Other Barks & Bites for Friday, July 3: Google White Paper Says Only AI Outputs Infringe Copyright; CJEU Upholds €4.1B Fine for Android Abuses; and CAFC Orders Remand to Review Indefiniteness Ruling Under Dyfan

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This week in Other Barks & Bites: the UK Supreme Court hears oral arguments in Apple’s appeal of a $502 million judgment setting a global 4G licensing rate with Optis Technology; the Federal Circuit remands a Delaware district court ruling invalidating TrackTime’s patents for reconsideration under intervening precedent on indefiniteness analysis from Dyfan v. Target Corp.; the Court of Justice for the European Union finds no error in the EU General Court’s decision to affirm €4.1 billion’s worth of an EU Commission fine against Google for abuse of its dominant position in mobile operating systems; a U.S. magistrate judge recommends the entry of $65 million in damages against 26 defaulting defendants in a trademark case involving counterfeiting HIV treatment sold by Gilead; Google publishes a white paper which calls for allowing all uses of copyright content for training AI models while limiting copyright claims to AI outputs; and former U.S. Patent and Trademark Office Deputy Director Laura Peter is nominated for a role in the Patents and Technology Sector at the World Intellectual Property Organization.

Bites

Federal Circuit Vacates Indefiniteness Ruling Due to Intervening Dyfan Precedent – On Thursday, July 2, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in TrackTime, LLC v. Amazon.com Services LLC vacating claim construction orders entered by the District of Delaware holding that TrackTime’s asserted patent claims were invalid for indefiniteness, the Federal Circuit finding that under Dyfan v. Target Corp. (2022), a precedential ruling issued after the claim construction order appealed by TrackTime, additional analysis by the district court was required to determine whether claim terms reciting “executable program code” were non-function terms that did not survive a means-plus-function analysis under 35 U.S.C. § 112(f) because they did not identify sufficient structure to accomplish the claimed functions. However, the Federal Circuit did affirm the finding by the Delaware jury that another TrackTime patent claiming methods for navigating multimedia files containing audible words on mobile devices was invalid as anticipated by user guides and similar materials from Amazon’s LiveNote program for annotating transcripts.

CJEU Dismisses Google’s Appeal of €4.1B EU Fine for Abuse of Google Search Dominance – On Thursday, July 2, the Court of Justice for the European Union (CJEU) issued a judgment dismissing an appeal by American consumer tech giant Apple challenging a €4.1 billion fine levied by the EU Commission and affirmed by the General Court of the European Union, which annulled part of the Commission’s determination with respect to revenue share agreements with producers of mobile devices running the Android operating system but affirmed other findings that Google abused its dominant position by requiring that its Google Search and Chrome browser apps be promoted on Android devices. Upholding the penalty assessed by the General Court, the CJEU found no error in the General Court’s assessment of the anticompetitive effects of pre-installation agreements with Android device makers, its confirming of the Commission’s assessment without proof of foreclosing as-efficient competitors, or in finding that Google’s anti-fragmentation agreements limited commercial markets for non-Android versions without conducting a counterfactual analysis.

UK Supreme Court Hears Apple’s Appeal of $502M FRAND Payment to Optis – On Monday, June 29, the Supreme Court of the United Kingdom began hearing arguments in an appeal brought by American tech giant Apple seeking to overturn a $502 million judgment entered against it by the UK Court of Appeal in May 2025 representing a worldwide license on fair, reasonable and non-discriminatory (FRAND) terms for Optis Cellular’s standard-essential patents (SEPs) in the 4G networking space. The Court of Appeal’s damages award is being challenged by both parties at the UK Supreme Court, who both argue that the award was arrived at by arbitrary means, as well as by intervenor Qualcomm who argues that Apple’s approach both deviates from widely accepted principles and threatens incentives to innovate.

SCOTUS Denies Cert in Gil Hyatt Appeal, Takes Up Trademark, App Store Injunction Appeals – On Monday, June 29, the U.S. Supreme Court issued an order list showing that the nation’s highest court had denied a series of petitions for writ of certiorari on significant intellectual property matters, including an appeal by independent inventor Gil Hyatt challenging the U.S. Court of Appeals for the Federal Circuit’s application of prosecution laches despite acting within statutorily prescribed timelines for filing his patent applications, and an appeal by Polar Electro Oy from a district court’s patent ineligibility ruling under 35 U.S.C. § 101 based on invalidity arguments supplied sua sponte by the district court. However, the Supreme Court did grant petitions for cert in RISE Brewing’s appeal of the Second Circuit’s treatment of trademark strength as a question of law over the U.S. Solicitor General’s own briefing urging denial despite the Second Circuit’s legal error, and also granted tech giant Apple’s appeal of from the Ninth Circuit’s affirming a civil contempt award for Apple’s failure to comply with an injunction preventing certain commission structures on external purchases. The Court also ordered that the application for stay in Blanche v. Perlmutter be denied, ending the Trump Administration’s challenge to Shira Perlmutter returning to her role as Register of Copyrights while she proceeds with her legal challenge to her removal by President Trump.

D.C. Circuit Strikes Down Norwich’s Attempt to Win Summary Proceeding on Amended ANDA – On Friday, June 26, the U.S. Court of Appeals for the D.C. Circuit issued a ruling in Norwich Pharmaceuticals, Inc. v. Kennedy affirming the District Court for the District of Columbia’s grant of summary judgment upholding the U.S. Food & Drug Administration’s (FDA) failure to grant total approval for Norwich’s abbreviated new drug application (ANDA) to market a generic version of Salix Pharmaceuticals’ irritable bowel syndrome treatment Xifaxan. Norwich argued that the FDA had misread a judgment by the District of Delaware, affirmed by the Federal Circuit, that its ANDA could not be approved until the expiration of Salix’s hepatic-encephalopathy patents in October 2029, but the D.C. Circuit Court held that the FDA read the ruling correctly, noting that the district court twice expressly refused to rule upon whether Norwich’s ANDA amendments removing requests for approval of the generic treatment for hepatic encephalopathy such that the amended ANDA was never properly part of the Delaware district court’s final judgment.

Google White Paper Argues That Copyright Infringement Should be Limited to AI Outputs – On Thursday, June 25, American Internet services giant Google published a white paper entitled A Pragmatic Approach to AI Governance in America arguing for policymakers impacting artificial intelligence (AI) regulation at the federal level to choose practical, balanced approaches that recognize opportunities while addressing unique challenges posed by certain types of AI models. Google’s white paper advocates for the creation of a frontier AI regulatory agency at the federal level that would promote safety standards internationally and oversee an annual audit regime for frontier AI companies, as well as policies for widely-deployed AI below the frontier level that should allow AI companies to train AI models under fair use and text-and-data-mining exceptions while arguing that copyright infringement allegations should be limited to AI outputs.

Barks

Former USPTO Deputy Director Peter Nominated for WIPO Patent & Tech Sector Role – On Thursday, July 2, the U.S. Patent and Trademark Office (USPTO) announced that the agency’s former Deputy Director Laura Peter had been nominated to serve at the World Intellectual Property Organization (WIPO) as the Deputy Director General of that organization’s Patents and Technology Sector with a six-year term beginning October 1 if Peter’s nomination is approved by WIPO’s Coordination Committee at their next meeting on July 9.

EUIPO’s 2026 Update to EUTM, EUD Examination Guidelines are Published – On Tuesday, June 30, the European Union Intellectual Property Office (EUIPO) announced that the 2026 edition of the agency’s Guidelines for Examination of European Union trademarks and registered designs were entering into force on July 1 with several changes to design examination, including updated graphic representation requirements and new practices surrounding objections to product indications, and trademark examination, including practices around objections or restrictions to EU trademark applications that use or evoke a geographical indication (GI).

USPTO Issues Update to TTAB Manual of Procedure – On Tuesday, June 30, the U.S. Patent and Trademark Office (USPTO) announced that it had issued an update to the Trademark Trial and Appeal Board (TTAB) Manual of Procedure (TBMP) incorporating relevant TTAB precedential decisions issued between February 28, 2025, and February 27, 2026, as well as adding proceeding numbers to all TTAB decisions issued between 2000 and 2009.

EUIPO’s SME Fund Creates New Voucher for CIGI Registration Reimbursements – On Tuesday, June 30, the EUIPO announced that the agency’s SME Fund would be adding a fifth voucher option to support small- and medium-sized enterprises (SMEs) filing applications to register craft and industrial geographical indications (CIGIs), providing up to €2000 per beneficiary to reimburse CIGI fees at the national and EU level as well as costs incurred to prepare product specification documents.

Magistrate Judge Martullo Recommends Trebled Damages of $65 Million in Gilead HIV Counterfeit Case – On Monday, June 29, U.S. Magistrate Judge Joseph Martullo of the Eastern District of New York issued a 81-page report and recommendation in a lawsuit brought by Gilead alleging several Lanham Act and New York state law violations over counterfeit HIV treatments, Judge Martullo’s report recommending that all 26 defaulting defendants in the case should be found liable of federal trademark infringement and should pay damages that, after trebling, total $65 million.

USPTO Officially Changes Director Review Requests Based on Light & Wonder Ruling – On Monday, June 29, the USPTO announced that the agency had updated its process for requesting Director review of the institution of a trial at the Patent Trial and Appeal Board (PTAB), extending the deadline for requesting review to 30 days and allowing for this deadline to be extended even further in exceptional circumstances as long as the PTAB trial has not progressed meaningfully.

This Week on Wall Street

Ford Sees Slowing Demand for EVs While Tesla, Rivian Sales Top Expectations – On Thursday, July 2, American carmaker Ford Motor Company reported second quarter earnings showing that the company saw a 40.7% decline in sales of pure electric vehicles (EVs) compared to the same period last year, while rival EV makers Tesla and Rivian beat analyst expectations on EV sales, with Tesla delivering nearly 75,000 more EVs than expected for the second quarter and Rivian beating analyst expectations by more than 1,000 EV deliveries with 12,194 total during the same quarter.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2025 are announcing quarterly earnings next week (2025 rank in parentheses):

• Monday: None
• Tuesday: None
• Wednesday: None
• Thursday: None
• Friday: Nanya Technology Corp. (140th)