[The IPKat] Never Too Late: If you missed the IPKat last week!

[Wissam Bentazar]

Never Too Late: If you missed the IPKat last week!

 Wissam Bentazar Friday, December 05, 2025 - #NeverTooLate, Artificial Intelligence, copyright, designs, Patents Wissam Bentazar

This last week we really have been feeling the end-of-year-crunch, with IP developments continuing at full speed. As always, the IPKat team has been busy covering the most significant decisions, debates, and discussions. Here is your weekly guide to everything you may have missed.

Copyright

The echoes of GEMA v OpenAI still carried through the week, ringed even louder than a Mariah Carey whistle note heading into the holidays. In his guest post, Jakub Wyczik outlined how the Munich court treated incidental memorization as reproduction, questions whether statistical patterns can really be “copies”, and points to how this stance diverges from Getty v Stability AI. He also hinted at the appellate arguments that may yet offer OpenAI a lifeline.

Remember those impulsive buys from last Friday?

Georgia Jenkins charted the wave of lawsuits and licensing deals that followed Perplexity AI’s meteoric rise. She showed how these moves reshaped the debate around downstream AI services and raised fresh questions about where copyright law draws the line in an increasingly hybrid online world.

In her ongoing saga of battles within the AI world, Georgia Jenkins championed human creativity as she examined the Warner and Suno licensing deal and how it has reshaped the music landscape. She argued that the agreement has blurred the line between protection and control. She went on to show that the debate reaches beyond legal frameworks and into everyday listening habits, illustrated by her Rosalía-inspired reminder that some creativity still feels unmistakably human.

Söğüt Atilla-Aydın revisited the Ninth Circuit’s refusal to find infringement where characters shared familiar traits, stressed the line between protectable expression and common features, and highlighted how the decision once again tested the scope of character copyright. And yes, this one had Merpel’s attention: it was personal.

Trade Marks and Designs

In his guest post, Bill Ladas explored the recent Australian decision on defensive trade marks and how Gillette’s filing illustrates the strategic value of this tool for brand owners. He showed how defensive registrations can extend protection without non-use risks and sets out the factors the Australian Trade Marks Office considers when deciding how far such coverage can reach.

Katfriends Henning Hartwig, Alexander Bulling, Sabine Kossak and Philipe Kutschke examined the Commission’s codified proposal for the EU Designs Regulation and raised concerns about unexpected wording changes affecting the scope-of-protection test in several language versions. They explained why this creates legal uncertainty, underline the risk of divergent case law, and urge that the original text be reinstated to preserve consistency and certainty across the EU design system.

Staying in Germany for a second helping, Marcel Pemsel explored the German Supreme Court’s encounter with the revamped repair clause and how the move from the old CDR to the new EUDR transforms a once-solid infringement claim into a far more fragile one. He showed how Volkswagen’s success under the old law collides with the Court’s refusal to presume repeated infringement under the new regime, a shift that raises tricky questions about effective legal protection during the transition.

Patents 

Simone Lorenzi reported that the EPO has finally allowed colour and greyscale drawings from October 2025. He explained that the update comes with strict contrast rules, no colour references in the text, and a complex route for Euro-PCT filings. He cautioned that the added freedom brings new formalities and fresh added-matter risks.

Rose Hughes, bringing the weekly dose of science for lawyers, dissected the UPC Court of Appeal’s take on Amgen’s broad functional antibody claims and how the court assessed sufficiency and inventive step in this high-profile biologics battle. She showed that the UPC hews closely to the EPO on both issues, emphasised the central role of reasonable expectation of success, and noted that Europe and the US continue to drift apart when it comes to enablement of antibody inventions.

Events, News and Opportunities

Eleonora Rosati wrapped up the week with her Sunday Sundries round-up of her latest selection of events, news and opportunities, from the ongoing SCCR session in Geneva to an upcoming EUIPO Boards of Appeal Encounter, fresh USPTO guidance on AI-assisted inventorship and a call for papers on AI liability.