Other Barks & Bites for Friday, October 9: Korean Trademark Probe Shows Royalties Up 69% Since 2018; AAFA Urges USTR to Add Meta to Notorious Markets List; Ninth Circuit Finds Refusal to Deal in Invisalign Antitrust Case

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Eliza Yang’s 10-year-old Shihtzu Chihuahua mix – Yogi.

This week in Other Barks & Bites: record quarterly profits reported by Samsung Electronics belie an AI chip shortage likely to last into 2028; a major American apparel industry organization calls for the inclusion of Meta’s Facebook and Instagram in the USTR’s Notorious Markets List; copyright advocates tell Australia’s Parliament that an opt-out framework for AI model training is not feasible; the Ninth Circuit reverses a district court’s finding that ending interoperability for Invisalign dental aligners with rival scanning firms is a lawful refusal to deal; South Korea’s fair trade regulator finds that trademark royalties have exploded over the past decade in a probe into illicit private benefit-taking; John Duffy officially begins his duties as the USPTO’s General Counsel and Acting Solicitor; the EUIPO’s CIGI Advisory Board announces nearly 100 craft and industrial registrations since the system began late last year; and Micron Technology agrees to make $600 million in payments through 2031 to license Netlist’s memory portfolio and end outstanding litigation between the two companies.

Barks

Korean FTC Says Trademark Royalties Up 69% Since 2018 in Corporate TM Probe – On Thursday, October 8, South Korean news outlet ChosunBiz reported that the Korean Fair Trade Commission had reported statistics to the National Policy Committee as part of the FTC’s probe into trademark royalty collections being reported by large business groups, which increased 69% from 2018 to total 2.2291 trillion won ($1.66 billion USD) in 2025. Supporters of the Korean FTC’s enforcement probe note that improperly inflated trademark royalties may be used to siphon revenues to specific affiliates leading to illicit private benefit-taking, a situation that some believe could be addressed by clearer administrative guidelines for determining fair trademark royalties for brand use.

AAFA Urges USTR to Add Facebook, Instagram to 2026 Notorious Markets List – On Thursday, October 8, the American Apparel & Footwear Association (AAFA) announced that it has submitted comments to the Office of the U.S. Trade Representative (USTR) that urged the inclusion of several popular online marketplaces to the 2026 Review of Notorious Markets for Counterfeiting and Piracy including Meta’s Facebook and Instagram, Alibaba’s Alibaba.com and Ali Express, and DHgate. Across Meta platforms, the AAFA’s comments identified the overwhelming scale and persistence of fraudulent advertising that impersonates AAFA members as the most significant problem facing its members, further noting that Meta only bans advertisers if they are 95% certain to be committing fraud, otherwise the only penalty for ads that are likely illicit is higher advertising rates collected by Meta.

Copyright Office NOI on Music Piracy Issues Avoids Generative AI Concerns – On Wednesday, October 7, the U.S. Copyright Office published a notice of inquiry in the Federal Register seeking public comment on music piracy issues in response to a request for an investigation into the prevalence of streaming fraud and its impact on the music industry in a May letter to the Copyright Office by U.S. Representative Scott Fitzgerald (R-WI). While the Office’s NOI focuses on streaming fraud issues involving copyright fraud or bot farms used to inflate playback numbers and improperly divert royalties, Rep. Fitzgerald’s letter included concerns related to artificial intelligence- (AI) generated music omitted from the NOI including a strong correlation between AI-generated music streams and criminal activity.

Eleventh Circuit Finally Orders Long Overdue Transfer of Judge Newman’s Judicial Misconduct Case – On Wednesday, October 7, the U.S. Court of Appeals for the Eleventh Circuit issued an order indicating that on August 19, the Chief Justice of the United States transferred a complaint filed by Circuit Judge Pauline Newman “and any pending or new complaints relating to the same subject matter” to the Eleventh Circuit Judicial Council. The transfer, which comes three years after Judge Newman first requested transfer of her case away from the Federal Circuit’s special committee owing to appearances of impropriety, is being hailed by some of Judge Newman’s advocates as action maintaining the public’s ability to redress alleged misconduct while IPWatchdog Founder and CEO Gene Quinn called the transfer long overdue, adding that “it is past time for this charade to come to an end.”

NAPP Wants PERA Language Tweaked – The National Association of Patent Practitioners (NAPP) sent a letter to members of congress on Tuesday, October 6, urging them to revise the current language of the Patent Eligibility Restoration Act (PERA), which NAPP says “introduces a novel legal test that has no parallel in the law of any other country and is unanticipated by the patent bar.” According to the letter, the proposed change would track U.S. Patent and Trademark Office (USPTO) guidance to amend the existing language of proposed § 101(b)(2)(A) from “cannot practically be performed without the use of a machine” to language that clarifies the “claims should be eligible if the specification teaches techniques that enable operation at scale that would be impractical without the use of a machine (as opposed to excluding all possibility of human performance), provided that the claims reflect the improvement.”

AI Hearing in Australian Parliament Hears Concerns Over Opt-Out Copyright Framework, Breach Reporting – On Tuesday, October 6, a hearing conducted at the Parliament of Australia on issues related to artificial intelligence (AI) featured comments by members of Australia’s content creator community pushing back on proposals to establish a framework for AI companies to use content to train models unless the copyright owner opts out, with representatives from the Australian Broadcasting Corporation noting the impracticability of scouring the Internet to opt out from all AI model training schemes. The hearing also featured comments from representatives of AI companies OpenAI and Anthropic who reportedly welcomed the potential of new legislation that would require those companies to report breaches of data security systems by their AI agents.

Ninth Circuit Majority Says Invisalign Interoperability Termination is Anticompetitive Refusal to Deal – On Monday, October 5, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Simon and Simon, PC v. Align Technology, Inc. in which the appellate panel majority reversed the Northern District of California’s grant of summary judgment in favor of Align Technology on antitrust claims filed by consumers of Align’s Invisalign dental aligner and iTero intraoral scanners after finding that Align’s unilerateral, voluntary termination of interoperability of its Invisalign system with intraoral scanners made by rival firm 3Shape. Concurring in the judgment, Circuit Judge Eric Miller faulted the majority’s reasoning for significantly expanding refusal-to-deal liability whenever anticompetitive harms outweigh procompetitive benefits even when a legitimate business justification for the conduct exists, though Judge Miller agreed with the appellate court’s conclusion that Align’s stated reason of ending interoperability would aid with related patent litigation was pretextual given that ending interoperability improves equitable defenses for the infringement defendant.

Bites

EUIPO CIGI Advisory Board IDs 94 Applications and 52 Registrations Since Dec. 2025 – On Friday, October 9, the European Union Intellectual Property Organization (EUIPO) announced that its Advisory Board for craft and industrial geographic indications (CIGIs) held its second plenary meeting since the CIGI system was established last December, acknowledging that 94 CIGI applications had been filed at the agency from nine member nations leading to 52 CIGI registrations.

EPO President Campinos Encourages IBEPI on Value of Patents as Financial Assets – On Friday, October 9, the European Patent Office (EPO) announced that the week before, its president António Campinos delivered remarks at a high-level conference of the Ibero-American Programme for Industrial Property and the Promotion of Development (IBEPI) urging representatives attending from IP offices and innovation finance stakeholders to help build a framework giving investors confidence in credible valuation systems for patents as financial assets.

Micron Agrees to Pay $600M Through 2031 to Settle Netlist Memory Lawsuit – On Tuesday, October 6, news reports indicated that American memory developer Micron Technology had agreed to enter into a settlement agreement with rival firm Netlist ending all pending litigation between the companies and giving Micron a five-year license to Netlist’s server DIMM and high-bandwidth memory technologies in exchange for a $30 million per quarter payment by Micron totalling $600 million through the third quarter of 2031.

Former USPTO Acting Commissioner of Patents Wallace Joins C4IP Advisory Board – On Tuesday, October 6, the Council for Innovation Promotion (C4IP) announced that Valencia Martin Wallace, formerly the Acting Commissioner of Patents at the U.S. Patent and Trademark Office (USPTO) with more than three decades of experience in patent policy and administrative roles at that agency, has joined C4IP’s Advisory Board to further the organizations efforts in advancing pro-innovation policy in the United States.

USPTO Officially Welcomes John Duffy as General Counsel and Acting Solicitor – On Monday, October 5, the USPTO announced that John Duffy’s tenure as the agency’s General Counsel and Acting Solicitor, during which he will serve as the principal legal advisor and counsel to the USPTO Director and supervise several legal offices, has begun with Duffy officially on leave from his professorships at the University of Virginia School of Law.

Huawei, Qualcomm Enter Cross-License on 5G, AI, Compute Patents – On Monday, October 5, American semiconductor developer Qualcomm announced that it had entered into a cross-license agreement with Chinese telecommunications firm Huawei giving each company access to a broad swath of patented technologies in 5G telecommunications, AI, compute and networking, with the terms of the licensing deal being kept confidential.

This Week on Wall Street

Samsung’s Record Quarterly Profits Belie Chip Shortage Caused by AI Boom – On Thursday, October 8, South Korean technology conglomerate Samsung Electronics forecasted that its profits for the third quarter of 2026 would eclipse 100 trillion won ($74.5 billion USD), which Reuters reported as a first for any technology company, which would be Samsung’s fourth straight quarter of record operating profit as demand for AI chips has been causing chip supply shortages expected to last into 2028.

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: Johnson & Johnson (24th); JPMorgan Chase & Co. (t-163rd); Wells Fargo & Co. (t-107th)
• Wednesday: ASML Holding N.V. (167th); Bank of America Corp. (59th)
• Thursday: Taiwan Semiconductor Manufacturing Co. Ltd. (2nd); Telefonaktiebolaget LM Ericsson (21st)
• Friday: None