Federal Circuit Strikes Down Millions in Damages Tied to Foreign Sales, with a Lesson for Future Litigants

The Federal Circuit’s recent decision in the litigation between Columbia University and Gen Digital is notable not only for its treatment of software patent eligibility, but also for what it says about potential expansions in the geographic limits of patent damages, especially in the context of software patents.

As discussed in our prior blog, the court remanded the § 101 issue for further analysis of whether the asserted software claims, though directed to an abstract idea, contain an inventive concept under Alice, step two. But even if its patents survive § 101 on remand, Columbia lost the $94 million of royalty damages attributable to Norton’s sales to customers located outside the U.S. Applying the principle from the 2006 Microsoft v. AT&T decision that software code reproduced overseas from a master copy sent from the U.S. does not contain any U.S.-made components, the Federal Circuit held that Columbia was not entitled to damages for Norton’s foreign software sales because, similarly, that software was not “made in or distributed from” the U.S.

UK Government Consultation on Copyright and Artificial Intelligence: The Sound of a Can being Kicked Down the Road?

By Carlton Daniel and Paul Jinks on March 23, 2026 Posted in Artificial Intelligence, Copyright, UK

As trailed in its progress statement published in December 2025 and discussed in our previous blog, the UK government published on 18 March 2026 its much awaited full report considering the use of copyright works in the development of AI systems. The report follows the government’s high-profile consultation on Copyright and Artificial Intelligence which ran between December 2024 and February 2025, as addressed in our other previous blog, which attracted an unusually high number of respondents. There was also a high-profile campaign by well-known names in the creative industries lobbying against any changes which would result in copyright materials being used for AI training purposes without explicit consent.

As expected, this report officially confirms that the government has now abandoned the option which it had preferred when it first announced the consultation―so-called “option 3”. That would have allowed AI developers to assume consent to use copyright material for AI training, unless a rights holder objects, subject to developers being transparent about what materials they have used in training.

Federal Circuit Finds that Antivirus Software is Abstract and Remands for Alice, Step Two

By Alex Wolcott on March 17, 2026 Posted in Cybersecurity, Patent Litigation, Patents, Technology

After over a decade of litigating, winning multiple appeals and inter partes review (IPR) proceedings, and finally earning a $185 million jury verdict against cybersecurity giant Gen Digital Inc. that operates the Norton antivirus brand, Columbia University saw a massive setback with last week’s Federal Circuit opinion. The opinion touched on several topics in modern patent litigation, including subject matter eligibility under § 101 and damages, and its lessons will be felt far beyond the parties of this case.

In the early 2000s, antivirus protection was primarily performed by comparing suspicious code to a database of known viruses; however, this technique had the obvious flaw that new viruses that didn’t match any known signature could remain undetected and cause damage (e.g., “zero-day” attacks). Instead of determining whether suspicious code matches known viruses, Columbia’s researchers developed a solution to this drawback by evaluating whether the suspicious code performed anomalously. Specifically, an emulator would execute suspicious code, and the function calls made during that emulation would be compared against a model of how those function calls were expected to behave; any sequence of anomalous function calls would be an early indication of previously-unidentified viruses. But the key to Columbia’s innovation was a “combined model,” which was built from data gathered across many computers simultaneously. Instead of requiring a single machine to run and observe a program for days or weeks before developing a behavioral baseline, the system would instead use thousands of interconnected computers to perform the observation function simultaneously. This yielded a faster, more robust model that was difficult for sophisticated attackers to undermine through mimicry attacks designed to fool a single standardized model. These techniques were the basis of Columbia’s U.S. Patents 8,074,115 and 8,601,322 at issue in this appeal.

At A Crossroads Issue #3

By Francesco Liberatore on March 16, 2026 Posted in Data Protection, EU Commission, Intellectual Property

Connected Vehicles: emerging business models and their key legal aspects

In the mid‑90s, Elastica captured a restless cultural moment with Connection—a song pulsing with the irresistible pull toward something new. Thirty years later, automotive and transportation companies are chasing the same energy through the rise of connected vehicles and new AI enabled features. Connected vehicles are becoming software-defined, sensor‑rich, and permanently online. This evolution expands both legal exposure across sectors and legal frameworks that were traditionally unfamiliar for the automotive and transportation industry: (i) telecoms licensing and cross‑border connectivity, (ii) data protection and data-sharing (e.g. with insurers/ad-tech), (iii) cybersecurity and safe Over-The-Air (OTA) governance, (iv) product liability for automated/ Advanced Driver Assistance Systems (ADAS) features, (v) eCall obligations amid 2G/3G mobile network sunsets, (vi) national‑security supply‑chain controls, and (vii) IP disputes, just to name a few.

In this new issue of At a Crossroads, our Automotive & Transportation Industry Group distils the main emerging business models and integrates recent legal developments to ground the advice in reality.

IPR and PGR Institution Decisions – America First?

By Frank Bernstein on March 12, 2026 Posted in Patents, USPTO

On March 11, 2026, USPTO Director Squires issued a memorandum that sets forth additional criteria for IPR and PGR petitioners and patent owners to consider in arguing whether petitions should be granted. Two of the new criteria focus on ties of patented technology to the United States. A third criterion considers the size of a petitioner who has been sued for infringement. These criteria will be part of a determination whether an IPR petition affects US patent system integrity, efficient USPTO administration, and the USPTO’s ability to handle IPRs and PGRs in timely fashion.

In explaining these new criteria, the Director noted that, according to recent statistics, an increasing amount of the US manufacturing base, particularly in electronics and computer industries, has left the US and gone overseas. The Director noted also that according to a USPTO study, many of the most frequent IPR and PGR petitioners do not have a significant manufacturing presence in the US, and do not intend to have one.

Sweeping Claims, Sliding Stones: Mastering AI Patent Prosecution with a Curling Twist

By Christopher Adams, Sarah Mirza and Frank Bernstein on February 20, 2026 Posted in Artificial Intelligence, Patents, USPTO

As the 2026 Winter Olympics captivate audiences, one sport in particular―curling―stands out as the perfect metaphor for the challenge of prosecuting AI inventions before the US Patent and Trademark Office (USPTO). Both arenas demand foresight, adaptability, and strategic thinking, whether it’s guiding a stone across the ice or shepherding an AI patent application through evolving legal terrain. Victory, in either case, belongs to those who embrace teamwork and anticipate the unexpected. Curling is often misjudged as slow or simple, but insiders know that it’s a chess match on ice, where teams slide polished granite stones across pebbled sheets, aiming for the house—the scoring target—while simultaneously disrupting the opposition’s setup. Wins are earned through foresight, precision, and the ability to pivot strategy as conditions change.

Just as innovation in curling equipment and strategy can shift the outcome on the ice, success in AI patent prosecution hinges on ingenuity and adaptability. Practitioners must respond to shifting legal guidance much like curlers adapt to changing ice, always ready to refine claims and strategies in response to examiner feedback. For further details, see our blog covering the USPTO’s recent guidance on subject matter eligibility for software inventions, emphasizing the need for well-defined technical solutions in claims and specifications.

Raising the Stakes: New gambling advertising rules in Ireland

By Jane O’Grady on February 20, 2026 Posted in Advertising, Consumer Law, Gaming & Gambling, Marketing

Introduction

The new Gambling Regulation Act 2024 (“GRA”) signifies a major change to the law on betting and gambling in Ireland. Replacing legislation that is nearly 70 years old, the GRA has been described by the Irish government as “historic”. It is being implemented on a phased basis and key features include:

Establishing the Gambling Regulatory Authority of Ireland (“GRAI”) to licence, supervise and control gambling activities in Ireland.

A new licensing model for gambling, betting and lotteries covering:
- Business to Consumer (B2C) gambling licences for operators of gambling services
- Business to Business (B2B) gambling licences to sell, supply or advertise sales of gambling products or gambling related services
- Gambling licences for charitable or philanthropic purposes

The GRAI recently announced that it has started the application process for B2C licences. It envisages that the other licence models will be implemented at a later phase. The GRAI will have powers to impose and enforce obligations on all licensees of gambling services in relation to how they advertise and sponsor and arrange inducements to gamble.

Sector-wide Review of the Online Video Content Creation Sector by the French Competition Authority

By Stéphanie Faber on February 20, 2026 Posted in Advertising, Artificial Intelligence, Competition and Markets Authority, e-Commerce, France, Internet, Marketing

The French Competition Authority has published Opinion No. 26-A-02 of 18 February 2026, concerning the functioning of competition in the online video content creation sector in France. See the press release

The online video content creation sector is now an integral part of the French audiovisual industry, having rapidly grown to over 150,000 professional creators in 2024.

The sector brings together many interdependent actors; creators (the majority of very small size), talent agencies, advertisers, platforms and audiences, which raises several competition competition-related challenges.

Greenhushing: The Indirect Consequence of the Crackdown on Greenwashing?

By Carlton Daniel and Paul Jinks on February 10, 2026 Posted in Advertising, ASA, Marketing

The authors wish to thank Joshua Saunders for his contributions to this post.

The term “greenwashing” was first coined by Jay Westerveld in 1986 when criticising the hotel industry’s practice of encouraging guests to re-use towels to “save the environment”. At the time, the term failed to gain much traction, however, fast-forward 40 years and it is at the forefront of regulators’ minds with barely a week passing without reports of enforcement action being taken against businesses accused of making vague or unsubstantiated environmental claims, as many businesses casually claiming to be “green” or “sustainable” have found to their detriment.

For example, Nike was recently reprimanded by the main UK advertising regulator, the Advertising Standards Agency (ASA),for claiming that a range of its tennis polo shirts were made of “sustainable materials”, despite the fact that Nike did prove that they were made from at least 75% recycled materials (see: Nike Retail BV – ASA | CAP). The regulator basically wanted to see proof that the clothing range would have zero detrimental impact on the environment before signing off on a “sustainable” claim. Similarly, Superdry (amongst others) were held in breach of the ASA’s CAP Code for using “sustainable” claims on the basis that a high-level of substantiation and clarity is required if retailers and advertisers wish to make such bold statements. Again, much could be said in defence of such advertising, but the lack of sufficient qualifying wording in that case proved fatal (see Supergroup Internet Ltd – ASA | CAP).

Environmental claims made in advertising must comply with both the general rules applicable to any advertising claim under the CAP Code (in the case of non-broadcast adverts) or BCAP Code (in the case of television and radio adverts) alongside specific rules under each Code relating the making of environmental claims [Environmental claims: General “Green” claims – ASA | CAP].

Result-Oriented Patent Claims Dismissed under Rule 12(b)(6) as being Ineligible

By Alex Wolcott on February 9, 2026 Posted in Intellectual Property, IP Litigation, Judiciary, Patents, Technology, US

In a precedential opinion analyzing eligibility of software and web-based patents, the US Court of Appeals for the Federal Circuit affirmed the district court’s dismissal of a patent infringement complaint in US Patent No. 7,679,637 LLC v. Google LLC. The Court examined key issues in patent eligibility under 35 U.S.C. § 101, particularly for web conferencing-related software claims that recite functional or result-oriented language.

US Patent No. 7,679,637 (the ’637 patent) covered a web conferencing system with “time-shifting capabilities,” whereby a participant could watch a web conference a) in real time, b) with a delay while still in progress, or c) after the web conference had concluded. Participants could also adjust the playback speed of the web conference, and simultaneously view multiple data streams, such as video, shared documents, websites, and chat. In response to allegations that Google infringed many of the ’637 patent claims, Google filed an early motion to dismiss the complaint, arguing that the asserted claims were ineligible under Section 101 by reciting an abstract idea with no inventive concept. The district court granted Google’s motion and dismissed the case, leading to the appeal.

As with most cases involving subject matter eligibility, the Court applied the two-part test from Alice Corp. v. CLS Bank Int’l, with Alice Step One asking whether the claims are “directed to” an abstract idea, and Alice Step Two asking whether the claims recite an “inventive concept.”