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**PLAINTIFF HAS THE RIGHT TO PURSUE UNJUST ENRICHMENT UNDER DTSA AND STATE TRADE SECRETS
Law Versata Software, LLC v. Ford Motor Co., 24-1140, 24-1206, 24-1234 — On Friday in an opinion by Judge HUGHES, the Federal Circuit remanded a district court damages award against Ford for trade secret misappropriation and breach of contract after Ford developed vehicle configuration software while licensing a similar product from Versata. Versata argued the district court erred in precluding its recovery for unjust enrichment under the Defend Trade Secrets Act (DTSA) and the Michigan Uniform Trade Secrets Act (MUTSA).
The Federal Circuit agreed. The plain language of both statues allowed for “unjust enrichment caused by the misappropriation of the trade secret that is not accounted for when calculating damages for actual loss.” Other circuit courts had recognized a plaintiff’s right to seek unjust enrichment damages under identical language in various state trade secrets statutes even when the remedy ““put [the plaintiff] in a much better position than if he had entered a licensing agreement.” Sixth Circuit precedent relied upon by the district court to determine that Versata’s damages should be based solely on the parties’ licensing history did not categorically preclude a trade secrets plaintiff from pursuing unjust enrichment damages as a matter of right.
(1 to 4 stars rate impact of opinion on patent & trademark law)
UK SUPREME COURT ENDORSES EPO “ANY HARDWARE” APPROACH FOR ASSESSING EXCLUDED SUBJECT-MATTER
In Emotional Perception AI Limited v Comptroller General of Patents, Designs and Trade Marks, the UK Supreme Court has discarded the long-established “Aerotel” test and aligned UK law more closely with the EPO approach to computer-implemented inventions (CII) under Art. 52 EPC. The Court endorsed the EPO “any hardware” approach to excluded subject matter as well as the “intermediate step” for assessing which features of a claim contribute to technical character and can therefore support inventive step. But it stopped short of adopting the EPO problem-solution approach, and obviousness in the UK will continue to be decided under Windsurfing/Pozzoli. Prior to the decision UK, practice had diverged from that of the EPO. In particular, the application of the Aerotel test had resulted in the UK Intellectual Property Office (UK IPO) refusing to search many CII applications on the basis they related to excluded subject matter.
The Supreme Court also held that an artificial neural network (ANN) is a program for a computer, as an “ANN constitutes, in essence, a set of instructions to manipulate data in a particular way so as to produce a desired result”.
The Supreme Court decision can be found here.
Thank you to European Practice Committee member EMILY DODGSON (Abel & Imray) for contributing this item.
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COMING SOON ON THE IP CHAT CHANNEL™: AI, COPYRIGHT, AND FAIR USE: WHAT YOU NEED TO KNOW
Join the IP Chat Channel™ on Tuesday, June 9 at 12:00pm ET for a webinar on AI, Copyrights and Fair Use. This webinar will provide a practical overview of the intersection between Artificial Intelligence and copyright law, beginning with foundational copyright principles and an explanation of the fair use doctrine under U.S. law. Participants will learn how courts analyze fair use, including the four statutory factors, and how those principles may apply to AI model training, data ingestion, and AI-assisted content creation. The program will also examine significant and emerging litigation involving generative AI, including lawsuits brought by authors, artists, publishers, and media companies against leading technology firms. These cases address critical questions such as whether the use of copyrighted works to train AI models constitutes fair use. Panelists BRIAN ADAMS (Qualcomm Inc.), NATALIE PROROK (Leydig, Voit & Mayer, Ltd.), and KATE SCOLARO (Leydig, Voit & Mayer, Ltd.) will also touch on related topics including the copyrightability of AI created output, jurisdictional concerns, and future trends.
IP Chat Channel™ webinars are free for IPO members. Advance registration is required. CLE offered in most states.