New Administration, Same Patent Reform Bill
A bipartisan group of senators and congressional representatives reintroduced the Patent Eligibility Restoration Act (PERA), which aims to reform the law of patent eligibility under 35 U.S.C. § 101. PERA seeks to address the challenges posed by recent Supreme Court decisions and restore clarity and predictability in the US patent system.
PERA preserves the existing categories of subject matter currently enumerated in § 101 but adds several categories of excluded subject matter. PERA proposes to eliminate all judicial exceptions to patent eligibility, specifying that certain categories, such as mathematical formulas that are not part of an invention, processes that a human could perform, mental processes, unmodified human genes, and unmodified natural material, are not eligible for patents.
A separate bipartisan group of senators and congressional representatives reintroduced the Promoting and Respecting Economically Vital American Innovation Leadership (PREVAIL) Act, which aims to protect and increase the value of US intellectual property rights by making significant reforms to the Patent Trial & Appeal Board.
PREVAIL seeks to limit Board challenges to entities that have been sued or threatened with a patent infringement lawsuit, close the statutory bar joinder loophole to prevent time-barred entities from joining instituted inter partes review (IPR) proceedings, and prevent serial petitions by applying estoppel at the time the challenge is filed instead of when the Board issues its final written decision.
“Payment Handler”: A Nonce Term Without Instructions
The US Court of Appeals for the Federal Circuit affirmed a district court’s ruling that a software term was a “nonce” term that invoked 35 U.S.C. § 112, sixth paragraph (i.e., a means-plus-function claim element). The Court further found that the patent specification did not recite sufficient corresponding structure, rendering the claim element indefinite. Fintiv, Inc. v. PayPal Holdings, Inc., Case No. 23-2312 (Fed. Cir. Apr. 30, 2025) (Prost, Taranto, Stark JJ.)
Fintiv sued PayPal for infringing four patents related to cloud-based transaction systems, also known as “mobile wallet platforms,” “mobile financial services platforms,” or “electronic payment systems.” During claim construction, the district court ruled that the terms “payment handler” and “payment handler service” were indefinite. The court concluded that both terms were means-plus-function limitations governed by § 112, sixth paragraph. Although the claims did not use the word “means,” the district court found that PayPal had demonstrated that the terms were drafted in a format consistent with traditional means-plus-function language, effectively substituting “payment handler” for the word “means.” The court also found that the patent specifications failed to disclose corresponding structure capable of performing the claimed functions. As a result, the court held the claims invalid for indefiniteness and entered final judgment. Fintiv appealed.
Fintiv argued that the district court erred in concluding that the payment handler terms invoked § 112(f) and that the specifications failed to disclose the structure for the claimed functions. The Federal Circuit disagreed.
The Federal Circuit analyzed the “payment-handler” terms, which did not explicitly use the word “means.” Under § 112(f), there is a rebuttable presumption that a claim term does not invoke means-plus-function treatment unless the challenger can show that the term is a nonce term that lacks “sufficiently definite structure” or only recites a function without providing enough structure to perform that function. Fintiv contended that the payment handler terms, both individually and collectively, identified the required structure. However, the Court found that PayPal had successfully rebutted the presumption since the payment handler terms recited functions without reciting sufficient structure to perform those functions. The Court agreed with the district court that the term “handler” did not convey sufficient structure to a person of ordinary skill in the art.
Having determined that the payment handler terms invoked § 112(f), the Federal Circuit sought to identify the corresponding structure described in the specifications for performing the payment handler function but found none. The Court concluded that “without an algorithm to achieve these functionalities – and, more generally, given the specifications’ failure to disclose adequate corresponding structure – we hold the payment-handler terms indefinite.”
Damages on Default Judgment Not Barred by Absence of Precise Amount in Complaint
The US Court of Appeals for the Ninth Circuit reversed and remanded a district court decision, allowing collection of actual damages in a default judgment where the complaint only sought damages “in an amount to be determined at trial.” AirDoctor, LLC v. Xiamen Qichuang Trade Co., Ltd., Case No. 24-215 (9th Cir. Apr. 11, 2025) (Friedland, J.) (Berzon, Kennelly JJ., concurring) (per curiam).
AirDoctor produces and sells air purification products, including branded filters designed specifically for its machines. In 2022, AirDoctor discovered that Xiamen Qichuang Trade had sold tens of thousands of unauthorized replacement filters that were marketed as compatible with AirDoctor products. These filters were allegedly labeled with AirDoctor’s registered trademarks, including AIRDOCTOR and ULTRAHEPA, without permission. AirDoctor asserted that these actions constituted trademark infringement, false advertising, and unfair competition under the Lanham Act and related state laws.
AirDoctor filed a complaint seeking injunctive relief and monetary damages “in an amount to be determined at trial.” Xiamen did not respond or appear in the litigation, and the court entered a default judgment against it. AirDoctor subsequently moved for approximately $2.5 million in actual damages, calculated based on the number of infringing units sold, along with $50,000 in attorneys’ fees and costs. The district court entered a default judgment in Air Doctor’s favor but declined to award damages or attorneys’ fees. The court reasoned that Fed. R. Civ. Pro 54(c) barred monetary relief in default judgments unless the complaint demanded a specific sum. Since AirDoctor’s complaint did not include a precise dollar amount, the court concluded that granting the requested monetary relief would exceed what was demanded in the pleadings and thus violate Rule 54(c). AirDoctor appealed.
The issue before the Ninth Circuit was whether the district court erred in interpreting Rule 54(c) to prohibit an award of actual damages in a default judgment where the complaint requested “damages in an amount to be determined at trial” but did not specify a fixed damages amount. Xiamen did not appear on appeal either.
The Ninth Circuit reversed, concluding that Rule 54(c) does not require a complaint to state a specific sum of damages for a court to award actual damages after a default judgment. The Court emphasized that the rule’s purpose is to prevent awards that are fundamentally different in kind or amount from those for which the defendant had been put on notice by the complaint, not to deny recovery when the type of relief was clearly identified, even if the amount was not. The Court noted that AirDoctor had clearly requested actual damages in its complaint and had indicated that the precise amount would be determined later, which was sufficient to give Xiamen fair notice of the relief sought. Relying on its 1974 decision in Henry v. Sneiders, the Court reaffirmed that actual damages may be awarded in default cases even if the complaint does not state a dollar figure, as long as the damages are of the same kind as those demanded.
The Ninth Circuit clarified that Rule 54(c) should not be read to require technical pleading of monetary amounts, especially in cases where the exact damages are unknown at the time of filing and are to be determined based on later evidence. The panel pointed out that this approach is consistent with decisions from other circuits, including the Seventh Circuit.
Practice Note: This decision affirms that in cases decided by default, a plaintiff can recover actual damages without having included a sum certain in its pleading, provided that the type of relief is sufficiently disclosed. Therefore, where actual damages are not immediately apparent at the time of filing a complaint, the plaintiff can comply with Rule 54(c) (while leaving the door open to maximize recovery) by pleading a prayer for recovery in an amount commensurate with findings at trial.
China Issues the 2025 Intellectual Property Nation Building Promotion Plan To Accelerate the Construction of a Powerful Intellectual Property Country
On May 7, 2025, China’s National Intellectual Property Administration (CNIPA) published the 2025 Intellectual Property Nation Building Promotion Plan (2025年知识产权强国建设推进计划) authored by the Office of the Inter-ministerial Joint Conference on Building a Powerful National Intellectual Property Rights. The Plan lists the key tasks of 2025 to “accelerate the construction of a powerful intellectual property country.” Some of the key tasks including revising various laws and regulations, including the Trademark Law and issuing new guidelines, such as the Guidelines on Standard-Related Patent Policy.
A translation follows. The original text is available here (Chinese only).
This plan is formulated to implement the Outline for Building a Powerful Intellectual Property Country (2021-2035) (hereinafter referred to as the Outline) issued by the CPC Central Committee and the State Council and the National Intellectual Property Protection and Utilization Plan for the 14th Five-Year Plan (hereinafter referred to as the Plan) issued by the State Council, deepen the implementation of the strategy of building a powerful intellectual property country, accelerate the construction of a powerful intellectual property country, and clarify the key tasks for 2025.
This plan is formulated to implement the Outline for Building a Powerful Intellectual Property Country (2021-2035) (hereinafter referred to as the Outline) issued by the CPC Central Committee and the State Council and the National Intellectual Property Protection and Utilization Plan for the 14th Five-Year Plan (hereinafter referred to as the Plan) issued by the State Council, deepen the implementation of the strategy of building a powerful intellectual property country, accelerate the construction of a powerful intellectual property country, clarify the key tasks for 2025.
I. Improve the intellectual property system(I) Improve intellectual property laws, regulations and rules1. Accelerate the revision of the Trademark Law of the People’s Republic of China and the Regulations on the Protection of Integrated Circuit Layout Designs. (The National Intellectual Property Administration and the Ministry of Justice are responsible)2. Accelerate the revision of the Regulations on the Implementation of the Copyright Law of the People’s Republic of China and the Regulations on Collective Management of Copyrights, accelerate the revision of the Trial Measures for Voluntary Registration of Works, and promote the formulation of the Regulations on the Protection of Copyright of Folk Literature and Art Works. (The Central Propaganda Department and the Ministry of Justice are responsible)3. Promote the revision of the Regulations on the Protection of New Plant Varieties of the People’s Republic of China. (The Ministry of Agriculture and Rural Affairs, the National Forestry and Grassland Administration, and the Ministry of Justice are responsible)4. Study and demonstrate the Regulations on the Management of Access to Biological Genetic Resources and Benefit Sharing. (The Ministry of Ecology and Environment is responsible)5. Promote the revision of the Regulations of the People’s Republic of China on Customs Protection of Intellectual Property Rights. (General Administration of Customs is responsible)6. Promote the legislative process of the Regulations on the Protection of Traditional Chinese Medicine Knowledge. (State Administration of Traditional Chinese Medicine, National Health Commission, National Intellectual Property Administration is responsible)7. Promote the revision of the Regulations on National Defense Patents. (Equipment Development Department of the Central Military Commission, State Administration of Science, Technology and Industry for National Defense is responsible)8. Revise and issue the Regulations on the Protection of Trade Secrets. (State Administration for Market Regulation is responsible)9. Promote the revision of relevant judicial interpretations of the Trademark Law and Copyright Law. (Supreme People’s Court is responsible)
(II) Reform and improve major intellectual property policies10. Open up the entire chain of intellectual property creation, application, protection, management and service, and promote the establishment of an efficient comprehensive intellectual property management system. (National Intellectual Property Administration and relevant member units of the Joint Conference are responsible)11. Do a good job in the preparation of the “15th Five-Year Plan” intellectual property planning. (National Intellectual Property Administration and relevant member units of the Joint Conference are responsible)12. Promote the implementation of the “Reform Plan for the Division of Financial Powers and Expenditure Responsibilities between the Central and Local Governments in the Field of Intellectual Property”. (Ministry of Finance, National Intellectual Property Administration, Central Propaganda Department and other departments are responsible)13. Study and summarize the results of the World Bank’s business environment assessment, and issue and implement the “Opinions on Further Optimizing the Business Environment in the Intellectual Property Field”. (The National Intellectual Property Administration, the Central Propaganda Department, the National Development and Reform Commission, the Ministry of Education, the Ministry of Science and Technology, the Ministry of Industry and Information Technology, the State Administration for Market Regulation, and the Chinese Academy of Sciences are responsible)14. Formulate the “Guiding Opinions on Accelerating the High-quality Development of Copyright Work”. (The Central Propaganda Department is responsible)15. Formulate and issue the “Guidelines on Standard-related Patent Policy”. (The State Administration for Market Regulation and the National Intellectual Property Administration are responsible according to their respective duties)16. Formulate high-quality policy documents to promote the rapid and coordinated protection of intellectual property rights, study and issue guiding opinions on strengthening the arbitration of intellectual property disputes, and formulate guidelines for administrative adjudication and mediation of patent disputes. (The National Intellectual Property Administration and the Ministry of Justice are responsible)17. Study and formulate opinions on strengthening the protection of trade secrets. (The State Administration for Market Regulation is responsible)18. Formulate and issue the “Opinions on Strengthening the Intellectual Property Protection Work of Public Security Organs”. (The Ministry of Public Security is responsible)19. Accelerate the promotion of the “Measures for the Identification of Synthetic Content Generated by Artificial Intelligence” and the issuance of supporting mandatory national standards. (The Central Cyberspace Affairs Commission and the Ministry of Public Security are responsible)20. Issue and implement the “Implementation Plan for Major Biodiversity Conservation Projects (2025-2030)”. (Ministry of Ecology and Environment is responsible)
(III) Improve intellectual property rules in emerging and specific fields 21. Accelerate the research and construction of data intellectual property protection rules. (National Intellectual Property Administration and Ministry of Industry and Information Technology are responsible)22. Carry out the revision of the “Patent Examination Guidelines” and improve the patent examination standards for new fields and new formats. (National Intellectual Property Administration is responsible)23. Explore and improve the intellectual property protection rules for new fields and new formats such as big data, artificial intelligence, and blockchain. Improve the intellectual property protection rules in the Internet field. (The Central Propaganda Department, the Central Cyberspace Affairs Commission, the Supreme People’s Court, the Ministry of Industry and Information Technology, the State Administration for Market Regulation, and the National Intellectual Property Administration are responsible for their respective duties)24. Accelerate the improvement of judicial judgment rules for intellectual property rights in new technologies, new fields, and new formats, and judgment rules for e-commerce platform competition cases, and explore judicial rules for big data competition protection. (Supreme People’s Court is responsible)25. Support the free trade pilot zones to connect with international high-standard economic and trade rules, carry out pilot projects first, and replicate and promote them to a larger scale. (The Central Propaganda Department, the Ministry of Commerce, and the National Intellectual Property Administration are responsible according to their respective duties)26. Explore the copyright protection of traditional culture and traditional knowledge, and improve the copyright protection mechanism of sports events, variety shows, e-commerce platforms, and search engines. (The Central Propaganda Department is responsible)27. Actively explore the application of technologies such as artificial intelligence and blockchain in the confirmation, use, and protection of copyright in the fields of radio, television, and online audio-visual, and strengthen the development of blockchain application standards and related standards in the fields of radio, television, and online audio-visual. (The Ministry of Industry and Information Technology and the State Administration of Radio, Film, and Television are responsible according to their respective duties)28. Study and formulate guiding opinions on strengthening intellectual property work in the fields of culture and tourism. (The Ministry of Culture and Tourism, the Central Propaganda Department, the State Administration for Market Regulation, and the National Intellectual Property Administration are responsible)29. Continue to promote the construction of a database for the protection of traditional Chinese medicine knowledge and the publication of a list.(The State Administration of Traditional Chinese Medicine is responsible)
II. Strengthen intellectual property protection(I) Strengthen judicial protection of intellectual property30. Issue the “Opinions of the Supreme People’s Court on Serving and Safeguarding Scientific and Technological Innovation with High-quality Trials” and publish typical cases. (The Supreme People’s Court is responsible)31. Improve the national level intellectual property case appeal mechanism and strengthen the construction of a professional trial system. (The Supreme People’s Court is responsible)32. Adhere to strict protection, improve and fully implement the punitive compensation system for infringement. Strengthen the overall coordination of batch litigation and increase the crackdown on manufacturers and other sources of infringement. (The Supreme People’s Court is responsible)33. Formulate the “Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Intellectual Property Infringement”. (The Supreme People’s Court and the Supreme People’s Procuratorate are responsible)34. Deepen the comprehensive performance of intellectual property prosecution and further promote the professionalization of intellectual property prosecution. (The Supreme People’s Procuratorate is responsible)35. Formulate the “Management Measures for Technical Investigators of the Intellectual Property Procuratorate Office of the Supreme People’s Procuratorate” and improve the system of intellectual property prosecution professionals assisting in case handling. (The Supreme People’s Procuratorate is responsible)36. Regularly carry out supervision of malicious intellectual property litigation and publish typical cases of intellectual property prosecution protection. (The Supreme People’s Procuratorate is responsible)37. Organize and carry out special projects such as “Kunlun-2025” and “Anxin” to continue to crack down on intellectual property infringement crimes with high pressure. (The Ministry of Public Security is responsible)
(II) Strengthen administrative protection of intellectual property38. Carry out the “Sword Net 2025” special action to combat online infringement and piracy, and carry out special work on youth copyright protection and cinema film copyright protection. (The Central Propaganda Department, the Central Cyberspace Affairs Commission, the Ministry of Industry and Information Technology, the Ministry of Public Security, and the Ministry of Culture and Tourism are responsible for their respective duties)39. Carry out in-depth special law enforcement actions to “protect intellectual property rights”. Promote the pilot work of full-chain law enforcement of intellectual property rights. (The State Administration for Market Regulation is responsible)40. Organize and carry out market competition status assessments in key areas, and strengthen anti-monopoly supervision of standard essential patents, patent pools, etc. in key areas such as information and communications before, during, and after the whole chain. (The State Administration for Market Regulation is responsible)41. Deepen the national pilot work on trade secret protection innovation and form institutional results that can be replicated and promoted. Organize and carry out the third “Enterprise Trade Secret Protection Capacity Improvement Service Month” activity. (The State Administration for Market Regulation is responsible)42. Strengthen the construction of geographical indication review capabilities. Promote the construction of national geographical indication protection demonstration areas with high standards, and implement the geographical indication protection project in depth. (The State Intellectual Property Office is responsible)43. Continue to clean up and rectify infringement, counterfeiting, illegal and irregular information, urge websites and platforms to fulfill their main responsibilities, and improve the ability to review content related to intellectual property rights. (The Central Propaganda Department and the Central Cyberspace Affairs Commission are responsible according to their respective responsibilities)44. Improve the early resolution mechanism for pharmaceutical patent disputes. (The National Intellectual Property Administration and the State Food and Drug Administration are responsible according to their respective responsibilities)45. Continue to strengthen the protection of seed industry intellectual property rights, and severely crack down on counterfeiting, counterfeiting, infringement and other illegal acts. Strengthen the construction of technical support capabilities, improve the DNA molecular fingerprint database, and promote the implementation of variety ID card management. (The Ministry of Agriculture and Rural Affairs is responsible)46. Organize and carry out special actions for customs protection of intellectual property rights, and accelerate the construction of customs smart intellectual property business scenarios. (The General Administration of Customs is responsible)47. Continue to consolidate the results of software legalization work and carry out software legalization supervision work. (The Central Propaganda Department, the Ministry of Industry and Information Technology, the State Administration of State Administration and other units are responsible according to their respective responsibilities)48. Strengthen intellectual property protection in the field of intangible cultural heritage. (The Ministry of Culture and Tourism is responsible)
(III) Improve the pattern of coordinated protection of intellectual property rights49. Strengthen the connection between administrative law enforcement and judicial protection and cross-departmental and cross-regional law enforcement cooperation. (The Central Propaganda Department, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Agriculture and Rural Affairs, the Ministry of Culture and Tourism, the General Administration of Customs, the State Administration for Market Regulation, the National Intellectual Property Administration, and the National Forestry and Grassland Administration are responsible for their respective duties)50. Implement the intellectual property protection system construction project, guide the construction of intellectual property protection highlands, and optimize the layout of national intellectual property protection centers and rapid rights protection centers. (The National Intellectual Property Administration is responsible)51. Promote the construction of a national pilot project for the standardization of administrative adjudication of patent infringement disputes. (The National Intellectual Property Administration and the Ministry of Justice are responsible)52. Promote the establishment of an efficient foreign-related intellectual property protection work mechanism, improve the overseas dispute response guidance work system, and set up a number of overseas intellectual property dispute response guidance sub-centers. (The National Intellectual Property Administration, the Central Propaganda Department, the Ministry of Commerce, and the China Council for the Promotion of International Trade are responsible)53. Continue to promote the diversified resolution of intellectual property disputes, strengthen the construction of intellectual property dispute mediation organizations and arbitration institutions, and improve the docking mechanism between intellectual property administrative law enforcement and arbitration and mediation. (The Central Propaganda Department, the Supreme People’s Court, the Ministry of Justice, the National Intellectual Property Administration, and the China Council for the Promotion of International Trade are responsible according to their respective duties)54. Manage the transfer of intellectual property rights involving national security in accordance with the law, and study and formulate guidelines for the review of the transfer of patent rights in technology exports. (The Central Propaganda Department, the Ministry of Science and Technology, the Ministry of Agriculture and Rural Affairs, the Ministry of Commerce, the National Intellectual Property Administration, and the National Forestry and Grassland Administration are responsible according to their respective duties)55. Improve the credit supervision system in the field of intellectual property rights in accordance with the law, and strengthen the collection and sharing of relevant credit information in the field of intellectual property rights. (The Central Propaganda Department, the National Development and Reform Commission, the People’s Bank of China, the State Administration for Market Regulation, and the National Intellectual Property Administration are responsible according to their respective duties)56. Promote the political and legal organs to crack down on crimes involving intellectual property protection in accordance with the law, and investigate and deal with infringements in accordance with the law. (The Central Political and Legal Affairs Commission is responsible)
III. Improve the operation mechanism of the intellectual property market(I) Improve the quality of intellectual property creation57. Promote the improvement of the quality of patent applications, improve the quality-oriented indicator system and evaluation system, and establish a pre-patent application evaluation system with industrialization prospect analysis as the core. (The Ministry of Education, the Ministry of Science and Technology, the National Intellectual Property Administration, and the Chinese Academy of Sciences are responsible according to their respective duties)58. Continue to improve the quality and efficiency of patent and trademark examinations, optimize resource allocation, meet the examination needs of key areas, and steadily promote the application of multimodal large model technology in examination work. Deepen the reform of the trademark examination and approval mechanism, and launch a new generation of trademark examination system. (The State Intellectual Property Office is responsible)59. Study and promote the construction of a unified national copyright registration mechanism for works, standardize the standards and processes for copyright registration and examination of works, enhance the informatization level of copyright registration of works, and continuously improve the quality of copyright registration of works. (The Central Propaganda Department is responsible)60. Improve the work system of intellectual property rights to support key core technology research and development, deepen the patent navigation in key areas, and strengthen the creation and layout of high-value patents. (The State Intellectual Property Office, the Ministry of Education, the Ministry of Science and Technology, the Ministry of Industry and Information Technology, the State-owned Assets Supervision and Administration Commission of the State Council, and the Chinese Academy of Sciences are responsible)61. Study and improve the supporting system for intellectual property management of national science and technology plan projects, and do a good job in intellectual property management of national key R&D plan projects. (The Ministry of Science and Technology and the competent departments of each project are responsible according to their respective responsibilities)62. Optimize the acceptance and examination process of new plant variety rights, improve the online application and examination system, and improve the efficiency of authorization. (The Ministry of Agriculture and Rural Affairs and the National Forestry and Grassland Administration are responsible according to their respective responsibilities)
(II) Strengthen the transformation and application of intellectual property rights63. Deeply implement the special action of patent transformation and application. On the basis of the previous review and inventory of existing patents, strengthen data sharing among departments, strengthen the precise connection between supply and demand, continue to activate the existing stock, optimize the incremental stock, promote the strengthening and efficiency of intellectual property rights in key industries, summarize experience and practices, and form a long-term mechanism. (The Ministry of Education, the Ministry of Science and Technology, the Ministry of Industry and Information Technology, the Ministry of Agriculture and Rural Affairs, the National Health Commission, the State-owned Assets Supervision and Administration Commission of the State Council, the National Intellectual Property Administration, and the Chinese Academy of Sciences are responsible for their respective duties)64. Vigorously cultivate and develop patent-intensive industries and copyright industries. Carry out the accounting and publication of the added value of patent-intensive industries. Conduct a survey on the contribution of copyright industries to the national economy. (The National Bureau of Statistics, the National Intellectual Property Administration, and the Central Propaganda Department are responsible for their respective duties)65. Promote the construction of key industry intellectual property innovation consortiums, key field patent pools, and intellectual property operation centers in an integrated manner, and create a model for patent industrialization to promote the growth of small and medium-sized enterprises. Accelerate the high-quality development of the science and technology service industry, cultivate and expand high-level science and technology service institutions, create a national unified technology transaction service platform, accelerate the transformation and industrialization of scientific and technological achievements, and help small and medium-sized enterprises innovate and develop. (National Intellectual Property Administration and Ministry of Industry and Information Technology are responsible)66. Deepen the reform of intellectual property rights distribution, study and promote the pilot experience of the reform of empowering the rights of scientific and technological achievements in official positions and the reform of separate asset management, and promote the establishment of a due diligence exemption mechanism. (Ministry of Education, Ministry of Science and Technology, Ministry of Finance, State-owned Assets Supervision and Administration Commission of the State Council, National Intellectual Property Administration, and Chinese Academy of Sciences are responsible according to their respective duties)67. Promote the implementation of the declaration system for the formation of intellectual property rights in financially funded scientific research projects. (National Intellectual Property Administration, Central Propaganda Department, Ministry of Science and Technology, Ministry of Finance, National Natural Science Foundation of China, State Administration of Science, Technology and Industry for National Defense, and Equipment Development Department of the Central Military Commission are responsible)68. Promote the construction of a “center + node” university scientific and technological achievement transformation system with the national university regional technology transfer and transformation center as the hub and the national university science and technology park as the node, build a “full chain” public transformation platform, and strengthen the construction of intellectual property professional service teams. (Ministry of Education is responsible)69. Deepen the implementation of the patent open licensing system and promote more scientific and technological achievements from laboratories to the industrial chain. (National Intellectual Property Administration, Ministry of Education, Ministry of Industry and Information Technology, and Chinese Academy of Sciences are responsible)70. Dynamically optimize the patent ranking index system of central enterprises, and guide central enterprises to strengthen the creation, application and protection of high-value patents. Encourage central enterprises to strengthen industry-university-research cooperation, and cultivate high-value patents through innovation alliances and other means. (SASAC and the State Intellectual Property Office are responsible)71. Vigorously implement the trademark brand strategy, and deepen the action of geographical indications to help rural revitalization. (The State Intellectual Property Office is responsible)72. Promote the quality grading of agricultural products with geographical indications and promote quality improvement. (The Ministry of Agriculture and Rural Affairs is responsible)73. Continue to carry out pilot work on the protection and promotion of folk art copyrights. (The Central Propaganda Department is responsible)74. Accelerate the implementation of the substantial derivative variety system, formulate guidelines for the determination of substantial derivative varieties and the first batch of substantial derivative variety system catalogs, and preliminarily select a batch of appraisal institutions. (The Ministry of Agriculture and Rural Affairs and the National Forestry and Grassland Administration are responsible according to the division of responsibilities)75. Continue to promote the implementation of intellectual property standards by units affiliated to the Chinese Academy of Sciences. (The Chinese Academy of Sciences is responsible)76. Promote the construction of intellectual property service export bases. (The Central Propaganda Department, the Ministry of Commerce, and the National Intellectual Property Administration are responsible for their respective duties)
(III) Promote the market-oriented operation of intellectual property77. Actively and steadily develop intellectual property finance, give full play to the role of the national intellectual property pledge information platform, and coordinate the promotion of intellectual property pledge financing, securitization, and insurance. (The Central Propaganda Department, the National Development and Reform Commission, the People’s Bank of China, the Financial Regulatory Commission, the China Securities Regulatory Commission, and the National Intellectual Property Administration are responsible for their respective duties)78. Gradually expand the internal evaluation pilot of intellectual property pledge financing and improve the level of convenience for intellectual property pledge registration. Guide local governments to increase support for intellectual property financing guarantees. (The Central Propaganda Department, the People’s Bank of China, the Financial Regulatory Commission, and the National Intellectual Property Administration are responsible for their respective duties)79. Encourage insurance companies to optimize intellectual property insurance products and services and focus on developing insurance products related to international trade intellectual property protection. (The Central Propaganda Department, the Financial Regulatory Commission, and the National Intellectual Property Administration are responsible for their respective duties)80. Improve the supervision system for intellectual property asset securitization business, guide exchanges to innovate intellectual property asset securitization models, and encourage technology-based enterprises to carry out financing through intellectual property asset securitization. (The China Securities Regulatory Commission, the Central Propaganda Department, and the National Intellectual Property Administration are responsible)81. Promote the benefit of new varieties of forest and grassland plants to farmers and pledge financing of variety rights. (National Forestry and Grassland Administration, People’s Bank of China)
IV. Improve the efficiency of intellectual property services(I) Strengthen the supply of intellectual property public services82. Deeply implement the intellectual property public service benefit project, and solidly promote the pilot of intellectual property public service standardization. Establish and improve the “good and bad review” system for intellectual property government services. (National Intellectual Property Administration)83. Promote the establishment of an intellectual property public service work mechanism to support the key core technology research in key areas. (National Intellectual Property Administration)84. Study and formulate the “Guidelines for the Analysis and Utilization of Intellectual Property Information”. (National Intellectual Property Administration)85. Launch the national intellectual property protection information platform, explore the construction of a national integrated intellectual property digital public service platform, support the construction of an independent and controllable intellectual property database, and expand the open sharing of basic data. (National Intellectual Property Administration)86. Promote the connection and application of intellectual property-related public service platforms with the national network identity authentication public service platform to strengthen user information security. (National Intellectual Property Administration, Ministry of Public Security)87. Optimize the service application scenarios of grassroots organizations of the patent information resource system and empower grassroots intellectual property services. (China Association for Science and Technology is responsible)
(II) Promote the development of intellectual property services88. Comprehensively strengthen the supervision of the intellectual property agency industry, strengthen the comprehensive governance of the industry, and improve the professional capabilities and level of intellectual property service institutions. (National Intellectual Property Administration is responsible)89. Accelerate the formation of a standard system for the intellectual property service industry, promote the construction of intellectual property service industry clusters, and establish a regional cooperation and assistance mechanism for the intellectual property service industry. (National Intellectual Property Administration is responsible)90. Promote the use of the “Patent and Trademark Agency Service Government Procurement Demand Standard (Trial)”. (Ministry of Finance and National Intellectual Property Administration are responsible)91. Strengthen and improve the supervision of copyright collective management organizations, guide copyright collective management organizations to expand their business, and encourage copyright collective management organizations to cooperate with relevant industry associations. Promote the standardization of certification work by overseas copyright certification agencies. (Central Propaganda Department is responsible)
V. Create a good intellectual property humanistic and social environment(I) Vigorously advocate intellectual property cultural concepts92. Organize and hold large-scale activities such as World Intellectual Property Day, National Intellectual Property Promotion Week, China International Copyright Expo, International Copyright Forum, and China Brand Day. We will do a good job in building a strong country in intellectual property rights and publicize the achievements of intellectual property development during the 14th Five-Year Plan period. We will strengthen external publicity of intellectual property rights through platforms such as the China International Import Expo and the China International Fair for Trade in Services, and tell the story of Chinese intellectual property rights well. (The Central Propaganda Department, the Central Cyberspace Affairs Commission, the Ministry of Foreign Affairs, the National Development and Reform Commission, the Ministry of Commerce, the State-owned Assets Supervision and Administration Commission of the State Council, the State Administration for Market Regulation, the State Administration of Radio, Film and Television, the National Intellectual Property Administration, and the China Council for the Promotion of International Trade are responsible for their respective duties)93. Organize activities related to the 40th anniversary of the implementation of the Patent Law of the People’s Republic of China. (The National Intellectual Property Administration is responsible)94. Promote the implementation of the “whoever enforces the law shall popularize the law” responsibility system in all regions and relevant departments, and strengthen the publicity of intellectual property law. Strengthen the use of new media and new technologies, and actively carry out popularization of law through cases in China’s popularization of law “one network, two microblogs, and one terminal”. (The Ministry of Justice is responsible)95. Make full use of important time nodes such as the National Science Popularization Month, the National Science and Technology Activity Week, and the National Intellectual Property Promotion Week to carry out intellectual property science popularization activities. Relying on the China Science Popularization Information Platform, strengthen the all-media dissemination of intellectual property science popularization resources. (The Ministry of Science and Technology and the China Association for Science and Technology are responsible)96. Carry out a series of publicity activities on customs protection of intellectual property rights, and release the status of intellectual property protection in China’s customs in 2024. Optimize the functional layout of the customs intellectual property protection exhibition center, and create an “Internet +” intellectual property customs protection publicity position. (The General Administration of Customs is responsible)
(II) Lay a solid foundation for the development of intellectual property rights97. Increase the training of intellectual property administrative personnel and build a high-quality professional cadre talent team. (The Central Propaganda Department and the National Intellectual Property Administration are responsible according to their respective duties)98. Deepen the implementation of the professional and technical personnel knowledge update project, and increase the training of high-level professional and technical personnel in the field of intellectual property rights. Improve the intellectual property talent evaluation system and the professional title evaluation method for intellectual property professionals. (The Central Propaganda Department, the Ministry of Human Resources and Social Security, and the National Intellectual Property Administration are responsible according to their respective duties)99. Vigorously cultivate international talents such as foreign-related intellectual property lawyers. (The Ministry of Justice and the National Intellectual Property Administration are responsible according to their respective duties)100. Promote the construction of intellectual property professional degrees and related disciplines in colleges and universities, do a good job in the construction of the co-construction of intellectual property colleges, and strengthen the collaborative training of intellectual property talents. (The Ministry of Education, the National Intellectual Property Administration, and the Central Propaganda Department are responsible according to their respective duties)101. Strengthen the construction of technical managers, expand the scale of training, improve the quality of training, and promote the transformation and industrialization of scientific and technological achievements. (Ministry of Industry and Information Technology, Ministry of Science and Technology)102. Promote the construction of intellectual property think tanks and strengthen research on major theoretical and practical issues. (Central Propaganda Department, Supreme People’s Court, Ministry of Education, National Intellectual Property Administration, Chinese Academy of Sciences are responsible according to their respective duties)
VI. Deeply participate in global intellectual property governance103. Carry out consultations in various fields under the framework of the World Intellectual Property Organization, promote the formulation of international rules for intellectual property in new fields and new formats, and promote the inclusion of Chinese language consultations in the Madrid system. (National Intellectual Property Administration, Central Propaganda Department, Ministry of Foreign Affairs, Ministry of Justice)104. Organize the 2025 series of cooperation directors’ meetings of the five intellectual property offices of China, the United States, Europe, Japan and South Korea, and jointly hold related activities for the 40th anniversary of cooperation between the China-EU Intellectual Property Offices. (National Intellectual Property Administration)105. Actively participate in discussions on relevant issues under multilateral platforms such as the WTO and APEC, deepen bilateral exchanges and cooperation on intellectual property rights with trading partners such as the EU, Japan, Russia, and Switzerland in the economic and trade fields, and actively promote negotiations on intellectual property rights issues in free trade agreements and the entry into force of the second batch of product lists of the China-EU Geographical Indications Agreement. (Ministry of Commerce, Central Propaganda Department, and National Intellectual Property Administration are responsible)106. Promote the deepening and implementation of the “Belt and Road” intellectual property cooperation, and implement the results of the third “Belt and Road” intellectual property high-level meeting. Hold the 2025 China-ASEAN Intellectual Property Office Directors’ Meeting, promote the improvement of the BRICS intellectual property cooperation mechanism, and support the holding of the second China-Central Asia Intellectual Property Office Directors’ Meeting. (National Intellectual Property Administration, Central Propaganda Department, and Ministry of Foreign Affairs are responsible)107. Promote substantive consultations on international treaties such as the Treaty on the Protection of Broadcasting Organizations and the Treaty on the Protection of Traditional Cultural Expressions. Do a good job in the implementation of key international copyright treaties such as the Beijing Treaty on Audiovisual Performances and the Marrakesh Treaty. (Central Propaganda Department and State Administration of Radio, Film and Television are responsible according to their respective duties)108. Seriously implement the International Convention for the Protection of New Varieties of Plants, deepen multilateral and bilateral technical exchanges and cooperation, and participate in the formulation of relevant international standards. (The Ministry of Agriculture and Rural Affairs, the National Intellectual Property Administration, and the National Forestry and Grassland Administration are responsible for their respective duties)109. Relying on the multilateral and bilateral law enforcement cooperation mechanism, strengthen communication and cooperation with foreign law enforcement departments around key transnational infringement and counterfeiting criminal cases. Give full play to the main channel role of Interpol and actively participate in joint law enforcement actions organized by it. (The Ministry of Public Security is responsible)110. Actively participate in international intellectual property affairs under multilateral frameworks such as the World Customs Organization, and promote the establishment of multilateral and regional cooperation mechanisms. (The General Administration of Customs is responsible)111. Strengthen the construction of overseas intellectual property information service platforms, release early warning information in a timely manner, provide services to enterprises in key areas and key links, and do a good job in risk investigation and rights protection guidance. (The Central Propaganda Department, the Ministry of Commerce, the National Intellectual Property Administration, and the China Council for the Promotion of International Trade are responsible for their respective duties)112. Carry out the establishment of training projects in the field of intellectual property and promote human resources development cooperation in the field of intellectual property. (The Central Propaganda Department, the National Intellectual Property Administration, and the National International Development Cooperation Agency are responsible for their respective duties)113. Prepare for the 2025 Global Business Rule of Law Conference and strengthen exchanges and cooperation with non-governmental international intellectual property organizations. (China Council for the Promotion of International Trade is responsible)
VII. Strengthen organizational guarantees114. Carry out a five-year summary and evaluation of the Outline and the Plan, strengthen statistical monitoring of indicator data, and supervise and inspect the implementation of work tasks. (Joint Conference Office and member units of the Joint Conference are responsible)115. Collect and promote the fourth batch of typical cases for the construction of a strong intellectual property country. (Joint Conference Office is responsible)116. Give full play to the role of the Expert Advisory Committee for the Construction of a Strong Intellectual Property Country and the National Intellectual Property Strategy Implementation Research Base, and strengthen policy consultation and research support. (Joint Conference Office is responsible)117. Implement tax and fee support policies to support scientific and technological innovation and encourage enterprises to increase their own investment in scientific and technological innovation. (The Ministry of Finance and the State Administration of Taxation are responsible according to their respective duties)118. Prepare and publish the annual development report on the construction of a strong intellectual property country. (Joint Conference Office is responsible)In the above-mentioned division of labor, if multiple departments are responsible, the department listed first is the leading department, and the others are participating departments.
CNIPA Announces Deepening of “Blue Sky” Campaign to Strengthen Supervision of Intellectual Property Law Firms
On May 7, 2025, China’s National Intellectual Property Administration (CNIPA) released the Notice of the State Intellectual Property Office on deepening the “Blue Sky” campaign to strengthen the comprehensive governance of the intellectual property agency industry (国家知识产权局关于深入开展“蓝天”行动 强化知识产权代理行业综合治理的通知). The Blue Sky Campaign is somewhat similar to but more comprehensive than the USPTO’s recent launch of the Patent Fraud Detection and Mitigation Working Group. The Notice states that CNIPA will regulate agency behavior by 1. rectifying the behavior of patent agents that file “abnormal” patent applications including potential referral for criminal prosecution; 2. cracking down on unqualified patent agents; 3. crack down on illegal or irregular behavior of trademark agents; 4. strictly regulate solicitations; 5. rectify IP firms that do not complete licensing requirements; and 6. stop patent agents from renting their patent bar registrations. Further, CNIPA will aim to improve patent agent quality, improve the supervision of the IP firm industry, and increase IP publicity and education.
A translation follows. The original text is available here (Chinese only).
To the Intellectual Property Offices of all provinces, autonomous regions, municipalities directly under the Central Government and the Xinjiang Production and Construction Corps, and all relevant local centers; all departments of the National Intellectual Property Office, all departments of the Patent Office, the Trademark Office, other directly affiliated units of the Office, and all social organizations:
2025 is the final year for the implementation of the “14th Five-Year Plan for National Intellectual Property Protection and Utilization” and the year for the three-year special action on patent transformation and utilization. In order to strengthen the comprehensive governance of the intellectual property agency industry, improve the supervision system, improve the quality of agencies, and strongly support the work of patent transformation and utilization and intellectual property protection, the National Intellectual Property Administration has decided to continue the “Blue Sky” special rectification action in the intellectual property agency industry in 2025. The relevant matters are hereby notified as follows.
1. Regulate agency behavior and maintain industry order
(I) Concentrate on rectifying the behavior of acting as an agent for abnormal patent applications. A number of cases of acting as an agent for abnormal patent applications will be investigated and dealt with in a concentrated manner to form a high-pressure situation for centralized rectification. Intellectual property management departments in various places should adopt comprehensive measures and implement classified rectification by using various measures such as key inspections, warning talks, talks for rectification, warnings and fines, credit deductions, and self-discipline punishments according to the circumstances; if the circumstances are particularly serious, they should be reported to the National Intellectual Property Administration for handling in a timely manner. It is necessary to strengthen the connection between law enforcement and execution, and those suspected of crimes should be transferred to relevant departments in a timely manner for criminal prosecution. It is necessary to strictly implement the “double supervision” of institutions and personnel.
(II) Severe crackdowns on unqualified patent agents. Those who have a large amount of illegal income, act as agents for abnormal patent applications, deliberately transfer or destroy evidence, or refuse to cooperate with the investigation shall be fined a high multiple or the maximum amount in accordance with the law. At the same time, patent agencies that rent or lend their qualifications shall also be punished.
(III) Severely crack down on illegal and irregular behaviors of trademark agents. Intellectual property management departments in all regions should work with relevant departments to increase the coordination of supervision and law enforcement, and focus on cracking down on behaviors such as malicious preemptive registration of trademarks, hoarding of trademarks, application for registration of trademarks with major adverse effects, and malicious “three withdrawals” [cancellation requests of trademarks for non-use after three consecutive years].
(IV) Strictly regulate the solicitation of patent and trademark agency business. Intellectual property management departments in all regions should increase the intensity of Internet information monitoring, continue to monitor agency business solicitation information and collect evidence of illegal and irregular behaviors. For irregular solicitation of agency business, relevant institutions should be promptly ordered to make rectification within a time limit; for search engines, e-commerce platforms, forums and other Internet platform companies that publish agency business solicitation information, they should be urged to improve their internal screening management system, actively regulate the display content, and promptly shut down illegal agency shops and delete illegal information links.
(V) Strengthen rectification efforts for institutions that do not meet the licensing and filing conditions. Local intellectual property management departments should strengthen daily supervision and filing management of patent agencies and their branches. For patent agencies that do not meet the licensing conditions for a long time, urge them to promptly and properly handle the unfinished business and submit it to the National Intellectual Property Administration for handling.
(VI) Organize a cleanup of patent agents’ “hanging certificates” behavior [renting out patent bar registration numbers]. Organize a comprehensive investigation of patent agents suspected of “hanging certificates”. If patent agencies arbitrarily sign in the name of “hanging certificate” personnel to handle abnormal patent applications, local intellectual property management departments must severely handle them in accordance with laws and regulations.
2. Supply and demand are mutually driven to improve agent quality
(I) Strengthen policy guidance. Local intellectual property management departments should guide relevant units to adjust and improve internal management systems and relevant incentive policies in conjunction with special actions on patent transformation and utilization, and effectively avoid new abnormal patent applications.
(II) Standardize bidding behavior. Local intellectual property management departments should work with government procurement authorities to vigorously promote the “Patent and Trademark Agency Service Government Procurement Demand Standards (Trial)” and the model text of agency engagement contracts, carry out extensive and in-depth publicity activities, and promote state-owned enterprises, institutions, intellectual property power building demonstration units, listed companies, large private enterprises and other innovative entities to refer to and use them, and effectively improve the level of agency procurement and management. It is necessary to guide innovative entities to establish and improve a hierarchical and classified management mechanism for intellectual property agency services, and promote the realization of “high quality and high price” for agency services.
(III) Improve service capabilities. Intellectual property management departments in various regions should supervise and guide patent agencies to improve their internal management systems, improve service quality control mechanisms, implement the patent agent signature responsibility system, and improve their business capabilities such as patent writing, search and analysis, and technical understanding. Guide agencies to strengthen the compliance application of new technologies and improve their professional, digital, and intelligent levels. Encourage patent agencies to establish a service concept oriented towards promoting the industrialization of patents, expand service areas, innovate service models, and provide integrated patent transformation and application solutions. Relying on intellectual property service industry clusters, intellectual property service export bases, etc., we will increase the cultivation of foreign-related intellectual property service agencies, encourage them to conduct business abroad through the establishment of branches and joint operations, and provide high-quality and efficient intellectual property services for overseas enterprises.
III. Improve the working mechanism and strengthen the supervision system
(I) Deepen credit supervision. Intellectual property management departments in various regions should strictly implement the regulations on patent agency credit evaluation management, ensure that credit information is “fully returned” and credit evaluation is “fully evaluated”; strengthen the use of credit evaluation results, refine and improve the local incentives for credit keeping and restrictions on credit breaking, and promote the realization of “one place of credit breaking, restrictions everywhere”. Pilot areas for trademark agency credit evaluation management should organize pilot work in a solid manner, strengthen training and guidance for municipal and county intellectual property management departments, increase publicity and public disclosure of credit results information, and ensure that the pilot work achieves practical results.
(II) Strengthen coordinated supervision. Intellectual property management departments in various regions should further improve the cross-departmental coordination mechanism, and work with relevant departments to carry out joint inspections and joint law enforcement of intellectual property agencies. Continue to improve the cross-regional coordinated supervision mechanism, strengthen information exchange, experience sharing, supervision interaction, and mutual recognition of evaluation, and smooth the working mechanisms such as cross-provincial cooperation, law enforcement assistance, and case transfer. Encourage and support cross-regional exchanges and cooperation in intellectual property agency supervision, and continue to consolidate the national “one chessboard” working situation [Xi Jinping Thought: centralized, coordinated, and strategic governance, emphasizing a holistic view where all parts work together towards a unified national goal]. Strengthen cooperation and coordination with the Intellectual Property Protection Center, promptly inform the Intellectual Property Protection Center of information such as penalties and breach of trust of agencies, and promptly collect clues of illegal and irregular agency behaviors found in patent pre-examination business and deal with them in a coordinated manner.
(III) Innovate supervision methods. Intellectual property management departments in various regions should strengthen smart supervision, make full use of new technologies and tools such as artificial intelligence, collect various information on agencies and practitioners, build a multi-dimensional evaluation system, establish and improve the quality monitoring mechanism of agencies, and promote the transformation of the supervision model from “passive response” to “active prevention” based on “catching problems early and catching small problems”. We should continue to strengthen the publicity of information on agencies and practitioners, facilitate the public to inquire and compare, and promote the realization of the survival of the fittest in the market. We encourage the exploration of the filing of patent agency engagement contracts and other work, actively adopt non-site supervision methods such as remote inspection, and promote the realization of “ubiquitous and non-intrusive” supervision.
(IV) Enhance supervision capabilities. Local intellectual property management departments should organize rotation training for front-line agency supervision case handlers, accelerate the establishment of a database of key case handlers and consulting experts, and consolidate the talent base and professional support for agency supervision and law enforcement. Localities are encouraged to actively promote patent agency entrusted supervision, entrust the supervision functions of provincial patent agencies to the municipal level(districts under the jurisdiction of municipalities directly under the central government), and strengthen grassroots supervision. Localities are encouraged to establish and improve the intellectual property agency supervision regulations and systems, and formulate and issue the administrative penalty discretion benchmarks for intellectual property agencies in their regions in accordance with the law.
IV. Strengthen publicity and education to create a favorable atmosphere
(I) Increase publicity and guidance efforts. Intellectual property management departments in various regions should adhere to the principle of giving equal importance to supervision and law enforcement and publicity and education, and combine various activities such as the “National Intellectual Property Publicity Week”, “Intellectual Property Service Tour”, and “China Brand Day” to strengthen the publicity and implementation of laws and regulations related to intellectual property agency, tell good “industry stories”, and actively publicize the important role of the intellectual property agency industry in serving technological innovation and trademark brand building, promoting the development of new quality productivity, and promoting high-level opening up, so as to enhance the positive image of the industry. Encourage local governments to organize intellectual property agency professional skills competitions, intellectual property agency campus special recruitment and other activities according to local conditions to increase the attractiveness of the agency industry to high-quality talents. Encourage local governments to innovate publicity methods, expand publicity channels, release publicity films for the intellectual property agency industry and short videos of special rectification actions, create a good public opinion atmosphere for combating illegal agency behaviors, and guide the public to improve their identification ability and actively choose high-quality agency services.
(II) Create a good industry atmosphere. Intellectual property management departments in various regions should increase the exposure of warning cases of intellectual property agency, explain the law through cases, popularize the law through cases, and guide agencies to operate in accordance with the law and in good faith. Together with industry organizations, they should carry out self-discipline initiatives and industry style building activities for standardized operations, vigorously promote the list of prohibited practices for patent and trademark agency, and guide agencies to consciously accept social supervision. Organize and carry out professional ethics and professional discipline education for patent agents and trademark agents, strengthen education and training for newly established agencies and first-time practicing patent agents, and continuously enhance practitioners’ sense of responsibility and sense of professional honor.
The National Intellectual Property Administration will continue to strengthen supervision and guidance on the agency supervision work of local intellectual property management departments, organize exchanges and discussions, cross-regional joint supervision and other promotion activities, and regularly report progress and useful experiences.
Spilling Secrets: Trade Secrets on Trial – Strategic Decisions for the Courtroom [Podcast]
What’s the secret to winning a trade secret trial? Find out in this compelling episode of Spilling Secrets, where Epstein Becker Green attorneys Katherine G. Rigby, James P. Flynn, and Adam Paine break down the art of navigating these high-stakes cases.
From designing winning courtroom tactics and leveraging key witnesses to using storytelling as a tool to clarify complex trade secret claims, our panelists offer actionable insights and essential tips for safeguarding confidentiality and determining the right trial format to secure the best outcomes for your business.
UK’s Collective Licensing Initiative Aims to Harmonize AI and Copyright Law
In a significant move to address the tension between copyright and generative artificial intelligence (AI), the UK’s Copyright Licensing Agency (CLA), Authors’ Licensing and Collecting Society (ALCS), and Publishers’ Licensing Services (PLS) have announced plans to launch a collective licensing framework for AI training. The opt-in license would allow AI developers to use text-based published works—such as books, journals, and magazines—for training, fine-tuning, and retrieval-augmented generation (RAG) while ensuring that creators are compensated. The license is expected to roll out in Q3 2025, following further consultation with publishers.
The UK government’s consultation “Copyright and Artificial Intelligence” acknowledged that current UK copyright law leaves both rights holders and AI developers navigating uncertainty. It proposed two main solutions: (1) strengthened rights reservation mechanisms and (2) a fallback copyright exception for AI training where rights were not reserved. However, rights holders strongly opposed a “catch-all” exception, arguing it would erode transparency and remuneration. Their opposition helped catalyze the development of this licensing framework as a market-based alternative.
The framework is being built collaboratively by CLA, ALCS (representing authors), and PLS (representing publishers). CLA—already the UK’s recognized collective management organization for text content—would administer the license, collecting and distributing fees to right holders after operational costs. It would cover a broad range of text-based published works under CLA’s mandate, streamlining permissions for AI developers where individual negotiations would be impractical. Rights holders would affirmatively opt in by registering works, while unregistered works would remain outside the license’s scope. This would apparently avoid the “opt-out” burden creators criticized in the government’s exception proposal, instead requiring affirmative consent to participate.
Importantly, the proposed collective license is intended to complement, not replace, direct bespoke licensing deals between large publishers or rights holders and AI firms. It provides an accessible fallback particularly for smaller creators and independent publishers who may otherwise struggle to negotiate individually.
An initial phase of publisher consultation has already concluded, with a second round scheduled for later in 2025. The framework’s rollout will follow the launch of related TDM and workplace-use licenses slated to commence on May 1, 2025. Exact compensation models are still under negotiation but will aim to balance affordability for AI developers against fair, sustainable remuneration for creators. License fees collected will be allocated among ALCS and PLS members based on established distribution rules.
The framework is accompanied by the development of a national rights reservation registry, intended to facilitate machine-readable licensing metadata and help signal licensing preferences at scale. Licensees would also be subject to robust transparency requirements, including reporting on the works used, methods of content acquisition, and downstream uses, with the ultimate goal of reinforcing trust between the creative industries and AI developers.
Although UK-focused, the licensing framework is being designed with international interoperability in mind, offering access to licensed content to AI developers worldwide, including US-based firms. If successful, it could serve as a model for future cross-border AI licensing solutions.
The UK’s proposed collective licensing framework represents a pragmatic approach to reconciling the needs of AI innovation with the requirements of copyright law. While the implementation process is likely to raise novel challenges, the initiative is designed to provide voluntary, transparent, and scalable alternative to statutory exceptions in the UK; protecting the economic interests of creators while enabling responsible AI development. If successful, it may offer valuable insights for other jurisdictions seeking to balance technological advancement with the protection of creative rights.
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The Potent Remedies Available Under the DTSA on Full Display in Insulet
In Insulet Corporation v. EOFlow Co., Ltd. et al., after a month-long jury trial, a federal court in Boston dropped the hammer on an insulin patch pump producer for misappropriating the trade secrets of its competitor. The jury found that EOFlow, a South Korean company, its U.S. subsidiary, and several individual defendants, including former employees of Insulet, misappropriated several different categories of Insulet trade secrets. The juryawarded Insulet $452M in damages for the misappropriation, though the court later reduced that amount to $59.4M when Insulet elected to forgo the larger award in favor of a permanent injunction. The decision highlights the high risk associated with hiring former employees of a competitor to design and develop a competing product.
In many ways, Insulet depicts a common business story. Insulet saw a need to improve insulin delivery to millions of Americans suffering from diabetes. After five years of research and development and the investment of hundreds of millions, Insulet obtained FDA approval for its wearable Omnipod insulin delivery system. In doing so, Insulet overcame many technical challenges to produce a safe and effective product whereas other would-be competitors had failed.
Years later, EOFlow announced plans to launch a competing product in the U.S., the EOPatch. EOFlow had hired former executives and employees of Insulet to assist with the development and manufacturing of the EOPatch. EOFlow also engaged the same contract manufacturer as the one used by Insulet. Before the EOPatch was launched in the U.S., Insulet obtained a sample of the EOPatch and found similarities to the Omnipod system. It also learned that EOFlow had sought expedited 510(k) clearance from the FDA to market the EOPatch based on substantial equivalence to another product on the market and that Medtronic, an Insulet competitor, had publicly announced its intention to acquire EOFlow for $738M because of the EOPatch. Insulet sued EFlow and others for trade secret misappropriation under the Defend Trade Secrets Act in late 2023, prior to EFlow’s launch of the EOPatch.
Before trial, Insulet successfully moved the court for a preliminary injunction to, among other things, block the EFlow from using Insulet trade secrets obtained by EFlow via former employees of Insulet. These trade secrets included detailed drawings, product specifications and design history relating to the Omnipod system.
At trial, the jury found that Insulet’s trade secrets were protectable and EFlow and other defendants had misappropriated those trade secrets. Post-trial, these defendants sought judgments as a matter of law and a new trial, but the court entered an order denying these motions. The defendants argued that Insulet had no protectable trade secrets and that they were imprecisely defined. The court rejected both arguments, holding that evidence supported findings that the alleged trade secrets were sufficiently defined and that they derive independent economic value from not being generally known or readily ascertainable.
As for remedies, the court upheld the jury’s damages verdict of $170M based on two unjust enrichment theories, including a “head start” theory and a market value theory (based in-part on avoided costs). The court also held that there was sufficient evidence to support the jury’s determination that EFlow willfully and maliciously misappropriated trade secrets by virtue of knowingly acquiring the trade secrets and intentionally concealing the misappropriation, thereby justifying exemplary damages of $282M. In a separate order relating to Insulet’s motion for a permanent injunction, the court granted the motion but reduced the damages award to $59.4M (to avoid a double recovery) when Insulet elected to forgo the larger award in favor of a worldwide permanent injunction. That injunction was truly “permanent” because the court concluded that there was no evidence that the trade secrets could be reverse engineered even though Insulet’s damages expert assumed a four-year head start period for estimating unjust enrichment damages. Moreover, the injunction also directed EFlow to assign patent applications containing aspects of the misappropriated trade secrets.
While an appeal is expected, Insulet serves as a reminder that the relief available under the DTSA is extremely powerful, including worldwide injunctions and orders to assign patent rights tied to misappropriated trade secrets. In addition, the DTSA allows for an award of unjust enrichment and exemplary damages against a misappropriator that has not even profited from selling a product derived from the misappropriated trade secrets.
Developments in Patent Subject Matter Eligibility for Software-Related Inventions, in View of Guvera v. Spotify
This article is a revised and updated version of an earlier article titled “Patent Protection for Entertainment Software Inventions” published on November 29, 2022.
Innovators seeking patent protection for software inventions should be aware that all software inventions face patent-eligibility issues.1 Nevertheless, patent practitioners who are experienced in the art of software patent prosecution can help ensure that software inventions get maximum protection.
The trial-court and appellate-court decisions in the case of Guvera v. Spotify from the Southern District of New York and the Federal Circuit demonstrate the importance of drafting patent applications for software inventions according to a clear technological problem-solution framework to avoid invalidation for having claims directed to ineligible subject matter.2
In September of 2022, Guvera, a patent owner (and former music-streaming company), lost its patent infringement case against the music-streaming giant Spotify after the Southern District of New York held that Guvera’s patent was not eligible for patent protection.3
Guvera’s patent claims involved methods of generating playlists with targeted advertising.4
The Southern District of New York held that the patent claims at issue were directed to an abstract idea, lacked an inventive concept, and were, therefore, ineligible for patent protection under 35 U.S.C. § 101 (“Section 101”).
Ever since the U.S. Supreme Court’s Alice decision in 2014, Section 101 has been used to invalidate countless software patents.5 Alice and subsequent Section-101 case law have established that patent claims for software inventions must include features that provide technological improvements.6
The Alice decision was intended, in part, to stop patents from being granted for basic and well-known concepts (i.e., abstract ideas) merely implemented by way of a generic computer.7 As the Southern District of New York noted in Guvera v. Spotify, “merely adding computer functionality to increase the speed or efficiency of the process does not confer patent eligibility.”8
Applying the Alice two-step test for subject-matter eligibility, the Southern District of New York, in Guvera v. Spotify, first determined that Guvera’s patent claims were “directed to the abstract idea of matching content using data identifiers.”9
Next, the Southern District of New York determined that the patent claims did not contain an “inventive concept” and, thus, did not add significantly more to the abstract idea of content matching because, “[a]t bottom, the claims recite the process for implementing the abstract idea of matching content on a computer,” and, “[a]t best, the patent improves the efficiency of content matching….”10
The Southern District of New York noted that Guvera failed to “allege… what ‘unconventional technological solution’ it provide[d] to a ‘technological problem.’”11
On appeal before the Federal Circuit, Guvera interestingly declared in its opening brief that its patent “solves a marketing problem.”12 Spotify, in its response brief, seized on the opportunity to point out “Guvera even concedes that its alleged invention is intended to ‘solve[] a marketing problem’ rather than a technological one.”13
The Federal Circuit affirmed the decision of the Southern District of New York under Federal Circuit Rule 36 without opinion.14
It is important to note that Guvera’s patent was filed with the United States Patent and Trademark Office (USPTO) on December 15, 2010, almost four years before the Alice decision on June 19, 2014.
Furthermore, a notice of allowance was issued in the application on November 5, 2014, before the first USPTO subject-matter-eligibility guidance examples, 1-36, were published on December 16, 2014.
Thus, Guvera’s patent application could not have been drafted with the benefit of the case law and USPTO administrative guidance that followed.
The USPTO published subject-matter-eligibility guidance examples 37-46 in 2019 and published examples 47-49 in 2024.
The guidance was updated in 2019 to: (i) provide a two-prong inquiry under step one of the Alice two-step test—for determining whether additional claim elements integrate a judicial exception (e.g., an abstract idea) into a practical application—and (ii) provide explicit subcategories of abstract ideas (e.g., mathematical concepts, methods of organizing human activity, and mental processes).15
The guidance was updated in 2024 to assist with determining eligibility of claims involving artificial intelligence-related technology.16
The USPTO guidance examples can be useful for understanding differences between example eligible claims and example ineligible claims to the same subject matter.
How could Guvera’s patent application have been written differently to avoid a determination of invalidity under Section 101?
One of the more reliable ways to overcome a challenge under Section 101 is to show that some of the features in the patent claims provide an improvement to computer functionality. Under Section-101 case law, patent claims that are directed to an improvement to computer functionality are not directed to an abstract idea and are, therefore, patent eligible.17
One of the more reliable ways to show that features in the patent claims provide an improvement to computer functionality is to describe those features, in the detailed description of the patent application, within a technological problem-solution framework.
One way to determine whether a technological problem-solution framework has been provided for a feature is to ask whether the patent application explains how that feature makes the computer (i.e., the device on which the software feature runs) operate more efficiently than with other approaches.
For example, software instructions are typically executed using some type of hardware processor and memory. In many cases, some portion of the detailed description can be drafted to emphasize how the processor and the memory operate more efficiently as a result of some of the claimed features.
Guvera was unable to show that its claimed approach provided an improvement to computer functionality because its patent did not include a clear technological problem-solution statement.18
Therefore, Guvera’s patent provides insight into when a software patent might be in danger of being invalidated under Section 101.
In summation, when determining whether a software invention is eligible for patent protection, try to think of the idea in terms of how it improves computer functionality in a way that is different from other approaches.
1 See, e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014) (setting forth a two-step test for patent subject-matter eligibility that turned the software-patent world upside down).2 Guvera IP Pty Ltd. v. Spotify, Inc., No. 21-CV-4544 (JMF), 2022 WL 4537999 (S.D.N.Y. Sept. 28, 2022); Guvera IP Pty Ltd. v. Spotify USA Inc., No. 2023-1493, 2024 WL 1433505 (Fed. Cir. Apr. 3, 2024).3 Guvera v. Spotify, 2022 WL 4537999, at *1.4 See U.S. Patent No. 8,977,633 (filed Dec. 15, 2010).5 Alice, 573 U.S. 208 (2014).6 See, e.g., Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016); BASCOM Glob. Internet Servs., v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016).7 See, e.g., Alice, 573 U.S. at 223.8 Guvera v. Spotify, 2022 WL 4537999, at *7.9 Id. at *4.10 Id. at *7.11 Id. (emphasis added).12 Opening Brief of Appellant Guvera IP Pty Ltd. at 4, Guvera v. Spotify, 2024 WL 1433505, (No. 10) (emphasis added).13 Spotify USA, Inc.’s Response Brief at 2, Guvera v. Spotify, 2024 WL 1433505, (No. 13) (emphasis added).14 Judgment at 1, Guvera v. Spotify, 2024 WL 1433505, (No. 27).15 See, e.g., USPTO, Frequently Asked Questions (FAQs) on the 2019 Revised Patent Subject Matter Eligibility Guidance (“2019 PEG”), 2 (2019), https://www.uspto.gov/sites/default/files/documents/faqs_on_2019peg_20190107.pdf.16 2024 Guidance Update on Patent Subject Matter Eligibility, Including on Artificial Intelligence, 89 Fed. Reg. 58,128 (July 17, 2024).17 Enfish, 822 F.3d at 1335 (explaining that it is “relevant to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea… for which computers are invoked merely as a tool”).18 See Guvera v. Spotify, 2022 WL 4537999, at *7.
China Releases Status of Intellectual Property Protection in China Customs in 2024
On April 23, 2025, China’s General Administration of Customs released Status of Intellectual Property Protection in China Customs in 2024 (2024年中国海关知识产权保护状况) providing statistics on the detainment of good (both import and export) for infringing intellectual property rights. A total of 53,200 intellectual property protection measures were implemented throughout 2024, and 41,600 batches and 81,605,100 items of suspected infringing goods were actually detained, representing a plateau in growth.
Suspected Infringing Goods Detained by China Customs
Other data points include:
a total of 29,541 intellectual property customs protection filing applications were accepted throughout the year, and the total number of filing applications accepted for the first time was close to 30,000. 21,614 filing applications were reviewed and approved, of which 16,034 were filed by domestic right holders, an increase of 24.19% year-on-year.
Customs detained 41,300 batches and 76,390,100 pieces of goods suspected of infringing trademark rights, accounting for 99.5% and 93.57% of the batches and quantities of suspected infringing goods, respectively.
a total of 249,000 pieces and 4,995,900 pieces of goods suspected of infringing patent rights and copyrights were detained, an increase of 71.33% and 393.61% year-on-year, respectively.
Customs detained 41,200 batches and 80,333,700 pieces of suspected infringing goods at the export stage, accounting for 99.17% and 98.41% of all detained batches and pieces respectively; 345 batches and 1,301,500 pieces of suspected infringing goods were detained at the import stage, down 34.16% and 26.52% year-on-year respectively.
clothing, shoes and hats, electronic appliances, leather goods and bags still occupy the top three batches detained, with 21,600 batches, 5,500 batches and 4,800 batches respectively. In terms of detained quantity, electronic appliances, sports equipment, tobacco products and other goods occupy the top three, with 27.9661 million pieces, 11.0748 million pieces and 4.4631 million pieces respectively.
The full text is available here (Chinese only).
Trademark Law is Now Better in The Bahamas
For most people, a mention of The Bahamas brings to mind sun, sand and tropical beverages. However, if you are an IP attorney, thoughts of sun, sand and cocktails may now be replaced by the Bahamian Intellectual Property Office’s (BIPO) recently enacted changes to their Trademark Act. BIPO’s changes to its IP laws were announced February 25, 2025, but were effective retroactively as of February 1st. The good news is that these changes bring Bahamian trademark law closer to those of international standards. The bad news is that, while applications are being accepted and accorded filing dates, it is not clear on when they will be processed or examined.
Some of the changes enacted are significant; namely, BIPO will now recognize the Nice Classification system and will accept service mark applications. Prior to February 1, 2025, trademark applications in The Bahamas were limited to goods. This made it difficult for brand owners in service industries to obtain trademark protection. The only option was to file an application for goods related to the relevant owner’s core services. Certainly, this was not an ideal workaround and left many brand owners without adequate protection. Adopting the Nice Classification system is a huge win for brand owners wishing to file service mark applications in The Bahamas, a jurisdiction highly dependent on services such as tourism and entertainment. The term for a registration will also change from 14 years to 10 years, putting The Bahamas trademark framework in line with the majority of countries worldwide.
Additionally, the new regulations will:
Recognize a claim of priority under the Paris Convention.
Expand protection to collective marks.
Allow applications for color marks, three dimensional marks, sounds, scents, textures and moving images.
Despite the modernization of The Bahamas Trademark Act, a number of questions remain. For example, it is unclear whether BIPO will permit multi-class applications. If not, brand owners will face higher filing costs. It is also unclear as to when new applications will be examined. That said, while processing of your application may be delayed, it is still worth taking advantage of the new laws and getting your applications on file as soon as possible. Lastly, fee structures and regulations surrounding the new changes have not yet been finalized. This is something brand owners will need to consider as they may not be aware of total costs until after an application is filed. For now, applications can be filed using the forms and fees of the prior Act.
Brand owners, especially those engaged in service industries, should consult with their IP counsel to determine whether they would benefit from new filings under the BIPO’s updated trademark laws.
‘Semper Paratus’ … to Invent!
In Minnesota, May means the onset of warmer days, our short gardening season, and anticipation for our summer vacations. In May, we also pause to pay tribute to those serving in all branches of the U.S. military (on Armed Forces Day) and to honor and mourn those U.S. military personnel who died in service for […]
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