Six litigation signals from September 15–21: AI pacing antitrust, Google's ad tech remedy, and two pharma patent fights
A decision-ready briefing on six AI, technology and pharmaceutical disputes from September 15–21, spanning an appellate ruling on generative code and the DMCA, a new antitrust class action over AI 'pacing' statements, an ad tech remedy that keeps AdX inside Google, a state deepfake law blocked on First Amendment grounds, and two pharmaceutical patent outcomes.
The September 15–21, 2026 window closed two appeals that had run for years, produced the remedy order that ends the Justice Department's campaign to break up Google's advertising technology business, drew a new antitrust complaint against four frontier AI labs over their public statements about slowing down, and added two pharmaceutical patent actions to the pile.
Docket at a glance
| Sector | Parties | Docket | Current stage | Recent development | Next milestone |
|---|---|---|---|---|---|
| AI copyright | Anonymous open-source developers v. GitHub Inc., Microsoft Corp. and OpenAI Inc. | 24-7700 (9th Cir.) | Appeal decided; licence claims pending in the Northern District of California | Ninth Circuit affirmed the dismissal of the developers' DMCA claims on September 16, 2026. 1 | District court proceedings on the open-source licence claims; date not public |
| AI antitrust | Charles Buist, Cheyenne Hunt, Christine Bullock and Nick Spetsas v. Anthropic PBC, OpenAI OpCo LLC, Google LLC and SpaceXAI LLC | 3:26-cv-10693 (N.D. Cal.) | Complaint filed September 18, 2026; no response docketed | Four subscribers filed a Sherman Act Section 1 class action over the labs' public statements on pacing AI development. 2 | Defendants' response to the complaint; date not public |
| AI political speech | Accountability in State Government and Dan Bartel v. Montana Attorney General Austin Knudsen | 6:26-cv-00038 (D. Mont.) | Preliminary injunction entered September 16, 2026; merits proceedings continue | Judge Susan Watters found the state's deepfake election law likely discriminated by viewpoint and enjoined enforcement against the plaintiffs. 3 | Merits proceedings ahead of the November 3 election; date not public |
| Tech antitrust | United States and a group of states v. Google LLC | 1:23-cv-00108 (E.D. Va.) | Liability found April 2025; remedies opinion unsealed September 16, 2026 | Judge Leonie Brinkema ordered conduct changes and a compliance monitor, and kept AdX inside Google. 4 | Proposed final judgment and Google's appeal of the Ad Manager liability finding |
| Pharma patent | Bristol-Myers Squibb Co. and Ono Pharmaceutical Co. v. Amgen Inc. | 1:26-cv-01134 (D. Del.) | Complaint unsealed September 14 and reported September 15, 2026 | Seven Opdivo patents asserted against Amgen's proposed biosimilar. 5 | Amgen's response and the BPCIA information exchange; date not public |
| Pharma patent | Enanta Pharmaceuticals Inc. v. Pfizer Inc. | 25-1427 (Fed. Cir.) | Appeal ended | The full Federal Circuit denied rehearing on September 17, 2026, leaving every claim of the '953 patent invalid. 6 | None scheduled |
AI
Doe v. GitHub: the Ninth Circuit narrows the DMCA for code-generating tools
Parties: Two anonymous open-source programmers, suing for themselves and a proposed class of code owners, v. GitHub Inc., Microsoft Corp. and OpenAI Inc.
Docket number:
24-7700, U.S. Court of Appeals for the Ninth Circuit. The DMCA claims were dismissed by U.S. District Judge Jon Tigar in the Northern District of California. 1Claims: The developers alleged that GitHub Copilot and OpenAI's Codex reproduce licensed code without attribution, violating the Digital Millennium Copyright Act's bar on removing or altering copyright management information, and breaching open-source licence terms. 7
Current stage: The appeal is decided. Breach-of-contract claims over the open-source licences remain pending before the district court. 7
Recent development: On September 16, 2026, a Ninth Circuit panel — U.S. Circuit Judge Eric Miller, Senior Circuit Judge Sidney Thomas and Central District of California Judge Stanley Blumenfeld Jr. — affirmed the dismissal of the DMCA claims. The panel read the statute to cover a copy of an existing work whose attribution has been stripped, and found that Copilot and Codex instead generate new code that never carried that information. "To be sure, Copilot's output may in some cases be substantially similar to existing code," Miller wrote. "We express no view on whether that similarity would allow plaintiffs to assert a claim for copyright infringement." The panel also held the developers had standing, because academic research showing that large language models sometimes emit memorized training data verbatim can carry a claim past a motion to dismiss. "We decline plaintiffs' invitation to transform run-of-the-mill copyright infringement claims into DMCA claims," Miller wrote, adding that a broader reading would expose defendants to the statute's enhanced statutory damages. The developers had sought penalties above $9 billion. 17
Business impact: Vendors of AI coding assistants face a narrower federal theory for failing to credit the code they were trained on. Exposure remains on the licence terms themselves, which the district court has yet to decide, and on copyright claims over output that is substantially similar to protected code. The standing ruling means a plaintiff class can reach discovery on memorization evidence without first showing that a particular output reproduced a particular work. 7
Precedent value: This is the first federal appellate reading of the DMCA's copyright-management-information provision as applied to generative code. The panel separated copy-and-strip conduct from generate-and-resemble output, and warned that treating the two as one would let the DMCA absorb ordinary infringement claims carrying higher statutory damages. Whether substantially similar AI output infringes stays with the district courts; the panel routed that question back there. 17
Next milestone: Further proceedings on the open-source licence claims in the Northern District of California; date not public.
Buist v. Anthropic: subscribers argue four labs agreed to slow down
Parties: Charles Buist, Cheyenne Hunt, Christine Bullock and Nick Spetsas, who subscribe to the defendants' AI services, suing for a proposed class v. Anthropic PBC, OpenAI OpCo LLC, Google LLC and SpaceXAI LLC.
Docket number:
3:26-cv-10693, U.S. District Court for the Northern District of California, assigned to U.S. Magistrate Judge Nathanael M. Cousins. 8Claims: One count under Section 1 of the Sherman Act. The plaintiffs allege the four companies agreed to restrain output by limiting how fast their competing products improve, and that subscribers paid the same prices for products improving more slowly than competition would produce. They seek class certification, an injunction and a declaratory judgment. 2
Current stage: Complaint filed September 18, 2026. The docket carries the complaint, corporate disclosure statements and an electronic filing notice; no defense response has been entered. 8
Recent development: The complaint, filed on September 18, traces the alleged agreement to Anthropic chief executive Dario Amodei's essay "We Must Pace the Frontier," which called for industry-wide coordination, and to endorsements from SpaceXAI founder Elon Musk, OpenAI chief executive Sam Altman and Google DeepMind co-founder Demis Hassabis. "Plaintiffs challenge only what the antitrust laws forbid: an agreement among competitors about how fast their competing products will improve," the complaint says. Federal enforcers had spoken on the question during the same week: on September 16, FTC Chair Andrew Ferguson said he was suspicious of calls for antitrust exemptions from large companies that also support regulation, and on September 17 the head of the Justice Department's Antitrust Division, Associate Attorney General Stanley Woodward Jr., said at Fordham University that coordinating on security "doesn't occur to me" as anticompetitive, that the division is reviewing whether to update guidance letting companies coordinate on cybersecurity, and that no frontier AI lab has asked for a meeting. 29
Business impact: Joint safety work now arrives with an antitrust file attached. Labs that discuss evaluations, release timing or capability thresholds in common forums face discovery into those conversations, and the Justice Department's stated openness to safety coordination binds only the government, while private plaintiffs sue on their own account. Companies that publish joint safety commitments should expect to explain what was agreed and when. 29
Precedent value: The case tests how far a Section 1 claim can travel on public endorsements of a rival's proposal, without a pleaded formal agreement, in the market for frontier model subscriptions. It also tests whether paying subscribers can plead antitrust injury from product improvement that arrives more slowly, a theory that would give consumer classes a foothold in AI competition cases. A ruling for the plaintiffs at the pleading stage would turn every published industry pact into a litigation risk. 2
Next milestone: The defendants' response to the complaint; date not public.
Accountability in State Government v. Knudsen: an AI-deepfake election law falls on viewpoint grounds
Parties: Dan Bartel and his group Accountability in State Government v. Montana Attorney General Austin Knudsen. 3
Docket number:
6:26-cv-00038, U.S. District Court for the District of Montana, before U.S. District Judge Susan Watters in Billings. 3Claims: A First Amendment challenge to Senate Bill 25, Montana's law restricting election-related deepfakes, in which the plaintiffs sought to block enforcement against their mailers. 3
Current stage: Preliminary injunction entered September 16, 2026; the case continues on the merits.
Recent development: Judge Watters held the plaintiffs were likely to succeed on their claim that the law discriminates by viewpoint, because it permits AI-generated advertising that elevates a candidate's reputation while barring deepfakes that damage it. "Because the Act treats identically deceptive media differently based solely on whether its message is weaponized to damage or deployed to elevate a candidate," she wrote, "the Court finds that Plaintiffs are likely to succeed in establishing the Act constitutes viewpoint-based discrimination." The injunction bars prosecutors and the Commissioner of Political Practices from investigating or prosecuting Bartel's group for the mailers, which combined authentic photographs with AI-generated images showing candidates wearing preferred-pronoun pins and holding pride flags. Watters declined to block enforcement of the law generally, citing the Supreme Court's 2025 decision curtailing universal injunctions. The commissioner had already dismissed the administrative complaints against the group under the law's satire exception. More than 30 states have adopted deepfake statutes of their own, according to Public Citizen research cited in the ruling's coverage, and federal judges have blocked Hawaii's and California's on First Amendment grounds. 3
Business impact: Campaigns, political advertisers and the vendors producing their imagery work across a state-by-state patchwork in which a deepfake statute's survival can turn on how it treats flattering and damaging fakes. A disclaimer safe harbour addresses disclosure; a viewpoint problem inside the statute weakens enforcement against a given speaker for the whole law. 3
Precedent value: The ruling joins the line of decisions against state AI political-speech laws on First Amendment grounds and shows that a safe-harbour exemption for AI-disclosed material and a satire carve-out can sit inside a statute that still sorts speech by whether it helps or hurts a candidate. Courts weighing the remaining state statutes have a written finding to work from. 3
Next milestone: Merits proceedings ahead of the November 3 election; date not public.
Tech
United States v. Google: conduct remedies and a monitor, with AdX left in place
Parties: The United States, joined by a group of states, v. Google LLC, a subsidiary of Alphabet Inc.
Docket number:
1:23-cv-00108, U.S. District Court for the Eastern District of Virginia, before U.S. District Judge Leonie Brinkema in Alexandria. 10Claims: Monopolization of online advertising technology under Sections 1 and 2 of the Sherman Act, covering the ad server publishers use and the AdX exchange. 4
Current stage: Liability was found in April 2025. The remedies decision was unsealed on September 16, 2026, two weeks after the court rejected the Justice Department's demand for a divestiture; a final judgment follows. 4
Recent development: The 106-page opinion imposes conduct remedies and keeps AdX inside Alphabet. Google must stop requiring websites that use its ad server to also use AdX, and rival publisher ad servers must be able to reach real-time AdX bids. Brinkema found those changes "sufficient to effectively pry open to competition the ad tech markets that were injured by Google's unlawful conduct, and prevent Google from reverting to anticompetitive conduct in these markets." She also ordered an internal antitrust compliance monitor — carrying less oversight than the government sought — and set the remedies to run six years, against the 15 years the Justice Department and the suing states requested. Google said it disagrees with the liability ruling on its Google Ad Manager publishing tool and will appeal, and maintained that a divestiture would have made it harder for small businesses to reach customers. Associate Attorney General Stanley Woodward Jr. called the decision "a significant victory" and said the department is reviewing its options. Advertising accounted for about 73 per cent of Alphabet's revenue last year, and the company's market value exceeds $4.1 trillion; global digital advertising spending could reach $605 billion next year, from $424 billion in 2023, according to the decision. The court gave the parties 14 days to seek redactions of confidential material and 30 days to file a proposed final judgment. 4
Business impact: AdX stays with Alphabet, so the revenue line survives; the change lands on the lock between the ad server and the exchange. Publishers gain the ability to route inventory through competing ad servers while still reaching real-time AdX bids, which puts pressure on the 20 per cent fee publishers pay to sell through AdX. Six years of internal monitoring gives the government a continuing view of how Google runs its auctions, and the appeal keeps the Ad Manager liability finding open. 4
Precedent value: For the second time in a year, a federal court found Google liable for monopolization and stopped short of a divestiture; the search case last September declined to order a sale of Chrome. Together the two remedies show courts favouring conduct changes, disclosure of auction mechanics and continuing oversight over structural relief in digital advertising, even after a liability finding that described an illegal monopoly. The opinion is also the first remedy in this litigation to install a compliance monitor, which gives later monopolization cases a template for supervision. 4
Next milestone: A proposed final judgment reflecting the ordered remedies, due 30 days after the remedies ruling, and Google's appeal of the Ad Manager liability finding.
Pharma and biotech
Bristol-Myers Squibb and Ono v. Amgen: seven Opdivo patents against a proposed biosimilar
Parties: Bristol-Myers Squibb Co. and Ono Pharmaceutical Co. Ltd., which co-developed Opdivo, v. Amgen Inc.
Docket number:
1:26-cv-01134, U.S. District Court for the District of Delaware. 5Claims: Infringement of seven U.S. patents covering Opdivo (nivolumab), asserted against Amgen's proposed biosimilar, with a request to block US sales of the biosimilar while the patents remain in force. Biosimilars are versions of existing biologic drugs, comparable to generics of traditional pharmaceuticals, and complex biologics made from living cells cannot be copied exactly. 5
Current stage: The complaint was filed under seal in the week of September 7 and made public on September 14, 2026; litigation is at the pleading stage.
Recent development: Reuters reported the suit on September 15. Opdivo earned Bristol Myers more than $5.9 billion in US revenue last year, according to a company report, and the company told the SEC in February that it expects patent exclusivity over the drug through 2028. Amgen declined to comment on the lawsuit and said it has applied for FDA approval of its drug, remaining "confident" that it will be "in the first wave of Opdivo biosimilars." Bristol Myers and Ono settled an earlier patent fight with Merck in 2017 over the competing cancer drug Keytruda; under that settlement Merck paid $625 million and a share of Keytruda royalties through 2023, which is how a comparable contest has ended before. 5
Business impact: Opdivo is one of Bristol Myers's largest products, and the entry date of the first US biosimilar rests on these patents. A biologics suit of this kind also starts the statutory exchange of Amgen's application and manufacturing information, which fixes the schedule the parties then litigate under. Brand manufacturers watching the same playbook have a fresh data point on how many patents a biosimilar applicant must clear before launch. 5
Precedent value: The case will set the terms for the first wave of Opdivo biosimilars in the United States and test how many later-listed patents a brand can assert against an applicant. The 2017 Keytruda resolution shows the alternative ending, in which a payment and a royalty share keep the competitor off the market for a defined period. 5
Next milestone: Amgen's response to the complaint and the statutory information exchange; date not public.
Enanta v. Pfizer: a rehearing denial ends the Paxlovid patent appeal
Parties: Enanta Pharmaceuticals Inc. v. Pfizer Inc.
Docket number:
25-1427, U.S. Court of Appeals for the Federal Circuit, on appeal from 1:22-cv-10967-DJC in the U.S. District Court for the District of Massachusetts, before U.S. District Judge Denise J. Casper. 11Claims: Enanta alleged that Pfizer's COVID-19 treatment Paxlovid infringed U.S. Patent No. 11,358,953, which claims compounds and methods for inhibiting coronavirus replication; Pfizer defended on the ground that the patent was invalid. 11
Current stage: The appeal is over. A Federal Circuit panel affirmed the invalidity judgment on June 23, 2026, and the full court denied rehearing on September 17, 2026. 6
Recent development: The Federal Circuit declined en banc review on September 17, leaving the district court's summary judgment standing. That judgment held every claim of the '953 patent invalid as anticipated by Pfizer's public disclosure of the compound nirmatrelvir on April 6, 2021. The patent lost its earlier priority date because the provisional application filed in July 2020 described a chemical group of two to twelve carbon atoms while the granted claims recited one to twelve; the difference of a single carbon atom meant the provisional supplied no written description for what was later claimed, so Pfizer's intervening disclosure became prior art. 611
Business impact: The ruling closes Enanta's route to royalties on Paxlovid and leaves Pfizer's exclusivity position on the treatment untouched by this patent. For other developers, the case puts a price on a drafting risk: the priority date a company leans on disappears when a provisional states a chemical range inconsistently with the claim that follows, and a competitor's intervening publication then does the rest. Patent owners with live chemical cases should read their provisionals against their granted claims. 11
Precedent value: The Federal Circuit applied the written-description requirement to a claimed chemical range and held that a provisional does not support a later claim that widens it by one carbon. The holding gives an accused infringer a route to anticipation where the patent owner's own provisional and the infringer's intervening publication combine, and it gives patent drafters a concrete example of how much turns on the exact wording of a range. 11
Next milestone: None scheduled at the Federal Circuit; the September 17 denial ends the appeal.
Cases to watch
- Doe v. GitHub: whether the district court sets a schedule for the open-source licence claims, and whether the developers ask the full Ninth Circuit or the Supreme Court to revisit the DMCA holding.
- Buist v. Anthropic: the first defense filing, which will show whether the four labs move to dismiss on the pleadings or litigate the existence of an agreement through discovery.
- Accountability in State Government v. Knudsen: any merits ruling before the November 3 election, and whether Montana or another state adjusts a deepfake statute to treat flattering and damaging fakes alike.
- United States v. Google: the proposed final judgment and the terms of the compliance monitor, plus Google's appeal of the Ad Manager liability finding.
- Bristol-Myers Squibb and Ono v. Amgen: Amgen's response and the statutory information exchange, which fixes the schedule for the first US Opdivo biosimilar.
- Enanta v. Pfizer: whether Enanta takes the written-description holding to the Supreme Court after the rehearing denial.
References
- 1
- 2OpenAI, Anthropic, Google, SpaceXAI Hit With Antitrust Lawsuit
news.bloomberglaw.com
- 3
- 4
- 5
- 6
- 7Coders lose appeal in copyright fight against AI tools
courthousenews.com
- 8Buist v. Anthropic, PBC, N.D. Cal. No. 3:26-cv-10693
courtlistener.com
- 9
- 10United States v. Google LLC, E.D. Va. No. 1:23-cv-00108
courtlistener.com
- 11
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