Intellectual Property Report June 2025

Navigating SEP Disputes Before the ITC: Strategy, Standards, and the Reach of Anti-Suit Injunctions
Michael Kachmarik
Key Takeaway: This article explores the unique procedural and strategic considerations for litigating SEP cases at the ITC, and what to know when navigating this complex and evolving landscape. The U.S. International Trade Commission is a unique forum in the realm of intellectual property litigation. Originally established as a trade body to assess tariffs and the economic implications of global trade, the ITC now operates under the Administrative Procedure Act to handle a broad range of IP disputes. Cases before the ITC proceed at a lightning-fast pace before an Administrative Law Judge. Standard Essential Patents are a key subset of patents that are integral to some of the most significant achievements in cooperation among global companies. These patents cover essential technologies like cellular communication, video compression and decompression, and Wi-Fi. The structure, rules, and history of the ITC create a distinctive, often complex, forum for enforcing the crucial intellectual property rights in Standard Essential Patents.
Read more here.

 

May 2025 Update: Patent Apportionment: Anything You Say in a License Agreement May Be Used Against You in a Court of Law
Connor Roddy
On May 21, 2025, the Federal Circuit “reverse[d] the district court’s denial of Google’s motion and remand[ed] for a new trial on damages.”[1] The decision resulted in an 8-2 vote, with Judges Reyna and Stark dissenting. The majority opinion, written by Chief Judge Moore, analyzes whether EcoFactor’s damages expert’s testimony “was unreliable under Rule 702 and Daubert” and therefore “should have been excluded from trial.”[2] In the analysis, the majority considers various pieces of evidence such as license agreements, testimony from EcoFactor’s CEO, and other record evidence.
Read the full update and original article here. 

 

Navigating Global Approaches to Artificial Intelligence Regulation
Joseph Cahill
Published in the July-August 2025 issue of The Global Regulatory Developments Journal, Volume 2, Number 4, this article provides an overview of how artificial intelligence regulation is being approached in the European Union, the United States, and the United Kingdom.
Read more here. 

 

Richard Harper, Joseph Cahill
This article discusses the AI regulation landscape in the United States, highlighting the emerging regulatory patchwork from various governing bodies, such as Colorado's AI Act and the EU's AI Act, creating uncertainty for businesses. The article proposes a benchmark approach to AI regulation.
Read the full article here.

 

This Month: Our Take on AI
Joseph Cahill
Federal Circuit Clarifies Patent Eligibility for AI: The U.S. Court of Appeals for the Federal Circuit recently issued a notable decision in Recentive Analytics, Inc. v. Fox Corp., addressing the patent eligibility of machine learning inventions under 35 U.S.C. § 101. The court affirmed the dismissal of infringement claims for patents covering the use of machine learning for generating event schedules and network maps. The Federal Circuit found these patents were directed to abstract ideas and lacked an inventive concept because they applied generic machine learning techniques to new data environments without claiming specific improvements to the machine learning technology itself. This ruling underscores that merely using existing AI tools in a new field is insufficient for patent eligibility; an invention must offer a specific technological improvement to machine learning. Nick Palmieri discusses this development and its implications for patenting AI innovations in his article: "Federal Circuit Refines Section 101 Eligibility as Applied to Machine Learning Patents."
Texas Considers New AI Legislation: Texas is advancing HB 149, a bill designed to establish a regulatory framework for artificial intelligence. The proposed legislation seeks to balance the ethical considerations of AI with the goal of fostering innovation within the state. If enacted, HB 149 would provide guidelines for AI use by state agencies and create an Artificial Intelligence Council within the Texas Department of Information Resources. The bill represents an effort to address potential risks associated with AI while supporting technological advancement. Dominic Cruciani writes about this legislative effort here: "Texas AI Bill Aims to Balance Ethics & Innovation."
Framework Proposed for AI Agent Governance: As AI capabilities advance, particularly with the rise of AI agents that can act independently, the Institute for AI Policy and Strategy has proposed a governance framework for this "agent era." The framework outlines five key intervention categories: aligning agents with principals' values, maintaining principal control over agent behavior, ensuring observability and understandability of agents, implementing robust security measures, and integrating agents with societal and economic systems. These guidelines aim to address the unique risks and challenges posed by autonomous AI agents. Coleman Strine delves into this proposed framework here: "AI Governance in the Agent Era."
California Enforces CCPA in DSAR Case with AI Implications: The California Privacy Protection Agency (CPPA) took enforcement action against Todd Snyder, Inc., resulting in a Stipulated Final Order and a $354,178 fine for violations of the California Consumer Privacy Act (CCPA). The case highlighted failures in effectuating consumer opt-out preferences due to misconfigured third-party tools, a lack of oversight of these tools, and imposing excessive verification for opt-out requests. This action serves as a reminder that businesses are responsible for ensuring their data subject access request (DSAR) processes, often managed by AI-driven tools, are compliant and that reliance on third-party solutions requires active validation and monitoring. Nick Palmieri provides an analysis of this enforcement and its takeaways for businesses here: "California Privacy Protection Agency Enters Stipulated Final Order Regarding DSAR Process."
AI Diffusion Rule to Be Rescinded and Replaced: The Trump administration has announced its intention to rescind and replace an AI Diffusion Rule implemented by the previous administration. This rule, which was set to take effect on May 15, aimed to control the global spread of advanced AI technology and the export of high-performance computing chips and AI model weights. Citing concerns about complexity and potential impacts on U.S. tech competitiveness, the administration plans to modify the rule to better balance national security interests with those of the tech industry, likely with a revised focus on China. Jason Wilcox has more on this development here: "President Trump Pulls the Plug on Controversial AI Diffusion Rule."
Copyright Office Report on AI Training and Copyrighted Works: The U.S. Copyright Office recently issued a pre-publication report on AI and Copyright, focusing on the use of copyrighted materials in training generative AI, fair use, and licensing. The report details how various stages of AI development, including data acquisition, training reproductions, and even AI model weights that "memorize" protected content, can pose copyright infringement risks. AI outputs that closely replicate original works are also a concern. Regarding fair use, the Office indicated that while AI training can be transformative, this depends on the AI's specific function and whether its outputs serve as market substitutes for the original copyrighted works, dismissing arguments that training is inherently non-expressive. Ultimately, fair use determinations for AI training will be fact-specific and made on a case-by-case basis. You can read more about this development here: "U.S. Copyright Office Issues Part 3 Pre-Publication Report on Generative AI and Copyright Law."

AI Counsel Code Podcast
In the episode "Protecting Trade Secrets in the AI Era" Maggie Welsh and Julie Albert discuss the challenges of protecting trade secrets in AI. They cover the definition of trade secrets, methods for safeguarding valuable information, and the risks posed by unauthorized access and data scraping. Listen to the full episode here.

May 2025 Intellectual Property Report Recap
In case you missed it, here is a link to our May 2025 Intellectual Property Report that looked at: