MoU to Collaborate on Energy and Innovation Policy Insights – On Thursday, February 19, officials from the European Patent Office (EPO) and the International Energy Agency (IEA) signed a memorandum of understanding (MoU) committing to combine the EPO’s global patent intelligence with the IEA’s energy data and policy expertise in order to deliver actionable insights on energy and innovation policy.

University of Utah Selected for Site of New USPTO Community Engagement Office – On Thursday, February 19, the U.S. Patent and Trademark Office announced that the University of Utah in the state’s capital of Salt Lake City would serve as the location of the agency’s new community engagement office location to serve the eight-state area formerly serviced by the Rocky Mountain Regional Outreach Office, the USPTO citing the institution’s robust research programs and available business development resources as reasons for selecting that location.

Ninth Circuit Affirms Uncopyrightability of Dance Exercise Sequences – On Tuesday, February 17, the U.S. Court of Appeals for the Ninth Circuit issued an unpublished ruling in Tracy Anderson Mind and Body, LLC v. Roup affirming the Central District of California’s finding that Tracy Anderson’s dance routines contained in DVD recordings were not copyrightable as choreography because the record showed that Tracy Anderson’s routines were designed to achieve functional health results. 

Fish & Richardson Tops Harrity’s 2026 List of Law Firms Securing Utility Patents – On Tuesday, February 17, Harrity Patent Analytics published its 2026 Top Patent Firms list showing that Fish & Richardson led all firms in number of U.S. utility patent grants secured for its clients with 5,242 U.S. utility grants in 2026, followed by Sughrue Mion with 4,957 U.S. utility grants in 2026 and Foley & Lardner with 4,310 U.S. utility grants that year.

Valve Wins Dismissal of Independent Inventor’s Infringement Suit Under WA Patent Troll Law – On Tuesday, February 17, a jury verdict rendered in the Western District of Washington found that independent inventor Leigh Rothschild violated the state’s Patent Troll Prevention Act by making bad faith patent infringement allegations, and rendered an advisory verdict finding that Rothschild’s asserted patent claim was invalid for obviousness.

Copyright Office Releases New Group Registration for 2D Artwork – On Tuesday, February 17, the U.S. Copyright Office announced that it had released a new group registration option for two-dimensional artwork that will allow artists to register between two and 20 two-dimensional artworks that have already been published with a single registration fee, provided that all of the artworks were published within the same calendar year.

This Week on Wall Street

Boeing Returns Defense Headquarters to St. Louis From Arlington – On Wednesday, February 18, aerospace company Boeing announced that it would be moving the headquarters of its Defense, Space & Security business division from Crystal City, VA, to St. Louis, MO, which served as the home of Boeing’s defense headquarters for 20 years until the company relocated to Arlington County in Virginia in 2017.

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: Delta Electronics, Inc. (189th); Nvidia Corp. (77th); Salesforce.com, Inc. (102nd); Zoom Video Communications, Inc. (t-211th)
• Thursday: Dell Technologies Inc. (15th); Deutsche Telekom AG (t-69th); Intuit Inc. (t-215th); NetApp, Inc. (t-263rd)
• Friday: None