IP Fridays - your intellectual property podcast about trademarks, patents, designs and much more

My co-host Ken Suzan and I are welcoming you to episode 179 of our podcast IP Fridays! Today’s Interview guest is Peter Berg. If you don’t know Peter, he is the Chief IP Counsel at Infineon Technologies and is also serving as the VPP president. We talk about the industry association of in-house practitioners VPP, politics, patent strategy at Infineon, litigation ready patents, NPEs, acquisitions, the German emloyees invention act and many more things. So stay with us for this very interesting interview. Before we jump into this interview, I have news for you! The USPTO has issued its first AI-related disciplinary action, published on August 27, 2026 in In re Brian E. Mitchell (Proceeding No. D2026-16) before the Office of Enrollment and Discipline. The underlying settlement was signed by the attorney on July 20, 2026 and by the OED Director on July 21, 2026, with final approval given on July 27, 2026 by Tricia Choe on behalf of USPTO Director John A. Squires. The action resulted in a public reprimand against California patent attorney Brian E. Mitchell after a generative AI tool produced a claim comparison chart containing fabricated citations to the patent’s internal file history. The case underscores that AI-generated hallucinations must be verified by a human before filing. InterDigital has escalated its patent dispute with Disney across three fronts within a month. On August 25, 2026, InterDigital filed two new actions at the Unified Patent Court: a preliminary injunction request at the Mannheim Local Division (UPC_CFI_3044/2026) and a main infringement action at the Düsseldorf Local Division (UPC_CFI_3043/2026), covering Germany, France and the Netherlands. Both target Disney+ Premium’s switch to the VP9 video codec, which InterDigital says still infringes patent EP 2 465 265, a patent the Mannheim division had already found valid and infringed in an earlier ruling that also branded Disney an unwilling licensee; the Düsseldorf action adds a second patent, EP 2 605 473, covering the Up Next continue-watching feature. On September 2, 2026, the Düsseldorf Local Division granted InterDigital an injunction against Disney covering Germany and the Netherlands over a separate patent protecting seamless playback continuation when switching between devices, upholding the patent’s validity in the same ruling. It was InterDigital’s third UPC injunction against Disney. Then, on September 15, 2026, InterDigital filed a damages claim for EUR 101.7 million against Disney at the Munich Regional Court I (case no. 7 O 8870/26), based on a November 2025 finding that Disney+ infringes InterDigital’s HDR video patent EP 2 132 923; the claim also covers viewers in 19 European countries served through a Frankfurt-based server location. For companies relying on codec or connectivity technology, the dispute is a reminder that switching to a different standard does not automatically avoid infringement if the asserted patent is drafted broadly enough. The EPO’s Enlarged Board of Appeal ruled on September 3, 2026 in G 1/25 that a patent description only needs to be amended to match amended claims if a discrepancy between the two causes a requirement of the EPC, such as clarity, novelty or inventive step, not to be met. The EPO’s Board of Appeal 3.3.08 fully revoked Moderna’s key mRNA patent EP 3 590 949 following a two-day hearing that concluded in mid-September 2026, on the grounds that the claimed subject matter extended beyond the original application. The revocation removes the basis for Moderna’s earlier wins against BioNTech and Pfizer in Düsseldorf and London. On September 15, 2026, US sportswear maker New Balance filed a trademark suit against Decathlon’s US units, Decathlon America LLC and Decathlon USA LLC, in the US District Court for the District of Massachusetts (case no. 1:26-cv-14235). New Balance argues that the K logo on its Kiprun running shoe line, when mirrored, reads unmistakably as an N and imitates the N mark it has used for roughly 50 years, claiming post-sale confusion. On September 8, 2026, the Court of Justice of the EU ruled in Case C-298/23, Inter IKEA Systems v Vrijheidsfonds, on a referral from the Brussels Enterprise Court, that the owner of a well-known trademark can prohibit its use by a political party unless the party sets out the specific reasons why its freedom of expression outweighs the trademark owner’s interests. The case arose from the Vlaams Belang party’s 2022 campaign promoting a migration plan styled as IKEA assembly instructions. And now for the interview with Peter Berg! In this episode of IP Fridays I talk with Peter Berg. He is Chief IP Counsel at Infineon Technologies and President of VPP, the German association for in house IP professionals, since May 2025. Berg is an electrical engineer by training and leads a team at Infineon that manages a portfolio of more than 12,000 patent families, while the company simultaneously enforces its rights offensively in Germany, the US and China. That combination of hands on portfolio work and association leadership makes him one of the rare guests who can speak to both the operational detail of one of Europe’s largest patent portfolios and the political side of Germany’s IP landscape. The guest: Peter Berg and the VPP Peter Berg is an electrical engineer who became Chief IP Counsel at Infineon Technologies and, since May 2025, President of the VPP, the association representing in house patent professionals in Germany. His team manages a portfolio of more than 12,000 patent families while running an offensive enforcement program across Germany, the US and China. That mix of operational and political experience is exactly why I wanted him on the podcast. Germany’s national IP strategy: more than a promise on paper I asked Berg what has become of the national IP strategy promised in Germany’s coalition agreement, and what happens if it does not materialize during this legislative term. His answer was clear. The question is no longer whether the strategy will arrive, only how comprehensive it turns out to be. If it falls short of what industry needs, the profession will simply push for adjustments afterward. Berg names three levels that need attention. First, society as a whole, from kindergarten to retirement, needs to understand that intellectual property underpins our prosperity rather than being a line item in the accounts. Second, academia and professional education. Third, startups and the broader Mittelstand, where well funded structures are still missing. The German Patent and Trademark Office has an educational mandate but far too small a budget for it, and the regional patent information centers are underfunded as well. Berg makes a point that is easy to miss from outside Germany: the patent office reports to the Ministry of Justice rather than to an innovation focused ministry, even though its real purpose is to strengthen the economy. That three ministries, research, economy and justice, are now working on the strategy together strikes him as genuine progress. Litigation ready patents: how Infineon manages 12,000 patent families Infineon has roughly tripled its turnover since 2017 while keeping portfolio size largely stable. The answer, Berg says, is quality over quantity. Inventors pitch their ideas to a panel of senior technical experts and patent attorneys, and the process does not stop there. The draft itself is reviewed by multiple stakeholders, and once the notice of allowance arrives and the patent is granted, it goes through another review. The criteria stay consistent throughout: technology assessment, market size, detectability, circumventability and fit with Infineon’s own roadmap. Internal discipline alone does not make a patent litigation ready, though. That requires real experience with conflict, and most of that experience comes from the defensive side, where Infineon has plenty of practice finding weaknesses in patents asserted against it. Being on the offensive, Berg says, is a different level of learning entirely, whether in court or in licensing negotiations where the other side is not sure it would get a fair outcome if the case went to trial. In practice this also means systematic pruning. Internally Infineon calls the relevant phases US8 and US12, the years when annuity costs peak in the US portfolio, by far the most expensive part of the estate. Berg says his team knows every one of the more than 12,000 patent families in detail, and offensive enforcement is focused on the markets that matter most for electronic products: Germany, the US and China. An injunction at a trade show: national courts versus the UPC One concrete trigger for this conversation was an ex parte preliminary injunction Infineon obtained at a German trade show, without the defendant having filed a protective letter in advance. For Berg, enforcement at trade fairs is nothing new, it has been part of the playbook for years, now extended to venues outside Europe that Western companies have used less often in the past. His view on the UPC is nuanced. He credits the court with a strong start, good management and judges selected for quality rather than politics, and praises the body of case law it has built in a little over three years. On the other hand, some member states are still missing, a comprehensive body of case law takes time to develop, and costs do not fit every business case, especially where achievable damages barely justify the expense. Infineon in any case validates most European patents in only a handful of countries rather than dozens, so the practical difference between national and UPC enforcement is smaller than it might seem. For smaller cases the option to opt out and litigate nationally alongside UPC rights remains important, even though systematically double patenting is not something Infineon pursues for cost reasons. Four systems at once: coordinating

I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 178 of our podcast IP Fridays! Today’s interview guest is Caitlin Byczko, who is partner with Marnes & Thornburg in their IP team. Ken is discussing dupe culture with her. Here is the profile of Caitlin Byczko https://btlaw.com/en/people/caitlin-byczko But before we launch into this very interesting interview, I have some news for you: On August 10th, 2026, Navitas Semiconductor filed suit against Renesas Electronics in the Eastern District of Texas, accusing Renesas of infringing four US patents on gallium nitride semiconductor technology through its SuperGaN product lines. The filing follows a countersuit Renesas brought on July 22nd, 2026, accusing Navitas and two of its employees of misappropriating trade secrets. It shows how patent disputes and trade secret claims between competitors are increasingly being fought on multiple fronts at once, and often as tit for tat. It also emerged on August 12th, 2026, that an EPO Board of Appeal had dismissed an appeal by Atlas Global Technologies and ruled that its WiFi patent, EP 3 353 901, case T 1230/25, could not be maintained in any form at all, even though the original opponents, TP-Link and Vantiva, had already withdrawn their oppositions. That knocked out the basis for several parallel infringement suits at the Unified Patent Court, which were then withdrawn. For suppliers and implementers, the takeaway is that fighting a patent held by a non-practising entity can still be worth it, even once the original opponent has thrown in the towel. On August 10th, 2026, the Unified Patent Court in The Hague fully revoked Maxell’s patent EP 2 061 230, covering technology for handing off content to a second device, and at the same time dismissed Maxell’s infringement claim against several Samsung entities, in cases UPC_CFI_251/2025 and UPC_CFI_769/2025. The judges found the patent to be nothing more than an obvious combination of routine adaptations, with no additional technical effect. And now – let’s hear the interview with Ken and Caitlin! A dupe used to be a quiet, slow thing. You’d stand in the cereal aisle, notice the generic box next to the name brand, buy it, tell a friend. Word spread over months. That world is gone. On this episode of IP Fridays, Ken Suzan sat down with Caitlin Byczko, partner at Barnes & Thornburg LLP in Indianapolis, to talk about what’s replaced it: a TikTok-driven economy where a single video can sell out a dupe product within hours, sometimes before the original brand’s own team even knows it exists. Byczko litigates and prosecutes trademarks across retail, fashion, luxury goods, technology, and pharmaceuticals, and she’s watched dupe culture evolve from a marketing footnote into one of the more active battlegrounds in trademark law. Here’s what she told us, and why it matters even if your brand has never heard the word “dupe” used about it. Counterfeit and Dupe Are Not the Same Thing, Legally Byczko opened with what she called the most important distinction in this entire conversation: the difference between a counterfeit and a dupe. A counterfeit uses someone else’s actual trademark. Think of a fake Chanel bag stamped with the interlocking C’s, or a fake Louis Vuitton logo. That’s straightforward infringement, and above certain thresholds, a federal crime. A dupe is different. It mimics the look, feel, or performance of a product without using the name or the logo at all. Elf Cosmetics, Zara, Costco’s Kirkland brand, and Quince have all built parts of their business on exactly this model. No one is pretending to be Chanel. They’re offering something that looks and performs similarly, at a fraction of the price, under their own name. Media and social media use “dupe” and “counterfeit” interchangeably. Legally, that’s sloppy, and it matters, because the two categories trigger completely different legal analyses. If There’s No Logo, What Are Brands Actually Suing Over? This is where trade dress comes in. Trade dress protects the overall look and feel of a product: packaging, color combinations, shape, label design. Byczko pointed out that most of us interact with trade-dress-protected products every day without realizing it. The test is likelihood of confusion. Courts look at how similar the products actually look, how sophisticated the shoppers are, and whether there’s real evidence that people were confused. Byczko flagged one case as a genuine roadmap for this area: Van Leeuwen v. Rebel Creamery, an ice cream trade dress dispute that came out of the Eastern District of New York. In her view, the strength of that case came down to how precisely the brand defined its trade dress for the packaging. That precision, she said, did a lot of the work toward the outcome. She’s also watching Lululemon v. Costco, which she expects to be significant partly because it doesn’t rely on trademark and trade dress alone. Byczko noted that brands are increasingly stacking causes of action together: trademark, patent, false advertising, all pointing at the same product. And she’s tracking Sol de Janeiro v. Macau Beauty, a case she finds notable because it pulls in influencer content and testimonials as evidence, not just packaging and trade dress claims. Macau Beauty, she noted, has already been sued multiple times across different jurisdictions. A note for readers outside the US: trade dress as a distinct doctrine doesn’t exist as such in Germany. The closest tools here are the three-dimensional trademark and, more practically, the wettbewerbsrechtlicher Nachahmungsschutz under Section 4 No. 3 of the German Act Against Unfair Competition (UWG). That provision protects product shape, packaging, and get-up against imitation when the original has wettbewerbliche Eigenart, competitive distinctiveness, and the copy creates avoidable confusion about origin, unfairly exploits the original’s reputation, or was built on dishonestly obtained know-how. It’s a narrower, more fact-specific tool than US trade dress, but the underlying logic Byczko describes, define your product’s distinctive features early and precisely, applies just as much on this side of the Atlantic. Why the Evidence Problem Changed Everything Ken asked what’s actually driving the current wave of disputes, and Byczko’s answer was simple: evidence. Ten or twenty years ago, if you sent a cease-and-desist letter or went to trial, you had almost nothing concrete to show about how consumers actually perceived two products. Now you have TikTok comment sections, influencer testimonials, and entire genres of “dupe content” documenting exactly what shoppers think, in their own words, in real time. In the Sol de Janeiro case, Byczko noted that part of the complaint isn’t just about packaging and trade dress. It’s about what influencers said, what claims they made, and what that content reveals about actual consumer confusion or the absence of it. That’s evidence litigators simply didn’t have access to a decade ago, and it cuts both ways: it can prove confusion, or it can just as easily prove there wasn’t any. Why Dupes Took Off: Economics, Status, and a Generational Shift Byczko was careful to frame this part as her personal read, not a sociologist’s conclusion, but it’s a read shaped by watching these disputes up close. Part of it is straightforward economics. Gen Z is shopping under real affordability pressure, and dupes let them participate in trend cycles without the price tag. Byczko cited a projected $12.6 trillion in Gen Z spending power by 2030, a generation too significant for brands to write off. The other part is cultural. A generation ago, owning a visible logo was the status symbol. Now, for a lot of younger shoppers, being the savvy one, the person who finds the dupe first and tells their followers about it, carries its own status. It’s less “I have the real thing” and more “I outsmarted the markup.” Byczko also pointed to growing public skepticism toward paying five or ten times more for a product purely because of the name on the packaging, particularly in beauty and fashion. The PR Trap: When Enforcement Backfires One of the sharpest points in the conversation was about what happens after a brand decides to enforce. Suing over a dupe can read very differently in public than it does in a courtroom. Byczko put it directly: going after a dupe can easily look, to the public, like a big corporation coming down on a small competitor, or worse, on its own customers, the same people who made the original brand aspirational in the first place. She’s seen this dynamic play out repeatedly in high-profile cases. Her advice: treat enforcement as a communication strategy, not just a legal one. Sometimes the smarter move isn’t a lawsuit at all. It’s a quieter cease-and-desist letter, a takedown request, or doubling down on marketing that explains what actually makes the original worth the price. Charlotte Tilbury has leaned hard into this approach, building campaigns around the idea that the original simply can’t be remade. Olaplex ran a similar play with its “OlaDupe” campaign. Legal and marketing, Byczko said, have to work together on this, not in sequence. What Brands Should Actually Do Byczko laid out three practical layers, all before litigation ever enters the picture. First: register your trademarks, and where a product design is genuinely distinctive, pursue trade dress or design patent protection early, before a dupe exists and before you know whether the product will even take off. That timing problem is real. Brands rarely know in advance which product will become the one worth copying. Her advice was to look at long-standing anchor products, the ones that have quietly carried a brand identity for years, and ask whether they’re actually protected. Second: monitor. A large share of dupe disputes start on

I am Rolf Claessen and my co-host Ken Suzan and I are welcoming you to episode 177 of our podcast IP Fridays! Today’s interview guest is Dr. Ernst-Peter Heilein, who is a German and European patent attorney, the founder of HEILEIN IP LAW, and a long-time IP leader at BSH Home Appliances. He is the mastermind behind the BSH v. Electrolux decision of the European Court of Justice about long-arm jurisdiction in Europe that has the whole patent world stirring in Europe at the moment! But before we jump into this fascinating interview, I have news for you! Emboline v. AorticLab (UPC Court of Appeal) The UPC Court of Appeal has clarified for the first time how a conditional revocation counterclaim should be handled, in a dispute over Emboline’s embolic protection patent EP 2 129 425 against AorticLab. A defendant can validly make its revocation counterclaim conditional on infringement being found first, meaning no ruling on the counterclaim is needed if the infringement claim fails, as the Munich Local Division had held. The Court of Appeal also closed a related gap: if the claimant appeals a non-infringement finding, the counterclaimant may conditionally appeal the unresolved counterclaim too. AorticLab missed its own appeal deadline and can now at best seek re-establishment of rights, while Emboline has already appealed the non-infringement finding. FujiFilm v. Kodak (UPC Court of Appeal) Following the closely watched long-arm jurisdiction ruling of June 2, the UPC Court of Appeal, chaired by Rian Kalden, has now granted FujiFilm an injunction against Kodak in a second proceeding. The Court upheld the limited printing plate patent and found that Kodak’s Sonora XTRA 3 plate infringes it. Kodak can no longer sell or use that plate in Germany. OpenAI v. EUIPO (General Court of the EU, T-555/25) The General Court’s Eighth Chamber dismissed OpenAI’s action against the EUIPO decision to partially cancel the OPENAI trademark. The partial refusal for classes 9, 42, and 45 rests decisively on Article 7(1)(c) EUTMR, the descriptiveness ground. For a significant part of the English-speaking public, “OPENAI” directly conveys that the goods or services are provided using freely accessible artificial intelligence. Dental Monitoring v. Align Technology (CAFC) On July 7, 2026, the Federal Circuit confirmed that AI and deep-learning patent claims covering dental image analysis are not patent-eligible under Section 101. Simply training a “deep learning device” on a specific dataset does not amount to a patent-eligible technical solution. Publisher v. Google (Munich I Regional Court) The Munich I Regional Court issued a preliminary injunction barring Google from spreading false factual claims about a publishing company in its AI Overviews. A search query combining the company’s name with the German term for “fraud scheme” had triggered an AI-generated summary containing entirely fabricated accusations of subscription traps. KPN v. Oppo (Federal Court of Justice, X ZR 103/24) On July 1, the Federal Court of Justice dismissed KPN’s appeal against the revocation of a central claim of its LTE patent EP 2 291 033. Oppo had successfully challenged the claim, leaving KPN’s infringement action against Oppo’s German distribution entity without a legal basis for now. BSH v. Electrolux: What the ECJ Ruling Means for Your Company’s Patent Enforcement Strategy A vacuum cleaner from 2001 has reshaped the European patent landscape. That sounds like an overstatement. It isn’t. For IP Fridays, I spoke with Dr. Ernst-Peter Heilein, founder of HEILEIN IP LAW and long-time Senior IP Leader at BSH Home Appliances. He guided the case BSH v. Electrolux from its first strategic idea all the way to the Grand Chamber of the European Court of Justice, a case that earned the 2025 Managing IP Award as “Europe Impact Case of the Year.” For managing directors, IP heads, and R&D leaders at German Mittelstand companies, this case is not a legal footnote. It changes where you can enforce your patents, and it changes where you yourself can be sued if your company operates across several European markets. That is what this article is about. Background: How a Patent Dispute Became an ECJ Case The invention dates back to 2001 and concerns a new vacuum cleaner technology. In 2006, BSH identified what it believed was an unauthorized use of that invention and contacted Electrolux to clarify the situation. The European patent was granted in 2009 and validated in a number of European countries. Nobody, Heilein says, could have imagined at the time that this matter would eventually reach the Grand Chamber of the European Court of Justice almost twenty years later. In late 2018, BSH successfully defended the patent through opposition and appeal proceedings before the European Patent Office. In 2019, the Higher Regional Court of Düsseldorf found that certain Electrolux vacuum cleaner models infringed the patent. A classic milestone win, the kind that occurs regularly in patent practice. Except the patent had been validated in many countries. Winning in Germany did not solve the enforcement problem everywhere else. Heilein describes the starting point in very concrete terms: how do you enforce a patent that exists in many countries without filing a separate lawsuit in every single one? And how do you prevent claims from becoming time-barred while you work that out? Running parallel proceedings in multiple countries is not just legally complex. It consumes time, personnel, and money that a mid-sized company rarely has in that quantity to spare. This is exactly where the real value of this case for you begins. From the outset, this was never an academic debate about jurisdiction. It was a question that every company holding rights in more than one country eventually faces: how do you enforce your rights efficiently without burning your budget on ten parallel proceedings? Brussels Ia Regulation: The Underrated Article 4 While searching for a solution, the BSH team came across Article 4 of the Brussels Ia Regulation. The underlying idea is simple: a person can generally be sued in the country where that person is based. In the BSH case, that pointed toward the Swedish home court, because Electrolux is headquartered in Stockholm. For a long time, this rule played no real role in patent practice. The widely held view was that cross-border patent litigation in Europe was effectively dead the moment a defendant challenged the validity of the patent. Anyone wanting to enforce a patent across several countries appeared to have no choice but to litigate country by country. Heilein and his team questioned that assumption instead of simply accepting it. This is the point I find most instructive: challenging accepted assumptions in your own field is often the difference between a standard solution and a strategic one. In 2020, the team decided to file the action in Sweden, aware that they were looking at a possibility, not a guarantee. Cross-Border Enforcement: The Three Questions Referred to Luxembourg After Electrolux challenged the validity of the patents, the Swedish home court declared itself not competent to hear the case. BSH appealed, and the Swedish Court of Appeal agreed to refer three questions to the European Court of Justice. The first question addressed the core problem: does a home court that would otherwise have jurisdiction over an infringement claim lose that jurisdiction simply because the defendant argues the patent is invalid? The second question concerned a feature common to many legal systems, including Germany’s, where infringement and validity are decided in separate proceedings. The third question originally concerned Turkey. Today, most people immediately think of the United Kingdom, and some even think of US patents. Originally, the question was simpler: do the same jurisdiction rules apply to patents from countries outside the European Union? The fact that the ECJ first assigned the case to a Chamber of seven judges and later referred it to the Grand Chamber of 15 judges already signaled how much weight the Court placed on these questions. The Judgment: What the ECJ Actually Decided A home court does not automatically lose jurisdiction simply because the defendant argues the patent is invalid. For many years, the opposite was widely assumed to be settled law. The ECJ made clear that this reading was too narrow. The court where the defendant is based can generally continue to hear the infringement case. One point matters for how you read this ruling: questions concerning the validity of a European patent still fall to the national courts of the country for which the patent was granted, as provided in Article 24(4) of the Brussels Ia Regulation. What is new is that the infringement case does not automatically collapse the moment validity is challenged. The home court keeps control of the overall proceeding. For patents from EU Member States, the home court does not automatically lose jurisdiction. It assesses the validity challenge. If it looks strong, the home court may stay the infringement case. If it looks weak, the home court may proceed. For patents from non-EU countries, the home court may stay the case if a validity proceeding is already pending there, drawing on Articles 33 and 34 of the Brussels Ia Regulation. The result is a considerably more flexible system than most observers expected . Patents from Outside the EU: Long-Arm Jurisdiction The part of the judgment with the greatest international reach concerns patents from countries outside the EU. The ECJ ruled that the special jurisdiction rule for patent validity generally does not apply to non-European patents. That means the general rule can apply instead, opening the door for infringement claims based on non-European patents to be brought before a home court where the defendant i

My co-host Ken Suzan and I are welcoming you the episode 176 of the IP Fridays Podcast. Today’s interview guest is returning guest Franklin Graves, who is a senior counsel at Linkedin and teaching IP law at Emerson College. With my co-host Ken Suzan he is discussing how the law for creators has dramatically changed in the past years. Franklin Graves is expressing his personal views and not the views of Linkedin or Microsoft. He is talking about the paper “Upload Complete” before he joined Linkedin. Bio: https://www.linkedin.com/in/franklingraves/ Paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5271442 Website: https://creatoreconomylaw.com/ But before we jump into this interview, I have news for you! Richard Meade, a judge on the UK High Court and one of the most prominent figures in European patent law, was appointed Lord Justice of Appeal at the British Court of Appeal on June 12, 2026. Meade played a key role in numerous landmark British patent decisions, particularly in the area of standard-essential patents (SEPs) and FRAND licenses. In Insulet Corp. v. EOFlow Co., No. 2025-1807, the U.S. Court of Appeals for the Federal Circuit completely overturned the original $452 million judgment (which had already been reduced by the District Court to $59.4 million) in favor of Insulet. In its decision of June 2, 2026, in the case of Fujifilm v. Kodak, the UPC Board of Appeal provided comprehensive clarifications regarding so-called “long-arm jurisdiction”—that is, the question of whether the UPC can also rule on national patent claims outside the UPC territory (such as in the United Kingdom). In 14 guiding principles, the judges established specific procedural rules for various categories of cases. There is no automatic UPC jurisdiction over national patent claims outside the UPC territory. The Munich Regional Court has issued an arrest warrant against the managing director of Polytech Health & Aesthetics GmbH because he is alleged to have continued to exploit the Brazilian company Silimed’s patent for breast implants despite a preliminary injunction. A number of IT and automotive industry associations—which are among the most frequent users of Inter Partes Reviews (IPR) at the U.S. Patent and Trademark Office—have filed an amicus brief with the Supreme Court, urging the Court to grant Google’s certiorari petition. An attorney for a Las Vegas performer has asked a California federal judge to temporarily prohibit Taylor Swift from using “The Life of a Showgirl” as a trademark while the trademark lawsuit is pending. Swift’s attorney called the lawsuit baseless. And now let’s hear Ken discuss creator law with Franklin! AI, Platform Law, and the Creator Economy: What Businesses Need to Know Now Franklin Graves has spent his entire career watching digital content move through systems that most people never see. He started in marketing at a major music label right out of law school, then represented individual creators on YouTube in a pro bono capacity, then moved to the platform side at Eventbrite, and today works as Senior Product Counsel at LinkedIn, where he focuses on AI, data, and the regulatory questions that come with both. His recently published law review article, Upload Complete: An Introduction to Creator Economy Law, is the first academic paper to address the creator economy as a distinct legal field. In a recent episode of the IP Fridays podcast, he spoke with host Kenneth Suzan about responsible AI development, platform regulation, and what it actually means to own your audience in a world where the rules keep changing overnight. From Content Creator to Platform Lawyer The through-line in Graves’ career is a genuine understanding of how content moves from an idea in someone’s head to an audience on a screen. That experience, he argues, is precisely what in-house counsel needs right now. Lawyers working on AI and product development cannot afford to sit at a distance from the technology they are advising on. They need to use the tools, experience them as a creator or end user would, and understand the nuances of how a product actually operates before it reaches the public. Understanding the product first is the precondition for everything else. That philosophy translates directly into how he approaches responsible AI implementation. The landscape of AI standards is crowded: NIST frameworks, the EU AI Act, sector-specific guidance, and a growing body of industry-adopted best practices. The challenge for in-house counsel is not knowing that these standards exist. It is making them actionable for the engineering and product teams they support. Abstract principles need to become concrete controls and workflows. Graves offers one practical shortcut: most companies already have open source software review processes that involve the right stakeholders, the right sign-off levels, and the right security checks. Layering the specifics of generative AI or large language models onto those existing processes is far more efficient than building something new from scratch. A Fragmented Regulatory World The geopolitical dimension of AI regulation is something Graves thinks about constantly in his role at LinkedIn. The EU AI Act, shifting US executive orders, and country-specific approaches to data privacy have created a regulatory environment that can change the rules of the game without warning. His analogy is instructive: creators have long understood what it means to build a community on a platform they do not own. An algorithm change, a policy update, or a government ban can wipe out years of audience-building overnight. Businesses deploying AI tools globally now face a structurally similar problem. The response, for creators and for platforms alike, is to build resilience rather than rely on stability that may not last. TikTok is the clearest recent example. When the platform faced the prospect of being shut down in the United States on national security grounds, it triggered a broader conversation about platform dependence that had been building for years. Creators who had invested their entire business in one platform suddenly confronted the possibility that their audience could simply disappear. The lesson is not that platforms are bad. It is that concentration of any kind, whether it is your audience, your data pipeline, or your regulatory compliance strategy, creates fragility. What Is a Creator, Legally Speaking? One of the central contributions of Graves’ law review article is definitional. The terminology matters more than it might seem. When courts and regulators talk about creators without a shared understanding of what that word means, the resulting legal analysis tends to miss the mark. Graves draws a distinction between users who post content, creators who post with the intent to build an audience and eventually monetize it, and influencers, a subset of creators who are actively running a small business through their content. The difference is intent. A parent posting family photos on Facebook is a user. Someone building a subscription community around their professional expertise is running a business, and the legal framework that applies to them should reflect that. That distinction matters practically when it comes to liability. As more creators build their own platforms, whether through custom membership sites, open source tools like Ghost, or federated social networks, they take on obligations that previously fell to large platforms: content moderation policies, privacy notices, terms of service, and compliance with data regulations across multiple jurisdictions. A creator in Tennessee running a membership platform with subscribers in Germany is operating a global business, whether they think of themselves that way or not. Protecting Children Online: A Question Without a Clean Answer The tension between age verification and privacy is one of the more difficult problems in platform law right now. Australia, several European countries, and a growing number of US states have introduced or passed minimum age requirements for social media accounts. The technical challenge is real: verifying age online requires collecting identifying information, and collecting identifying information creates privacy risk, particularly for the young people the laws are designed to protect. Who should bear the responsibility for that verification is also unresolved. Is it the platform? The app store? The mobile operating system? Graves does not pretend there is a clean answer, but he points to the mobile layer as an underexplored option. The Apple App Store and Google Play Store already have significant leverage over which apps reach users on their devices. Whether that leverage should extend to age verification is a question that deserves more attention than it currently receives. The Right of Publicity in the Age of AI Voice cloning, digital replicas, and AI-generated synthetic media have pushed the right of publicity into territory that traditional IP law was not designed to cover. Trademark law, copyright law, and existing publicity rights each capture part of the problem but none of them covers it completely. The result, as Graves describes it, is a period of experimentation: lawyers filing trademarks on vocal sounds and phrases, states updating their publicity statutes to explicitly mention artificial intelligence, and entertainment unions negotiating over who controls a performance and any AI-generated iterations of it. Tennessee’s Elvis Act is a concrete example of the legislative response: the state updated its right of publicity law to include voice and to reference AI directly. Similar efforts are underway elsewhere. The underlying challenge is calibrating protection so that it gives creators and performers meaningful control over their likeness and voice without foreclosing the development of generative AI

[powerpresss] My co-host Ken Suzan and I are welcoming you to episode 175 of our podcast IP Fridays! Today’s interview guest is Bruce Dearling, patent attorney and partner at Hepworth Browne in the UK, and we talk about how non-technical features must be considered when assessing inventive step of patents at least according to recent decisions of the UK supreme court and the Unified Patent Court.  Profile of Bruce Dearling UK Supreme Court Emotional Perception AI Limited UPC Abbot vs Sinocare But before we jump into this interesting interview, I have news for you: On May 20, 2026, the Swiss Federal Council adopted the fully revised Patent Ordinance, which will enter into force on January 1, 2027, together with the revised Patent Act. In the future, the Swiss Federal Institute of Intellectual Property will prepare a mandatory search report for each application; applicants can choose between a partially examined version and a full examination that assesses novelty and inventive step. The full examination costs an additional 300 Swiss francs, and renewal fees will increase by a total of eight percent over the 20-year term.  On May 19, 2026, Asus entered into a licensing agreement with the Wi-Fi multimode patent pool managed by Sisvel, thereby ending all ongoing infringement proceedings. Sisvel bundles standard-essential patents in the pool from, among others, Atlantia, ETRI, and Mitsubishi Electric. On May 18, 2026, the UPC Local Chamber in Düsseldorf rejected Align Technology’s application for a preliminary injunction against its Chinese competitor Angelalign. Angelalign may continue to sell its clear aligners within the UPC jurisdiction. Our partners Dirk Schulz, Ulrich Storz, and Wanze Zhang, together with Arnold Ruess, successfully represented Angelalign. The U.S. Patent and Trademark Office (USPTO) announced midweek that, since October of last year, it has invalidated or is seeking to invalidate approximately 10,500 trademark applications and registrations in eleven administrative orders. Reasons include forged attorney signatures and the fabrication of non-existent filing requirements. This stems from ongoing abuse of the U.S. trademark system, primarily by non-U.S. applicants, which can lead to conflicts with validly registered trademarks for legitimate businesses.  On May 12, 2026, the British Court of Appeal overturned a lower court decision that would have required Nokia to grant interim licenses for video coding patents. The court found that Nokia’s license offer to the Taiwanese manufacturers Acer and Asus had already been made on RAND terms. In May, the U.S. Department of Justice (DOJ) filed a brief in the ongoing Corteva v. Inari litigation, expressing antitrust concerns regarding certain patent practices in the field of plant breeding. This marks the first time the agency has actively intervened in a biopharmaceutical patent dispute with implications for seed innovations. Episode 175 of the IP Fridays podcast was a conversation I will not forget quickly. My guest Bruce Dearling, partner at Hepworth Brown in the UK and a patent attorney for 36 years, took a case through every level of the British court system up to the Supreme Court and, in doing so, fundamentally changed patent law for AI inventions in the UK. The case is called Emotional Perception, and its effects reach well beyond British borders. Below I summarize the key points from our conversation. The full episode is available at IP Fridays. A. What Is the Emotional Perception Case About? The underlying invention concerns artificial neural networks. Specifically, it relates to a method of closing what is called the semantic gap at the output of a neural network. That sounds abstract, but the idea is straightforward: a neural network always produces an output that does not fully correspond to what a human would actually expect or feel. Closing that gap brings the system closer to human perception and human expectations. Bruce Dearling drafted this application himself and filed it at the UK Intellectual Property Office (UKIPO). The Office rejected it as excluded subject matter, characterizing it as essentially a computer program as such. The legal basis for that rejection was the Aerotel decision from 2006. The case then went to the High Court, which found in favor of the applicant. The Court of Appeal reversed that decision. Then the UK Supreme Court stepped in and changed everything. B. The Aerotel Test and Its Flaws Since 2006, the Aerotel test had been the standard British method for assessing whether an invention falls within the excluded categories under patent law. It was a four-step approach: construe the claim, identify the actual contribution the invention makes to human knowledge, ask whether that contribution falls solely within excluded subject matter, and finally check whether the contribution is technical in nature. The problem Dearling described in our conversation is that Aerotel reverses the logical order of the analysis. You start with the contribution and only then ask about the exclusions under Article 52 EPC. The UK Supreme Court described Aerotel in its judgment as “unsound law” and overturned it. The EPO’s Technical Boards of Appeal had previously called Aerotel “disingenuous,” which at the time led to a public dispute between the British courts and the Boards. With the Emotional Perception ruling, that conflict has now been resolved in favor of harmonization with the EPO. C. What the UK Supreme Court Decided The Supreme Court made two central findings. First, the exclusion of computer programs “as such” is overcome as soon as a claim includes any piece of hardware. It does not matter whether that is a processor, a memory module, or any other component. The threshold is deliberately low. Dearling described this as the “any hardware” approach, which aligns fully with the EPO’s position following G1/19. Second, and in Dearling’s assessment the more important finding: when assessing inventive step, the invention must be considered as a whole. The Court introduced what it called an “intermediate step,” an analytical stage in which the interactions between all features of a claim are examined before the question of inventive step is addressed. Non-technical features cannot simply be struck out if they contribute to the overall technical effect of the invention. D. Inventive Step: The Intermediate Step This is the heart of the judgment. In EPO practice, Dearling said, it happens regularly that examiners strike through features they consider non-technical and thereby fail to assess the invention’s inventive step correctly. A recent Technical Board of Appeal decision, T 1249/22, already criticized this approach: a claim directed at a technical solution to a problem can be patentable even if the underlying problem is non-technical in nature. Dearling recalled a remark made by a Board of Appeal member at a hearing he attended years ago: “We understand that examining divisions can operate with a degree of mental laziness and that it’s too easy to throw too many things out of the basket when considering the issues of inventive step.” That quote stayed with him because it names a structural problem that the intermediate step now addresses directly. The British method for assessing inventive step is the Pozzoli test, which differs from the EPO’s problem-solution approach. The Supreme Court explicitly retained Pozzoli because the problem-solution approach, in its view, is structurally infected with hindsight reasoning: you already know the invention, you work backwards to formulate an objective technical problem, and then you ask whether it would have been obvious for the skilled person to arrive at precisely that solution. Dearling sees this as a source of unfairness toward genuine inventions. E. Alignment with the Unified Patent Court In April 2025, the Court of Appeal of the Unified Patent Court issued a decision in Abbott v. Sinocare (APP_000000901/2025, judgment of 17 April 2025). Dearling pointed out that this decision uses language and reasoning strikingly similar to the UK Supreme Court’s Emotional Perception ruling of February 2025. That is significant because the UPC is bound neither by UK courts nor by the EPO. The overlap suggests voluntary convergence. Dearling reported a conversation with a person close to the EPO, whom he did not name, who used the word “permissive” to describe the UK Supreme Court’s approach and indicated that the EPO might move toward it. Whether and how quickly that happens remains to be seen. What is clear is that the UPC, as the new European patent court, is setting its own standards, and the question of how to handle non-technical features in inventive step assessment is now being asked at multiple levels simultaneously. F. Implications for the EPO and Practice The EPO is not directly bound by the ruling. It is an administrative body, not a court. Dearling is nonetheless optimistic that change is coming. On one hand, external pressure is building: when the UK Supreme Court and the UPC articulate similar principles, convergence becomes hard to resist. On the other hand, Article 27.1 TRIPS requires all contracting states to make patents available in all fields of technology. Examiners routinely striking non-technical features from AI claims and rejecting them on that basis sits uncomfortably with that obligation. For the underlying application in the Emotional Perception case, the ruling has a pointed consequence. The Supreme Court did not grant the patent itself; it referred the matter back to the UKIPO for reconsideration under the intermediate step. The Office’s subsequent response was, in Dearling’s words, unconvincing. He suspects the Office is attempting to reintroduce the Aerotel test through the back door. As a last resort, he has not excluded a judicial review, a procedure that does not