Other Barks & Bites for Friday, September 18: Third Circuit Hears Arguments in Vintage Merch Case; Ninth Circuit Nixes Output Challenge Under DMCA; and CAFC Affirms Attorneys’ Fees in Lab-Grown Diamond Case

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This week in Other Barks & Bites: the Ninth Circuit finds that a series of Doe plaintiffs did not succeed on the theory that GitHub’s AI-powered coding platform violated the Digital Millennium Copyright Act (DMCA) under an output theory; U.S. Patent and Trademark Office (USPTO) Director John Squires says that U.S. trademark filings have increased 11% compared to the first nine months of 2025; the Protect College Sports Act moves toward a vote on the U.S. Senate floor that will likely happen next week; the Federal Circuit affirms an attorneys’ fee award for Carnegie Institute of Washington’s objectively baseless infringement position; American songwriter Cyril Vetter urges the U.S. Supreme Court to follow recording industry practices in denying a petition for cert in a copyright termination case; UMG sues DistroKid for copyright infringement, citing the defendant’s ongoing production of “AI slop”; the Third Circuit hears oral arguments in a case involving fan merchandise using vintage collegiate sports logos; and Huawei announces a line of new AI chips ahead of a highly anticipated meeting in Washington, D.C. between Donald Trump and Xi Jinping.

Bites

CAFC Reverses PTAB for Improper Construction in Medical Catheter Claims – On Thursday, September 17, the U.S. Court of Appeals for the Federal Circuit issued a ruling in In re Incept LLC vacating and remanding a ruling by the Patent Trial and Appeal Board (PTAB) affirming a patent examiner’s rejection of patent claims directed to a medical catheter with an anchoring strain containing a sealing portion with a plurality of ridges, each ridge forming a flow barrier at the top of the ridge and the catheter’s outer surface. The Federal Circuit found that the PTAB erred in agreeing with the examiner that the claim term “flow barrier” should be construed such that the claims only recite the positioning of the catheter’s ridges and not that there should be any sealing effect, which the appellate court found to be supported under even the broadest reasonable interpretation of the claim language itself.

Protect College Sports Act Moves Forward With Reduced Conference Waiting Period – On Thursday, September 17, the U.S. Senate approved a motion by a 77 to 22 vote to proceed toward the consideration of the Protect College Sports Act for final passage next week with several amendments changing aspects of the bill, such as requiring that the National Collegiate Athletic Association (NCAA) take reasonable steps to ensure school compliance with the bill’s provisions as well as a reduction in the waiting period that one school must undergo when transferring from one Power Four conference to another. This bill, which would codify name, image, and likeness (NIL) rights for collegiate athletes, also cleared a major procedural hurdle earlier in the week on Tuesday when the Senate voted 74 to 24 to invoke cloture following a press conference featuring a bipartisan coalition of Senators and a couple dozen collegiate athletes and coaches publicly supporting passage of the bill.

Third Circuit Hears Oral Arguments in “Vintage” Penn State Merchandise Case – On Thursday, September 17, the U.S. Court of Appeals for the Federal Circuit held oral arguments in Penn State v. Vintage Brands, which follows Vintage Brands’ appeal from a jury verdict in Pennsylvania federal court that it infringed upon Penn State’s trademarks by selling unlicensed goods with designs associated with the university. Vintage Brands claims that its merchandise makes use of vintage school logos that are no longer used by the university and are now in the trademark public domain, thus the marks are merely ornamental and do not create a likelihood of consumer confusion due to disclaimers run by Vintage on its online store, whereas the jury at district court found Vintage liable for creating an association between Vintage and the trademark owner.

CAFC Finds Infringement Claims “Objectively Baseless” in Lab-Grown Diamond Case – On Thursday, September 17, the Federal Circuit issued a ruling in Carnegie Institute of Washington v. Fenix Diamonds LLC affirming an attorneys’ fee award entered by the Southern District of New York against Carnegie Institute of Washington for pursuing objectively baseless infringement claims related to its patents directed to methods of making lab-grown diamonds. The Federal Circuit found that the plaintiffs should have realized that they were pursuing an objectively baseless infringement position following the production of evidence by Fenix showing that its diamonds were manufactured through a process that utilizes extensive non-monocrystalline growth on the growth surface of a diamond substrate when Carnegie’s patent claims that covers methods of diamond production that only use insubstantial amounts of polycrystalline growth.

Ninth Circuit Nixes “Output” Challenge Under DMCA Against GitHub’s AI Coders – On Wednesday, September 16, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Doe v. GitHub, Inc. affirming the Northern District of California’s dismissal of copyright claims under the Digital Millennium Copyright Act (DMCA) filed by a series of John Doe plaintiffs over the use of their software projects by GitHub’s Codex and Copilot artificial intelligence (AI) coding tools. While the Ninth Circuit panel found that the Doe plaintiffs plausibly alleged an injury giving rise to Article III standing, the appellate court dismissed the copyright claims as Codex and Copilot created new works and did not remove or alter copyright management information from existing works, and that the plaintiffs’ forfeited their “input” theory of copyright infringement under the DMCA.

Songwriter Brief Urges SCOTUS to Leave Copyright Termination Ruling Alone – On Monday, September 14, American songwriter Cyril Vetter filed a brief in opposition at the U.S. Supreme Court urging the nation’s highest court to deny the petition for writ of certiorari filed by BMG Rights Management and several other major record labels, who seek to challenge the Fifth Circuit’s ruling that Vetter’s termination of the transfer to the sound recording copyright for Vetter’s 1966 single “Double Shot (Of My Baby’s Love)” is effective worldwide. Noting that there can be no circuit split on an issue that has only been decided by one circuit court, Vetter argued that the Court cannot provide relief to the record labels as they would still share ownership with Vetter would not unilaterally control the sound recording, and noted that the recording industry itself has been moving toward agreements under which recording artists’ copyrights revert after 10 to 25 years instead of the statutory 35 years following the transfer of copyright.

Barks

Squires Says 2026 Trademark Filings Up 11% Over Same Ninth-Month Period Last Year – On Wednesday, September 16, U.S. Patent and Trademark Office Director John Squires gave public remarks at the 3rd annual Washington D.C. Conference coordinated by the University of Southern California’s Gould School of Law during which he noted that trademark filings at the USPTO reached 673,000 filings during the first nine months of this year, an increase of 11% over the same period of time last year.

First Solar Cites Solar Tariffs in Dropping Section 337 Cast at USITC – On Wednesday, September 16, news reports indicated that American solar energy developer First Solar would voluntarily dismiss without prejudice its Section 337 action alleging patent infringement against several companies importing tunnel oxide passivated contact (TOPCon) solar cell technologies, with First Solar citing the Trump Administration’s recent announcement of new tariffs on polysilicon and related solar products going into effect later this year.

AI-Powered Patent Valuation Tools Takes Top Award at EPO CodeFest 2026 – On Wednesday, September 16, the European Patent Office (EPO) held a live award ceremony during the agency’s PATLIB patent information center conference announcing winners of the 2026 CodeFest competition, including grand-prize winning team Confused Electrons and its AI-powered patent portfolio analysis tool identifying patent value as a measure of technological impact, market relevance and legal strength.

New Balance Sues Decathlon Over Stylized Lettering on Athletic Shoes – On Tuesday, September 15, American shoemaker New Balance filed a lawsuit in the District of Massachusetts alleging claims of trademark infringement against France-based rival Decathlon, arguing that the stylized “K” used by Decathlon causes a likelihood of consumer confusion with New Balance’s own “N” logo printed on its athletic footwear.

Sen. Cruz, Rep. Babin Push for Texas Location for U.S. Space Academy – On Tuesday, September 15, Senator Ted Cruz (R-TX), Chairman of the Senate Commerce Committee, and Representative Brian Babin (R-TX), Chairman of the House Science Committee, made public remarks urging the Trump Administration to choose a Texas site for the location of the U.S. Space Academy, which is currently underway following an executive order signed by President Trump in late August.

UMG Files Copyright Infringement Suit Against DistroKid to Fight AI “Slop” – On Tuesday, September 15, major record label UMG Recordings filed a lawsuit in the District of Delaware alleging claims of deceptive trade practices and copyright infringement against American digital music distributor DistroKid, which UMG says gives the false impression that it is offering artist-backed AI music while actually flooding online music platforms with AI-generated “slop” to siphon revenues from legitimate artists.

This Week on Wall Street

SEC Order Creates Pathway for Tokenized Stocks, 24/7 Trading – On Thursday, September 17, the U.S. Securities and Exchange Commission (SEC) issued an order creating an Innovation Exemption providing regulatory relief allowing certain trading platforms to issue tokenized representations of publicly traded U.S. stocks, a move which could potentially enable 24-hour trading on the stock market for tokenized assets integrated with blockchain infrastructure.

Huawei Announces New AI Chips Ahead of Trump-Xi Meeting in Washington – On Thursday, September 17, Chinese information communications technology company Huawei announced several new chips designed for AI computing applications, including the Atlas 960 SuperPoD computing cluster with improved AI training and inference capabilities, about one week ahead of a meeting between U.S. President Donald Trump and Chinese President Xi Jinping next week in Washington, D.C.