Other Barks & Bites for Friday, February 27: UK Trademarks No Longer Within Scope of EU Law Post-Brexit; Second Circuit Reverses Ruling on Concert Rates Under BMI Consent Decree; USPTO Employee Pays $500K to Resolve Conflict of Interest Allegations

Want to have your doggie(s) featured in one of our future Barks & Bites Columns? Send your dogs photo(s) along with their name, breed (if you know it) and their age to [email protected]. All photos will be added to the IPWatchdog Dog Wall at IPWatchdog Studios and will be added to the queue of images we select from each week. 

John Rearick’s (Cooley) six-year old Silver Lab – Ganga.

This week in Other Barks & Bites: the EU’s highest court holds that UK trademark rights cannot support opposition proceedings within the EU since the conclusion of the transitional period following Brexit; Merck shuffles its corporate structure in advance of major patent expirations for blockbuster drug Keytruda; the Federal Circuit finds genuine issues of material fact in an inequitable conduct and antitrust claim ruling handed out by the Southern District of Texas; USPTO patent examiner Daxin Wu agrees to pay $500,000 over allegations that she examined patent applications while owning substantial stock interest in the applicants; the Second Circuit finds that the Southern District of New York imposed an unreasonable rate for blanket licenses to BMI’s song catalog to be paid by live concert promoters across North America; the EPO announces the focus of key technical discussions at last week’s patent law harmonization meeting; and the USPTO seeks public comment on the location of community engagement offices to serve the southeastern United States.

Bites 

CJEU Says UK Trademark Rights No Longer Within Scope of EU Law Following Brexit – On Thursday, February 26, the Court of Justice for the European Union (CJEU) announced the outcome of a judgment earlier in the month setting aside the judgment of the EU General Court, which had reversed the dismissal of trademark opposition proceedings at the European Union Intellectual Property Office (EUIPO) filed by a Japanese company based on the use of its own trademark in the United Kingdom. The CJEU had ruled that, because an opposition under EU trademark law requires that legal rights in allegedly anterior trademarks must be maintained throughout the proceeding, the EUIPO was correct to dismiss the opposition as the legal rights to the UK trademarks asserted in the opposition no longer fell within the scope of EU trademark law following the conclusion of the transition period laid out in the Brexit withdrawal agreement. 

CAFC Vacates SJ Rulings on Inequitable Conduct, Walker Process Claims – On Thursday, February 26, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Global Tubing LLC v. Tenaris Coiled Tubes LLC vacating summary judgment rulings by the Southern District of Texas in a patent infringement case involving pliable coiled tubing used in the oil and gas industry. The Federal Circuit found that, properly reviewing the evidence in favor of the nonmovant, that an inventor declaration during prosecution including comments related to undisclosed prior art could reasonably be viewed as doubt that the prior art documents were material to patentability rather than clear evidence of intent to defraud, and that Tenaris’ alleged 29% market share was not per se too small to create a dangerous probability that Tenaris might obtain a monopoly as necessary to maintain Global Tubing’s Walker Process antitrust claim.

AG Rantos Urges CJEU to Dismiss of Meta Discovery Challenge in Market Abuse Case – On Thursday, February 26, Advocate General Athansios Rantos issued an opinion advocating that the CJEU dismiss appeals filed by Meta Platforms Ireland challenging a pair of rulings by the EU General Court finding that the EU Commission’s request for internal documents identified by means of electronic search terms were sufficiently reasoned, necessary and proportionate to an investigation into Meta’s abuse of dominant market position through use of Facebook data and the Facebook Marketplace platform. AG Rantos agreed with the General Court that the search terms used by the investigation complied with the principle of necessity from EU competition regulation, and that the use of a virtual data room procedure to regulate access to documents containing personal data was not required for the Commission’s request of documents that do not contain sensitive information.

USPTO Designates Decision on RPIs Informative – The U.S. Patent and Trademark Office (USPTO) on Thursday, February 26, designated as informative a decision by USPTO Director John Squires according a new filing date to a petition for inter partes review (IPR) based on its amendment of the petition to include a new real party in interest (RPI). In Curium US LLC v. Universität Heidelberg, IPR2025-01582, Paper 11 (Director February 25, 2026) (informative), Squires accorded the petition a new filing date after Curium US LLC added Curium US Holdings LLC and its direct parent, Curium Netherlands BV, as RPIs “to moot this issue” after patent owner Universität Heidelberg and The European Atomic Energy Community (EURATOM) argued that Curium “is owned and controlled by Curium US Holdings LLC and France-based Curium Pharma, all of which share offices at 111 Westport Plz. Dr., St. Louis, MO, and have an interest in the patented technology.” Since Curium updated the petition to include the additional RPI disclosures prior to institution, and in accordance with the statutory timeline, the petition was accorded a new filing date as per Corning Optical Communications RF, LLC v. PPC Broadband Inc., IPR2014-00440, Paper 68, 23 (PTAB Aug. 18, 2015). Squires sent a memo in October 2025 to all administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB) designating Corning Optical as precedential and informing APJs that the agency was restoring the practice of requiring petitioners before the PTAB to identify all RPIs prior to institution.

USPTO Employee Agrees to $500K Settlement in Conflict of Interest Case – On Wednesday, February 25, the U.S. Department of Justice (DOJ) announced that patent examiner Daxin Wu of the U.S. Patent and Trademark Office agreed to $500,000 in civil penalties in a settlement resolving allegations that Wu violated conflict of interest rules codified by the Ethics Reform Act of 1989. In particular, the DOJ noted that Wu was alleged to have worked personally and substantially on nine patent applications submitted by a pair of companies in which Wu held stock worth at least $300,000 and $140,000, respectively, and to have also have reviewed patent applications submitted by a competitor of a different company in which Wu held stock worth at least $900,000.

UK Court of Appeal Dismisses Challenges to Validity Rulings in Microbial Oil Patent Case – On Tuesday, February 27, the UK Court of Appeal issued a ruling in a patent infringement case between DSM Nutritional Products and Mara Renewables, competitors in the microbial oil production market, upholding the validity of patent claims directed to a method for obtaining a polyunsaturated fatty acid-containing lipid owned by DSM but dismissing DSM’s challenge to a lower ruling invalidating claims in another patent directed to processes for obtaining lipids from cells using lysis. Mara Renewables issued a press release welcoming the Court of Appeal’s ruling for providing clarity as to the validity of patent rights for producing microalgal docosahexaenoic (DHA) oil for use in omega-3 fatty acid supplements and concluding the issue of infringement liability for DSM’s patent claims within the United Kingdom.

Second Circuit Nixes SDNY’s Blanket License Ruling for BMI for Unreasonable Rates – On Tuesday, February 24, the U.S. Court of Appeals for the Second Circuit issued a ruling in Broadcast Music, Inc. v. North American Concert Promoters Association vacating the Southern District of New York’s entry of judgment following bench trial adopting BMI’s proposed rate for blanket license to its music used by artists at live concerts, the first time that the district court was petitioned under the terms of BMI’s 1994 consent decree governing music licenses. The Second Circuit held that the district court imposed an unreasonable rate of 0.5% of NACPA’s total revenues for 2018 to 2022, finding that the revenue base used to calculate this rate included revenue streams that do not reflect the fair market value of the music, and by relying disproportionately on agreements with unaffiliated individual concert promoters without identifying changed economic circumstances that justify doubling the rate that NACPA has traditionally paid to BMI.

Barks

USPTO Seeks Public Comments on Southeast U.S. Community Engagement Offices – On Wednesday, February 25, the U.S. Patent and Trademark Office announced that it would be soliciting public comments until March 30 on potential locations for opening community engagement offices to serve a 10-state area of the southeastern U.S. including Virginia, North Carolina, South Carolina, Florida, Georgia, Tennessee, Alabama, Mississippi, Louisiana and Arkansas.

IPG Photonics Plans to Appeal UPC Infringement Ruling in Laser Welding Case – On Wednesday, February 25, American high-power fiber laser developer IPG Photonics announced that it plans to appeal the Unified Patent Court’s (UPC) unfavorable ruling in an infringement case brought by German manufacturing solution rival Trumpf, challenging the UPC’s finding that IPG Photonics’ adjustable mode beam lasers infringed sold in UPC contracting states infringed upon patent claims owned by Trumpf.

EPO Announces Key Technical Discussions From Patent Law Harmonisation Meeting – On Tuesday, February 24, the European Patent Office (EPO) announced the content of key technical discussions taking place at the previous week’s meeting of the B+ Working Group on Substantive Patent Law Harmonisation, noting that discussions among IP agency officials from the EPO, UK and Japan focused on grace period reference dates, accelerated publication, and statement requirements.

First Solar Licenses Perovskite PV Devices from Oxford PV – On Tuesday, February 24, American photovoltaic (PV) energy company First Solar announced that it had licensed the currently existing and pending patent portfolio of Oxford Photovoltaics related to PV devices using perovskite semiconductors for thin-film applications across commercial, industrial and residential markets.

Archer Aviation Files eVTOL Patent Infringement Suit in Eastern Texas – On Monday, February 23, electric vertical take-off and landing (eVTOL) systems developer Archer Aviation filed a patent infringement lawsuit in the Eastern District of Texas against competitor Vertical Aerospace Group alleging that Vertical’s Valo eVTOL aircraft released last December infringes on utility and design patent claims protecting Archer’s rival Midnight aviation system.

Judge Thrash Says Keyword Bidding Breaches Settlement in Animal Supplement Trademark Case – On Friday, February 20, U.S. District Judge Thomas Thrash of the Northern District of Georgia denied a motion to dismiss filed by defendant Wuffes and its CEO after finding that Wuffes’ keyword bidding for animal dietary and nutritional supplements as alleged by plaintiff Nutramax Laboratories violated a settlement agreement between the parties preventing Wuffes from using Nutramax’s trademarks “in any commercial advertising or promotion.”

This Week on Wall Street

Keytruda Patent Expirations Spur Merck to Create Separate Cancer Drug Division – On Monday, February 23, American pharmaceutical firm Merck announced that it would be establishing a separate business decision for the companies cancer therapies headlined by Merck’s blockbuster cancer drug Keytruda, a move designed to help separate the company’s mature drug portfolio, which will see important patent expirations in the years to come, from newer treatments in the company’s drug development pipeline.

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: Schaffler AG (120th)
• Wednesday: Broadcom Inc. (88th); Continental AG (t-169th)
• Thursday: Merck KGaA (271st)
• Friday: ZTE Corp. (67th)