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E-I-E-I-No patents for data harvesting

by Ashley K. Justice | Jun 11, 2026 | Patents

Addressing patent eligibility and attorneys’ fees, the US Court of Appeals for the Federal Circuit affirmed a district court’s ruling that five farming data patents were directed to patent-ineligible subject matter, but vacated and remanded the district court’s unexplained determination that the case was not exceptional. AGI SureTrack LLC v. Farmers Edge Inc., Case Nos. 24-1730; -1830 (Fed. Cir. Jun. 2, 2026) (Moore, Mayer, Lourie, JJ.)

AGI SureTrack owns five patents directed to capturing farming operation data in real time using passive data collection devices attached to farming equipment while the equipment performs farming operations. The claimed systems process and share the collected data through an online farming data exchange system or server. AGI sued Farmers Edge and Farmers Edge (US) for patent infringement.

At summary judgment, the district court found the asserted patents invalid under 35 U.S.C. § 101, concluding that the claims were directed to patent-ineligible subject matter. The district court also ruled that the case was not exceptional under 35 U.S.C. § 285 for purposes of awarding attorneys’ fees. AGI appealed the invalidity ruling, and Farmers Edge cross-appealed the no-exceptionality ruling.

The Federal Circuit affirmed the § 101 ruling under the two-step Alice framework. At Alice step one, the Federal Circuit found that AGI’s claims were directed to the abstract idea of collecting, analyzing, and transmitting farming data. The Court explained that claims using conventional computer components to collect, analyze, and present data (activities that can be characterized as mental processes) are directed to an abstract idea. The Court rejected AGI’s argument that the patents claimed an unconventional hardware and software system that solved interoperability problems among distinct brands of farming equipment. The claim language did not recite such a technological solution, and the specification described the invention as a way to track, store, and profit from farming operation data.

The Federal Circuit also rejected AGI’s reliance on claims involving detection of communication protocols and the use of stored “implement profiles” to decode farming equipment information. In the Court’s view, those limitations merely combined abstract concepts and did not change the character of the claims as being directed to data collection, processing, and transmission.

At Alice step two, the Federal Circuit found no inventive concept sufficient to transform the abstract idea into patent-eligible subject matter. The claims relied on generic computer components performing conventional functions. The Court explained that although the claimed automation may have increased the speed and efficiency of collecting and analyzing farming data, improved speed from automation alone does not supply an inventive concept. Considering the claim elements individually and as an ordered combination, the Court concluded that the patents did not claim a patent-eligible application for tracking and collecting farming data.

The Federal Circuit reached a different result on attorneys’ fees. The district court had ruled that the case was not exceptional under § 285 but provided no explanation for that determination. The Federal Circuit vacated and remanded, explaining that while district courts need not always provide extensive reasoning, they must provide enough [...]

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Funked out: Sixth Circuit finds copyright ownership claim accrues upon plain and express repudiation

by Tyler Jackson | Jun 11, 2026 | Copyrights

Addressing when a copyright ownership claim accrues under the Copyright Act, the US Court of Appeals for the Sixth Circuit reversed a summary judgment grant, finding that genuine disputes of material fact remained as to whether a musician’s estate timely asserted joint ownership rights in certain sound recordings. The Court explained that an ownership claim accrues only when one party plainly and expressly repudiates another party’s ownership. Est. of Worrell v. Thang, Inc., Case No. 25-1863 (6th Cir. May 27, 2026) (Boggs, Batchelder, Moore, JJ.)

George Bernard (Bernie) Worrell, Jr. and George Clinton were members of Parliament-Funkadelic (P-Funk), the influential funk collective that began in the 1950s. Worrell collaborated with Clinton and P-Funk for approximately a decade before leaving the group in the 1980s. During that period, Worrell and Clinton allegedly operated under several informal and disputed agreements, including a purported 1976 agreement under which Worrell allegedly assigned ownership of certain sound recordings to Thang, Inc. (a company owned by Clinton) in exchange for royalty payments. The parties disputed whether the agreement was ever validly executed, and Worrell allegedly was not consistently paid under it.

After Worrell died in 2016, his estate sued Thang in New York state court in 2019 for breach of contract. Thang prevailed, arguing that Worrell did not possess a countersigned copy of the 1976 agreement. In that litigation, Clinton submitted sworn testimony stating that Thang never signed the agreement and that Clinton himself did not sign either the original or a copy.

Two years later, the estate sued Thang in federal district court, seeking a declaration that Worrell jointly owned the sound recordings he created with P-Funk and requesting an accounting of royalties. The district court granted summary judgment to Clinton and Thang, finding that the Copyright Act’s statute of limitations barred the estate’s claims. The estate appealed.

The Sixth Circuit explained that a copyright ownership claim accrues only once and must be brought within three years of accrual. Following its own precedent and the approach of other circuits, the Court reiterated that an ownership claim accrues when there has been a “plain and express repudiation” of ownership by one party against another. The Court emphasized that the repudiation inquiry is fact-intensive and subject to equitable considerations.

Applying that standard, the Sixth Circuit found genuine disputes of material fact as to when, if ever, Clinton and Thang plainly and expressly repudiated Worrell’s alleged co-ownership. The Court reasoned that because the New York court had determined that Thang never executed the 1976 agreement, which was the agreement that purportedly exchanged Worrell’s ownership rights for royalty payments, a fact finder could conclude that Worrell never gave up his joint ownership rights in the recordings. The Sixth Circuit also found that the parties’ decades-long conduct in relation to the agreement complicated the limitations analysis and precluded summary judgment.

The Sixth Circuit also considered whether the estate had presented sufficient evidence of joint authorship. Under the Copyright Act, a joint work is one prepared by two or more authors [...]

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Hague Service Convention: A “closed universe” of permissible service methods

by Kelsey Wun | Jun 11, 2026 | Trademarks

The US Court of Appeals for the Seventh Circuit reversed a district court decision denying a motion to vacate a default judgment for lack of proper service under the Hague Service Convention, finding that where the Convention applies, it provides the exclusive means of valid service and prohibits email service in China. Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co., Ltd., Case No. 25-2205 (7th Cir. May 29, 2026) (Kirsch, Jackson-Akiwumi, Pryor, JJ.)

Kangol sued several defendants, including Hangzhou, for trademark infringement, counterfeiting, unfair competition, false designation of origin, and trademark dilution. Kangol moved for a temporary restraining order (TRO) and permission to serve Hangzhou by email, which the district court approved. Kangol sent an email to Hangzhou that included a link to the complaint, TRO, and additional documents, after which the parties engaged in settlement discussions.

Because Hangzhou did not appear before the district court, the court entered default judgment in favor of Kangol. Subsequently, Hangzhou filed a motion to vacate the default judgment, arguing that the judgment was void under Federal Rule of Civil Procedure 60(b)(4) because the Hague Service Convention does not permit service by email in China. The district court denied the motion, concluding that the Convention allows service by email in China. Hangzhou appealed.

Hangzhou argued that the judgment was void under Rule 60(b)(4) for lack of personal jurisdiction because email service violated the Convention. The Seventh Circuit reviewed the issue de novo and analyzed whether the Convention applied, and if so, whether it prohibits email service in China.

Before reaching the merits, the Seventh Circuit rejected Kangol’s arguments that Hangzhou had waived its service objection and that its motion to vacate was untimely. The Court explained that Hangzhou’s participation in settlement discussions did not create a reasonable expectation that it would defend the suit on the merits or otherwise constitute waiver of its jurisdictional objections. The Court also found that Hangzhou’s Rule 60(b)(4) motion was filed within a reasonable time under Federal Rule of Civil Procedure 60(c)(1), noting that Hangzhou sought relief shortly after Kangol successfully enforced a portion of the default judgment by collecting funds from one of Hangzhou’s online accounts.

Kangol argued that the Hague Service Convention did not apply because Article 1 excludes cases in which the address of the person to be served is not known, and Kangol maintained that Hangzhou’s address could not be reliably determined despite Kangol’s efforts to do so. In evaluating whether a defendant’s address is “not known,” district courts generally require plaintiffs to undertake reasonably diligent efforts to ascertain the defendant’s mailing address. The district court, however, did not determine whether Kangol’s efforts satisfied that standard, concluding instead that it need not resolve the Convention’s applicability because, even if the Convention applied, it permitted service by email in China.

The Seventh Circuit first analyzed the text and structure of the Hague Service Convention, relying on Supreme Court precedent (including Société Nationale Industrielle Aérospatiale v. US District Court for the Southern District of Iowa [...]

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Trade secret owner may pursue unjust enrichment damages despite licensing history

by Amol Parikh | Jun 4, 2026 | Trade Secrets

The US Court of Appeals for the Federal Circuit affirmed in part, reversed in part, and vacated in part a district court’s post-trial rulings in a trade secret and contract dispute, finding that a trade secret plaintiff may pursue unjust enrichment damages under both the Defend Trade Secrets Act (DTSA) and the Michigan Uniform Trade Secrets Act (MUTSA) even where the parties have a prior licensing relationship. The Court also reinstated the jury’s breach-of-contract damages award and rejected the defendant’s attempt to impose a heightened knowledge requirement for combination trade secrets. Versata Software, LLC v. Ford Motor Co., Case No. 24-1140 (Fed. Cir. May 22, 2026) (Moore, Taranto, Hughes, JJ.)

Ford licensed Versata’s automotive configuration software under a Master Subscription and Services Agreement. When the agreement was about to expire, the parties failed to agree on renewal terms, and Ford released its own software, which it had developed while still licensing Versata’s software. Versata alleged that Ford misappropriated several combination trade secrets embodied in Versata’s software and breached the parties’ agreement. A jury found Ford liable for misappropriating three trade secrets and for breach of contract, awarding more than $22 million in trade secret damages and $82.26 million in contract damages.

Before trial, the district court had limited Versata to a reasonable royalty theory based on the parties’ licensing history and had excluded damages models that measured the value Ford allegedly derived from using the trade secrets. After trial, the district court reduced the trade secret damages award to $0 and the contract award to $3. Versata appealed.

The Federal Circuit found that the district court had legally erred by categorically precluding unjust enrichment damages. The Court explained that the plain language of both the DTSA and the MUTSA permits recovery of unjust enrichment caused by misappropriation that is not accounted for in actual loss. While prior licensing history may be relevant to damages, it does not foreclose unjust enrichment as a matter of law. The Court therefore vacated the zeroed-out trade secret damages judgment and remanded for a new damages trial, instructing the district court to reconsider the reasonable royalty models it had previously excluded because they were not based solely on licensing history.

On the contract award, the Federal Circuit reversed the district court’s decision and reinstated the jury’s $82 million award. Applying Michigan law, the Court concluded that Versata had given the jury a reasonably certain damages path in the form of three annual license figures ($17 million, $14.95 million, and $10.95 million) multiplied by seven and a half years. The jury’s $82.26 million award equated to about $10.97 million per year, which fell within the range supported by the evidence and did not shock the conscience.

The Federal Circuit also affirmed liability for trade secret misappropriation. Ford argued that Versata had to show that Ford knew the specific elements of each combination trade secret at the time of use or disclosure. The Court rejected that proposed heightened requirement, concluding that neither the DTSA nor the MUTSA [...]

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Patentee that retains exclusionary rights has constitutional standing notwithstanding broad license grant

by Anisa Noorassa | May 28, 2026 | Patents

The US Court of Appeals for the Federal Circuit reversed a district court decision dismissing a patent infringement suit for lack of constitutional standing, concluding that patentees that retain exclusionary rights, even after granting a broad license, maintain Article III standing. A.L.M Holding Company v. Zydex Industries Private Ltd., Case No. 25-1317 (Fed. Cir. May 19, 2026) (Chen, Cunningham, Stark, JJ.)

A.L.M. and Ergon co-own six patents directed to warm-mix asphalt technology. Prior to filing suit, the patentees entered into a licensing agreement with Ingevity Corporation, granting Ingevity an exclusive, worldwide, royalty-bearing license to manufacture, import, use, and sell products covered by the patents. The agreement also provided for shared control of infringement actions and an equal split of any resulting recoveries and costs. Despite the breadth of the license, the patentees retained certain rights, including the ability to make, import, and use the licensed products.

A.L.M. filed suit against Zydex. The district court dismissed the action, concluding that the patentees lacked constitutional standing because the license transferred away sufficient exclusionary rights, leaving A.L.M. without a cognizable injury under Article III.

Reviewing the issue de novo, the Federal Circuit reversed. The Court framed the proper inquiry for constitutional standing as whether the plaintiff retains an exclusionary interest in the asserted patents. The Court explained that, absent a transfer of all exclusionary rights, a patentee generally maintains the concrete injury necessary to satisfy Article III.

The Federal Circuit emphasized that the constitutional standing inquiry is distinct from the question of statutory standing under 35 U.S.C. § 281. While statutory standing concerns whether a party is entitled to bring suit under the Patent Act and may be cured by joinder of necessary parties, constitutional standing requires a threshold showing of injury in fact and cannot be remedied after the fact.

Applying that framework, the Federal Circuit found that the plaintiffs retained sufficient exclusionary interests. In particular, the patentees preserved rights to royalties and maintained a degree of control over sublicensing, including a veto right. These retained interests demonstrated that the patentees had not transferred all substantial rights in the patents and therefore continued to suffer a legally cognizable injury from alleged infringement.

Accordingly, the Federal Circuit concluded that the plaintiffs satisfied Article III standing requirements and reversed the district court’s dismissal.

Practice note: On the same day that the Federal Circuit issued its decision in A.L.M. Holdings, the same panel also issued a nonprecedential decision in Recor Medical, Inc. v. Medtronic Ireland Manufacturing Unlimited Co., in which it stated, “[i]n a precedential opinion we issued today in a different appeal addressing constitutional standing, A.L.M. Holding Co. v. Zydex Industries Private Ltd., No. 25-1317 (Fed. Cir. May 18, 2026), we held that the patent owner in that case had constitutional standing because it retained a right to sue for patent infringement that was not rendered illusory by the rights it granted to its licensee. Because Medtronic Ireland’s retained rights are materially the same as the patent owner’s in A.L.M., we hold that Medtronic [...]

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Invalidity alone does not render a case exceptional

by Tori Lazerson | May 28, 2026 | Patents

Addressing fee shifting under 35 U.S.C. § 285 and sanctions under 28 U.S.C. § 1927, the US Court of Appeals for the Federal Circuit affirmed in part and reversed in part a judgment dismissing a patent infringement complaint and awarding attorneys’ fees and costs, finding that the weakness of the plaintiff’s position, without more, did not justify a finding of exceptionality, and that counsel’s lack of diligence did not rise to the bad-faith conduct required for sanctions. mCom IP, LLC v. City National Bank of Florida, Case No. 24-2089 (Fed. Cir. May 15, 2026) (Dyk, Mayer, Taranto, JJ.)

mCom IP sued City National Bank of Florida in September 2023, asserting a patent directed to systems and methods for integrating financial institutions’ “e-banking touch points,” such as ATMs and online banking portals. Earlier that year, an inter partes review (IPR) initiated by Unified Patents resulted in all but four claims being found unpatentable as obvious under 35 U.S.C. § 103. mCom’s district court complaint asserted those four surviving claims.

The district court struck mCom’s initial complaint as a “shotgun pleading” and dismissed the amended complaint with prejudice for failure to state a claim. It also concluded that the asserted claims were invalid on the same obviousness grounds addressed in the IPR and awarded attorneys’ fees under § 285, finding the case exceptional, and imposed sanctions under § 1927 based on counsel’s litigation conduct. mCom appealed.

The Federal Circuit affirmed the dismissal but reversed the fee award and sanctions. The Court addressed two issues: whether the case was “exceptional” under § 285 and whether counsel had unreasonably and vexatiously multiplied the proceedings under § 1927.

Under § 285, a case is exceptional if it “stands out” based on the substantive strength of a party’s position or the unreasonable manner of litigation. The Federal Circuit rejected each basis relied on by the district court.

First, although the asserted claims were ultimately found invalid, the Federal Circuit emphasized that invalidity alone does not render a case exceptional. Rather, awarding fees requires a showing that the claims were “unusually or extraordinarily weak.” That standard was not met here where the asserted claims survived IPR and carried a presumption of validity, and where the burden of proof for invalidity in district court remains higher than in IPR.

Second, the Federal Circuit found that pleading deficiencies did not support exceptionality. The initial complaint’s defects were “purely formal,” and the amended complaint’s failure to state a claim, without more, did not render the overall litigation conduct unreasonable.

Third, the Federal Circuit rejected reliance on City National’s purported license defense, noting that no license had been established on the record.

Finally, the Federal Circuit found insufficient support for the contention that mCom pursued nuisance-value settlements, explaining that City National failed to provide evidence regarding settlement amounts or to tie prior litigation to the patent at issue.

The Federal Circuit also reversed the sanctions imposed under § 1927. Applying Eleventh Circuit law, the Federal Circuit explained that sanctions require conduct [...]

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Chill out: Numerical claim terms properly limited by industry standards

by Kyle Sorenson, PhD | May 21, 2026 | Patents

The US Court of Appeals for the Federal Circuit affirmed a noninfringement finding, concluding that a claim limitation reciting a pH range having only a lower limit referred to pH measured at standard temperature in the art. The Court also found that prosecution history estoppel and the disclosure-dedication rule foreclosed reliance on the doctrine of equivalents to capture a pH below the express lower limit. Actelion Pharms. Ltd. v. Mylan Pharms. Inc., Case No. 24-1641 (Fed. Cir. May 13, 2026) (Reyna, Taranto, Stoll, JJ.)

Actelion owns patents covering lyophilized epoprostenol formulations used to treat cardiovascular disease. Epoprostenol is unstable in water because acidic conditions catalyze its degradation. The patents sought to improve stability by manufacturing highly basic bulk solutions, thereby producing freeze-dried formulations that remained stable after reconstitution in typical intravenous fluid. The asserted claims recite bulk solutions having a pH “of 13 or higher” or “greater than 13.”

Mylan sought approval to market a generic version of Actelion’s Veletri® product and was sued under 35 U.S.C. § 271(e)(2). The district court construed “a pH of 13 or higher” to mean “a pH of 12.98 or higher.”

It was undisputed that Mylan’s bulk solution measured below a pH of 12.98 at standard temperature (25±2°C). Actelion nevertheless contended that infringement existed because the solution exceeded pH 13 at lower temperatures during refrigerated manufacturing.

The district court disagreed, finding that the claim term “a pH of 13 or higher” referred to a pH measured at a temperature standard in the field, and that therefore Mylan did not literally infringe. The district court further ruled that Actelion was barred from asserting and had not proved infringement under the doctrine of equivalents. Actelion appealed.

The Federal Circuit agreed with the district court that a person of ordinary skill would interpret the claimed pH values as measurements taken at standard temperature, absent an express indication otherwise. Although the claims did not specify measurement conditions, the specification consistently treated pH values as standard-temperature measurements. The Court emphasized that the specification compared results across pH levels without suggesting temperature-dependent variation and described an “alkaline environment” as “pH > 7,” a statement accurate only at standard temperature.

The Federal Circuit found that extrinsic evidence reinforced that understanding. The United States Pharmacopeia and expert testimony established that, in pharmaceutical formulations, pH is ordinarily measured at 25±2°C unless otherwise specified. The Court found no clear error in the district court’s factual findings on industry practice.

Because Mylan’s product failed to meet the pH limitation under that standard, the Federal Circuit affirmed the finding of no literal infringement.

The Federal Circuit also rejected Actelion’s doctrine of equivalents theory. During prosecution, Actelion amended the claims from “greater than 12” to “a pH of 13 or higher” after the examiner recognized unexpected results at pH 13 but not at pH 12. The Court found that this narrowing amendment gave rise to prosecution history estoppel, barring Actelion from recapturing lower pH values through equivalence.

Separately, the Federal Circuit applied the disclosure-dedication rule. The patents [...]

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Appellate deference: Reinforcing limits on reweighing evidence

by Ian J. Howard | May 21, 2026 | Patents

Clarifying the proper scope of appellate review, the US Court of Appeals for the Federal Circuit affirmed an International Trade Commission final determination in full. The Court upheld the scope of the exclusion of only certain accused products and permitted importation of redesigned versions, concluding that the Commission correctly viewed the evidence and claim terms. Bissell, Inc. v. ITC, Case No. 24-1509 (Fed. Cir. May 11, 2026) (Moore, Taranto, Stoll, JJ.)

Bissell initiated a Section 337 investigation alleging that Tineco Intelligent imported wet/dry surface-cleaning devices that infringed Bissell’s patents. Following an evidentiary hearing, the administrative law judge (ALJ) found infringement of Tineco’s original products and recommended exclusion but concluded that Tineco’s redesigned products did not infringe and therefore fell outside the scope of relief.

The Commission affirmed the ALJ’s determination, which resulted in a limited exclusion order directed to the infringing products only. Both parties appealed.

Bissell challenged the finding that Tineco’s redesigned products did not literally infringe a limitation requiring that “the battery charging circuit is disabled” during the “self-cleaning mode . . . and remains disabled during the . . . cleanout cycle.” Tineco modified its products so that some battery charging did occur during a “self-cleaning mode,” but battery charging was disabled for most of the cleaning cycle. Before the ALJ, Bissell’s expert opined that infringement of this claim essentially only required a period in which self-cleaning occurred and while the battery charger was disabled. The ALJ rejected Bissell’s theory, determining that the claim required the battery charger to “remain[] disabled during the . . . cleanout cycle.”

According to Bissell, the ALJ’s conclusion amounted to improper claim construction. The Federal Circuit disagreed, finding that the ALJ had merely applied the plain and ordinary meaning of the claim term. As Bissell had not disputed that the ALJ’s findings were supported by substantial evidence, the Federal Circuit affirmed these findings.

Tineco cross-appealed the ALJ’s determination that Bissell’s domestic industry products satisfied the disabled battery limitation. According to Tineco, the evidence was inadequate to support the ALJ’s determination because the source code that Bissell’s expert relied on was never produced during the Commission trial.

The Federal Circuit found that Bissell’s expert testimony was sufficient under Federal Rule of Evidence 703, which permits experts to rely on facts or data they have been made aware of or personally observed, even if those materials are not themselves admissible, as long as they are of a type reasonably relied upon in the field. The Court emphasized that neither party disputed that experts in this context routinely rely on source code to assess infringement. The Court further concluded that substantial evidence supported the ALJ’s determination, highlighting that:

The source code had been produced during discovery.
The expert’s opinions were not conclusory.
Tineco did not meaningfully test the testimony through cross-examination or offer competing expert analysis.
The ALJ’s findings were independently corroborated by a Bissell internal document admitted at trial.

Practice note: Where the Commission uses the “face of the claim to [...]

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Shocking: Fifth Circuit affirms disgorgement award based on willful infringement

by Tyler Jackson | May 21, 2026 | Trademarks

The US Court of Appeals for the Fifth Circuit affirmed a finding of trademark infringement and unfair competition under the Lanham Act and Texas law, upholding an award of profits based on willful infringement. The Court vacated and remanded the permanent injunction as overbroad, however. Trojan Battery Co., L.L.C. v. Golf Carts of Cypress, L.L.C., Case No. 25-20243 (5th Cir. May 8, 2026) (Jones, Barksdale, Stewart, JJ.)

Trojan Battery has sold deep-cycle batteries, including batteries commonly used in golf carts, under the TROJAN mark for decades. It owns multiple federal registrations covering the Trojan name and related marks, including TROJAN for use on electric storage batteries; TROJAN BATTERY SALES for use in connection with retail and wholesale store services and wholesale distributorships; and the following graphic mark for use on electric storage batteries, deep-cycle electric storage batteries, and lithium-ion batteries:

Golf Carts of Cypress (GCC) and Trojan EV (collectively, defendants), both owned by Federico Nell, entered the golf cart market between 2019 and 2020. Trojan EV marketed carts under the “Trojan-EV” name, and GCC sold those carts (bearing the below logo mark) alongside carts containing authentic TROJAN batteries.

Trojan Battery sued for trademark infringement and unfair competition. Following a five-day bench trial, the district court found liability, awarded disgorgement of defendants’ profits, and entered a permanent injunction. Defendants appealed.

Defendants challenged the district court’s likelihood-of-confusion analysis. The Fifth Circuit rejected that challenge, emphasizing that the district court did not clearly err in concluding that confusion was likely under the Fifth Circuit’s multifactor test. The Fifth Circuit acknowledged that the district court overstated the evidence of actual confusion. A single misdirected inquiry and several additional instances over more than two years were insufficient, standing alone, to show meaningful marketplace confusion. Nonetheless, the absence of convincing evidence on that factor was not dispositive.

Critically, the Fifth Circuit upheld the district court’s finding of intent. The trial court discredited Nell’s testimony that he was unaware of Trojan Battery’s marks and reasonably inferred that defendants adopted TROJAN-EV to capitalize on the senior mark’s goodwill. That finding weighed heavily in favor of confusion and supported the ultimate liability determination. Considering the record as a whole, the Court concluded that most factors favored Trojan Battery and affirmed the infringement finding.

The Fifth Circuit also affirmed the award of defendants’ profits. Applying the Lanham Act’s equitable framework, the Court found no abuse of discretion in awarding disgorgement as a deterrent against willful infringement. The Fifth Circuit endorsed the district court’s use of the Lanham Act’s burden-shifting approach to calculate profits, under which the plaintiff establishes gross sales and the defendant bears the burden of proving deductible expenses. Given the finding of willful infringement, the Court agreed that disgorgement was an appropriate remedy, particularly where injunctive relief alone might not deter future misconduct.

The Fifth Circuit reached a different conclusion as to the permanent injunction. Although injunctive relief [...]

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One frame is enough: Second Circuit narrows de minimis use, limits fair use at pleading stage

by Nicholas J. DiRoberto | May 14, 2026 | Copyrights

The US Court of Appeals for the Second Circuit affirmed in part and reversed in part a judgment on the pleadings, clarifying that the de minimis doctrine does not apply where the copyrighted work is identifiable in the secondary use – even if only a single frame is copied – and that fair use is unlikely to be resolved at the pleading stage when an entire copyrighted work is republished for commercial purposes. Richardson v. Townsquare Media, Inc., Case No. 25-291-CV (2d Cir. Apr. 23, 2026) (Lynch, Nardini, Menashi, JJ.)

Delray Richardson operates the YouTube channel “Straight Game TV.” In May 2015, he posted a 42 second video showing Michael Jordan intervening in a confrontation. The video gained widespread attention in July 2023 after the hip hop blog DailyLoud reposted it in full on X. Townsquare Media subsequently published an article reporting on the incident and embedded DailyLoud’s X post containing the entire video.

In a separate incident, Richardson recorded an interview with rapper Grandmaster Melle Mel in March 2023. Richardson posted a three-minute clip of the interview, in which Melle Mel made controversial statements about Eminem, to YouTube. The following day, Townsquare published an article discussing the interview and embedded the YouTube clip. The article’s header image included a screenshot taken from the Melle Mel video, depicting Melle Mel next to an image of Eminem. Two days later, Townsquare published a follow up article about rapper 50 Cent’s response and included a second screenshot from the same video, this time placed next to an image of 50 Cent.

Richardson sued Townsquare for copyright infringement based on Townsquare’s use of the Jordan video, the Melle Mel video, and the two screenshots. Townsquare moved for judgment on the pleadings, arguing that:

Its use of the Jordan video constituted fair use.
Its embedding of the Melle Mel video was authorized under YouTube’s terms of service.
The screenshots were de minimis.

The district court accepted each argument and dismissed the case in full. Richardson appealed.

The Second Circuit reversed the district court’s fair use ruling as to the Jordan video. Applying the four factors under 17 U.S.C. § 107, the Second Circuit disagreed with the district court’s analysis of the first, third, and fourth factors.

As to the first factor (the purpose and character of the use), the Second Circuit concluded that it was “debatable” whether Townsquare’s article added meaningful commentary, and even if it did, any transformative character was substantially offset by the use’s commercial nature.

On the third factor (the amount and substantiality of the portion used), the Second Circuit emphasized that Townsquare republished the entire video, rather than linking to or embedding it in a manner consistent with the original platform. That full reproduction weighed heavily against fair use at the pleading stage.

With respect to the fourth factor (the effect on the potential market), the Second Circuit concluded that Townsquare failed to carry its burden of showing that its use did not usurp a market for the [...]

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