Other Barks & Bites for Friday, October 16: Comcast Hit With $213 Million Streaming Video Verdict; CAFC Affirms Invalidation of Remote Telehealth Patent Claims; and CJEU AG Biondi Says TikTok is Gatekeeper Under DMA

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This week in Other Barks & Bites: Liquidia announces a global settlement of patent infringement claims with United Therapeutics allowing sales of Yutrepia to continue; Senators Maria Cantwell (D-WA) and Mike Rounds (R-SD) author a letter urging a coordinated federal response to artificial intelligence (AI) safety concerns; Advocate General Biondi tells the Court of Justice for the European Union to dismiss TikTok’s challenge to its gatekeeper designation; the Ninth Circuit find an injury in fact sufficient to confer Article III standing in the breach of confidence stemming from a health insurance administrator’s unauthorized disclosure of private information; the Federal Circuit affirms the Section 101 invalidation of patent claims covering methods for remotely treating patients through telehealth platforms; a Southern California jury hits Comcast with a $213 million verdict for infringement of streaming video patent claims; officials from the European Union Intellectual Property Office continue encouraging the development of IP-backed financing mechanisms at a series of international conferences; and the Innovation Alliance urges the Trump Administration to finalize reforms to Patent Trial and Appeal Board practice first announced last October.

Bites

CAFC Affirms Section 101 Invalidation of Remote Telehealth Patent Claims – On Friday, October 16, the U.S. Court of Appeals for the Federal Circuit issued a ruling in Linden v. ResMed, Inc. affirming the Southern District of California’s grant of ResMed’s motion to dismiss for failure to state a claim after the district court found inventor Craig Linden’s patent claims to telehealth methodologies for remotely treating patients. After finding that Linden waived any argument as to the district court’s choice of representative claim, the Federal Circuit held that the claimed method for treating a patient simply describes a remote version of an in-person doctor visit and thus was directed to an abstract idea at Step 1 of Alice/Mayo, not a specific technological system that requires a concrete technological architecture as argued by Linden, and that the arrangement of claimed elements into a specific configuration did not provide an inventive concept at Step 2 of Alice/Mayo as the representative claim only recites generic hardware components without any explanation in the specification of how those components supplied treatment.

CJEU Affirms Very Large Platform Designation, Releases AG Opinion on TikTok as Gatekeeper – On Thursday, October 15, Advocate General (AG) Andrea Biondi of the Court of Justice for the European Union (CJEU) issued an opinion recommending that the Court dismiss an action brought by Chinese tech firm ByteDance challenging the designation of social media platform TikTok as a gatekeeper under the Digital Markets Act (DMA), finding that the European Commission applied the proper standard for determining a gatekeeper under the DMA and that the fact that users also accessed other social media platforms did not of itself show that TikTok was not an important gateway. The previous day, the CJEU issued a ruling dismissing an action filed by online services company Technius, which operates the online adult entertainment platform Stripchat, challenging that platform’s designation as a very large online platform under the Digital Services Act (DSA) after the CJEU found the EU Commission’s methodology more reliable than that offered by Technius, which employed a methodology that artificially reduced active EU recipients by filtering out a significant number of bounced visits.

Inventor-Founded OTT TV Provider Wins $213 Million Patent Infringement Verdict Against Comcast – On Thursday, October 15, a jury verdict entered in the Middle District of Florida awarded $213 million to over-the-top (OTT) television provider WhereverTV as a reasonable royalty after finding infringement of patent claims covering systems for integrating cable TV channels with streaming services invented by the company’s founder, Mark Cavicchia. WhereverTV had alleged that Comcast integrated this technology into its X1 set-top boxes as part of business decisions to improve market share in the face of lost subscribers due to cord-cutting. The jury verdict, which included a finding that WhereverTV’s patent claims were not invalid, follows a Federal Circuit remand last July after the appellate court found error in the district court’s claim construction of claim terms related to interactive program guides (IPGs) and multi-system operators (MSOs).

Senators Cantwell, Rounds Urge Coordinated Federal Approach to AI Safety & Cybersecurity – On Tuesday, October 13, Senators Maria Cantwell (D-WA) and Mike Rounds (R-SD), respectively the Ranking Member of the Senate Commerce Committee and Chair of the Senate Armed Services Committee’s Subcommittee on Cybersecurity, sent a letter addressed to the Director of National Intelligence, White House Task Force for Super Intelligence, and White House Office of Science and Technology Policy (OSTP) urging those offices to work together on a coordinated federal response to growing concerns surrounding artificial intelligence (AI) bypassing safeguards and escaping sandboxes. The Senators’ letter identified three key priority areas including expanding independent testing capabilities for identifying serious risks in advanced AI models, developing AI security standards and risk-management frameworks at the federal level, and working with public and private partners on the deployment of defensive AI tools.

UK Abandons SEP Rate Determination Track, Will Explore Court-Anchored FRAND Process – On Tuesday, October 13, the United Kingdom Intellectual Property Office (UKIPO) issued a press release setting out a series of measures on standard-essential patents (SEPs) following a series of consultations and calls for evidence conducted by the UK government on ways to better facilitate the efficiency of licensing SEPs in light of fair, reasonable and non-discriminatory (FRAND) licensing obligations imposed by standards-setting organizations (SSOs). The SEP measures released by the UKIPO do not include a previously proposed Rate Determination Track for determining SEP licensing rates and other mandated disclosures for SEP owners, though the UK government does intend to explore a court-anchored process for making FRAND determinations early in SEP patent infringement proceedings.

Ninth Circuit Finds Injury in Fact in Breach of Confidence from Confidential Health Data Leaks – On Friday, October 9, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Black v. IEC Group, Inc. reversing the District of Idaho’s grant of a motion to dismiss filed by health insurance administrator IEC Group after finding that class action plaintiffs suffered an injury in fact sufficient to confer Article III standing for unauthorized disclosures of health information entrusted to IEC Group as a condition of their insurance plan administration. The Ninth Circuit found that the type of harm alleged resembles a breach of confidence and contract long understood as actionable in British and American common law, citing cases from England’s Court of Chancery confirming that breach of confidence was actionable apart from any property interest like copyright or patents as the right is founded on trust or confidence creating an obligation on the party.

Barks

Innovation Alliance Urges Trump Administration to Finalize PTAB Reforms – On Thursday, October 15, the Innovation Alliance issued a blog post authored by its Executive Director Brian Pomper urging the U.S. Patent and Trademark Office (USPTO) to take action on finalizing reforms to inter partes review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB), noting that last October’s notice of proposed rulemaking (NPRM) on IPR practice would advance fairness and predictability in patent adjudication in line with principles reflected in the PREVAIL Act, which is also supported by the Innovation Alliance.

WIPO’s CLIP IP Monetization Initiative Expands to Include Visual Artists – On Wednesday, October 14, the World Intellectual Property Organization (WIPO) announced that its Creators Learn Intellectual Property (CLIP) initiative designed to offer information on IP rights management and monetization is expanding beyond musicians to include painters, sculptors, illustrators and other visual artists, providing them information on authorship, attribution, licensing and other key aspects of IP commercialization.

Liquidia Settlement Allows Continued Sales of Yutrepia to PAH Patients – On Tuesday, October 13, American biopharmaceutical company Liquidia announced that it had entered into an agreement with United Therapeutics to settle global patent litigation ongoing between the companies, with the settlement allowing Liquidia to continue commercializing its Yutrepia inhalation powder to patients for the treatment of pulmonary arterial hypertension (PAH) in exchange for payments of $380.7 million to United Therapeutics through 2027 inclusive of payments to resolve outstanding antitrust litigation between the parties.

EUIPO Officials Continue Pushing IP-Backed Finance Efforts at International Conferences – On Tuesday, October 13, officials at the European Union Intellectual Property Office (EUIPO) organized a high-level roundtable discussion on financing innovation via intangible assets at the IMF-World Bank Group Annual Meetings after also announcing this week that EUIPO Executive Director João Negrão made public remarks at both the the annual meeting of the German Association for Intellectual Property Law (GRUR) and at a high-level conference of the Ibero-American Programme on Industrial Property and Development Promotion (IBEPI) as part of the EUIPO’s efforts to continue encouraging the mobilization of capital through financing mechanisms backed by intellectual property (IP) assets as collateral.

Charleroi, Liverpool and Shanghai Selected as WIPO’s First “City of Innovation” Winners – On Monday, October 12, the World Intellectual Property Organization (WIPO) announced that the cities of Charleroi (Belgium), Liverpool (UK) and Shanghai (China) have been selected as the agency’s first “City of Innovation” award winners, which was launched this year at the UN Forum of Mayors to recognize cities pledging to create or improve innovation ecosystems by attracting tech startups, develop a skilled digital and creative workforce, and expand support for intellectual property rights.

EPO Announces Six Projects Selected for Academic Research Programme Funding – On Monday, October 12, the European Patent Office (EPO) announced that six international research projects had been selected for funding under the agency’s Academic Research Programme including two projects on advanced methods for forecasting patent applications and studies on local ecosystems of academic inventors and universities, with each project receiving up to 18 months of financial support from the EUIPO’s program.

This Week on Wall Street

Chinese Government Proposes Export Controls on Series of AI Technologies – On Friday, October 16, news reports indicated that officials from China’s Ministry of Commerce announced proposed export controls on 23 artificial intelligence (AI) technologies including models, agents and computing clusters, while allowing access through application programming interfaces (APIs) and software-as-a-service platforms that would allow international development of Chinese AI while increasing oversight on domestic AI deployed abroad.

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: 3M Co. (116th); General Motors Co. (29th)
• Wednesday: Abbott Laboratories (131st); AT&T Inc. (102nd); Danaher Corp. (t-155th); International Business Machines Inc. (9th); Lam Research Corp. (191st); Meta Platforms, Inc. (105th); Philip Morris International (t-211th); SAP SE (t-90th); Texas Instruments Inc. (t-51st); Thermo Fisher Scientific Inc. (t-276th)
• Thursday: Comcast Corp. (89th); Dow Inc. (t-136th); Nokia Corp. (34th); Procter & Gamble Co. (106th); Western Digital Corp. (60th)
• Friday: None