NEWS
Secrets, Secrets Are No Longer Hard to Keep (in Court)
Previously, courts have required trade secret plaintiffs to identify their trade secrets with particularity before the defendants were required to respond to any discovery requests. In practice, no matter how a plaintiff would identify the trade secrets at issue, the defendant would refuse to respond to discovery requests on the grounds that the identification was insufficiently particularized. And the courts would refuse to intercede to state whether the identification was sufficient, or even what was needed to particularize the trade secrets. The net effect was that trade secret claims often went nowhere.
But this new case, Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., holds that trade secret claims under the Defend Trade Secrets Act (DTSA) do not require a plaintiff to identify its alleged trade secrets with “reasonable particularity” at the outset of litigation. Whether a plaintiff has sufficiently particularized a trade secret under the DTSA is usually a matter for summary judgment or trial.
This is different from the rules governing discovery in cases brought under California’s Uniform Trade Secrets Act (CUTSA)., which still requires a plaintiff to identify its alleged trade secrets with “reasonable particularity” at the outset of litigation.
You can read more about the case at this link:
Impact of Ninth Circuit’s Recent Decision in Federal Trade Secret Cases Under the DTSA – Calbar IP Section Newsstand – Powered by Lexology
AI’s secret ingredient: Text, Data, and Fair Use
Text and data mining (TDM) is basically grabbing lots of data from the internet. From that data, large language models and AI extract patterns and can generate text.
Accessing large amounts of text will, of course, very quickly start stepping on copyrighted toes. But there is a mechanism by which copyrighted materials don’t always need explicit permission for use: the Fair Use Doctrine.
In the US, many large tech companies rely on the fair use doctrine to access and justify training their AI systems.
Fair use allows the use of copyrighted materials in some instances. It’s never a blanket permission, it’s a case-by-case analysis based on four factors: 1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used, and 4) the effect on the market for the original work.
There are class action suits arguing that AI training is not fair use because it involves mass copying, but for the most part, courts have so far found the LLM’s training on copyrighted material ok, inasmuch as they are used for pattern recognition rather than reproducing the expressive content. But again, there are cases ongoing, so this may change, requiring some sort of larger scale licensing arrangements.
Doctrine of Equivalents
The Doctrine of Equivalents is a legal principle in U.S. patent law that allows a court to find infringement even when the accused product or process does not literally fall within the scope of a patent claim, as long as it is equivalent in a meaningful way. The Function-Way-Result (FWR) test is one of the primary tools used to assess this equivalence.
Function-Way-Result (FWR) Test Explained
Under the FWR test, a court or jury evaluates whether the accused product or process:
- Performs substantially the same function as the claimed invention.
- Operates in substantially the same way as the claimed invention.
- Achieves substantially the same result as the claimed invention
If all three criteria are met, the accused product or process may infringe under the doctrine of equivalents.
The classic analogy is: suppose a patent claim covers a method of joining two wooden planks together “using a nail.” An accused product instead uses a screw to fasten the planks. Although the literal language of the claim specifies a nail, a court applying the doctrine of equivalents could find infringement. That is because both the nail and the screw perform the same function of fastening the planks together, they operate in substantially the same way by penetrating the wood and holding the pieces in place, and they achieve the same result of creating a secure joint. Thus, under the Function-Way-Result test, a screw may be considered an equivalent to a nail in this context.
Note that the Doctrine of Equivalents is generally not available for claim elements that were narrowed during prosecution for reasons related to patentability, unless the patentee can successfully rebut the presumption of estoppel. However, if the amendment was not related to patentability, or the patentee can show the change was tangential, DOE may still apply.
Several clients have asked about this recently, so this article can provide some insight.
The USPTO has suspended expedited examination of design applications
The PTO had suspended expedited examinations of design applications back on April 17, 2025, but has issued a final rule to eliminate them altogether, as part of effort “to combat fraud”. The announcement said “requests for expedited examination of design applications have surged 560% in recent years, caused in large part by fraudulent applications.”
Apparently, the largest source of these fraudulent applications are coming from China, but why?
The Chinese government has been offering subsidies for foreign trademark and patent filings, which effectively incentivizes filling applications, even when there is no intent to use the mark or pursue protection.
This is, as the PTO acknowledges by its actions, a burden on the system and potentially harms legitimate applicants.
The Chinese government’s subsidies of foreign IP filings has been a concern for the US for over a decade. Chinese applicants may be earning approximately $800 USD in subsidies, for a filing fee of $225-275, meaning it is profitable to send crowds of filings to the US.
The question of motives is a concern. Is this an attempt to undermine the US trademark registration system? Or is it motivating by China transitioning from being primarily a manufacturer to an innovator?
Investing heavily in foreign IP may be an attempt to increase international competitiveness.
But there has been a huge influx of illegitimate filings with doctored specimens- for example the same picture of a shoe with 10 different marks on it. As a counterpoint, if the Chinese central government sets the targets, it is up to the local governments to achieve those targets. This could create incentives for the local officials to prize hitting number-of-filing quotas, while overlooking quality. Thus one could argue that the Chinese central government isn’t trying to undermine the US per se, it may simply be a by-product of the race to establish themselves more solidly in the international market.
Whatever the motives, the increase IS a burden and the USPTO is taking steps to remedy the situation.
USPTO to Charge Extra for Late Continuation Applications — Don’t Get Caught by the Six- and Nine-Year Traps
The U.S. Patent and Trademark Office (USPTO) just rolled out a new “late-filing penalty” for continuation applications that come in six or nine years after the earliest priority date in the family.
This isn’t just a cash grab. The USPTO has likely decided that ultra-late continuations — sometimes filed a decade after the original application — are being used to keep claim scope in flux long after the market has settled. That makes life unpredictable for competitors, and the Office is signaling it wants to curb that practice.
First, in case you need a reminder of what a continuation application is, think of it as keeping the door open. You’ve got an original patent application on file. A continuation is a new application that uses the same description but lets you go after different claims — broader, narrower, or just different angles. The beauty is you keep the original filing date, which is gold in patent land.
The new price of waiting
- Large entities: $2,700 (six years) / $4,000 (nine years)
- Small entities: $1,080 (six years) / $1,600 (nine years)
- Micro entities: $540 (six years) / $800 (nine years)
These numbers aren’t small, and they’re designed to get your attention. If you want to avoid paying them, you’ll need to plan ahead.
This matters more than you think because patent prosecution is slow — sometimes glacial. In complex tech, pharma, or life sciences, it’s normal to be past the six-year mark before your first U.S. application is even allowed. File your continuation then, and you’re automatically in surcharge territory.
Questions to ask before you hit six or nine years
- Is this a blockbuster product? Keep a continuation pending — it’s the best way to adapt and keep competitors in check.
- Is anyone sniffing around your market? Continuations let you tailor claims midstream in litigation.
- Do you have features you never claimed? File early and lock them in without paying the extra fee.
- Did the USPTO restrict your application? That means they spotted more than one invention. File a divisional before the clock runs out.
Six-Year vs. Nine-Year Game Plan
Goal: Keep strategic patent options alive without paying the USPTO’s new “late continuation” surcharges.
At 5½ Years from Earliest Priority Date
- Review portfolio: Identify any cases where you might want broader or different claims.
- Flag restrictions: Look for USPTO restriction requirements — these often signal unclaimed inventions.
- Decide early: File continuations/divisionals now if there’s any chance you’ll want them.
Six-Year Mark (Penalty threshold #1)
- If you file after today → you pay $2,700 / $1,080 / $540 (large/small/micro).
- If the case is valuable or the market is hot, consider filing before today to avoid this first surcharge.
Between Six and Nine Years
- Monitor product and market developments closely.
- Keep at least one application alive for critical cases.
Nine-Year Mark (Penalty threshold #2)
- Filing now costs $4,000 / $1,600 / $800.
- By this point, you should already have filed anything you need — paying this is last-resort territory.
Don’t let allowance dictate when you file continuations. Let strategy dictate — and let the clock tell you when it’s time to move.
From Brain Scans to Rain Scans: How Tumor-Detecting AI Is Predicting the Weather
In a twist that sounds like science fiction, researchers in Xi’an, China have taken artificial intelligence designed to find tumors in brain scans and taught it to forecast the weather—fast. The result? Five-day regional forecasts that can be generated almost instantly.
The secret lies in deep learning models that were originally built to spot tiny anomalies in medical images. By retraining these systems on historic weather data, the team discovered they could recognize atmospheric patterns with exceptional accuracy—even in areas where weather data is scarce.
At the heart of the method is something called cascade prediction. Instead of trying to predict all five days at once, the AI breaks the job into smaller chunks, predicting shorter time spans and stacking the results. This clever sequencing cuts down cumulative errors, boosting accuracy by nearly 20% compared to standard techniques.
To make it even smarter, the system adds what the researchers call “learnable Gaussian noise,” a fancy way of saying the AI adjusts for local quirks in the weather. Trained on 70 different weather variables collected every six hours between 2007 and 2016, the model has shown particularly strong performance across East Asia.
Traditional high-accuracy weather models are computationally heavy and often out of reach for smaller meteorological services. This approach is faster, cheaper, and far more accessible—opening the door for better forecasting in places that need it most.
Sometimes, innovation comes from thinking sideways: in this case, turning a brain tumor hunter into a rainstorm spotter.
Bored Apes, Confused Courts, and the Question of Whether NFTs Are “Goods”
If you’ve ever wondered whether the law treats an NFT like a Beanie Baby, a baseball card, or just a bunch of ones and zeros, the Ninth Circuit just gave us an answer: yes, NFTs are “goods” under the Lanham Act.
That little detail matters because it opens the door for trademark law to march right into Web3. And in this case, the march was led by Yuga Labs, creators of the Bored Ape Yacht Club (BAYC) — you know, the cartoon apes that double as pricey status symbols, social club memberships, and occasionally, celebrity conversation pieces.
On the other side of the ring: Ryder Ripps and Jeremy Cahen, who launched their own “Ryder Ripps Bored Ape Yacht Club” (RR/BAYC) using the same ape images and IDs, slapped “Bored Ape Yacht Club” on the smart contract name, and claimed it was all satire to protest Yuga’s alleged flirtations with bad symbolism and worse politics.
Yuga sued for trademark infringement, cybersquatting, and a few other greatest hits. The district court handed Yuga a win on the big-ticket claims, called it willful infringement, and hit the defendants with profit disgorgement, statutory damages, and attorneys’ fees — plus a permanent injunction for good measure.
But the Ninth Circuit wasn’t buying the “open-and-shut” part. Here’s the quick breakdown:
- NFTs are goods — they’re bought and sold in online marketplaces, confer perks, and have value independent of any “tangible” packaging.
- BAYC marks are enforceable — Yuga didn’t lose them by selling NFTs, granting broad art rights, or allegedly failing to police the brand.
- Fair use and First Amendment defenses failed — calling it satire doesn’t help if you’re actually using the marks to sell your own product.
- BUT the district court skipped a thorough confusion analysis. Trademark infringement isn’t just “we see the same name.” You have to walk through the Sleekcraft factors, and the Ninth Circuit said, “Nope, you didn’t do that.” So back it goes.
- Cybersquatting? Not this time — “rrbayc.com” wasn’t close enough to “BAYC,” and “apemarket.com” wasn’t confusingly similar to “Bored Ape” (and Yuga abandoned “Ape” as a standalone mark).
- Defendants’ counterclaims? Dead. The DMCA claims fizzled because even if Yuga was sloppy in takedown notices, it wasn’t a bad-faith misrepresentation. And the copyright declaratory judgment request was dismissed with prejudice.
This isn’t just about cartoon apes. The Ninth Circuit just solidified that NFTs are commercial goods for trademark purposes — so yes, the name you give your pixelated penguin project matters. But even if you own the mark, you don’t get to skip the hard work of proving consumer confusion.
And for those trying to wrap satire, protest, or just-for-laughs into a money-making NFT drop? Courts aren’t amused when the “joke” looks exactly like the thing you’re “joking” about and you’re charging admission at the door.