Posts in IP News

Whether the plaintiff has adequately identified the trade secrets that have allegedly been misappropriated is a commonly litigated and critical issue under the Defend Trade Secrets Act (DTSA). Unlike other types of intellectual property—such as patents, copyrights, and trademarks—where the property has already been identified and registered, trade secrets by definition are secret and cannot be identified publicly without destroying the subject matter of the plaintiff’s legal claim. Yet defendants still need to know what secrets they have allegedly misappropriated, and the court needs to know what the case is about.

On January 23, the United States Department of Justice (DOJ) urged the U.S. Supreme Court to reject a petition from Stephen Thaler, who seeks copyright protection for a work created by his artificial intelligence (AI) system. The DOJ argued that the U.S. Court of Appeals for the District of Columbia Circuit correctly upheld the United States Copyright Office’s refusal to register a copyright for an image that was admittedly created without human authorship.

In 2014, the Supreme Court held that an invention is patent-ineligible if directed to “abstract ideas,” but that there was no need to define the term. Alice Corp. Pty. Ltd. v CLS Bank Int’l, 573 U.S. 208, 221. Now, with the experience of more than a decade of confusing and unpredictable decision-making by lower courts trying to apply Alice, it is time for the Supreme Court to step in and provide a definition and workable test for the abstract-ideas exclusion…. The Court should grant the petition for certiorari filed by United States Automobile Association (USAA) in USAA v. PNC Bank on January 14, 2026. That will allow the Supreme Court to address the most basic of questions: What is an abstract idea?

The U.S. Court of Appeals for the Federal Circuit (CAFC) has denied another petition for writ of mandamus seeking to challenge the U.S. Patent and Trademark Office’s (USPTO’s) so-called settled expectations doctrine, which was introduced by then-Acting Director Coke Morgan Stewart. In the present case, Google sought mandamus relief after the USPTO denied its petitions for inter partes review (IPR) of VirtaMove Corp.’s U.S. Patent No. 7,519,814 patent because “the patent[] ha[s] been in force for more than 14 years, creating strong settled expectations.”

In this week’s episode of IPWatchdog Unleashed, I speak with Megan Carpenter, who just recently stepped down as Dean of UNH Franklin Pierce School of Law after more than eight years. Our conversation was part personal journey and business philosophy together with a candid assessment of the IP ecosystem. We tackle emerging issues, including AI’s impact on legal practice and education. And we discuss the role of IP as essential to sustaining innovation in a rapidly evolving global economy, and fostering human creativity, innovation, and economic mobility.

A recent U.S. Court of Appeals for the Third Circuit ruling upholding the federal Inflation Reduction Act (IRA)’s drug price negotiation program has been appealed to the U.S. Supreme Court, one of many challenges to the Act’s constitutionality. The IRA requires drugmakers to sell selected patented drugs to the government for its Medicare Parts B & D programs at a stipulated “maximum fair price”. If they don’t agree to these prices, then they face tax penalties on sales of the drug exceeding their profits from it, or the exclusion of all their drugs from Medicare and Medicaid purchases. This would foreclose access to up to 160 million patients, accounting for around 40% of US prescription drug spending or 20% of global prescription drug spending. US government purchases are valued at $200 billion annually.

On Friday, January 23, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in Allen v. Stein that likely ends a decade-long copyright battle over documentary footage of a state-sponsored salvage project exhuming a shipwreck associated with the famed pirate Blackbeard. Reversing and vacating rulings by the Eastern District of North Carolina, the Fourth Circuit found that an erroneous legal standard was used in allowing Allen to pursue a new theory for his copyright claims, remanding the case to the district court with directions to dismiss Allen’s complaint with prejudice.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday vacated and remanded a final written decision from the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR) proceeding. The court concluded that the Board erred by requiring petitioner Guardant Health, Inc. to show a motivation to combine steps that were already disclosed in sequence in a single prior art reference.

On Friday, the U.S. Court of Appeals for the Federal Circuit issued a nonprecedential ruling in Orange Electronic Co. Ltd. v. Autel Intelligent Technology Corp., Ltd. reversing the Eastern District of Texas’ denial of judgment as a matter of law (JMOL) to defendant Autel. The Federal Circuit did not reach Orange’s appeal of Eastern Texas’ JMOL ruling of noninfringement after finding that Autel’s asserted prior art met every limitation of the asserted claims, leading the appellate court to overturn the district court on obviousness instead.

This week in Other Barks & Bites: a petition for writ filed by USAA to challenge the Federal Circuit’s application of Section 101 is distributed for conference at the U.S. Supreme Court; the TRAIN Act is introduced into the U.S. House of Representatives to give copyright owners the right to subpoena records for generative AI training; the USPTO extends the Patent Prosecution Highway program with other IP5 offices; the Federal Trade Commission files a notice of appeal to challenge its unsuccessful antitrust suit against Meta’s acquisitions of WhatsApp and Instagram; the Fifth Circuit rules expressly for the first time that parties claiming trade secret misappropriation must apportion their damages claims to exclude product value that is not attributable to the misappropriated trade secrets, and more.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday, January 22, issued a precedential decision affirming a district court ruling that granted Google’s motion to dismiss a patent owner’s infringement suit for failure to state a claim. The CAFC agreed with the district court that the software claims in question were directed to a patent-ineligible abstract idea. The opinion was authored by CAFC Chief Judge Moore and joined by Judges Hughes and Stoll.

On January 22, the Human Artistry Campaign, on behalf of a broad cross-section of the American creative community, launched a new advocacy campaign, titled “Stealing Isn’t Innovation.” The campaign’s core message is a direct protest against the “illegal mass harvesting of copyrighted works” by large technology companies to build and train their Generative Artificial Intelligence (GenAI) platforms.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed the Patent Trial and Appeal Board’s (PTAB’s) decision sustaining an examiner’s rejection in an ex parte reexamination of claims of EcoFactor, Inc.’s patent relating to smart thermostat technology. Google filed for reexamination of U.S. Patent No. 8,412,488 in 2021 and an examiner rejected claims 1, 3 through 9 and 11 through 16 in a non-final office action as unpatentable over the combination of U.S. Patent No. 2004/0117330 (“Ehlers”) and U.S. Patent No. 2005/0159846 ) (“Van Ostrand”) and claims 2 and 10 as unpatentable over Ehlers, Van Ostrand, and a third patent, No. 6,789,739 (“Rosen”).

Yesterday, the European Union Intellectual Property Office (EUIPO) and the Organisation for Economic Co-operation and Development (OECD) published the results of a joint study detailing the close connection between illicit trade in counterfeits and labor exploitation. The joint study shows clear, repeated associations between the intensity of counterfeit trade and abusive labor conditions, strongly suggesting that such conditions structurally enable the production and distribution of counterfeits.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday reversed in part, vacated in part, and remanded a final written decision from the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR) proceeding filed by Apple, Inc.. The court concluded that the Board was precluded from finding the challenged claims of a patent owned by Smart Mobile Technologies LLC patentable, where a related patent with substantially similar claims had been found unpatentable in a prior IPR.