Other Barks & Bites for Friday, September 4: D.C. Circuit Affirms Medical Device TPM Circumvention; U.S. Earns High Ratings in IP Index Statistic Annex; and Microsoft Edge is Not Important Gatekeeper Under DMA

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This week in Other Barks & Bites: a House IP Subcommittee hearing on restoring the USPTO’s fee-setting authority turns heated over the original intention behind the America Invents Act; the Eleventh Circuit affirms a permanent injunction and trademark cancellation in an infringement case brought by the maker of “Wolf”-brand electric scooters; the United States scores high marks across 33 economic indicators in the U.S. Chamber of Commerce’s recently released Statistical Annex to the International IP Index; the European General Court finds that Microsoft’s Edge browser is not an important gateway subject to regulations under the Digital Markets Act; the D.C. Circuit Court of Appeals affirms the Library of Congress’ recent triennial rulemaking allowing circumventions to technological protection measures for medical devices; and Microsoft breaks out financial figures for its Azure cloud division for the first time in its most recent quarterly earnings report. 

Bites

EGC Holds That Microsoft Edge Is Not Important Gateway Under DMA – On Wednesday, September 2, the European General Court (EGC) issued a ruling dismissing an action filed by browser publisher Opera Norway challenging the European Commission’s determination that, although Microsoft met quantitative thresholds under the Digital Markets Act (DMA), that company’s Edge web browser does not constitute an important gateway under that law. The EGC found that the EU Commission was entitled to rely on the low scale of usage for the Edge browser as well as the fact that Edge relies on the browser engine Blink, which reduces Microsoft’s ability to exert autonomous control over the browser, and that Microsoft’s pre-installation of Edge within its own ecosystem did not sufficiently contribute toward making Edge an important gateway.

Rep. Issa, Kappos Spar Over Nature of PTAB During House IP Subcommittee Hearing – On Wednesday, September 2, the U.S. House of Representatives’ House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, Artificial Intelligence and the Internet held a hearing to discuss the renewal of fee-setting authority at the U.S. Patent and Trademark Office (USPTO), during which House IP Subcommittee Chair Rep. Darrell Issa (R-CA) got into heated arguments with former USPTO Director David Kappos regarding the intended nature of the Patent Trial and Appeal Board (PTAB) following Issa’s suggestion that fee-setting authority should be conditioned upon PTAB reforms. House IP Subcommittee Ranking Member Rep. Hank Johnson (D-GA) gave an opening statement calling for full reconstitution of the USPTO’s public advisory committees for patent and trademark operations, and for further debate on legislative packages like the PREVAIL Act that would also reform the PTAB.

Eleventh Circuit Affirms Injunction, Trademark Cancellation in Wolf Warrior Scooter Case – On Tuesday, September 1, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion in Hammer Brand, LLC v. Voro, Inc. affirming a permanent injunction entered by the Middle District of Florida against Voro’s distribution of “Wolf Warrior” and “Wolf King” electric-powered scooters manufactured by Ningbo Kaabo Technology, agreeing that most likelihood of confusion factors including actual confusion, which the Eleventh Circuit called “the most important factor” in the consumer confusion analysis, weighed in favor of Hammer, which produces “Wolf” brand scooters. The Eleventh Circuit also upheld the district court’s cancellation of Ningbo Kaabo’s registered trademarks in its scooter brands after finding pendant appellate jurisdiction over the cancellation claim while Hammer’s claim that Ningbo Kaabo fraudulently registered its marks remains pending in district court.

D.C. Circuit Affirms SJ Denial in APA Challenge to Medical Device TPM Circumvention Rulemaking – On Tuesday, September 1, the U.S. Court of Appeals for the D.C. Circuit issued a ruling in Medical Imaging & Technology Alliance v. Library of Congress affirming the D.C. District Court’s summary judgment dismissal of claims brought by medical technology trade organizations under the Administrative Procedures Act (APA) against the Librarian of Congress’ permitting the circumvention of technological protection measures (TPM) enabling access to copyrighted medical equipment computer programs and data files under the Digital Millennium Copyright Act’s (DMCA) three-year triennial rulemaking for TPM circumvention as governed by 17 U.S.C. § 1201. Considering the Librarian of Congress’ fair use analysis during rulemaking proceedings, the D.C. Circuit agreed with the district court that the medical device repair exemption was lawful, reasonable and supported by thorough and well-reasoned explanations.

Seventh Circuit Affirms Malpractice Dismissal in JoJo Cup Design Case – On Friday, August 28, the U.S. Court of Appeals for the Seventh Circuit issued an opinion in Sima v. Benesch, Friedlander, Coplan & Aronoff LLP affirming the Northern District of Illinois’ dismissal of a second amended complaint filed by pro se plaintiff Amanda Sima who alleged legal malpractice claims related to her representation by Benesch in intellectual litigation against Novolex over their alleged infringement of Sima’s JoJo Cup spill-proof cup lid. Although troubled by the conduct of the attorney in question, the Eleventh Circuit nevertheless affirmed the dismissal after finding that Sima had assented to a legal strategy other than trade secret misappropriation and that the statute of limitations on her trade secret claims had run out by the time she spoke with attorneys at Benesch, thus Sima did not demonstrate that she possessed a colorable claim underlying the malpractice allegations.

U.S. Earns High Ranks in Most Correlations in U.S. Chamber’s Statistical Annex to IP Index – This week, the U.S. Chamber of Commerce sent a press notice about the organization’s release of the Statistical Annex to the 2026 International IP Index, which provides an assessment of the relationship between the Index scores for 55 different economies including the United States across a series of 33 economic variables showing various correlations between those economies and their readiness for industrial growth, available innovation resources and knowledge-based economy outputs. The United States ranked highly across the board on these correlations, with the U.S. Chamber noting that strong IP economies are 66% more likely to produce innovation outputs and are 53% more likely to attract venture capital and private equity. 

Barks

Judge Connolly Blocks Use of Twitter-Formative Marks, Denies Injunction on Tweet, Bird Marks – On Thursday, September 3, U.S. District Judge Colm Connolly of the District of Delaware granted-in-part a motion for preliminary injunction filed by X Corp. preventing Operation Bluebird from using the “TWITTER” trademark and other Twitter-formative marks, but denied X’s motion with regards to “TWEET” and the bird logo formerly employed by Twitter.

SOCAN Files Canadian Copyright Infringement Suit Against Suno – On Thursday, September 3, the Society of Composers, Authors and Music Publishers of Canada (SOCAN), Canada’s largest music rights organization, filed a copyright infringement suit in Canada’s Federal Court alleging that artificial intelligence company Suno generated and streamed music that made unauthorized copies of copyrighted works from within SOCAN’s repertoire.

BioMarin, Ascendis Enter Global Settlement Ending Yuviwel Infringement Cases – On Monday, August 31, American drugmaker BioMarin Pharmaceutical announced that it had entered into a settlement agreement ending patent infringement proceedings at the U.S. International Trade Commission and other courts around the world involving the dwarfism treatment Yuviwel, with Ascendis agreeing to pay 20% of net U.S. sales and 18% of net EU, Brazil and South Korea sales through 2030.

Open Application Period for Ringer Fellowships at Copyright Office Now Open – On Monday, August 31, the U.S. Copyright Office announced that the agency had begun accepting applications for the Barbara A. Ringer Copyright Honors Program, which offers fellowships lasting from 18- to 24-months designed for early-stage attorneys demonstrating exceptional interest and ability in copyright law.

BMW Files DJ Action in Eastern Texas Over Broadcom’s Connected Car Technologies – On Monday, August 31, German automaker BMW filed a lawsuit in the Eastern District of Texas seeking a declaratory judgment that its vehicles do not infringe on claims from a series of three patents held by Broadcom subsidiary Avago Technologies covering Ethernet and Wi-Fi technologies for automotive applications.

Library of Congress to Host Next Copyright Modernization Meeting on Sept. 11 – On Monday, August 31, the Library of Congress announced that the agency would host the next meeting of its Copyright Public Modernization Committee on Friday, September 11, at 1 PM Eastern, which will feature remarks from Library of Congress and Copyright Office leadership regarding the development of the Enterprise Copyright System.

This Week on Wall Street

Microsoft Reports Azure Earnings for First Time, Trails Only Amazon in Sales – On Wednesday, September 2, American enterprise software developer Microsoft Corporation reported its most recent quarterly earnings, which for the first time ever provided sales figures for the company’s cloud division, including $29.4 billion in sales for the recent quarter which trailed only Amazon in the cloud sector. 

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: Adobe Inc. (113th); Oracle Corp. (57th)
• Friday: None