Posts in Guest Contributors

For more than two centuries, the patent system has rested on a simple bargain: inventors publicly disclose their inventions in exchange for a limited monopoly. That bargain assumes disclosure primarily benefits competitors, researchers, and the public. Today, however, the audience has changed. Patent filings are now mined not only by competitors, but by governments, intelligence agencies, sovereign investors, and increasingly sophisticated artificial intelligence systems capable of analyzing millions of documents simultaneously. The result is that patent databases have become one of the world’s richest sources of open-source technological intelligence.

A conglomerate—a large enterprise comprising multiple discrete companies, divisions, or business units—may come into being organically or inorganically, due to business growth, expansion into new markets, internal restructuring, or a merger, acquisition, or joint venture. Regardless of a conglomerate’s origin story, its leaders face a fundamental question: How should they structure the intellectual property or legal function to optimally serve the needs and interests of the divisions and the conglomerate at large?

As AI assistants take over product discovery and purchase, the likelihood of confusion test is losing the consumer it was built around. And brands are therefore losing their primary line of defense. For decades, building a brand has meant the same, patient work. You develop a differentiated story, then bring it to life everywhere a customer might meet it: Advertising; digital; packaging; product design; customer care. Every piece is guided by consumer insight, a hard-won read on what a person feels at each stage of the journey, from the first moment of awareness through consideration to the purchase itself.

Trade secrets occupy a unique position among the major forms of intellectual property. Patents, copyrights, and trademarks are, by design, defined and publicly registered, and can be consulted to determine exactly what is claimed. In contrast, trade secrets depend on their being undisclosed. This creates a structural problem the moment a trade secret owner goes to court. Because they are secret, they cannot be identified in public filings without destroying the very subject matter of the plaintiff’s claim. On the other hand, defendants must understand what the secrets are and what they’ve allegedly misappropriated. In addition, the court needs to know what the case is about to manage it.

On August 4, 2026, the U.S. Court of Appeals for the Federal Circuit (CAFC) chose to issue a precedential opinion formally holding that there is no “presumption of irreparable harm” in preliminary injunction proceedings in patent cases. The court acknowledged that this conclusion should have been apparent from the 2006 Supreme Court decision in eBay  Inc. v. MercExchange, L.L.C., 547 U.S. 388, 393-94 (2006).

As the institution rate of inter partes reviews (IPRs) has plunged under U.S. Patent and Trademark Office (USPTO) Director John Squires, parties have increasingly turned to ex parte reexaminations (EPRs) to challenge patents. The number of requests for EPRs has skyrocketed. The number of EPR requests more than doubled between 2020 (198 requests) and 2025 (481 requests). See USPTO Reexam Statistics. Based on the number of requests for EPRs (831) assigned a filing date through Q3 of 2026, we are on track to have more than 1,100 requests for EPRs filed in FY2026. See USPTO Operational Statistics.

What value is a patent that expires before it issues? Until recently, that question seemed wholly academic. In In re Forest, however, the U.S. Court of Appeals for the Federal Circuit (CAFC) answered it directly: A patent that issues after its expiration date has no value; it provides neither exclusionary rights nor provisional rights. In the court’s view, the applicant has no cognizable interest in the patent or the application on which it would be based.

As an expert witness on intellectual property litigations, I have noticed over the past few years parties with poor arguments in software copyright and software trade secret cases, both plaintiffs and defendants, have been taking advantage of technologically outdated protective orders to gain an unfair advantage. The U.S. District Court for the Northern District of California, where probably the majority of software IP cases take place, has a Model Protective Order for Litigation Involving Patents, Highly Sensitive Confidential Information and/or Trade Secrets that has become a de facto standard for software IP cases around the country. It is antiquated and needs to be updated.

Patent count is often the first thing people notice about a portfolio. It should not be the last. A portfolio with 500 patents may have little monetization value if the claims are difficult to understand, the infringing products are unclear, the damages are weak, the strongest assets are expired or expiring soon, or there are no pending applications. Conversely, a smaller portfolio with well-supported claims, identifiable infringing products, meaningful damages, remaining patent life, and pending applications in both the U.S. and Europe may be far more valuable.

In the space of a few months, the U.S. Court of Appeals for the Federal Circuit and the U.S. District Court for the District of Massachusetts delivered two decisions that, read together, change how patent applicants and their counsel should approach the deceptively simple question of who invented what. Fortress Iron, LP v. Digger Specialties, Inc., No. 2024-2313 (Fed. Cir. Apr. 2, 2026), holds that if an inventorship error cannot be corrected under 35 U.S.C. § 256, the patent is invalid — full stop, no intent required. Inline Plastics Corp. v. Lacerta Group, Inc., No. 1:18-cv-11631 (D. Mass. Nov. 13, 2025), holds that if an inventorship omission was intentional, the entire patent family is unenforceable for inequitable conduct — the Therasense penalty at full weight.

Alden Abbott recently captured Europe’s digital-policy contradiction with a memorable image: Brussels says it wants technology champions, but when a champion emerges, it makes the winner share the trophy. The European Commission’s July 16 binding specification measures (BSMs) against Google turn that metaphor into an administrative program. One measure requires Google to provide eligible search engines—including AI chatbots with search functions—access to anonymized ranking, query, click, and view data. The other requires “free and effective” interoperability with 11 categories of Android functionality, including device sensors, app context, app and operating-system control, on-device AI models, and background execution. Google must furnish documentation and technical assistance and extend access to covered future functionality when it becomes available to its own services.

The U.S. Court of Appeals for the Ninth Circuit in Comet Technologies USA, Inc. v. XP Power, LLC, overturned Comet Technologies’ $40 million trade secret verdict against XP Power and ordered a new trial, finding that the district court erroneously instructed the jury that the defendant bore the burden of proving that Comet’s trade secrets were readily ascertainable by proper means. The court held that the error was not harmless because the instructions were not accurate as a whole, and nothing in the jury’s verdict shed light on how it would have ruled under a correct instruction. The case is notable both for clarifying what “readily ascertainable” means and for spotlighting a burden-of-proof distinction between the Defend Trade Secrets Act (DTSA) and the California Uniform Trade Secrets Act (CUTSA) that practitioners should not overlook.

As government contractors rapidly integrate LLMs and generative AI into their operations, regulators are scrambling to adapt to shifting data ownership requirements.  The General Services Administration (GSA) recently proposed a new GSAR clause (552.239–7001) to standardize AI procurement, and the current draft has been met with widespread industry criticism. By asserting expansive government ownership over “data outputs” and “custom development,” the proposed rule inadvertently exposes a fault line between government data protection and commercial IP rights.

On December 31, 1959, Calixto Lopez led armed men into the Arechabala family’s rum distillery in Cárdenas, Cuba. The family had made rum there since 1878, building Havana Club into a brand whose English name reflected its success in the U.S. market. According to testimony Ramón Arechabala gave the Senate Judiciary Committee in 2004, Lopez pointed a machine gun at him and announced he was taking over as “Pepe,” the nickname of the company’s president and Ramón’s uncle. The family’s rum business now belonged to the Cuban government.