Other Barks & Bites for Friday, May 8: Eleventh Circuit Revives Annie Leibovitz Photograph Case; Split Ninth Circuit Panel Nixes False Representation Claims; Report Says Tencent Removed 250K AI Songs From Streams in 2025

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This week in Other Barks & Bites: a Ninth Circuit majority affirms a summary judgment dismissing false representation claims over Circuit Judge Bumatay’s dissent arguing that non-observable aspects of a product could support an actionable claim; a joint WIPO-IRENA report advances several recommendations to promote the electrification of the EU’s heavy-duty road transport sector; China’s Tencent removed more than 250,000 AI songs from its streams during 2025 for corporate policy violations; the USITC issues cease-and-desist orders to several respondents in a Section 337 case over semiconductors brought by Infineon; the Eleventh Circuit reverses a summary judgment ruling that had dismissed infringement claims brought by a licensee of photographs captured by Annie Liebovitz; and the USPTO extends its pilot program for expediting ex parte appeals by patent applicants into May 2028.

Bites

China’s Tencent Removed 250,000 Policy-Violating AI Songs During 2025 – On Thursday, May 7, Music Business Worldwide reported on environmental, social and governance (ESG) figures released by Chinese multimedia conglomerate Tencent Music Entertainment showing that the company, which is the largest provider of streaming music in China, removed more than 250,000 artificial intelligence (AI) generated songs violating its copyright policy during 2025, including 27,000 songs engaging in new forms of gray-market manipulation like song theft or trend hijacking. Overall, the company reviewed more than 600,000 cases of high-risk copyright content across its platforms last year identified through the use of several recognition technologies including voiceprint recognition and melody comparison.

Split Ninth Circuit Panel Holds Intangible Qualities Cannot Sustain False Representation Claims – On Wednesday, May 6, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Vericool World, LLC v. Igloo Products Corp. affirming the Northern District of California’s summary judgment ruling against Vericool’s false advertising claim after the panel majority held that Vericool did not have a claim cognizable under the Lanham Act against Igloo’s representations that it was the first company to market a biodegradable cooler. Circuit Judge Patrick Bumatay authored a dissent arguing that non-observable aspects of a product qualifies as the “characteristics” or “qualities” of a product that is actionable under the Lanham Act if materially misrepresented by a party, and that the panel majority should have remanded the case back to the district court to determine Vericool’s “first of its kind” assertion meets the elements of a false advertising claim.

WIPO, IRENA Report Urges Heavy-Duty Road Transport Innovation to Promote Decarbonization – On Wednesday, May 6, the World Intellectual Property Organization (WIPO) and the International Renewable Energy Agency (IRENA) published a joint patent landscape report on innovation enabling the use of electric vehicles for heavy-duty road transport, including trucks and buses carrying road freight, which as a sector continues to use fossil fuels almost exclusively. Although the WIPO-IRENA joint report finds significant percentage increases in the number of hydrogen fuel cell and energy infrastructure patents, the agencies conclude that much of the world’s electrification innovation for this sector is geographically concentrated in countries like China, which leads in absolute patent volumes, as well as corporations with few contributions from universities or public research institutions, with IRENA analysis suggesting that stringent efficiency standards and green public procurement legislation could more swiftly decarbonize the sector.

Eleventh Circuit Revives Annie Leibovitz Copyright Case to Determine Licensee Standing – On Tuesday, May 5, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion in Great Bowery Inc. v. Consequence Sound LLC vacating the Southern District of Florida’s summary judgment order ruling that Great Bowery did not have standing to sue Consequence for posting photographs of Star Wars film sets taken by Annie Leibovitz because Leibovitz retained certain rights in those photographs in her artist agreement with Great Bowery. Although the Eleventh Circuit held that Consequence was able to challenge Great Bowery’s standing for not being the exclusive copyright owner as required by 17 U.S.C. § 501(b), the appellate court held that the Southern Florida district court was wrong to conclude that any rights retained by Leibovitz prevented Great Bowery from being the exclusive licensee of the photographs at issue in this case.

Fourth Circuit OKs USPTO Withholding Documents About Alleged APJ Bias – On Tuesday, May 5, the U.S. Court of Appeals for the Fourth Circuit issued a published opinion in Malone v. U.S. Patent and Trademark Office upholding the USPTO’s decision to withhold documents pursuant to a Freedom of Information Act (FOIA) request by US Inventor’s Josh Malone seeking documents related to inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) involving an administrative patent judge (APJ) with an undisclosed financial interest in an IPR petitioner. The Fourth Circuit found that the USPTO properly claimed a FOIA exemption for predecisional and deliberative documents over draft opinions and other communications between panel and nonpanel APJs and dismissed Malone’s argument that such communications were unprotected, unlawful ex parte communications.

Rep. Raskin Letter Continues to Push USPTO Director Squires on Board of Peace Marks – On Tuesday, May 5, Representative Jamie Raskin (D-MD) sent a letter addressed to USPTO Director John Squires seeking additional information about Squires’ role in filing trademark applications to protect standard character and design marks for the Board of Peace, an organization established by President Donald Trump for the promotion of peace in Gaza. Asking if Director Squires was either a “willing accomplice” or an “unwitting enabler,” Raskin continued his press on Squires’ role in the Board of Peace marks that he began this March at the House IP Subcommittee’s first USPTO oversight hearing since Squires became Director of the USPTO last year.

Barks

EUIPO, Regional IP Offices Convene First Cooperation Board Executive Plenary Session – On Friday, May 8, the European Union Intellectual Property Office (EUIPO) announced that the agency had successfully concluded the first Cooperation Board Executive Plenary, which brought together 62 representatives from IP offices in EU member states to discuss cooperation initiatives including unlocking IP value and emerging technologies.

USITC Finds Section 337 Violation, Issues CDOs Against Innoscience Semiconductors – On Thursday, May 7, the U.S. International Trade Commission (USITC) published a notice announcing that the agency found a Section 337 violation in the import of certain semiconductor productions into the U.S. for sale by several respondents, including Innoscience America, based on claims of patent infringement in a complaint filed by Infineon Technologies, issuing cease-and-desist (CDO) orders to each respondent and limited exclusion orders (LEOs) to customs agents.

USPTO Extending Fast-Track Pilot for Ex Parte Appeals Into May 2028 – On Wednesday, May 6, the USPTO announced that the agency would extend its Fast-Track Appeals Pilot Program for expediting PTAB reviews of ex parte appeals by patent applicants through May 6, 2028, retaining the limit on the program’s number of granted petitions to 125 per quarter with the PTAB retaining discretion to accept additional petitions.

Scott Turow, Publishers File Copyright Suit in SDNY Over Meta’s Llama AI – On Tuesday, May 5, American fiction writer Scott Turow and several publishing houses including Elsevier, Macmillan and McGraw Hill filed a lawsuit in the Southern District of New York alleging claims of copyright infringement based on several forms of unauthorized reproduction of original works allegedly committed by Meta Platforms in training and deploying its Llama artificial intelligence (AI) platform.

EUIPO, EIF Partner to Turn IP-Backed Finance Study Into Funding Opportunities – On Monday, May 4, the EUIPO and the European Investment Fund (EIF) announced that the two agencies have signed a memorandum of understanding to develop IP-backed investment vehicles based on the recent findings of the EUIPO’s study on using IP as collateral to secure loans for small- and medium-sized enterprises (SMEs).

EPO Opens Enrollment for EPAC Exam This November – On Monday, May 4, the European Patent Office (EPO) announced that it has opened enrollment for the upcoming European Patent Administration Certification (EPAC) exam, which is offered in several different modules to validate patent management skills for a wide array of professionals, scheduled for November 5 of this year.

This Week on Wall Street

Airbus Closes Largest Single Order for A220-300 Aircraft With AirAsia – On Wednesday, May 6, Dutch-French aircraft developer Airbus announced that Malaysian airline operator AirAsia had agreed to purchase 150 A220-300 airplanes, the latest generation of commercial aircraft in its size category, the single-largest order for Airbus’ A220 that pushes total orders for the A220 past 1,000 units.

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: Innolux Corp. (145th); Kawasaki Heavy Industries Ltd. (t-215th); Softbank Group Corp. (141st)
• Tuesday: Bayer AG (108th); Daikin Industries, Ltd. (136th); Fujifilm Holdings Corp. (25th); Panasonic Corp. (19th); Sharp Corp. (55th); Sumitomo Electric Industries Ltd. (t-60th); Zebra Technologies Corp. (t-255th)
• Wednesday: Alibaba Group Holding Ltd. (t-281st); Deutsche Telekom AG (t-69th); Merck KGaA (271st); Mitsubishi Chemical Holdings Corp. (t-242nd); Nippon Steel Corp. (138th); Nissan Motor Co., Ltd. (t-125th); Siemens AG (40th); Tencent Holdings Ltd. (34th)
• Thursday: Bridgestone Corp. (t-263rd); Hon Hai Precision Industry Co., Ltd. (290th); Honda Motor Co., Ltd. (39th); Konica Minolta, Inc. (t-217th); Sumitomo Chemical Co., Ltd. (t-194th)
• Friday: None