Posts in Patents

Congress may soon abandon a principle that has guided the U.S. legal system for generations: the ability to obtain and enforce patent rights should not depend on the type of technology being invented. Straying from this core tenet risks weakening a key competitive advantage of the American innovation economy.

We live and practice in a time when it may seem to some patent litigators that it would border on malpractice to not move for attorney fees after any case is won. You don’t ask, you don’t get, right? What do we have to lose? The recent U.S. Court of Appeals for the Federal Circuit decision in Chromadex v. Elysium Health serves as a helpful reminder of the seemingly obvious notion that not all patent cases we win (or, for that matter, lose) are “exceptional.” And it suggests that overreaching in seeking fees may itself come with some costs.

Epic Tech’s U.S. Patent No. 8,545,317, directed to a networked electronic sweepstakes system, issued in October 2013. Alice Corp. v. CLS Bank came eight months later. Over the next several years, the U.S. Patent and Trademark Office (USPTO) rejected claims in three related Epic Tech applications under Section 101, having already found claims in two of them patentably indistinct from the ‘317 claims, and Epic Tech abandoned all three. A district court in Texas then held claims of the sibling ‘315 patent ineligible. In June 2020, six years after Alice, Epic Tech sued Pen-Tech Associates on the ‘317 patent.

Today, the U.S. Supreme Court denied the petition for writ of certiorari filed in Genuine Enabling Technology LLC v. Sony Group Corp., which challenged lower court rulings dismissing Genuine Enabling Technology’s (GET) patent infringement claims against Sony Playstation controllers under the doctrine of equivalents. In denying cert, the Court avoided clarifying whether a patentee’s statutory presumption under 35 U.S.C. § 112(f) to equivalents of a means-plus-function claim can be extinguished as a matter of law for failing to account for each component of the claimed structure.

Every U.S. Patent and Trademark Office (USPTO) Director leaves office. Very few leave a legacy that could fundamentally change the future of American innovation. Director John A. Squires has an extraordinary opportunity to do just that. For more than a decade, independent inventors, startups, small businesses, universities, and those investing in American innovation have asked Congress to address the unintended consequences of the America Invents Act (AIA) and the Patent Trial and Appeal Board (PTAB). Congress held hearings. Members acknowledged the problems. Legislation was introduced. Organizations rallied behind reform. Year after year, inventors traveled to Washington, told their stories, and pleaded for meaningful change. And year after year, the problems remained. Then came Director Squires.

Technology collaboration between the United States and Korea has grown quickly, from semiconductors and artificial intelligence to biotechnology and advanced manufacturing. More joint research agreements are being signed, but the importance of their IP provisions is often overlooked. This can cause problems later, because the two countries have different legal rules that even experienced counsel can miss.

Earlier this year, with an effective date of April 9, 2026, the United States Patent and Trademark Office (USPTO) introduced the Patent Cooperation Treaty (PCT) Informed Examination Request (PIER) Pilot Program. Curiously, while most USPTO pilot programs allow the applicant to opt in or opt out, the PIER Pilot Program precludes input from the applicant on the matter and rather imposes itself on the applicant. The USPTO decides which applications will take part in the PIER Pilot Program, and the decision is not challengeable.

One day after her petition for rehearing was denied by the U.S. Court of Appeals for the Federal Circuit (CAFC), pro se inventor Carrie Hafeman has filed a petition for Extraordinary Director Review and Sua Sponte Review with the U.S. Patent and Trademark Office (USPTO). The petition asks the Director to vacate institution and the Final Written Decisions in six related inter partes reviews (IPRs) due to alleged Sotera Stipulation violations by Google and Microsoft.  

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today in Google LLC v. DDC Technology, LLC, affirming the Patent Trial and Appeal Board’s (PTAB) determinations that Google did not prove claims in three DDC Technology patents directed to hand-held virtual reality (VR) viewers unpatentable as obvious.

Today, the U.S. Government Accountability Office (GAO) published a report on efforts at the U.S. Patent and Trademark Office to reduce the current backlog of unexamined U.S. patent applications at the agency, which announced its intention to reduce the backlog to fewer than 599,000 patent applications last September. The GAO’s report casts a pall on those efforts, which have been contributing to patent examiner attrition that, left unchecked, could prevent the USPTO from reaching its backlog reduction goal within the next five years.

On October 14, 2026, the Food and Drug Administration (FDA) announced the Rare Disease Framework Initiative. The goal of this effort is quite essential for patients with rare (orphan) diseases – to develop an approach for assessing medicines for orphan diseases with a focus on the evidence that can be gathered for this assessment. The FDA proposes to include disease characteristics, patient needs, patient population size, and characteristics of orphan medications. The initiative does not itself establish new approval standards. Although the initiative relates to regulatory evidence matters, it also raises a separate legal question about the evidence needed to support patent claim scope.

A coalition of ten streaming, broadcasting, and audiovisual media organizations, including the Motion Picture Association (MPA) and the Streaming Innovation Alliance, sent a letter today to U.S. Patent and Trademark Office (USPTO) Director John Squires, urging him to “support strong public and private sector enforcement against abusive SEP licensing practices.” The signatories said that abuse of standard essential patents (SEPs) was undercutting the open process of setting standards for the video streaming technologies their members use.

In a procedural order dated October 22, 2026, the Milan Central Division of the Unified Patent Court (UPC) delivered a short ruling in Sandoz v. Novo Nordisk (UPC_CFI_2221/2026) that deserves more attention than its procedural posture suggests. The operative holding is a single sentence: the UPC has no jurisdiction to entertain a claim seeking a declaration that a composition, independently of a specific patent right, was obvious at a given priority date. Behind that line sits a question the court will keep meeting as it matures: what, exactly, is this court for, and where does its competence stop?

Since April 5, 2026, a patent owner can file a paper opposing a request for ex parte reexamination (EPR) before the U.S. Patent and Trademark Office (USPTO) decides whether to order it. Six months in, patent owners use the paper in about two of every five requests, requesters try to respond in most of those, and the Office keeps almost every response out. None of it has measurably changed how often reexamination is ordered. The order rate was already falling before the procedure began, and the small further decline since is not statistically significant.