Other Barks & Bites for Friday, March 6: WIPO Issues PCT Filing Study; CAFC Affirms Use of Unaccused Devices in Royalty Determination; USTR Notorious Markets List Highlights Live Sports Piracy

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This week in Other Barks & Bites: the World Intellectual Property Organization releases a study showing a slight uptick in international patent filings for the second straight year; Moderna stock rises nearly 10% on news of its patent infringement settlement over COVID-19 vaccine technology; the Federal Circuit says there is no per se rule against consideration of noninfringing features in a reasonable royalty determination; CourseHero gets hit with a $75.3 million copyright infringement verdict over unauthorized reposting of university course documents; Patrick Mahomes and Travis Kelce avoid a temporary restraining order from a trademark owner suing their restaurant; the U.S. Trade Representative publishes its annual Notorious Markets List with an issue focus on piracy of live sports broadcasts; and the EPO issues a study showing that women inventors and startup founders are only making marginal gains in representation. 

Bites

CAFC OKs Unaccused VMs in Royalty Base for Causal Connection to Accused Features – On Friday, March 6, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Exafer Ltd. v. Microsoft Corp. reversing the Western District of Texas’ exclusion of a report from Exafer’s damages expert because the expert’s damages estimate used a royalty base including virtual machines (VMs) that were not part of Azure hardware products accused of infringing Exafer’s patent claims to methods for optimizing communication paths between VM devices. The Federal Circuit agreed with Exafer that the district court misapplied the appellate court’s 2018 ruling in Enplas Display Device v. Seoul Semiconductor in finding that the case established a per se rule preventing any consideration of non-infringing uses when determining a reasonable royalty, holding that the causal connection between the unaccused VMs and the accused hardware features allowed the consideration of unaccused VMs in large part because Microsoft’s own VM-based pricing rates indicated how the patented technology would have been valued.

WIPO Study Shows International PCT Applications Grow for Second Straight Year – On Friday, March 6, the World Intellectual Property Organization (WIPO) published the results of a study into international patent application filing activities under the Patent Cooperation Treaty (PCT), finding that international PCT filings increased for the second straight year, albeit slightly by 0.7%, up to 275,900 worldwide filings during 2025. WIPO’s study found that the increase in PCT filings was largely attributable to a larger number of patent applications in fields related to information and communication technologies (ICT), with PCT applications in both the digital communication and semiconductor fields increasing by 6.1%, the fastest rate of PCT filing increase among all technological fields tracked in the study.

CAFC Finds No Prejudice in Clarifying Separateness of Claim Limitations on JMOL – On Friday, March 6, the Federal Circuit issued a precedential decision in Magnolia Medical Technologies, Inc. v. Kurin, Inc. affirming the District of Delaware’s post-verdict grant of judgment as a matter of law (JMOL) that Kurin’s Lock device for blood draw sequestration did not infringe Magnolia’s patent claims to blood sequestration devices including a seal member defining a fluid reservoir and a vent allowing air to exit the housing as fluid enters. The Federal Circuit found that the district court’s reliance on Becton, Dickinson and Co. v. Tyco Healthcare Group on JMOL was permissible because the district court was merely clarifying the plain and ordinary meaning inherent in claim language presented in a format that clearly indicates that the claimed vent and seal components are separate structures and thus Magnolia’s patent claims were not infringed by the Kurin Lock that had components with dual functionality for venting and sealing.

USTR’s 2025 Notorious Markets List Highlights Challenges of Live Sports Piracy – On Tuesday, March 3, the office of the U.S. Trade Representative published the 2025 Notorious Markets List identifying a total of 37 online markets and 32 physical markets reported to facilitate substantial trademark or copyright counterfeiting activities, calling on U.S. trading partners where those markets are found to accede to key World Intellectual Property Organization (WIPO) treaties for copyright and related digital rights. This year’s report, published 20 years after the USTR first published the Notorious Markets List, includes a section focusing on issues related to piracy of live sports broadcasts, which commonly involves the retransmission of legitimate broadcasts that for some events, like the 2017 boxing event between Floyd Mayweather Jr. and Conor McGregor, can reach millions of illicit views.

South Korea’s Music Industry Seeks Ban on Unauthorized AI Uses, Mandatory Transparency – On Tuesday, March 3, a recently formed coalition of organizations representing a wide swath of South Korea’s music industry issued a press release containing a joint declaration establishing specific demands to be enforced against the artificial intelligence (AI) industry, including a ban on unauthorized uses of content to train AI models without creator consent and mandatory transparency on processes used to generate AI outputs. The Korean music industry coalition’s declaration also proposed a blockchain solution for real-time royalty collection and distribution that would link South Korea’s various identification codes for music compositions and recordings into a unified data structure.

EPO Study Shows Marginal Gains for Women Inventors, Startup Founders – On Tuesday, March 3, the European Patent Office’s (EPO) Observatory on Patents and Technology published the results of a study on women in science, technology, engineering and mathematics (STEM) careers showing that women have enjoyed only marginal gains in their share of overall European inventorship, from 13% in 2019 to 13.8% in 2022, and in their presence on EU inventor teams, from 21.6% of total membership in 2019 up to 24.1% in 2022. While women now compose 25.5% of EU patent examiners and 29.2% of EU patent attorneys, the EPO’s study concluded that women were strongly underrepresented in EU patenting startups, only 13.5% of which include a woman founder.

SCOTUS Ignores Calls to Clarify Copyrightability of AI Images in Denying Cert to Thaler – On Monday, March 2, the U.S. Supreme Court denied a petition for writ of certiorari filed by Dr. Stephen Thaler which challenged the D.C. Circuit’s ruling from last March upholding the U.S. Copyright Office’s human authorship requirement that prevents the registration of copyright for any creative work which is substantially created with the use of generative artificial intelligence (AI) without the work being created by a human in the first instance. The Court’s cert denial follows the U.S. Solicitor General’s briefing in the case, which found no risk of a circuit split developing that required the nation’s highest court to issue a ruling on the issue, in the face of amicus briefs from either side of the debate asking the Court to provide clarity on the copyrightability of AI-generated images to prevent unnecessary litigation on the subject.

Barks

Connecticut Jury Dings CourseHero for $75 Million in College Syllabus Copyright Case – On Thursday, March 5, a jury verdict entered in the District of Connecticut awarded $75.3 million in damages to for-profit academic institution Post University after finding that defendant Leareo infringed Post’s copyright to course syllabi, study guides and other documents by hosting them online through Learneo’s CourseHero platform.

Adverse Trademark Ruling Leads UK Grocery Chain to Offer Discount to Iceland Shoppers – On Tuesday, March 3, news reports indicated that the UK-based frozen food grocery chain Iceland announced that, rather than continue pursuing appeals of adverse rulings in EU courts cancelling its trademark rights, the store would begin offering “rapprochement discounts” in the form of shopping vouchers for consumers from the country of Iceland.

CCC Creates New AI Content Re-Use Licensing Option for Academics, Pay-Per-Use – On Tuesday, March 3, the Copyright Clearance Center (CCC) announced that it was creating a pair of new licensing options for re-using text-based content in artificial intelligence systems, one licensing higher education institutions for AI uses including prompting, summarization and chatbots for internal university use, and another enabling pay-per-use for specific AI use cases including content summarization.

Judge Buchwald Denies TRO in Trademark Case Against KC Football Stars’ Restaurant – On Monday, March 2, U.S. District Judge Naomi Reice Buchwald of the Southern District of New York entered an order denying a motion for temporary restraining order (TRO) filed by plaintiff 1587 Sneakers in a trademark case against Kansas City, MO-based restaurant 1587 Prime owned by star football players Patrick Mahomes and Travis Kelce of the NFL’s Kansas City Chiefs.

Caltech Sues Zoom Over Videoconferencing Tech Developed for CERN Scientists – On Monday, March 2, the California Institute of Technology filed a patent infringement lawsuit against Zoom Video Communications in the District of Delaware alleging that Zoom’s videoconferencing platform makes unauthorized use of technology that Caltech developed in order to connect a network of scientists across 140 countries who all contributed to research conducted at the European Organization for Nuclear Research (CERN) in Switzerland.

This Week on Wall Street

Moderna Stock Rises 9% on News of COVID Vaccine Patent Settlement – On Wednesday, March 4, shares of American drugmaker Moderna rose 9% in value following news that the company had agreed to enter a $2.5 billion settlement ending patent infringement claims by Genevant and Arbutus Biopharma over lipid nanoparticle technology employed by Moderna in the company’s COVID-19 vaccine.

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: Hon Hai Precision Industry Co., Ltd. (290th)
• Tuesday: None
• Wednesday: Micron Technology Inc. (16th); Tencent Holdings Ltd. (34th)
• Thursday: Accenture plc (t-281st)
• Friday: None