Other Barks & Bites for Friday, September 25: UPC Will Hear Noninfringement Claim to Pre-Issue Patent; DEFEND IP Act Introduced to Target Foreign Piracy Sites; and Judge Rogers Dissents from D.C. Circuit’s Royalty Allocation Ruling

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Nicole Mastrangelo’s 11-year-old Husky – Tucker (grey) and 5-year-old Pig (black).

This week in Other Barks & Bites: Regulatory hurdles lead Oracle to send a force majeure notice related to its New Mexico data center project; the companion bill for the DEFEND IP Act is introduced into the U.S House of Representatives; the European Union Intellectual Property Office announces the first customs enforcement action on a registered CIGI; the Third Circuit finds no material appropriation of copyrightable elements in a case over allegedly copied curriculum between machine learning professors; the UPC Court of Appeal rules on the question of whether it has jurisdiction to hear noninfringement challenges prior to the issuance of the patent claims at issue; Qualcomm extends its patent license agreement with Apple effective next April; Circuit Judge Rogers authors a dissent to the D.C. Circuit majority’s dismissal of challenges to a statutory royalty allocation by the Copyright Royalty Board; and the USPTO appoints Jonathan Spencer to serve as the agency’s Chief AI Officer.

Bites

DEFEND IP Act Introduced to Crack Down on Foreign Piracy Websites – On Thursday, September 24, Representatives Zoe Lofgren (D-CA) and Ben Cline (R-VA) introduced the U.S. House of Representatives companion bill to the Deterring Extraterrestrial Foreign Exploitation of Networks Damaging Intellectual Property (DEFEND IP) Act already introduced into the U.S. Senate by a bipartisan coalition led by Senators Thom Tillis (R-NC), Chris Coons (D-DE), Marsha Blackburn (R-TN) and Adam Schiff (D-CA). If enacted as draft, the DEFEND IP Act would require blocking orders against foreign websites offering pirated content to go through U.S. courts without mandating specific tech measures for blocking, enabling Internet service providers to choose flexible, minimal blocking approaches, and would only apply to large-scale, foreign-run piracy sites.

EUIPO Reports First Application for Action Filed for CIGI Customs Enforcement – On Thursday, September 24, the European Union Intellectual Property Office (EUIPO) announced that the first Application for Action (AfA) has been filed through the agency’s IP Enforcement Portal, authorizing EU customs officials to seize counterfeit shipments of “Porcelain de Limoges,” registered as a craft and industrial geographic indication (CIGI) protecting premium porcelain made in France. According to the agency, the filing provides an early demonstration of the how the new registration system for CIGIs can provide effective enforcement for this recently established form of intellectual property protecting regional crafts and industrial goods. 

Judge Rogers Dissent Says D.C. Circuit’s Analysis of CRB Royalty Allocation Claims Premature – On Tuesday, September 22, the U.S. Court of Appeals for the D.C. Circuit issued a ruling in Office of the Commissioner of Baseball v. Librarian of Congress vacating a ruling of the Copyright Royalty Board (CRB) for further explanation of its royalty allocation for statutory licenses of secondary transmissions from 2014 to 2017 of broadcast programming pursuant to 17 U.S.C. § 111 while also rejecting challenges to the allocation by both the central administrative body of Major League Baseball as well as Public Broadcasting Service to the CRB’s principal valuation methodologies. Dissenting from the panel majority was Senior U.S. Circuit Judge Judith Rogers, who argued that the panel’s resolution of appellant challenges to the CRB’s royalty allocation was premature because the CRB did not properly explain how it weighed regression and survey results for each claimant group in each year according to their “comparative utility,” which the case was remanded for the CRB to explain and which could impact future challenges on appeal.

UPC Court of Appeal Finds Jurisdiction to Hear Noninfringement Claim on Yet-to-Issue Patent – On Monday, September 21, the Court of Appeal of the Unified Patent Court (UPC) issued an order dismissing an appeal by French packaging company Sidel challenging an order by the Paris division of the UPC dismissing Sidel’s preliminary objection to the UPC hearing a noninfringement challenge filed by French packaging equipment manufacturer OMNIA seeking a declaration that its labelling module did not infringe upon EU patents that had yet to be granted. Following an approach set out by Italian courts, the UPC’s Court of Appeal ruled that the question of whether a noninfringement action can be filed before the patent’s grant is not a question of the UPC’s jurisdictional competence but rather a question of the admissibility of the claims, a ruling which could open the door to more noninfringement challenges on patent applications at the UPC.

CAFC Reverses Patent Eligibility Finding for Profitability-Calculation Claims – On Monday, September 21, the U.S. Court of Appeals for the Federal Circuit issued a ruling in Berkeley*IEOR v. W.W. Grainger Inc. reversing a summary judgment ruling entered by the Northern District of Illinois that had upheld the patent eligibility of a process for determining object level profitability at Step 2 of the Alice/Mayo subject matter eligibility framework. Agreeing with the district court that the claims were directed to the abstract idea of calculating profitability at Step 1 of Alice, the Federal Circuit disagreed that parallel processing of object profit values by a relational database management system provided an inventive concept for patent eligibility as this parallel processing was not required by the claim language.

Third Circuit Finds No Material Appropriation in Copied Curriculum Case – On Friday, September 18, the U.S. Court of Appeals for the Third Circuit issued a ruling in Roshan v. New Jersey Institute of Technology affirming the District of New Jersey’s dismissal of his complaint alleging that course curricula to a machine learning class developed by the plaintiff was copied by another professor at the New Jersey Institute of Technology while Roshan was on family medical leave. The appellate court agreed with the district court that, within the context of the limited original expression represented by the curriculum, Roshan could not plausibly show material appropriation to maintain his copyright claim as none of the protectable elements of the curriculum were substantially similar, including material covered in a different order and with no overlap in textual explanations for each topic.

Barks

Qualcomm “Pleased to Extend” Patent License Agreement with Apple – On Thursday, September 24, American semiconductor developer Qualcomm issued a press release acknowledging that the company was “pleased” to be extending its patent license agreement with American consumer device giant Apple effective April 1 of next year.

USPTO Appoints Jonathan Spencer as Chief AI Officer – On Tuesday, September 22, the U.S. Patent and Trademark Office announced that Jonathan Spencer, formerly an artificial intelligence (AI) engineer at self-driving car company Waymo, will serve the agency as its Chief AI Officer overseeing the agency’s implementation and deployment of AI systems.

Ninth Circuit Affirms Ruling That Google Didn’t Use Musician Trademark in Commerce – On Tuesday, September 22, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Benedict v. Google LLC affirming the District of Arizona’s dismissal with prejudice of a trademark and state tort lawsuit filed against Google by musician Lance Benedict for failing to allege that Google made a commercial use of his registered trademark in his name when a third-party used Google AdWords to spread defamatory information.

EUIPO Announces Winners of 10th Annual DesignEuropa Awards – On Tuesday, September 22, the EUIPO hosted an event in Ljubljana, Slovenia, during which it announced the winners of the DesignEuropa Awards 2026, the 10th year for these awards recognizing excellence in design, honoring Latvia’s CLF Growth Containers among entrepreneurs and small companies, Germany’s NOHRD Step Tower for industry, Poland’s Maria Gil for the Next Generation Award, France’s Philippe Starck for the Lifetime Achievement Award, and Spain’s Showee for the Public Choice Award.

USPTO Cross-Functional “Tiger Team” to Join WIPO IP Assignment Pilot Program – On Tuesday, September 22, the USPTO announced that its cross-functional “tiger team,” led by Deputy Commissioner for Patents Robin Evans and Chief Policy Officer and Director of International Affairs Mary Critharis, will participate in the World Intellectual Property Organization’s (WIPO) Global IP Assignment Platform pilot program establishing a centralized, standard platform for filing and tracking IP assignments.

Judge Talwani Eliminates Most of $23.5M Actual Damages Award in Beyond Meat TM Case – On Friday, September 18, U.S. District Judge Ariel Talwani of the District of Massachusetts entered an order reducing Vegadelphia’s actual damages award in its trademark infringement case against Beyond Meat from $23.5 million down to $37,500, although Judge Talwani’s order leaves in place a separate $15.4 million award for Vegadelphia’s lost profits.

This Week on Wall Street

Oracle Shares Drop 3% on News of Force Majeure Notice on NM Data Center Project – On Thursday, September 24, shares of American technology company Oracle Corp. stock fell by 3% following news reports that the company has sent out a force majeure clause related to its Project Jupiter data center project in New Mexico, which has hit regulatory hurdles and lower opposition, in an effort to delay payments if the data center fails to come online during 2028 as planned.

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: Micron Technology Inc. (23rd)
• Thursday: Accenture plc (t-289th); Nike, Inc. (122nd)
• Friday: None