The Risk of a Preliminary Answer: Injunction Bonds and the Generic Launch

July 3, 2026CAFC, Claim Construction, Injunctions, PatentpaidDennis Crouch

Masthead of U.S. Patent No. 7,659,282, issued February 9, 2010, to Yakatan et al., assigned to Avanir Pharmaceuticals

By Dennis Crouch

Federal procedure has long used money bonds to price the risk that preliminary relief turns out wrong. Federal Rule of Civil Procedure 65(c) requires a party seeking preliminary injunctive relief to post a security bond to guarantee that the enjoined party will receive compensation if the injunction proves wrongful.

A preliminary injunction is relief granted on a forecast of the merits, issued after abbreviated discovery and a compressed hearing. This is extraordinary relief (removing products from the market before any trial or judgment on the merits). The rule thus requires the movant to provide security "in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained."

In Otsuka America Pharmaceutical, Inc. v. Hetero Labs Ltd., No. 2025-2016 (Fed. Cir. July 1, 2026), the Federal Circuit rejected a district court order that skipped the injunction bond altogether. Judge Williams (D. Del.) preliminarily enjoined Hetero from launching its FDA-approved generic version of Nuedexta, Otsuka's dextromethorphan and quinidine combination for treating pseudobulbar affect, and then waived the Rule 65(c) security entirely, finding Hetero's risk of financial harm "speculative at best" and expressing concern that a multi-million-dollar bond would create "a chilling effect on access to justice."

Writing for the panel, Judge Bryson affirmed the injunction itself, including a challenged claim construction. Judge Dyk dissented from that construction and would have dissolved the injunction. On the bond, though, the panel was unanimous: Third Circuit law treats Rule 65(c) security as nearly mandatory, and no recognized exception reaches an order blocking a commercial drug launch. The court vacated the waiver and remanded for the district court to set an amount for the bond.

The Howard T. Markey National Courts Building, home of the U.S. Court of Appeals for the Federal Circuit

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The En Banc Queue for July-2026

July 2, 2026CAFC, PatentpaidDennis Crouch

by Dennis Crouch

The Federal Circuit has twelve en banc petitions pending in patent cases right now, an unusually high number. The largest share comes from IPR proceedings; but we have a variety of issues, including Hatch-Waxman litigation, damages, design patent infringement, written description and enablement, the doctrine of equivalents, and the domestic industry requirement at the USITC. The petitions drawing the most outside attention are Range of Motion Products, LLC v. Armaid Co., No. 23-2427 (Fed. Cir. Feb. 2, 2026), and Exafer Ltd. v. Microsoft Corp., No. 24-2296 (Fed. Cir. Mar. 6, 2026).

En banc grants are rare, and most petitions are denied without any further remarks from a court. But even when denied, I see a petition as providing some value by showing doctrinal pressure points.

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Supreme Court Takes Up Whether Trademark Strength Belongs to Judge or Jury

July 1, 2026Patent, Supreme Court, TrademarkpaidDennis Crouch

by Dennis Crouch

As the 2025-2026 term ends, the Supreme Court has agreed to decide whether the strength of a trademark is a question of fact or a question of law. The Court granted certiorari in RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016, a Lanham Act trademark dispute between the maker of RISE canned cold brew coffee and the seller of MTN DEW RISE ENERGY.

The question presented is procedural: whether trademark strength is a question of fact in the likelihood-of-confusion analysis under 15 U.S.C. § 1114. Twelve circuits treat a mark's placement on the spectrum of distinctiveness as factual, typically decided by a jury and reviewed with substantial deference on appeal. The Second Circuit stands alone in calling inherent mark strength a legal question for the court, and in this case it held the RISE mark weak as a matter of law and cleared the way for summary judgment in PepsiCo's favor. See RiseandShine Corp. v. PepsiCo, Inc., 41 F.4th 112 (2d Cir. 2022).

Rise Brewing RISE nitro cold brew coffee can beside a PepsiCo MTN DEW RISE ENERGY can

The Solicitor General, responding to the Court's invitation, had agreed that the Second Circuit had mischaracterized the inquiry, but urged the Court to deny review on vehicle grounds. The Court took the case anyway.

Treating strength as factual sends it to the jury for trial, makes summary judgment harder to win, and secures deferential clear-error review on appeal. Treating it as legal hands the question to the judge, opens the door to summary judgment, and invites de novo review on appeal.

The case also fits into an internal conservative divide on the court: a devotion to historic constitutional protections (including the Seventh Amendment's civil jury guarantee) against a concern that civil juries need stronger judicial supervision and control.

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Locked In at the Lectern: How the Federal Circuit Uses Oral Argument

June 30, 2026PatentpaidDennis Crouch

by Dennis Crouch

In 2007, Federal Circuit judges almost never quoted oral argument in their precedential opinions. That has changed. Today, more than 40% of precedential opinions include a direct reference to oral argument. I expect that most attorneys would rather not be cited -- because that citation is most often a record of a concession made at the lectern that is then applied to their detriment in the opinion.

Federal Circuit citations to oral argument, 2010-2026

In the sample of precedential cases I examined, 48% of the oral argument citations could be classified as a "concession" -- counsel admitting against interest, narrowing scope, or agreeing with the court's adverse framing. Most of the remaining citations are what I classified as "neutral" -- referencing counsel's position for context without using that position against them. This insight is parallel to that of the late Justice Ruth Bader Ginsburg who talked about oral arguments as "a hold-the-line operation."

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Provisional Typo Spoils Priority Date

June 24, 2026Anticipation, CAFC, Enablement, PatentpaidDennis Crouch

by Dennis Crouch

A seeming typo in Enanta's provisional application left the resulting patent invalid. In Enanta Pharmaceuticals, Inc. v. Pfizer, Inc., No. 2025-1427 (Fed. Cir. June 23, 2026), the Federal Circuit affirmed summary judgment that the claims of its US11358953 are anticipated by intervening prior art because the priority filing did not sufficiently describe the claimed invention. Enanta's provisional application listed a substituent as NHC(O)-C2-C12-alkyl (showing a two to twelve carbon range). The issued patent listed that same substituent as NHC(O)-C1-C12-alkyl, adding the one-carbon member. That one-carbon version described nirmatrelvir, the protease inhibitor Pfizer disclosed first in April 2021 and later began selling as Paxlovid. Because the provisional never disclosed the one-carbon species, the patent could not claim the provisional's July 2020 priority date, and Pfizer's intervening disclosure anticipated the claims.

Enanta argued that the "C2" in its provisional was an obvious typographical error that should have read "C1," so correcting it added no new matter. The Federal Circuit focused on the question of written description and priority: did the provisional's two-to-twelve carbon range support, under 35 U.S.C. 112, the one-carbon species the patent later claimed? Does "2" describe "1"? The court answered no, and it applied the written description standard de novo even though the district court had treated the case as one about its power to correct an error.

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Three Is Company: New Data on § 103 Reference Counts

June 23, 2026Obviousness, PatentpaidDennis Crouch

by Dennis Crouch

How many prior art references does an examiner combine in a typical obviousness rejection? Many patent prosecutors have a feel for this -- perhaps colored by their memory of a six-way rejection. To get an actual measurement, I parsed a collection of final action rejections mailed by the USPTO from January 1 through June 5, 2026 that includes at least one obviousness rejection under 35 U.S.C. § 103. This is about 75k office actions containing 200k separate obviousness rejection statements.

The results: Two and three reference combinations together account for 65% of all rejection statements, the mean is 3.08 references, and single-reference § 103 rejections (one document modified by ordinary skill or general knowledge) make up 7%. See Dennis Crouch, Single-Reference Obviousness: Federal Circuit Says Don't Re-Do the Prior Art's Work, Patently-O (Jan. 26, 2026). Examiners usually do not need more than three documents to make their case. (Note, these numbers focus on the single largest combination in an office action).

31% of final office actions contain at least one rejection combining four or more references, and about one in twenty reaches six or more.

Some areas of technology use more references per rejection -- The art units examining artificial intelligence lead the agency at a 3.80 mean, with 11% of their final office actions including a stack of six or more references.

The Supreme Court's most recent pronouncement on obviousness came in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), but that case involved two key references. In my view, multi-reference rejections create a different doctrinal puzzle as office practice builds larger combinations by chaining pairwise steps, each link carrying its own one-sentence motivation. That sequential structure is defensible as far as it goes. But, even where every individual combination might be obvious, a long enough series of obvious steps, with enough alternative branching paths, eventually stops being obvious as a whole. Examination practice has no tool for locating that limit. See, Dennis Crouch, Mind the Gap: The Middle Layer of Obviousness Doctrine, Patently-O (Apr. 14, 2026).

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Found vs. Findable: Judge Stark Maps the Skilled-Searcher Test

June 23, 2026CAFC, IPR, Obviousness, PatentpaidDennis Crouch

by Dennis Crouch

The Federal Circuit has reversed the IPR estoppel rulings in Ironburg Inventions Ltd. v. Valve Corp., No. 2024-2088 (Fed. Cir. June 18, 2026). This case is part of a long-running fight over Ironburg's rear-paddle game controller patent and the $4 million willful-infringement verdict Ironburg won against Valve's Steam Controller. The panel here held that Valve is not estopped from raising two invalidity grounds it left out of its 2016 IPR petition, and returned the case for further proceedings on invalidity. The disposition is a loss for the patentee, but what is most interesting for me is Judge Stark's concurrence, which provides more structure to the "skilled searcher conducting a diligent search" estoppel test.

Section 315(e)(2) creates estoppel prohibiting an IPR petitioner (or RPI) from later asserting in patent litigation "that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review."

This case focuses on the scope of this reasonableness estoppel in a situation where - at the time of the IPR - the patent challenger did not have the key prior art in hand or perhaps had not identified the particular ground for challenging the patent.

Here, the Judge Stark opinion breaks the reasonableness process into two steps:

Were the prior art references findable by a skilled searcher exercising reasonable diligence; and
Having found the references, would petitioner reasonably have been expected to discover the invalidity ground assembled from them?

The two steps here follow from Ingenico Inc. v. IOENGINE, LLC, 136 F.4th 1354 (Fed. Cir. 2025), which held that an estoppel "ground" is not the same thing as the references underlying it. See Dennis Crouch, Reference Recycling and the Case for Sua Sponte Rehearing in Ingenico, Patently-O (May 19, 2025). This result narrows the estoppel. A patentee showing that a reference could be located (or even was actually located) does not by itself prove that the obviousness theory (i.e., ground) built on it was discoverable.

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En Banc Ninth Circuit to Reconsider Copyright’s Total Concept and Feel Test

June 22, 2026PatentDennis Crouch

by Dennis Crouch

The Ninth Circuit has granted rehearing en banc in Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir. 2026), the copyright case pitting photographer Jeffrey Sedlik against celebrity tattoo artist Katherine Von Drachenberg (better known as Kat Von D) over a tattoo based on Sedlik’s 1989 portrait photograph of Miles Davis. Amicus briefs are due at the end of June 2026, and the case now stands as the most direct challenge in fifty years to the Ninth Circuit’s two-part “extrinsic/intrinsic” framework for copyright’s substantial similarity requirement.

Extrinsic vs. Intrinsic: In Ninth Circuit copyright cases, "substantial similarity" requires passing two separate tests. The extrinsic test is objective: a court lists the works' concrete elements, filters out unprotectable material (ideas, facts, stock devices), and compares what remains. Judges can resolve it on summary judgment, and experts may testify. The intrinsic test is subjective: it asks whether an ordinary observer would find the works similar in overall "total concept and feel." No expert testimony is allowed, and the question is reserved for the jury. A plaintiff must win both tests to prove infringement; a defendant needs to win only one.

In some ways the case is about procedure – asking who decides, and by what standard? The panel decision found that a jury’s subjective finding of no “substantial similarity” under the circuit’s intrinsic test was essentially unreviewable, even where the defendant had traced the plaintiff’s photograph to create a stencil and her shop had advertised the result as “100% exactly the same as the reference.” Two members of the three-judge panel, Judges Wardlaw and Johnstone, concurred separately to argue that the intrinsic test and its “total concept and feel” standard should be discarded entirely as inconsistent with the Copyright Act and Supreme Court precedent. Those concurrences supplied the roadmap for the en banc petition, and the full court has now taken the invitation.

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Same Direction, Different Engines: FY2026 Utility and Design Grant Projections

June 19, 2026Design Patent, Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

Although patents issue every Tuesday morning, the agency keeps its books on a fiscal year that closes September 30. Measured that way, FY2026 is the first full fiscal year under Director John Squires, who joined the Office just days before FY2025 closed. My projections suggest that the final numbers for the year will be modestly downward both for utility and design patent grants.

U.S. utility patent grants by fiscal year, FY2014 through a FY2026 projection of 314,000

Through roughly two-thirds of the year, the USPTO has issued about 218,000 utility patents and 34,000 design patents. Scaling those figures forward, FY2026 is on track for roughly 314,000 utility grants (down from 328,000 in each of FY2024 and FY2025) and roughly 49,000 design grants (down from a record 52,000 in FY2025). A slight drop on each front.

Utility output has flattened over the past decade - with the projected total within the band the Office has occupied for most of the decade. Design grants are a different story, we've seen a steady climb for the past 2o years, with major jumps in FY24 and FY25. A projected 49,000 steps back from the record but still roughly doubles the FY2014 figure. I made the calendar-year version of this point in Dennis Crouch, The Surprising Headline of 2025: USPTO Stability?, Patently-O (Dec. 30, 2025), and the fiscal-year data tells a compatible story.

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Pre-Negotiated: How Continuations and Art Units Shape the First-Action Allowance

June 19, 2026Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

I recently wrote about first actions on the merits, the share that arrive as allowances rather than rejections, and the premium that prioritized-examination (Track 1) cases enjoy. See Dennis Crouch, The First Offer Accepted: First-Action Allowances and the Track 1 Premium, Patently-O (June 17, 2026). This follow-on looks at two confounding factors, both mundane rather than mysterious: (1) whether the filing is a continuation filed where the parent app has issued; and (2) the tech-center and art unit handling the case.

Continuations come pre-negotiated. A continuation claims the benefit of an earlier application's filing date under 35 U.S.C. 120, and it is often filed after the parent application has already received a notice of allowance. The applicant knows what the examiner found allowable and can draft the continuation's claims that include the key limitations that were already allowable. The data bear this out to some extent. Continuations of applications that issue as U.S. patents are more likely to receive a first-action allowance. But, that gap has narrowed in recent years (and I don't really know why).

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The First Offer Accepted: First-Action Allowances and the Track 1 Premium

June 17, 2026Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

A first action allowance comes with both excitement and some fear. For the client it means a faster patent at lower cost, and for the attorney it looks like a clean win. And yet, in my own years of practice, a first action allowance always left me with a feeling that I had somehow underbid. It is that same sensation having your opening bid in a immediately accepted by the other side, before any negotiation has begun. You get the deal, but you also walk away wondering how much more you might have asked for. In that spot I believe I always counseled the client to file a continuation and find out whether the examiner had left something on the table.

For this post I look at first actions over the past couple of decades -- measuring two things: how long applicants waited for the first action, and how often the first action was a Notice of Allowance rather than a rejection. The share of first action allowances fell from about 17% in early 2004 to roughly 7% during 2008 and 2009, then recovered slowly to 15% range by the late 2010s, where it sits today. The pattern I find more interesting involves prioritized examination. Track 1 applications, which pay an extra fee for expedited treatment, draw a first-action allowance 17% to 20% of the time, several points above the ordinary-track rate. The two lines crossed for good around 2014, and Track 1 has stayed higher ever since.

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The Federal Circuit’s Expanding Grip on Dismissed Patent Claims

June 16, 2026CAFC, PatentpaidDennis Crouch

by Dennis Crouch

This is the second post about the DTSA case Insulet Corp. v. EOFlow, Co., No. 2025-1807 (Fed. Cir. May 28, 2026). The last post covered the merits. This one is about appellate jurisdiction, and about a jurisdictional holding whose reach may run well beyond its modest-looking facts. Although Insulet's original complaint included a patent infringement claim, Insulet voluntarily dismissed that claim without prejudice and amended the complaint to remove it, a step that ordinarily moves the appeal to the regional circuit. The Federal Circuit kept the case anyway. It held that the dismissal was effectively with prejudice because the patent statute's six-year recovery period, 35 U.S.C. § 286, had run on one of the infringing acts Insulet had pleaded.

The Federal Circuit hears appeals in patent cases, not in trade secret cases. The jurisdictional statute, though, is overinclusive. When a single action mixes patent and non-patent claims, the patent claims pull the entire appeal into the Federal Circuit, even if only the non-patent issues are contested on appeal. The route the court used to keep Insulet matters beyond this case, because it can apply to a broad class of voluntary dismissals.

Although I have not run the numbers on this, my experience is that most patent litigation involve claims to the full six years of back damages. That means that any dismissal of the patent claims - even on the day following the complaint filing - would be captured by this exception and direct any eventual appeal (of the non-patent issues) to the Federal Circuit.

This is a situation where, I believe, the court should have done more work in a modified Gunn v. Minton analysis to determine whether the case should have remained with the regional circuit.

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Has the Late-Continuation Surcharge Shifted Filing?

June 15, 2026Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

The USPTO Rule late-continuation surcharge became effective January 19, 2025 and imposes a $2,700 fee on continuing applications filed more than six years after the earliest non-provisional U.S. filing in the §120 chain, and $4,000 on those filed more than nine years out. The pre-rule rush was dramatic. In the three weeks before the rule took effect, filers submitted several thousand continuations with priority chains older than six years to beat the new fee schedule. On Friday, January 17, 2025, the operational deadline (since the rule's January 19 effective date fell on the Sunday of a long weekend), the USPTO received about six times the number of continuation applications of a normal day. And, over half of those January 17 filings carried priority chains older than six years.

The eight months that followed tell a quieter story. The share of continuations carrying long priority chains has dropped by about 3 percentage points on the 6-year tier and about 2 points on the 9-year tier (from 9.0% to roughly 7%), and overall continuation volume has run about 13% below the 2024 monthly average. Whether that step-down reflects durable deterrence, a one-time depletion of long-EBD applications that were already front-loaded into January, or partial right-censoring of recent filings is not yet possible to say from the data in hand. What is already clear is that the policy moved a large amount of filing activity in a short window, and that the post-rule monthly composition has not snapped back to the pre-rule baseline.

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Hooked on Differences: Design Patent Doctrine and Schedule A Litigation at the Federal Circuit

June 14, 2026CAFC, Design Patent, Injunctions, PatentpaidDennis Crouch

by Dennis Crouch

The Federal Circuit currently has two design patent disputes pending that present the same doctrinal question from opposite directions. In Range of Motion Products, LLC v. Armaid Co., 166 F.4th 981 (Fed. Cir. 2026), the full court is considering an en banc petition arguing that the "plainly dissimilar" test from Egyptian Goddess has inverted the Supreme Court's ordinary observer test by training judges to hunt for differences rather than assess overall sameness. Meanwhile, a panel of Judges Dyk, Prost, and Schall has under submission Jacki Easlick, LLC v. AccEncyc US, Nos. 2024-1538, -1826 (Fed. Cir., argued March 9, 2026), an appeal from a preliminary injunction denial that rests squarely on that same plainly dissimilar test.

The Easlick patent covers a TOTE HANGER. U.S. Design Patent No. D695,526. Judge William Stickman (W.D. Pa.) identified three ornamental differences between the patented design and an accused Amazon listing, declared the designs plainly dissimilar, and never reached the prior art.

Figs. 1 and 8 of U.S. Design Patent No. D695,526: the claimed handbag hanger hook, and the environmental view showing the rod hook above and the offset purse hook below.

The appeal carries a second storyline. Easlick filed its case as a "Schedule A" action, suing 67 online sellers in a single sealed complaint and obtaining a same-day ex parte temporary restraining order that froze more than $40,000 in AccEncyc's Amazon account. AccEncyc represented that its total accused sales were under $500. Four intellectual property scholars (Sarah Fackrell, Eric Goldman, Elizabeth Rosenblatt, and Saurabh Vishnubhakat), represented by Stanford's IP Clinic, filed an amicus brief supporting affirmance and urging the court to confront the scheme of mass-defendant internet enforcement. This makes Easlick worth watching on two fronts: the substance of design patent infringement analysis, and the procedural machinery of modern online IP enforcement.

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It’s Not You, It’s Your Claims: Disclosed but Unclaimed Embodiments at the Federal Circuit

June 11, 2026CAFC, Claim Construction, PatentpaidDennis Crouch

by Dennis Crouch

Dynapass IP Holdings LLC v. Bank of America Corp., No. 25-1222 (Fed. Cir. June 11, 2026) (nonprecedential)

Last week's oral arguments included an odd question from Judge Chen. He asked asked Dynapass's counsel whether handing someone bread and cheese counts as giving them a cheese sandwich. The decision, released on June 11, 2026, applies that to the claims, holding that receiving a passcode and a token separately is not "receiving the password" which requires the two be joined. U.S. Patent No. 6,993,658.

Dynapass framed the construction as a textbook embodiment-exclusion error. The claims do not require concatenation and the specification particularly describes providing the passcode and token separately in an alternative embodiment. But, the panel rejected the premise, holding that the language of the claims prevails, even if it excludes an alternative embodiment. The court found that Claim 1's text "requires generating a password from the passcode and token before receiving the password," and the individual components "are not the claimed 'password.'"

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Trading Claims for Speed: USPTO Sweetens the Streamlined Claim Set Pilot

June 10, 2026Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

The USPTO announced today that it is waiving the petition fee for its Streamlined Claim Set Pilot Program, effective for petitions filed on or after June 10, 2026. The waiver eliminates the 37 C.F.R. § 1.17(h) fee that has accompanied petitions under the program since its launch last fall. I have not previously written about the program, but it deserves attention because the deal is now remarkably good for applicants who fit its narrow eligibility window: free expedited examination in exchange for a lean claim set.

The basic structure: an original, noncontinuing utility application filed under 35 U.S.C. § 111(a) before October 27, 2025, that presents no more than one independent claim and ten total claims may be advanced out of turn (accorded special status) for its first Office action. Applications whose claims do not currently comply can be brought into compliance with a preliminary amendment filed before or with the petition (Form PTO/SB/472). The program runs until October 27, 2026, or until each Technology Center has docketed roughly 200 pilot applications, whichever comes first. As of today, every Technology Center still has open slots.

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Enforceable, but Not Reviewable: A Breached Sotera Stipulation and § 314(d)

June 9, 2026CAFC, Claim Construction, IPR, Obviousness, Patent, USPTO NewspaidDennis Crouch

by Dennis Crouch

In Hafeman v. Google LLC, No. 2024-1600 (Fed. Cir. June 5, 2026) (precedential), the Federal Circuit held that 35 U.S.C. § 314(d) bars review of the Board's decision not to terminate six inter partes reviews after the petitioners breached the Sotera stipulation that had supported institution. The challenge reached the court on appeal from the final written decisions, but the court found that it had institution as its subject and therefore fell outside its jurisdiction. The procedural sequence frames the holding.

- July 2021. Carolyn Hafeman sues LG in the Western District of Texas, asserting three patents that cover a screen displaying owner return information at boot-up on a lost or stolen computer.
- July 2022. Google and Microsoft file six IPR petitions, two against each patent, and identify LG as a real party in interest. The petitions include no stipulation. LG ultimately provided a Sotera stipulation, promising not to pursue in district court any ground raised or that reasonably could have been raised in the IPRs.
- January 2023. The Board institutes all six reviews, relying on the stipulation to conclude that duplication concerns did not justify discretionary denial.
- February 2023. LG moves for summary judgment of invalidity in district court on the same priority-date theory raised in the petitions.
- April 2023. The district court finds the motion violated the stipulation and estops LG from pressing the priority-date challenge.
- Later in 2023. Hafeman asks the Board to terminate the IPRs based on the district court's breach finding, but the Board refuses.
- January 2024. The Board issues three final written decisions holding all claims obvious over Jenne and Cohen, without addressing the breach.
- June 2026. The Federal Circuit dismisses the stipulation-based challenge under § 314(d) and affirms the unpatentability rulings.

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Six Petitions, Six Placeholders: The Patent Docket Awaiting the Supreme Court

June 8, 2026CAFC, IPR, Patent, Supreme Court, USPTO NewspaidDennis Crouch

by Dennis Crouch

The Supreme Court recently decided Hikma v. Amarin, its only patent case of the October 2025 term. But, the docket of pending petitions is climbing again. More than a dozen patent matters now sit before the Court, either as filed petitions for certiorari or as pending applications for extensions of time.

The largest focus involves the recurring question: how much discretion does the USPTO Director hold in refusing to act, and whether courts may review that refusal. Google LLC v. VirtaMove, Corp., No. 25-1230, is the leading case right now, challenging the agency's "settled expectations" basis for denying inter partes review proceedings of patents that have been in force for 6+ years. Two petitions raise Seventh Amendment objections to the way the Federal Circuit reviews jury verdicts, two press patent eligibility under 35 U.S.C. § 101, and Hyatt v. Squires, No. 25-1049 focuses on prosecution laches.

In addition to the petitions, there are also six extension applications -- cases where the petitioner has asked for additional time in preparing the petition for writ of certiorari. Those applications typically signal that a petition is coming and often include a preview of the upcoming petition.

I also want to note one particular non-patent case: Newman v. Moore. In that case, Judge Pauline Newman, the Federal Circuit's most senior judge, asks the Court to review the orders that have "temporarily" removed her from the bench since 2023. The first named respondent is Chief Judge Kimberly Moore, who is the face of Judge Newman's removal. It is the rare petition that asks the Justices to examine how the court handling patent appeals governs itself.

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Integrity Versus Repose: When Claim Preclusion Bars Fraud on the Court

June 7, 2026CAFC, Patent, Supreme CourtpaidDennis Crouch

by Dennis Crouch

In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), the Supreme Court set aside a years-old infringement judgment after it emerged that the patentee had ghostwritten a trade journal article, published it under the name of an ostensibly disinterested expert, and used it to prevail both at the Patent Office and on appeal. Judicial integrity, the Court held, outweighed the finality of a corrupted judgment:

The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

That tension between exposing fraud and protecting final judgments keeps returning to patent litigation. See Dennis Crouch, Fraud on the Court: Finality and the Ghost of Hazel-Atlas, Patently-O (Jan. 26, 2025). The newest entry is Capital Security Systems, Inc. v. NCR Corp., No. 25-11532 (11th Cir. Feb. 26, 2026) (per curiam), where the court refused to let a fraud-on-the-court claim proceed, not because the alleged fraud was implausible, but because the plaintiff had already litigated the same facts and lost.

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What the Verdict Might Have Said: Jury Black Boxes in Ollnova v. ecobee

June 5, 2026CAFC, Patent, Patentable Subject MatterpaidDennis Crouch

by Dennis Crouch

The Logic Games are no longer on the LSAT, but they are still present in the law, often arising in the context of complex civil litigation. This regularly arises with jury verdict forms, with judges seeking the simplest verdict form possible that still asks all the necessary questions. In Ollnova Technologies Ltd. v. ecobee Technologies ULC, No. 2025-1045 (Fed. Cir. June 4, 2026), the Federal Circuit found that Judge Gilstrap (E.D.Tex.) had gone too far on the side of simplicity.

The infringement case asserted claims from four different patents, but the jury was asked simply did the Plaintiff (patentee) prove "that ecobee, the Defendant, infringed ANY of the Asserted Claims of the Asserted Patents?" As you can see from my screenshot above, the jury answered "yes" and ultimately awarded $11.5 million in damages.

What the verdict fails to tell us is which patent (or which claim of which patent) ecobee infringed. More importantly for the appeal, the verdict leaves open the possibility that some jurors thought a claim of the '495 patent was infringed while others thought it was a claim of the '282 patent. In his decision, Judge Chen treated that gap as a constitutional defect, vacating the infringement and damages judgments and ordering a new trial. The risk here was the potential of non-unanimous verdict as to infringement of any particular claim.

Judge Gilstrap also asked the jury to an eligibility question under Alice step two: whether the claims involve merely well-understood, routine, or conventional technology. The appellate panel found this jury instruction lacking - particularly because the jury was never told what the claimed abstract idea was (in the '495 patent), or that the abstract idea itself cannot supply the inventive concept.

The panel affirmed that the asserted claims of the '887 and '371 patents are not directed to an abstract idea at step one, and affirmed the denial of ecobee's motion for judgment as a matter of law on '371 non-infringement.

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