Other Barks & Bites for Friday, November 13: Tech Giants Oppose Indonesia AI Copyright Bill; Netlist Fails Appeal of PTAB’s Motivation to Combine Ruling; and CJEU AG Says General Court Erred in Reversing €1.5 Billion Google Fine

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This Week in Other Barks & Bites: artificial intelligence company Anthropic files an amended SEC statement leading up to its expected initial public offering next week; the Federal Circuit rules that the inoperability of a prior art reference in combination with another does not extinguish the motivation to combine those references; the U.S. Trade Representative extends its Special 301 investigation into Vietnam’s IP practices through next February; the Second Circuit affirms a district court’s dismissal of a declaratory judgment action testing a trademark functionality argument; Advocate General Kokott finds that the EU General Court imposed excessive requirements in overturning the EU Commission’s landmark antitrust fine against Google; executives from several major tech firms appear at a working group meeting in Indonesia’s parliament to take issue with AI-related reforms to that nation’s copyright law; and the Federal Circuit’s electronic case management and filing system will be unavailable tomorrow, Saturday November 14.

Bites

CAFC Finds Inoperability of Prior Art Reference Doesn’t Extinguish Motivation to Combine – On Friday, November 13, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in In re Netlist, Inc. affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of computer memory architecture patent claims owned by Netlist after concluding that the alleged inoperability of a first prior art reference when combined with a second reference that provided the motivation to combine (MTC), here a set of microelectronic processing standards, did not mean that the prior art combination was inoperable within the context of the challenged claim limitations. The same day, the CAFC issued a separate ruling on other Netlist appeals from inter partes review (IPR) proceedings affirming other obviousness determinations by the PTAB after finding that the Board correctly construed claim limitations from a patent directed to increased memory module capacity, and that earlier filed patent applications from the same family did not provide written description support for an earlier priority date for Netlist’s patent-at-issue.

U.S. Chamber-Led Coalition Urges House to Pass Foreign Litigation Financing Disclosure Bill – On Thursday, November 12, a letter addressed to the members of the U.S. House of Representatives and signed by the U.S. Chamber of Commerce along with dozens of national industry associations and regional chambers of commerce across the United States urged our nation’s lawmakers to advance H.R. 2675, the Protecting Our Courts from Foreign Manipulation Act (POCFMA), toward a full vote on the House floor. The U.S. Chamber-led coalition argues that the bill, which was reported favorable out of the House Judiciary Committee last November, is essential for protecting the security of the U.S. judiciary in light of the rise of third-party litigation funding, which has reached a global market of $39 billion, funds a substantial amount of U.S. patent litigation and is often used by foreign governments to undermine U.S. economic interests by weaponizing litigation.

AG Kokott Says EU General Court Erred in Overturned €1.5B Antitrust Fine Against Google – On Thursday, November 12, Advocate General Juliane Kokott of the Court of Justice for the European Union (CJEU) issued an opinion finding that the EU General Court erred in annulling the EU Commission’s €1.5 billion fine against Alphabet subsidiary Google over exclusionary practices related to its AdSense for Search online advertising service by imposing excessive requirements as to the scope of the EU’s examination of the criterion of duration and did not sufficiently relate its conclusion to the assessment of the other criteria for demonstrating the existence of exclusionary effects to the detriment of competitors, known as the Intel criteria. AG Kokott proposed that the CJEU refer the case back to the EU General Court and address Google’s objections to the EU Commission’s fine, adding that the €1.5 billion fine should be reduced as the EU General Court’s findings regarding the lack of demonstration of exclusionary effects for 2016 have not been challenged.

Tech Giants Tell Indonesia’s Parliament That AI Copyright Bill Could Limit News Access – On Wednesday, November 11, corporate executives from major tech firms including Google, Meta and TikTok appeared at a hearing before a working committee of Indonesia’s House of Representatives raising concerns over proposed revisions to that nation’s copyright law that would make Indonesia the first nation in the world to set certain rules around the use of artificial intelligence (AI), including requiring digital platforms to pay news publishers for displaying news content. According to remarks from those executives, the proposed provisions would result in limited access to news content for Indonesians and that the resulting loss in readership traffic could reduce advertising and subscription revenues for those publishers.

USTR’s Special 301 Vietnam Investigation Extended Through February 2027 – On Tuesday, November 10, the Office of the U.S. Trade Representative (USTR) published a notice in the Federal Register announcing that the USTR would be extending the Special 301 investigation of the Vietnamese government for an additional three months through February 28, 2027, due to the involvement of complex or complicated issues requiring additional time. This May, the USTR released this year’s Special 301 report naming Vietnam as a “priority foreign country,” the first time in 13 years that a foreign nation has received PFC status indicating persistent failure to address long-standing intellectual property concerns, such as consistently issuing fines well below the statutory maximum for criminal copyright violations and lack of customs officials’ authority to seize counterfeit shipments.

USPTO Director Squires Returns Merits-Based Determinations to PTAB APJ Panels – On Tuesday, November 10, U.S. Patent and Trademark Office Director John Squires along with agency General Counsel John Duffy issued a memorandum to all PTAB administrative patent judges (APJs) informing them that, effective next Monday, November 16, merits-based institution decisions for IPR and post-grant review (PGR) proceedings would be delegated again to APJ panels after the bifurcated process for merits-based and discretionary institution decisions was centralized by Directory Squires last October. Although the possibility of this restructured decision-making process had been first reported by IPWatchdog this September, several patent owners and their representatives reaching out to IPWatchdog expressed surprise and skepticism over this week’s announcement, with some questioning whether a one-year period is sufficient to establish necessary structural reforms at the PTAB.

Barks

Second Circuit Finds No Abuse of Discretion in Denying DJ Action Over NFL Logos – On Thursday, November 12, the U.S. Court of Appeals for the Second Circuit issued a summary order in Bank v. NFL Properties LLC affirming the Southern District of New York’s decision to decline jurisdiction over a declaratory judgment act filed against the National Football League, finding that although the requirements of Article III standing were met, judicial economy would not be served by hearing a case manufactured to test an argument that NFL logos were functional under trademark law and thus not protectable under the Lanham Act. 

Inventors’ Lawsuit Says Anthropic, OpenAI Infringe Neural Network Patents – On Thursday, November 12, lawsuits filed in the District of Delaware by Flinn AI Technologies against generative AI companies Anthropic and OpenAI allege that those companies have infringed patents covering attention-based neural network technologies underpinning much of the current generation of generative AI technologies developed by inventors Steven Flinn and Naomi Moneypenny.

EUIPO’s SME Fund Issues 13 CIGI Vouchers Since June Launch – On Wednesday, November 11, the European Union Intellectual Property Office (EUIPO) announced that the agency’s SME Fund has awarded 13 vouchers to producers and local or regional authorities across seven EU member states for the registration of craft and industrial geographical indications (CIGIs) since the SME’s CIGI voucher program was established this June.

USTR Extends Section 301 Duty Exclusions for Chinese COVID, Solar Products – On Tuesday, November 10, the Office of the USTR filed a notice in the Federal Register announcing that the nation’s trade representative would extend all 178 current exclusions to import duties levied on certain Chinese products as a result of previous USTR Special 301 investigations into IP practices, including duty exclusions on COVID-19 and solar manufacturing equipment.

CAFC’s CM/ECF Electronic Filing System Unavailable Saturday, November 14 – On Tuesday, November 10, the U.S. Court of Appeals for the Federal Circuit announced that the court’s CM/ECF electronic filing system will be unavailable on Saturday, November 14th, from 8:00 AM to 8:00 PM Eastern due to an extended maintenance window, with users cautioned not to file new documents during this window although documents already filed may be intermittently available for access during the window.

Suno’s Generative AI Music Platform Faces Copyright Suits from Elvis, Eminem Catalog Owners – On Friday, November 6, a pair of copyright infringement lawsuits were filed in the Northern District of California, one by a collection of entities led by Elvis Music Enterprises and the other by Eminem copyright owner Eight Mile Style, against generative AI company Suno for the unauthorized use of their music to train Suno’s AI models, with the lawsuit filed by Elvis Music raising claims under Tennessee’s Ensuring Likeness, Voice, and Image Security (ELVIS) Act.

This Week on Wall Street

Anthropic SEC Filing Sets Stage for November 18 IPO – On Tuesday, November 10, AI research company Anthropic filed an amendment to its Form S-1 Registration Statement with the U.S. Securities & Exchange Commission (SEC) indicating that the company plans to offer 825 million shares of common stock priced between $70 and $78 per share, placing Anthropic’s IPO value at $1.3 trillion to $1.45 trillion, at its initial public offering that the company says will take place next Wednesday, November 18, barring any regulatory issues.

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: Baidu, Inc. (174th)
• Tuesday: Dolby Laboratories, Inc. (159th); Nvidia Corp. (58th)
• Wednesday: Palo Alto Networks, Inc. (t-273rd)
• Thursday: Alibaba Group Holding Ltd. (t-255th)
• Friday: None