Other Barks & Bites for Friday, October 30: CAFC Reverses Attorney’s Fee Award in Section 101 Case; IFFRO Releases Study on AI’s Negative Impacts on Creators; and Fifth Circuit Reverses Patent Agreement Production Order to UPC

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This week in Other Barks & Bites: the Federal Circuit reverses an exceptionality determination after finding that the patent owner raised Section 101 arguments requiring more than a simple application of Myriad; the Seventh Circuit rules that copyright ownership to a compilation of unpublished psychotherapy articles cannot prevent the otherwise authorized publication of a single article included within the compilation; the Fifth Circuit finds district court error in assessing the receptivity of the Unified Patent Court to document production ordered by a U.S. magistrate judge; a study on the economic and legal impacts of generative AI shows more than 90% of respondents agreeing that AI has harmed revenues for authors and other creators; the Ninth Circuit reverses a summary judgment ruling for Sutter Homes Winery in a trademark infringement case; and the Seventh Circuit affirms the dismissal of copyright infringement claims against the NFL by an individual who wrote fan songs for the Green Bay Packers.

Bites

CAFC Says Considerations Beyond Myriad Undo Attorney’s Fees in Section 101 Case – On Friday, October 30, the U.S. Court of Appeals for the Federal Circuit issued a ruling in ChromaDex, Inc. v. Elysium Health, Inc. reversing the District of Delaware’s award of $9.1 million in attorney’s fees to Elysium Health following the invalidation for subject matter ineligibility under 35 U.S.C. § 101 of ChromaDex’s patent claims directed to dietary supplements containing a form of vitamin B3 present in cow’s milk that are only naturally available in trace amounts that are not bioavailable. Although the Federal Circuit acknowledged that it dismissed ChromaDex’s arguments that the increased biosynthesis of coenzyme NAD+ resulted in characteristics markedly different from those found in nature, the appellate court reversed the district court’s exceptionality finding for the award of attorney’s fees under 35 U.S.C. § 285 after finding that ChromaDex raised considerations for legal analysis extending beyond the U.S. Supreme Court’s Section 101 ruling in Association for Molecular Pathology v. Myriad Genetics (2013), namely the increased utility of ChromaDex’s claimed compound analogized to the claimed dietary supplements upheld as patent-eligible by the Federal Circuit in Natural Alternatives International v. Creative Compounds, LLC.

Fifth Circuit Reverses Order to Produce Patent Purchase Agreement for UPC Proceedings – On Thursday, October 29, the U.S. Court of Appeals for the Fifth Circuit issued a ruling in Motorola Mobility, L.L.C. v. Advanced Standard Communication, L.L.C. reversing the Northern District of Texas’ decision to affirm a U.S. magistrate judge’s order pursuant to a 28 U.S.C. § 1782(a) proceeding. The order mandated production of a patent purchase agreement between Advanced Standard Communication (ASC) and ZTE Corporation, including patents covering 5G-enabled devices, which Motorola had sought to enter into ASC’s infringement case filed in the Unified Patent Court (UPC) but was denied “at the current stage of the [UPC] proceedings.” Noting that the district court erred in assessing the magistrate judge’s order under the deferential clear error standard instead of the proper de novo standard, the Fifth Circuit further found that the lower court improperly weighed the factors for granting discovery to a foreign tribunal under Section 1782(a) as outlined by the U.S. Supreme Court in Intel v. Advanced Micro Devices (2004), particularly the second factor regarding the receptivity of the foreign court to the ordered production.

IFRRO Study Shows More Than 90% of Creative Class Report Lower Earnings Due to AI – On Wednesday, October 28, the International Federation of Rights Reproduction Organisations (IFRRO) published a study entitled The Legal, Policy, and Market Impact of Artificial Intelligence on Text- and Image-Based Works, providing a survey of 2,000 authors, publishers and rights reproduction organizations (RROs) and their responses to the growing impact of generative artificial intelligence (AI) and the legal and economic harms stemming from the technology. Among the report’s key findings, more than 9 out of 10 respondents agree that generative AI has directly and negatively impacted the earnings of rightsholders, and that large-scale unauthorized uses of protected content without consent, transparency or remuneration are neither legally nor economically sustainable.

Meaningful Opposition Leads Copyright Office to Treat Medical Device Repair as New DMCA Exemption Petition – On Wednesday, October 28, the U.S. Copyright Office published a notice of proposed rulemaking (NPRM) in the Federal Register announcing the start of the next triennial rulemaking proceeding for temporary exemptions to prohibitions against the circumvention of technological protection measures (TPMs) controlling access to copyrighted works codified at 17 U.S.C. § 1201. According to the Office’s NPRM, the Register of Copyrights has recommended that all current temporary exemptions to Section 1201 be renewed except for the exemption for medical device repair, which received meaningful opposition arguing that the administrative record is not sufficient for streamlined renewal due to legal developments like the D.C. Circuit’s September decision in Medical Imaging & Technology Alliance v. Library of Congress, and factual evidence including declarations from medical device manufacturers establishing multiple categories of copyrighted works within the medical device repair category, leading the Office to treat the exemption as a new petition during the current rulemaking proceeding.

Seventh Circuit Says Copyright in Compilation Gives No Exclusive Right to Psychotherapy Article – On Monday, October 26, the U.S. Court of Appeals for the Seventh Circuit issued a ruling in Center for Gestalt Development, Inc. v. Bowman affirming the Southern District of Indiana’s summary judgment in favor of a pair of gestalt therapists publishing a book in 2019 including an article authored by Dr. Frederick Perls, the pioneer of the form of psychotherapy known as gestalt therapy, which was accused of infringing the Center for Gestalt Development’s copyright to a compilation of unpublished manuscripts by Dr. Perl including the article used by Bowman. The Seventh Circuit found that the case was resolved by the principles of the Copyright Act of 1976, which provides that the copyright owner of an aggregate work does not have the automatic right to publish any individual component alone, and while the Center for Gestalt Development did acquire the copyright to Dr. Perl’s individual article in 2021, Bowman and his co-author were already operating under authorization from the heirs of Dr. Perls to use the article in their 2019 book.

Low Scores Abound in U.S. Chamber GIPC’s First Trade in Unsafe Medicines Index – On Monday, October 26, the U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) published the first edition of its Trade in Unsafe Medicines Index, which benchmarks 12 national economies on both their propensity to contribute to illicit trade in counterfeit pharmaceuticals as well as their ability to deter such trade. Scores for eight out of the 12 countries surveyed fell below the 50% mark, with the United States the only nation to exceed a score of 75%, with the report recommending the expansion of standards for defining illicit and unsafe drugs on an international scale and calling for stronger IP enforcement at borders, particularly among sub-Saharan African countries scoring below 25% including Nigeria, Ghana and Egypt.

Barks

Ninth Circuit Reverses SJ Ruling in Sutter Home Winery “BANDIT” Trademark Case – On Thursday, October 29, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in Roar Spirits, LLC v. Sutter Home Winery, Inc. reversing the Northern District of California’s grant of summary judgment that Roar Spirit’s “EL BANDIDO YANKEE” trademark applications would cause a likelihood of consumer confusion with Sutter Home’s “BANDIT” trademark, the appellate court finding that a reasonable factfinder could conclude that the marks are dissimilar and faulting the district court for ignoring evidence of a lack of actual confusion, namely the coexistence of both branded alcoholic beverages on the market for years.

First Solar Says CubicPV Patent Agreement Paves Way for Domestic PV Device Sales – On Thursday, October 29, American solar technology company First Solar announced that it had entered into a non-exclusive patent license agreement with Massachusetts-based solar developer CubicPV, which First Solar says will enable the company to continue development of photovoltaic (PV) devices built with perovskite semiconductors for sales to U.S. utility, commercial, industrial and residential markets, with other terms of the deal remaining undisclosed at this time.

Seventh Circuit Affirms Dismissal of Copyright Claims Over Wisconsin Lottery Tickets – On Wednesday, October 28, the Seventh Circuit issued a ruling in McMillan v. National Football League affirming the dismissal of copyright infringement claims filed by the author of songs about the NFL’s Green Bay Packers titled “Pack Attack” and “Go Pack Go” against the NFL, finding that McMillan did not provide evidence of his valid copyright ownership in those songs and even if the songs were registered, there was not sufficient originality in the song titles that the NFL was accused of unauthorized use pursuant to a license agreement with the Wisconsin Department of Revenue for printing lottery tickets with the Packers’ logo.

Copyright Alliance Warns Meta’s Business Users of AI Scraping Changes in TOS – On Tuesday, October 27, the Copyright Alliance issued a statement warning all business users of platforms owned and operated by social media giant Meta that changes to Meta’s business-related terms of service (TOS) going effective November 20 will allow Meta to scrape website content from commercial account holders for the purpose of training Meta’s AI products.

U.S. Copyright Office Launches New Job Opportunity Email Subscription Topic – On Tuesday, October 27, the U.S. Copyright Office announced that the agency had added a new Careers at the Copyright Office subscription topic to the Office’s current email subscription webpage, which will provide email updates to subscribers about job opportunities, career resources and recruitment events at the Office.

EPO Signs Letter of Intent on Data Commitments to French, German Tech Transfer Offices – On Monday, October 26, the European Patent Office (EPO) announced that the agency had signed a letter of intent with the technology transfer offices of France’s National Centre for Scientific Research (CNRS) and Germany’s Max Planck Society reflecting a shared commitment on the improved use of data and analytical tools to support the evaluation and commercialization of intellectual property assets leveraging the recent conclusions of tech transfer office studies issued by the EPO.

This Week on Wall Street 

AI, PC Market Issues Lead to Massive Stock Declines for Intel, Alphabet – On Thursday, October 29, shares of Google parent company Alphabet fell 12% in value while shares of semiconductor giant Intel were down 20% in extended trading following weak quarterly earnings reports issued by both companies, Google reporting a second consecutive quarter of negative free cash flow due to investments in AI infrastructure while Intel faulted weak personal computer demand as well as revenue declines in the company’s client computing and physical AI group.

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: Apple Inc. (8th); ON Semiconductor Corp. (t-255th); Palantir Technologies Inc. (t-295th)
• Tuesday: Advanced Micro Devices, Inc. (93rd); Amgen Inc. (293rd); Eaton Corp. (197th); Koninklijke Philips N.V. (70th); Skyworks Solutions, Inc. (141st); Zebra Technologies Corp. (t-213th)
• Wednesday: Arm Holdings plc (t-208th); Edwards Lifesciences Corp. (t-227th); Emerson Electric Co. (t-298th); Qualcomm Inc. (3rd); Snap Inc. (55th)
• Thursday: Becton, Dickinson & Co. (75th); Sony Corp. (16th); Toyota Motor Corp. (7th)
• Friday: Charter Communications, Inc. (t-283rd)