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Provider’s degree of control affects DMCA safe harbor

by Jolie B. Schenerman | Feb 26, 2026 | Copyrights

The US Court of Appeals for the Second Circuit affirmed dismissal of a photographer’s Digital Millennium Copyright Act (DMCA) claims against a digital media platform for lack of scienter but vacated summary judgment on copyright claims. The Second Circuit remanded the case to the district court with instructions to assess whether the accused infringer can claim protection under the DMCA’s service provider safe harbor. McGucken v. Shutterstock Inc., Case No. 23-7652 (2nd. Cir. Feb. 10, 2026) (Lynch, Lee, Perez, JJ.)

Elliott McGucken, a professional photographer, discovered that several hundred of his copyrighted photographs were uploaded to Shutterstock by three user accounts that generated more than $2,000 in licensing revenue. Shutterstock removed the images within four days of receiving takedown notices and terminated the uploading accounts. McGucken nevertheless sued, alleging copyright infringement under 17 U.S.C. § 106 and false copyright management information (CMI) under 17 U.S.C. § 1202. The district court granted summary judgment for Shutterstock on all claims. McGucken appealed.

The Second Circuit agreed that McGucken failed to raise a triable issue on Shutterstock’s scienter regarding CMI under the DMCA. First, the Court found that Shutterstock’s practice of placing a watermark on all images on its site did not demonstrate that it knowingly affixed false CMI to McGucken’s works for the purpose of facilitating infringement. Second, the Court found that Shutterstock’s automated removal of CMI from all uploaded images, which is done to avoid malware and strip personally identifiable information, did not show that Shutterstock knew it was removing McGucken’s CMI without authorization or that Shutterstock intended to conceal infringement. On these grounds, the Court affirmed dismissal of the § 1202 claim.

As for the safe harbor provision regarding the copyright infringement claim, the Second Circuit agreed that Shutterstock qualified as a “service provider” with a repeat infringer policy and no interference with standard technical measures. The Court also affirmed that Shutterstock lacked actual or red flag knowledge of the infringement and acted expeditiously once notified.

The Second Circuit found triable issues of fact, however, on two critical safe harbor elements under § 512(c)(1). The first issue was whether the storage was “at the direction of the user.” The Court stated that the factfinder must determine whether Shutterstock’s review of uploaded material involved “substantive and discretionary control” over what appears on the platform, including the level of aesthetic or editorial judgment applied when deciding which images to accept.

The second issue assessed was whether Shutterstock had the “right and ability to control” the alleged infringing activity. The Second Circuit explained that safe harbor is unavailable where the provider exercises “substantial control” over users’ activities, such that decisions about what content is allowed on the site go beyond promoting or demoting material. The Court noted that control may also be inferred if the provider selectively reviews only a subset of uploaded content rather than reviewing all user submissions.

Since these issues remained unresolved, the Second Circuit vacated summary judgment on the copyright claim and remanded for further proceedings.

Practice note: The Second Circuit’s clarification of [...]

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USPTO Director IPR institution discretion survives APA challenge

by Amol Parikh | Feb 26, 2026 | Patents

The US Court of Appeals for the Federal Circuit concluded that the United States Patent and Trademark Office’s (USPTO) framework for discretionary denials of inter partes review (IPR) is a general statement of policy, not a substantive rule, and therefore is exempt from the Administrative Procedure Act’s notice‑and‑comment requirements.

The USPTO Director issued a trio of related instructions to the Patent Trial & Appeal Board for its exercise of delegated non-institution authority, addressing the common situation where the IPR petitioner and the patent owner are already involved in a district court litigation over the patent at issue. Two of the instructions were in the form of precedential Board decisions, which set forth six exclusive factors, weighing in favor or against institution, that the Board must assess. These instructions are generally referred to as the NHK-Fintiv instructions that, as Board precedent, bind only the Board and not the USPTO Director.

Several IPR petitioners argued that the Director’s instructions to the Board effectively bind the USPTO as an agency and thus should have been promulgated through formal rulemaking.

The Federal Circuit disagreed, emphasizing that institution decisions rest ultimately with the USPTO Director. The Court explained that while the NHK-Fintiv framework provides guidance on how that discretionary authority may be exercised, the Director retains the ability to depart from the framework in any given case. To that end, the guidance does not carry the force and effect of law and does not impose legally binding obligations on the agency or the public.

Practice note: The decision reinforces the Federal Circuit’s post‑Arthrex theme that the Director enjoys broad and largely unreviewable discretion at the IPR institution stage.

Tied up: Federal Circuit affirms antitrust verdict in patent case

by Kassandra DiPietro | Feb 26, 2026 | Antitrust, Patents

The US Court of Appeals for the Federal Circuit affirmed a jury verdict finding that Ingevity engaged in unlawful tying under the Sherman Act by conditioning licenses to its patent on customers’ purchase of its unpatented products that were staple items of commerce. Ingevity Corp. v. BASF Corp., Case No. 24-1577 (Fed. Cir. Feb. 11, 2026) (Lourie, Prost, Cunningham, JJ.)

Ingevity sued BASF for patent infringement. BASF denied infringement, challenged the patent’s validity and enforceability, and asserted counterclaims for unlawful tying under federal antitrust law, alleging that Ingevity conditioned licenses to the patent on customers’ agreement to purchase Ingevity’s unpatented products. The district court granted summary judgment of invalidity and denied motions for summary judgment on BASF’s antitrust claims.

At trial, the jury found that Ingevity unlawfully tied licenses for the patent to sales of its unpatented products and awarded BASF antitrust damages. Ingevity moved for judgment as a matter of law or, alternatively, for a new trial, arguing that its conduct was protected under the Patent Act because its unpatented products were “nonstaple goods” (i.e., goods lacking substantial non-infringing uses) and that its actions were immune under the Noerr-Pennington doctrine. The district court denied those motions, and Ingevity appealed, challenging the jury’s tying liability finding, the rejection of Ingevity’s immunity defenses, and the damages award.

The Federal Circuit first addressed Ingevity’s statutory patent misuse defense under 35 U.S.C. § 271(d), which permits patentees to control nonstaple goods lacking substantial noninfringing uses. The Court concluded that substantial evidence supported the jury’s finding that Ingevity’s unpatented products were staple articles of commerce because the record showed actual and substantial noninfringing uses in air-intake systems. Business records, customer purchases, and technical evidence provided a sufficient basis for the jury to find that the products had recurring, practical noninfringing applications, defeating Ingevity’s reliance on § 271(d).

The Federal Circuit also rejected Ingevity’s immunity arguments. The Court determined that Ingevity forfeited its reframed immunity theory on appeal because it differed materially from the argument presented in the case below. In the alternative, the Court explained that conditioning patent licenses on the purchase of staple goods constitutes commercial tying conduct beyond mere patent enforcement communications and is not protected by either the Patent Act or the Noerr-Pennington doctrine. Accordingly, immunity did not shield Ingevity from antitrust liability.

The meaning is plain as day: Just follow the grammar

by Tyler Jackson | Feb 26, 2026 | Patents

The US Court of Appeals for the Federal Circuit reversed and vacated a decision by the Patent Trial & Appeal Board, explaining that the Board failed to consider common textual modifier language when applying the plain meaning to a disputed claim term. Netflix, Inc. v. DivX, LLC, Case No. 24-1541 (Fed. Cir. Feb. 13, 2026) (Moore, C.J.; Dyk, Taranto, JJ.)

DivX sued Netflix for infringing its patent directed to systems and methods for streaming partly encrypted media content. The patent uses encryption/decryption, a Digital Rights Management (DRM) technique, to protect streams of media content from unauthorized access or copying. This technique requires that cryptographic information be relayed to the playback device for users to watch streamed media content. The patent explains that encrypting parts of streamed media decreases the resources needed for encryption/decryption and provides the playback device with information on the portions that are encrypted and “common” decryption information.

Netflix petitioned for inter partes review (IPR) of all claims on the basis of obviousness. The Board rejected DivX’s proposed construction of limitation [l] of the representative claim: “locating encryption information that identifies encrypted portions of frames of video within the requested portions of the selected stream of protected video.” DivX’s argued that the “encryption information” must be located “within the requested portions of the selected stream of protected video.” The Board deemed DivX’s proposed claim construction as “too restrictive,” concluding that the claim suggested that the encryption information just needed to identify encrypted portions of frames that themselves were “within the requested portions of the selected stream of protected video.”

In its final written decision, the Board agreed with Netflix that a person of skill in the art would have been motivated to combine the asserted prior art but held that the artisan would not have reasonably expected success in combining the prior art and that therefore Netflix did not establish obviousness of the challenged claims.

The Federal Circuit vacated the Board’s decision on appeal and remanded the matter. On remand, the Board again concluded that Netflix did not demonstrate obviousness but this time accepted DivX’s originally proposed claim construction. Netflix appealed.

The Federal Circuit found the Board’s construction of limitation [l] was erroneous, agreeing with Netflix that limitation [l] was taught by the asserted prior art combination. Using the plain language doctrine, the Court found that limitation [l] was susceptible to two interpretations: “the modifier ‘within the requested portions of the selected stream of protected video’ could modify either ‘encrypted portions of frames of video’ or ‘encryption information.’” Accordingly, the Court relied on the principle that where commas or other textual signals are not used, it is presumed that the modifier is tied to the nearest available semantically plausible modificand. The Court determined that only the “encrypted portions of frames of video” needed to be “within the requested portions of the selected stream of protected video.” The Federal Circuit also determined that the context of the claim itself, the specification, and the prosecution history supported the construction that [...]

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Attorney-client relationship owed to both joint IP owners

by Taylor MacDonald | Feb 19, 2026 | Patents

Addressing attorney-client relationship formation and legal malpractice, the US Court of Appeals for the First Circuit reversed in part, vacated in part, and remanded a district court’s grant of summary judgment. The Court concluded that an attorney-client relationship existed as a matter of law and that a malpractice claim was premature for resolution at the summary judgment stage. BlueRadios, Inc. v. Hamilton, Brook, Smith & Reynolds, P.C., Case No. 24-1942 (1st Cir. Feb. 2, 2026) (Gelpi, Thompson, Montecalvo, JJ.)

In 2007, technology companies BlueRadios and Kopin Corporation entered into an agreement to jointly own intellectual property developed through their collaboration and assigned primary responsibility for patent prosecution to Kopin. That responsibility included retaining patent counsel. Kopin selected Hamilton, Brook, Smith & Reynolds (HBSR) to prosecute patents arising from the collaboration. HBSR worked with both companies to prepare and file patent applications, but over time the relationship between the agreement parties deteriorated.

In 2017, during discovery in unrelated litigation with Kopin, BlueRadios uncovered alleged conduct by HBSR that BlueRadios contended was contrary to its interests. On December 5, 2017, BlueRadios and HBSR entered into an agreement preserving any timely claims. BlueRadios filed suit against HBSR in 2021, asserting malpractice and related claims. The parties agreed that Massachusetts law governed and that, under the tolling agreement and the applicable statute of limitations, BlueRadios’ claims were timely if they accrued after December 5, 2014.

The district court granted summary judgment in HBSR’s favor, concluding that BlueRadios’ claims were time-barred, that no equitable tolling doctrine applied, and that no attorney-client relationship existed between BlueRadios and HBSR. BlueRadios appealed.

The First Circuit concluded that the district court failed to view the record in the light most favorable to BlueRadios when addressing the statute of limitations. The parties disputed when BlueRadios knew or reasonably should have known of the alleged harm caused by HBSR. Under Massachusetts law, this issue is typically a question of fact for the jury. Given the technical complexity of patent prosecution and BlueRadios’ lack of patent expertise, the Court found multiple reasonable interpretations of the record. The Court rejected the notion that internal correspondence or business decisions by BlueRadios conclusively demonstrated sufficient knowledge to trigger the statute of limitations as a matter of law.

The First Circuit further noted that BlueRadios’ later engagement of independent patent counsel did not necessarily reflect suspicion of malpractice, and that a reasonable jury could conclude that the review was undertaken for ordinary business reasons. Declining to aggregate the knowledge of client and counsel to establish accrual where neither independently possessed the requisite awareness, the Court reversed the district court’s statute-of-limitations ruling and vacated its dismissal of the related claims.

The First Circuit also addressed whether an implied attorney-client relationship existed between BlueRadios and HBSR, concluding that as a matter of law there was such a relationship. Applying Massachusetts law, the Court rejected the district court’s conclusion that BlueRadios failed to seek legal assistance from HBSR independent of Kopin. The 2007 agreement made clear that Kopin’s selection [...]

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Here’s an abstract idea: Patent eligibility depends on what is claimed, not unclaimed disclosure

by Hannah Hurley | Feb 19, 2026 | Patents

The US Court of Appeals for the Federal Circuit reversed a district court’s rejection of Netflix’s 35 U.S.C. § 101 challenge, finding that claims directed to tailoring content specifications for wireless devices were patent ineligible. GoTV Streaming, LLC v. Netflix, Inc., Case Nos. 24-1669; -1744 (Fed. Cir. Feb. 9, 2026) (Prost, Clevenger, Taranto, JJ.)

GoTV sued Netflix for direct and induced infringement of three related patents directed to server-based tailoring of content for wireless devices. The district court dismissed the induced infringement claims and rejected Netflix’s § 101 challenge. A jury found infringement of one of the asserted patents and awarded $2.5 million in damages. Netflix appealed.

The Federal Circuit reversed the district court’s indefiniteness ruling as to a key term of the representative patents and adopted GoTV’s proposed construction of that claim term: “discrete low level rendering command.” Based on its construction, the Court concluded that the asserted claims were directed to an abstract idea and lacked an inventive concept under Alice. The Court concluded that the claims merely recited the abstract idea of using a generic template tailored to a user’s device constraints and relied on conventional computer and network functions without specifying a concrete technological improvement. The Federal Circuit determined that the claims failed both steps of the Alice framework and were invalid under § 101.

Although its § 101 holding resolved the case in Netflix’s favor, the Federal Circuit vacated the district court’s summary judgment of no inducement and its denial of GoTV’s motion for a new trial on damages, explaining that GoTV had presented substantial arguments on those issues, before directing entry of final judgment for Netflix.

Practice note: The Federal Circuit noted that the ineligibility analysis depends on the claim language at issue, not whether there may be a patent eligible invention disclosed in the specification. Although the prosecution history may be intrinsic evidence for claim construction, recitation of the problems faced by the inventor and the inventive solution cannot be relied on to argue unclaimed details of the invention to render an abstract idea patent eligible.

Blackbeard’s revenge: State sovereign immunity ends long running copyright battle

by Sarah Bro | Feb 12, 2026 | Copyrights

The US Court of Appeals for the Fourth Circuit reversed a 2021 district court ruling and vacated a subsequent 2024 ruling in a decade-long legal battle over copyright infringement claims related to the pirate Blackbeard’s Queen Anne’s Revenge shipwreck, concluding the claims were barred under state sovereign immunity. Allen v. Stein, Case No. 24-1954 (4th Cir. Jan. 23, 2026) (Niemeyer, King, Harris, JJ.)

Background

The dispute stems from Frederick Allen and Nautilus Productions’ allegations that the state of North Carolina and its officials infringed on Allen’s copyrights for photographs and videos of the shipwreck recovery project.

Allen initially filed suit in 2015, alleging that North Carolina officials infringed his copyrights by using his footage without authorization and enacting legislation (dubbed “Blackbeard’s Law”) that designated such materials as public records. The district court largely dismissed Allen’s claims in 2017 on sovereign immunity grounds, but the Fourth Circuit reversed the district court’s ruling on the validity of the Copyright Remedy Clarification Act (CRCA) in 2018, concluding that Congress had not validly abrogated state sovereign immunity for copyright claims. The Supreme Court affirmed that decision in Allen v. Cooper (2020), confirming that states are immune from copyright infringement suits under the CRCA.

Despite the Supreme Court’s ruling, Allen sought to reopen the case in 2021, relying on Federal Rule of Civil Procedure 60(b)(6) and introducing a new constitutional theory based on United States v. Georgia (2006). The district court allowed Allen to amend his complaint and proceed with his claims under the “Georgia theory,” which argues for case-by-case abrogation of state sovereign immunity for conduct that violates the Fourteenth Amendment. In 2024, the district court denied North Carolina’s sovereign immunity defense for Allen’s copyright infringement claims under this theory, allowing the case to proceed. North Carolina appealed.

Fourth Circuit decision

The Fourth Circuit reversed the 2021 district court decision and vacated the 2024 ruling, finding that the district court abused its discretion in reopening the litigation. The Fourth Circuit explained that Rule 60(b)(6) was the only applicable procedural mechanism for reconsideration because the case had been fully resolved in 2020 following the Supreme Court’s decision and Allen’s voluntary dismissal of the remaining defendant. The Court emphasized that Rule 60(b)(6) requires “extraordinary circumstances,” which were not present in this case. Allen’s failure to raise the Georgia theory earlier in the litigation did not meet this standard.

The Fourth Circuit also criticized the district court’s reliance on Rule 54(b), which applies to interlocutory orders, rather than Rule 60(b), which governs final judgments. The Court noted that the district court’s 2021 decision was based on erroneous legal premises and failed to properly evaluate the timeliness, merits, and prejudice factors required under Rule 60(b).

Pendent appellate jurisdiction

A key aspect of the Fourth Circuit’s decision was its exercise of pendent appellate jurisdiction to review the 2021 district court ruling, even though it was not directly appealable. The Fourth Circuit determined that the 2021 decision was “inextricably intertwined” with the appealable 2024 ruling on sovereign immunity because the [...]

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Method steps must be done in order where there is logical dependency

by Art Dykhuis | Feb 12, 2026 | Patents

In a second appeal, the US Court of Appeals for the Federal Circuit affirmed a district court’s summary judgment of noninfringement based on an implicit ordering of steps in a method claim after disagreeing with the lower court on another basis for noninfringement. Sound View Innovations, LLC v. Hulu, LLC, Case No. 24-1092 (Fed. Cir. Jan. 29, 2026) (Chen, Prost, Wallach, JJ.)

At the district court, Sound View asserted an expired patent against Hulu’s use of a central content server connected to end users through intermediate edge servers. The asserted claim recites downloading streaming content from a buffer in a helper server to an end user while concurrently retrieving more streaming content from a content server.

The district court issued a decision in favor of Hulu, which Sound View appealed. In that first appeal, the Federal Circuit vacated and remanded the district court’s ruling, based on the district court’s negative claim construction.

On remand, the district court determined Hulu did not infringe, finding that the claimed method requires the steps of “receiving a request” and “allocating a buffer” to be performed in sequence. Since Hulu did not perform these claimed steps in order, the district court found there was no infringement. Sound View appealed.

The claim-at-issue recites:

Source: Sound View Innovations, LLC v. Hulu, LLC, Case No. 24-1092 (Fed. Cir. Jan. 29, 2026), Slip Op. at 4.

The Federal Circuit reasoned that the phrase “requested SM object” in the buffer-allocation step grammatically and logically depended on the prior step of “receiving a request,” because an object cannot be “requested” until a request has occurred. The Court explained that “‘requested’ is not only a grammatical descriptor, but also is a status indicator reflecting a completed action – the receiving of a request.”

The Federal Circuit applied precedent on implicit ordering of method steps and noted that “[o]ur caselaw on implicit ordering does not help Sound View, as it does not require a finding that the performance of the claimed steps would be inoperable if the steps are not followed in the order they appear in the claim” (emphasis added). The Court explained that the “logical” dependency between the method steps mandates that the request-receiving step precede buffer allocation. Because there was no dispute that the accused systems performed these steps in a different order, the Court affirmed summary judgment of noninfringement.

Relax, design patent claim scope doesn’t include functional elements

by Lisette Donewald | Feb 12, 2026 | Patents

Addressing the issue of functional versus ornamental features, the US Court of Appeals for the Federal Circuit affirmed the district court’s summary judgment of noninfringement, concluding that no reasonable juror could find the accused product’s design substantially similar to the patented design once functional features were properly excluded. Range of Motion Prods. v. Armaid Co., Case No. 23-2427 (Fed. Cir. Feb. 2, 2026) (Cunningham, Hughes, JJ.) (Moore, J., dissenting).

Range of Motion Products (RoM) owns a design patent titled “Body Massaging Apparatus.” RoM sued Armaid Company, alleging that its Armaid2 product infringed RoM’s patent. Armaid owns an expired utility patent (prior art to the RoM patent) titled “Limb Massager” (Armaid1) that embodies elements of the Armaid2 design. The relevant drawings from the product and patents are below.

Source: Range of Motion Prods. v. Armaid Co., Case No. 23-2427 (Fed. Cir. Feb. 2, 2026), Slip Op. at 14.

The district court granted summary judgment in Armaid’s favor, concluding that after properly filtering out functional elements, no reasonable jury could find the Armaid2 design substantially similar to the RoM’s design patent. RoM appealed.

The Federal Circuit reviewed claim construction de novo, the underlying factual findings for clear error, and the summary judgment determination de novo. Applying the ordinary observer test as articulated in Egyptian Goddess, the majority found that several prominent features of the claimed design, most notably the clam shaped arms, were functional. The Court relied on RoM’s own marketing materials, which described the arm shape as providing leverage, and the fact that Armaid’s prior utility patent had claimed similar features.

After excluding those functional elements, the Federal Circuit assessed whether an ordinary observer familiar with the prior art would be deceived into believing the accused design was the same as the patented design based solely on their ornamental aspects. Consistent with post-Egyptian Goddess precedent, the analysis proceeded in two steps: determining whether the designs were “plainly dissimilar,” and if not, comparing the designs in light of the prior art.

The majority concluded that the designs were plainly dissimilar, citing differences in arm shape and the manner in which the fixed arm connects to the hinge. The panel majority further stated that even if the designs were not plainly dissimilar, a comparison against the prior art would yield the same result. The Federal Circuit therefore affirmed summary judgment of noninfringement.

The decision is notable for Chief Judge Moore’s dissent. The dissent argued that both the district court and the majority improperly usurped the jury’s role by resolving what should have been a fact question, which is whether the designs were substantially similar in overall appearance. More broadly, the dissent criticized the Federal Circuit’s evolution of the ordinary observer test, contending that Egyptian Goddess shifted the inquiry away from the Supreme Court’s substantial similarity framework established in Gorham Co. v. White [...]

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Can’t patent idea of using asynchronous data streams during web conferencing

by Dexter Hamilton | Feb 5, 2026 | Patents

The US Court of Appeals for the Federal Circuit affirmed a district court’s dismissal of a patent infringement suit, holding that the asserted web conferencing claims were directed to an abstract idea, lacked any inventive concept, and were therefore not patent eligible under 35 U.S.C. Section 101. US Patent No. 7,679,637 LLC v. Google LLC, Case No. 24-1540 (Fed. Cir. Jan. 22, 2025) (Moore, CJ.; Hughes, Stoll, JJ.)

The patent owner accused Google of infringing a patent that describes systems for web conferencing that allow users to view and manipulate multiple data streams asynchronously, for example by reviewing earlier content while a live presentation continues. The representative claims recited client applications for presenting and observing participants, and some claims recited a server application and a “time scale modification component” to maintain audio quality at different playback speeds. Google moved to dismiss, arguing that the claims were ineligible under Section 101. The district court agreed and denied leave to amend on the rationale of futility. The patent owner appealed.

Reviewing de novo, the Federal Circuit applied the two-step Alice framework. At step one, the Court concluded that the claims were directed to the abstract idea of allowing users to manipulate and review data streams in a web conferencing environment. The Court found that the claims recited desired results, such as asynchronous viewing, without explaining how those results were achieved or identifying any specific technological improvement. The patent owner argued that the claims were not result oriented because they recited two client applications, but the Court found that the claims still failed to describe any technical mechanism for performing the claimed functions.

The patent owner also pointed to alleged “functional claiming” in Google’s own patents, but the Federal Circuit noted that the eligibility of unrelated patents was irrelevant. The Court further rejected the notion that the mere existence of factually distinguishable Google-owned patents somehow amounted to a sweeping concession by Google that all patents involving functional claiming approaches were necessarily patent eligible.

Turning to step two, the Federal Circuit concluded that the claims lacked an inventive concept. The specification described the client applications and the time scale modification component as conventional components performing their ordinary functions. The patent owner largely repeated its step one arguments, which the Court found insufficient to supply an inventive concept.

Finally, the Federal Circuit rejected the patent owner’s argument that dismissal at the pleading stage was premature. Because the asserted patent was ineligible as a matter of law and the patent owner identified no factual allegations that could alter the Section 101 analysis, any amendment would have been futile.

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