NEWS
Bored Apes, Confused Courts, and the Question of Whether NFTs Are “Goods”
When Trademark Law Meets Web3 and Cartoon Apes
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.
Yuga Labs vs. RR/BAYC: How the Dispute Over Bored Ape NFTs Began
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.
District Court Ruling: Trademark Infringement, Willfulness, and Damages
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.
The Ninth Circuit’s Take: What It Agreed With—and What It Didn’t
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.
Why Consumer Confusion Still Matters in NFT Trademark Cases
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 Claims and Why They Failed
Cybersquatting? Not this time. “rrbayc.com” wasn’t close enough to “BAYC”. “apemarket.com” wasn’t confusingly similar to “Bored Ape”. And Yuga abandoned “Ape” as a standalone mark.
What Happened to the Defendants’ DMCA and Copyright Counterclaims
The defendant’s 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.
What This Decision Means for NFTs, Trademarks, and “Satire” Projects
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.
USPTO Clarifies AI and Machine Learning Patent Eligibility
Background: USPTO Issues New AI Eligibility Memo
The USPTO issued a memorandum on Aug 2, 2025. This was to help examiners assess subject matter eligibility in software-related inventions, especially those involving AI and machine learning. The memo does not change existing rules. It only reinforces current guidance in the MPEP and the 2024 AI Subject Matter Eligibility Update.
Step 2A Prong One: Identifying Judicial Exceptions
Examiners must determine if claims recite a judicial exception (abstract ideas, laws of nature, or natural phenomena). Special focus is given to the mental process category. The stress is that only processes that can practically be performed by the human mind count as abstract ideas. Claims that merely “involve” but do not “recite” such exceptions remain eligible. (Check the end of this article if you want help understanding between involving and reciting)
Step 2A Prong Two: Integrating Exceptions into Practical Applications
If a judicial exception is recited, examiners must evaluate whether the claim as a whole integrates it into a practical application. This includes checking if it improves computer functioning or another technical field. It can’t just tell a computer to “apply it.”
Guidance on Section 101 Rejections
Examiners should avoid oversimplifying claims and only issue 101 rejections when ineligibility is more likely than not.
(101 rejections cover subject matter that the law doesn’t allow patents on, like ideas that are too abstract or laws of nature, for example)
Full Examination Still Required
The memo reiterates that a complete examination must address all statutory requirements. This includes Sections 101, 102, 103, and 112, and must be done in the first Office action.
USPTO Training and AI-Specific Examples
The USPTO also points examiners to ongoing training materials and illustrative examples, including AI-focused scenarios, to guide eligibility analysis.
Takeaway: Emphasis on Real Technological Improvements
In short, the memo emphasizes careful distinctions between abstract ideas and genuine technological improvements, particularly in AI and machine learning inventions.
Here is a link to the full article:
https://www.uspto.gov/sites/default/files/documents/memo-101-20250804.pdf
PS: These memos are guidelines, not mandates.
China Finally Gets Serious About Fair Play in the Marketplace
Why China’s Revised Anti-Unfair Competition Law Is a Big Deal
For years, China’s business environment has been a bit like the Wild West—only with more knockoffs, keyword hijacking, and fake online reviews than a shady eBay seller convention. If you built a brand, it was open season for imitators to leech off your reputation. Search for your product online, and odds are you’d find some “similar” listing piggybacking off your trademark as a keyword. And if you complained? Well, good luck with that.
That’s why the newly revised Anti-Unfair Competition Law—passed June 27, 2025, and taking effect October 15—marks a pretty significant pivot.
This isn’t just another set of rule tweaks. It’s a sign that Beijing has recognized several big realities.
China’s Old Unfair Competition Rules Weren’t Built for the Digital Economy
The old law was written for an analog economy, not the algorithmic one we live in now. Back in the ’90s, unfair competition was about copying product packaging or running misleading ads. Fast forward to today, and the battlefield is dominated by platform algorithms, data scraping, and SEO manipulation. The old law simply wasn’t built to handle things like “keyword squatting” or “comment farming,” and bad actors took full advantage.
Why Fair Competition Matters to China’s Digital Economy Goals
China’s digital economy can’t thrive if no one trusts the playing field. The government wants to be a global leader in AI, e-commerce, and fintech. But you can’t lure serious investment—domestic or foreign—if innovators fear their ideas will be swiped and their traffic diverted by clever cheats. Tightening the rules helps build credibility with both entrepreneurs and trading partners.
Protecting SMEs From Platform Power and Predatory Practices
Small and medium-sized enterprises were getting crushed. Large platforms and corporations have been using their clout to force predatory payment terms, undercut prices below cost, and lock smaller players into unfair conditions. The revised law directly tackles this “payment term bullying” and abusive platform rule-making. That’s not just good policy—it’s survival gear for keeping the SME sector alive.
Data Rights Take Center Stage Under China’s New Competition Law
Data is the new gold, and China is fencing it in. In the old days, you stole a competitor’s design. Today, you siphon their user data. The law now treats data rights as a central part of fair competition—banning unauthorized harvesting, coercive acquisition, and the weaponizing of platform algorithms to kneecap rivals.
What the New Law Signals About China’s Economic Priorities
This isn’t China suddenly finding religion on fair play. It’s about keeping their digital economy competitive, making sure innovation happens in the open market—not in the shadows. And it’s a reminder that when governments feel the growth engine sputtering, they’re suddenly a lot more interested in protecting the people who actually build the engines.
What Businesses Operating in China Need to Do Before October 15
For companies doing business in China, this is both a shield and a warning. It’s a shield against bad-faith actors who’ve been gaming the system for years. But it’s also a warning that compliance just got more complicated—and “we didn’t know that was illegal” won’t fly after October 15.
When “Close Enough” Isn’t Good Enough: Colibri v. Medtronic and the Push–Pull of Patent Law
The Doctrine of Equivalents: When Literal Infringement Isn’t Required
Patent law has its own version of “close enough,” called the Doctrine of Equivalents (DOE). It says that even if a product or method doesn’t match the exact words of a patent claim, it can still infringe if it does substantially the same thing, in substantially the same way, to get substantially the same result. For example, your neighbor promised not to build a “fence”. Then he puts up a 10-foot-high “hedge wall” that blocks your view just the same. Because he accomplished the same result, he might still be in trouble.
Prosecution History Estoppel: You Can’t Take Back What You Gave Up
But there’s a counterweight to this rule: Prosecution History Estoppel (PHE). Imagine you narrow your patent claim to get it approved by the Patent office. Maybe you remove certain versions or features. You can’t turn around later and use the DOE to grab back what you gave up. In other words: you made your bed, now you lie in it.
That’s the tug-of-war at the heart of Colibri Heart Valve LLC v. Medtronic Corevalve, LLC.
The Colibri Patent and the Two Deployment Methods
Colibri’s patent covered a heart valve that could be partially deployed, then “recaptured” and repositioned if it wasn’t in quite the right spot — a surgical do-over button. The patent described two ways to deploy the valve:
- Push it out from inside a sheath.
- Retract the sheath to uncover it.
Claim Cancellation During Prosecution Changes the Playing Field
During patent prosecution, Colibri dropped all claims covering the “retract” method after the Patent Office said they weren’t properly supported. That left only the “push” method in the issued patent.
The Accused Device and the Jury’s $106 Million Verdict
Medtronic’s device used a combination of both pushing and retracting to deploy its valve. Colibri argued, “That’s close enough — DOE!” and a jury agreed, awarding $106 million in damages.
The Federal Circuit Applies Prosecution History Estoppel
The Federal Circuit wasn’t buying it. Judge Taranto, writing for the panel, said: Cancelling the “retraction” claim narrowed the scope of the remaining claims. The cancelled and retained claims were so closely related that giving up one told the world you weren’t claiming that territory anymore. PHE barred Colibri from getting that territory back through DOE, even if their remaining claim language wasn’t literally changed.
The Bigger Lesson for Patent Owners and Prosecutors
This case is a reminder that the DOE and PHE are like a patent-law see-saw: the more you give up during prosecution, the less you can later claim as “equivalent.” Once you cancel a claim to get your patent issued, the courts may see it as a binding surrender, even if you think your other claims are worded differently.
For inventors and companies, the takeaway is simple: decisions made during prosecution can come back years later in court — and they can make or break a case worth nine figures.
Fair Use and AI Training: Buy It or Bye-Bye
A recent court decision gave AI developers a roadmap for staying out of copyright trouble—and a big flashing warning sign for what not to do.
The case: Anthropic, the folks behind Claude, trained its AI on a huge stash of books. Some were bought, scanned, and stored. Others came from pirate sites. You can guess where this is going.
The court split the baby:
- Bought and scanned books? Fair use. Transformative. Like teaching a student to write—new output, not copies. Destroy the paper version, keep the searchable digital version, you’re fine.
- Pirated books? Not fair use. Doesn’t matter if you never train on them. If you’re holding unauthorized copies, you’re replacing legitimate sales. That’s infringement, and damages are on the table.
For AI training, the message is simple: If you want fair use on your side, start with legally obtained material. Buy it, borrow it, license it—just don’t snatch it from the high seas of the internet.
Because in this court’s eyes, training on a legit copy is like learning from a library book. Training on a stolen copy? That’s like breaking into the library at night.
At the end of the day: Pay for your inputs. Your model will be smarter—and so will you.
The Trump-Lutnick Patent Tax: Turning the USPTO into the IRS
A Patent System Idea So Bad You Check the Calendar
Every so often, Washington cooks up an idea so far outside good patent policy that you have to check the calendar. Is it April 1st? The latest example is a proposal from Commerce Secretary Howard Lutnick. It would slap a property tax on patents—1% to 5% of their “value” every year.
Yes, you read that right. Instead of the flat maintenance fees we’ve had for decades, this would be an annual tithe to the federal coffers. The amount would be based on what your patent is supposedly worth.
This Isn’t Patent Policy—It’s a Budget Patch
If this were about improving the patent system, I’d at least listen. Streamlining quality. Funding examination. Encouraging innovation. But that’s not what this is. This is about plugging a budget hole. That’s like selling the family car to pay the electric bill. You keep the lights on for a while. You also lose your transportation.
Who Pays? Anyone Whose Patent Actually Matters
The targets are obvious. Pharmaceutical patents in the FDA’s Orange Book. Standards-essential patents. Patents that have been litigated, licensed, marked, or otherwise shown commercial value. In plain English, the more valuable your patent is, the more you’ll pay to keep it. And don’t expect this to replace existing maintenance fees. It’s far more likely to sit on top of them.
Fee Pressure Is One Thing—Punishing Success Is Another
We’ve been here before—at least in spirit. Escalating fees have long been used to clear out deadwood patents. About half of all U.S. patents are abandoned before the final maintenance fee comes due. But that’s policy, not punishment. The goal was to encourage owners to drop low-value patents. It was never meant to milk productive ones for general-revenue cash.
Turning the USPTO Back into Congress’s Piggy Bank
And there’s history here too. For decades, the USPTO has fought for financial independence, only to watch Congress siphon off about a billion dollars of its collected fees for unrelated spending. Turning the USPTO into a patent tax collector puts us right back into that mess, undoing 40 years of work to keep the office self-funded.
The Endgame: Trade Secrets Over Patents
The real kicker? If this goes through, high-value inventions might skip the patent system entirely. Why stake your crown jewels in a system that makes you pay for their success every year, when you could lock them away as trade secrets? That’s not innovation policy—that’s a slow-motion train wreck.
The USPTO’s “Settled Expectations” Doctrine — and Why It Matters to You
The USPTO has a new trick up its sleeve. If you own older patents, you may actually like it. It’s called the “settled expectations” doctrine. Acting Director Coke Morgan Stewart introduced it earlier this year. The doctrine helps decide whether the USPTO will even start an inter partes review (IPR).
Here’s the short version. The older your patent, the better your odds. Late-stage IPR challenges are now easier to shut down.
What Is the “Settled Expectations” Doctrine?
The doctrine is based on time. After enough years pass (usually seven or more), both patent owners and the public act as if the patent is valid. They plan around it, invest around it, and license it.
Because of that, disrupting those expectations is seen as unfair. It also risks destabilizing settled business decisions. As a result, the USPTO may deny an IPR. That can happen even when the challenger has decent prior art.
Why Patent Age Now Works as a Shield
Think of this as a temporal shield. If a petitioner waits too long, timing alone can sink the challenge.
This rule is discretionary. It is not a hard cutoff. It also differs from the one-year IPR deadline after a lawsuit is filed. Still, it is powerful. In practice, age now matters.
Recent USPTO Decisions Show the Pattern
In June 2025, the USPTO applied the doctrine in several cases. The message was consistent.
- iRhythm v. Welch Allyn – The petitioner knew about the patent for years and waited. The Director said, “Too late.”
- Dabico v. AXA Power – No proof of prior knowledge. The patent’s age alone created settled expectations.
- Intel v. Proxense – No litigation pressure. No imminent trial. Still denied due to a nine-year-old patent.
- Cambridge v. Applied Optoelectronics – Seven- and nine-year-old patents survived. Newer ones did not.
Across the board, age tipped the scale.
How This Changes the IPR Playbook
Until now, IPR timing followed two hard rules.
- The first nine months after grant were reserved for post-grant review.
- IPR had to be filed within one year of being sued.
Now there is a third filter. It is softer, but real. If your patent has been around long enough, the USPTO may decline review entirely.
Laches, But Turned on Its Head
Laches is an equitable doctrine. It applies when someone waits too long to assert a legal right. That delay must also prejudice the other side.
In patent law, laches traditionally worked against patent owners. If an owner knew about infringement but delayed suit, courts could step in. The concern was fairness. Defendants often invested heavily during the period of silence.
They might build factories, or launch products. They might expand operations. Late enforcement, after all that reliance, was seen as inequitable.
Although the Supreme Court limited laches as a damages defense in SCA Hygiene, the concept never vanished. Delay and reliance still matter. They continue to shape how courts think about equity.
Now the USPTO has flipped the script. Instead of punishing owners for waiting to sue, the agency penalizes petitioners for waiting to challenge. If a challenger sits on its hands too long, the IPR may never start.
Does the Public Really Rely on Old Patents?
Do I fully buy the “public reliance” argument? Not really.
The public does not celebrate bad patents staying alive. They celebrate avoiding license fees. Still, from a portfolio strategy standpoint, this doctrine is a gift.
If you own patents in the seven-to-ten-year range, you now have another shield. If you are a challenger, speed matters more than ever. Waiting for litigation to heat up could mean the IPR door never opens.
Bottom Line: Timing Is Now a Weapon
The settled expectations doctrine changes the game. Patent owners gain staying power. Challengers lose the luxury of delay. Act early, or don’t act at all.