Posts in IPWatchdog Articles

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today holding that it does not have jurisdiction to review appeals outside of final decisions on the merits from the International Trade Commission (ITC) that affect the entry of articles…. Realtek appealed the ITC’s denial of its motion for sanctions against Future Link, arguing that both the ITC ALJ and the Commission itself violated the Administrative Procedure Act (APA) by rejecting the sanctions request. The ITC and Future Link argued that the CAFC did not have jurisdiction to hear the appeal and that Realtek did not have standing.

While the Alice v. CLS Bank decision has been with us for over 10 years, subject matter eligibility case law still seems to defy predictability.  The recent Contour IP Holding case gives us a new data point and another curve on the road.  In Contour IP Holding, a patented video streaming technology was initially struck down in the district courts as ineligible, only to be revived by the Federal Circuit in a rare 101 reversal.  Standing in contrast to Yu holding those claims to digital photography ineligible, Contour provides insight and an opportunity to save your inventive technology from subject matter challenges. 

Senators Marsha Blackburn (R-TN) and Mazie Hirono (D-HI) today signed onto the Patent Eligibility Restoration Act of 2025 as co-sponsors with Senators Thom Tillis (R-NC) and Chris Coons (D-DE). PERA 2025 was introduced on May 1 in both the Senate and the House of Representatives by Tillis, Coons and Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA). The bill would essentially eliminate all judicially-created exceptions to U.S. patent eligibility law and has been introduced each year since 2023.

This week on IPWatchdog Unleashed I speak with F. Scott Kieff, former Commissioner on the International Trade Commission, and Joshua Hartman, head of Merchant & Gould’s ITC practice group. Our conversation, which took place on June 4, focused on the landmark ruling by the Federal Circuit in Lashify, Inc. v. International Trade Commission, which was a big win for small business patent owners. We discuss the consequences of the Lashify ruling and the politics of the decision, including whether the decision fits within an America First view of domestic and global markets. Kieff also discusses the historical evolution of the ITC, why it was initially created, and how it is purposefully deadlocked politically to require cooperation.

The U.S. Supreme Court on Monday declined to grant a number of IP petitions, including one in which a divided panel of the U.S. Court of Appeals for the Federal Circuit (CAFC) ruled in October 2024 that NexStep, Inc. failed to prove Comcast Cable Communications had infringed its patents under the doctrine of equivalents.

Today, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential ruling in Optis Cellular Technology, LLC v. Apple, Inc. vacating infringement and damages judgments awarded to Optis by the Eastern District of Texas. The CAFC also reversed summary judgment rulings upholding Optis patent claims under 35 U.S.C. § 101, found that other claims did not invoke means-plus-function analysis under 35 U.S.C. § 112 ¶ 6), and ruled that the district court’s jury instructions deprived Apple of its right to a jury trial under the Seventh Amendment—a constitutional argument that has not fared as successfully for patent owners protecting their intellectual property rights in administrative proceedings.

Following the release of 11 Director Review decisions on discretionary denial on Thursday, June 12, Acting Director Coke Morgan Stewart issued two additional decisions late Friday, both of which denied the requests for discretionary denial. The total tally of decisions under this new process is now at 18, and factors such as timing of parallel proceedings, early challenges to patents and “settled expectations” of the patent owner are shaping up to be key considerations. 

The recent decision in iRhythm Technologies v. Welch Allyn Inc., IPR2025-00377, et al. (Director Review: June 6, 2025) establishes a new and independent basis for discretionary denial: petitioner’s prior knowledge of the patent coupled with a failure to seek earlier review. This is the first decision explaining how the “settled expectations” consideration can be applied to grant discretionary denial.

It’s easy to talk about innovation. But true innovation is groundbreaking, disruptive and transformative. And that type of innovation, which is the kind that we say we most desperately need and want, doesn’t happen in a vacuum. Real innovation is a function of risk and reward in a very mathematical sense. The more risk, the greater the reward. But the converse is also true—the less reward, the less one will be willing to risk. And in the United States today, that innovation equation is broken and it has been for some time.

The USPTO receiving authority by the Trump Administration to hire was no easy lift. IPWatchdog has learned that the USPTO has been tirelessly working with the U.S. Office of Personnel Management (OPM) for 4+ months in an effort to convince OPM to give the USPTO a waiver that would allow the Office to once again start hiring examiners.

This week in Other Barks & Bites: the Senate Judiciary Committee advances Trump nominee John Squires to serve as USPTO Director; the House Science, Space, and Technology Committee advances four bipartisan bills on emerging tech and emergency response; the Federal Circuit finds no abuse of discretion in the district court’s decision to decline exercise subject matter jurisdiction in Mitek’s second appeal of its non-infringement action; Meta will invest $14.3 billion into improving the quality of AI training data through Scale AI; the Ninth Circuit dismisses trademark claims filed by a prominent Redditor over the r/WallStreetBets subreddit; USPTO Acting Director Stewart issues a series of Director decisions on discretionary denials of IPR institutions; and the USPTO announces new fines against companies that fraudulently claim or assert small or micro entity status while appearing before the agency.

President Donald Trump’s nominee for the next Director of the U.S. Patent and Trademark Office (USPTO), John Squires, was voted out of the Senate Judiciary Committee today by a voice vote of 20-2, with only Senators Sheldon Whitehouse (D-RI) and Cory Booker (D-NJ) voting no. Squires’ nomination will now proceed to the Senate floor, where he is likely to be confirmed.

On Thursday, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in United Services Automobile Association v. PNC Bank N.A. reversing the Eastern District of Texas’ summary judgment ruling that USAA’s asserted patent claims are directed to patent eligible subject matter under 35 U.S.C. § 101. Assessing Step 2 of the Alice/Mayo framework in the first instance, the Federal Circuit ruled that USAA’s patent claims were directed to the abstract idea of depositing a check using a handheld mobile device without any inventive concept sufficient to confer patent eligibility.

In a precedential decision issued on June 11, 2025, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed two Patent Trial and Appeal Board (PTAB) inter partes review (IPR) decisions invalidating Agilent Technologies’ patents related to chemically modified CRISPR guide RNAs (gRNAs).

Disney Enterprises, Inc. et. al. and Universal City Studios Productions LLLP, et. al. filed a complaint today with the U.S. District Court for the Central District of California against the AI image generator, Midjourney. The suit accuses Midjourney of being a “bottomless pit of plagiarism.” According to the plaintiffs, Midjourney could have stopped the infringement and copying of their copyrighted works at any time—either by controlling the data used to train, by controlling the prompts users input, or via technological protection measures—but chose not to and failed to respond to letters informing them of the infringement prior to the lawsuit.