All posts by Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law.

Element-by-Element: Federal Circuit Rejects Functional Equivalence in Car Seat War

Patent

by Dennis Crouch

Wonderland Switzerland AG v. Evenflo Company, Inc., No. 2023-2043 (Fed. Cir. Dec. 17, 2025) (Moore, C.J.)

This split decisions hits on three separate issues:

  1. When the doctrine of equivalents can overcome structural differences between claimed and accused elements;
  2. What evidence suffices to establish irreparable harm for injunctive relief; and
  3. How trial courts should balance probative value against prejudice when excluding evidence relevant to willful infringement.

Writing for the majority, Chief Judge Moore reversed a jury's infringement finding under the doctrine of equivalents for certain accused products, reversed permanent injunctions covering both asserted patents, and ordered a new trial on willfulness based on excluded email evidence. Judge Reyna dissented regarding the willfulness ruling, arguing the majority improperly substituted its judgment for the district court's evidentiary determinations under Federal Rule of Evidence 403.

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How the Printed Matter Doctrine Sees Through X-Ray Markers

Patent

by Dennis Crouch

Five years ago, I posed this question: How does the printed matter doctrine apply to letters that can only be read using an X-ray? Dennis Crouch, Patent Eligibility of Claims Directed to Printed Matter, Patently-O (Nov. 11, 2020). The Federal Circuit's first decision in the long-running C.R. Bard v. AngioDynamics litigation had held that the informational content conveyed by radiographic markers on vascular access ports constitutes printed matter not entitled to patentable weight, but that the structural requirement of a radiographically discernible marker could still distinguish the claims from prior art. C R Bard Inc. v. AngioDynamics, Inc., 979 F.3d 1372 (Fed. Cir. 2020). The case went back for retrial, the jury again sided with the patentee on validity, and the district court again granted judgment as a matter of law rejecting the jury verdict. Now the Federal Circuit has affirmed, but on anticipation rather than eligibility grounds, and in doing so has clarified just how little remains of these claims once the printed matter is stripped away. C.R. Bard, Inc. v. AngioDynamics, Inc., No. 2023-2056 (Fed. Cir. Dec. 15, 2025) (per curiam, nonprecedential).

The patents at issue claim assemblies and methods for identifying "power injectable" vascular access ports. These are devices implanted beneath a patient's skin that allow medical providers to inject fluids directly into the veins. Power injection involves high-pressure, high-flow-rate delivery of contrast agents during CT imaging. Following a 2005 FDA warning about port failures during power injection, Bard developed ports with radiographic markers (the letters "CT" etched in titanium foil) that would appear on x-ray scout scans, allowing clinicians to confirm the port was rated for power injection before use. Representative claim 1 of US8475417 recites an assembly with "a first identifiable feature ... identifying the access port as suitable for flowing fluid at a [high] fluid flow rate" and "a second identifiable feature ... identifying the access port as suitable for accommodating a [high] pressure" where "one of the first and second features is a radiographic marker perceivable via x-ray." Dependent claim 5 further requires that "the radiographic marker is one or more radiographic letters."

The printed matter doctrine has become one of patent law's more complex areas, operating at the intersection of subject matter eligibility under Section 101 and the novelty and nonobviousness inquiries under Sections 102 and 103. The doctrine's core principle is that claim limitations directed to the content of information are not entitled to patentable weight unless that information has a "functional relationship" to its substrate. As the Federal Circuit explained in In re Gulack, 703 F.2d 1381 (Fed. Cir. 1983), the question is "whether there exists any new and unobvious functional relationship between the printed matter and the substrate." In Gulack, the court found such a relationship where digits printed on an endless wristband embodied a mathematical sequence; the physical structure of the band placed the numbers in specific spatial relationships that satisfied the claimed algorithm. But where information merely labels or describes the substrate without altering how the substrate functions, it receives no patentable weight.

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Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents

Patent

by Dennis Crouch

The Supreme Court is currently considering whether to grant certiorari in Lynk Labs, Inc. v. Samsung Electronics Co., No. 25-308, a case that could reshape the evidentiary foundation of inter partes review (IPR) proceedings. The question presented asks whether patent applications that became publicly accessible only after the challenged patent's critical date qualify as "prior art consisting of . . . printed publications" within the meaning of 35 U.S.C. § 311(b). In its January 2025 decision, the Federal Circuit held that published patent applications may serve as prior art in IPR proceedings as of their filing date under § 102(a)(2), even if those applications were confidential at the time the challenged patent was filed. Lynk Labs, Inc. v. Samsung Electronics Co., 125 F.4th 1120 (Fed. Cir. 2025). The petition has attracted substantial amicus support. I had begun drafting my own amicus brief in support of the petition but did not complete that project. Instead, I offer some of my thoughts here.

At its core, the case concerns what I have called the "secret springing prior art" problem: a reference that was secretly on file at the USPTO at the time a patent application was filed, but which only becomes publicly accessible when it is later published. See Dennis Crouch, Secret Springing Prior Art and Inter Partes Review, Patently-O (Oct. 2024). The Martin reference at issue in Lynk Labs was filed in April 2003 but did not publish until October 2004, well after Lynk's February 2004 priority date. Under 35 U.S.C. § 102(a)(2), Martin qualifies as prior art because it was on file before Lynk's application, even though it was entirely non-public at that time. The question is whether such a reference can form the basis of an IPR challenge, given that § 311(b) limits IPR to challenges based "only on the basis of prior art consisting of patents or printed publications." The Federal Circuit held that it can, reasoning that "printed publication" is "temporally agnostic" and that the prior art status of a reference is determined separately from its status as a printed publication. I find that reading difficult see - particularly with our long tradition that a printed publication is defined by its date of publication.

The Federal Circuit's error lies in conflating two distinct inquiries: whether a reference qualifies as prior art under § 102(a)(2) and whether it qualifies as a printed publication under § 311(b). The result is that abandoned, unexamined applications are backdated to destroy issued patents, privileging the least-vetted references over genuine publications that were actually accessible to the public before the critical date.

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Grounds for Reversal: Federal Circuit Finds KAHWA Registrable for Coffee Shops

Patent

by Dennis Crouch

Note, I've updated this post.  I had previously stated that Kahwa meant Coffee in Arabic, but that conclusion is not of record in the appeal.  And, the English-Arabic transliteration is typically Qahwa rather than Kahwa. 

In November 2025, I wrote about the still-pending cert petition in the trademark case of Vetements Grp. AG v. Stewart.  That case focuses on the doctrine of foreign equivalents and argues that the Federal Circuit applies its translation-based framework too rigidly and in tension with the Lanham Act's consumer-perception principles.  This week though the court released a new decision that complicates the narrative somewhat by reversing a TTAB refusal to register KAHWA for café and coffee shop services, holding that the doctrine of foreign equivalents did not apply because the term has a well-established alternative English meaning. In re Bayou Grande Coffee Roasting Co., No. 2024-1118 (Fed. Cir. Dec. 9, 2025).  The decision also imposed rigorous evidentiary requirements for genericness and descriptiveness findings, demanding actual marketplace evidence rather than speculation about what cafés might theoretically sell.

Bayou Grande has operated coffee shops in the Tampa Bay area under the KAHWA name since 2008. But, when the company sought federal registration of its name, the examining attorney refused under the doctrine of foreign equivalents, asserting that KAHWA means "coffee" (قهوة) in Arabic. The examiner also added alternative "grounds" based on KAHWA's meaning as a type of Kashmiri green tea. After Bayou Grande appealed, the Board declined to address the Arabic translation issue entirely, instead affirming the refusal based solely on the tea meaning. The Board reasoned that because KAHWA refers to a type of green tea, and because cafés serve tea, the mark was generic or merely descriptive of café services.

On appeal, the Federal Circuit disagreed on every point, finding the Board's genericness and descriptiveness determinations unsupported by substantial evidence and holding that the doctrine of foreign equivalents cannot apply when a foreign term has an established alternative English meaning.

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Label-Plus Liability: The Government Warns the Federal Circuit Misread Hatch-Waxman

Patent

by Dennis Crouch

The Solicitor General has recommended that the Supreme Court grant certiorari in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., No. 24-889, to resolve whether a generic manufacturer's FDA-compliant carved-out labeling and basic commercial statements can constitute active inducement of patent infringement. The government's December 2025 brief argues that the Federal Circuit's decision threatens to undermine the Hatch-Waxman Amendments' balance between promoting generic competition and protecting patent rights. Although the statute does not create immunity per se, the brief argues that the appellate panel erred by treating communications integral to the section viii skinny label pathway as evidence of culpable inducement -- and thus created a substantial disincentive for generic manufacturers to invoke a mechanism that Congress explicitly designed to prevent method-of-use patents from creating de facto monopolies on entire drug compounds.

The case involves Hikma's generic version of Amarin's Vascepa (icosapent ethyl).  The drug compound is no longer patented and the method-of-use patents covering severe hypertriglyceridemia treatment were held invalid in prior litigation between Amarin and Hikma.  But, using the drug to treat cardiovascular risk is still patented.  This is the exact situation for a "skinny label" carveout FDA approval - where a generic receives approval to market generic versions of a drug, but only for the unpatented purposes.  Hikma obtained FDA approval carving out Amarin's patented cardiovascular risk reduction indication while retaining only the non-patented severe hypertriglyceridemia indication.

The problem with the skinny label approach is that everyone knows that its the same generic drug and so folks are bound to use the generic version for the patented purpose.  Doctors may prescribe generic drugs for any indication, and pharmacists often cannot determine why a particular drug is prescribed. Moreover, all fifty states and the District of Columbia either permit or mandate generic substitution when therapeutically equivalent generics are available, and this substitution occurs without regard to whether the generic is labeled for the specific use for which the brand-name drug is prescribed.  What this means is that we have a situation where Congress designed the Skinny Label system in a way that inevitably leads to off-label infringement.

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The Unreviewable Director: How § 314(d) Shields the USPTO’s IPR Denial Regime from Judicial Oversight

Patent

by Dennis Crouch

The Federal Circuit has closed the courthouse doors on the second wave of challenges to the USPTO's restrictive new IPR institution policies. In four orders issued December 8-9, 2025, the same three-judge panel (Judges Prost, Chen, and Hughes) denied mandamus petitions from Cambridge Industries, SanDisk, Western Digital, HighLevel, and Inari Agriculture, each seeking to challenge discretionary denials of inter partes review institution. The decisions follow the court's November ruling in In re Motorola Solutions, Inc., No. 2025-134, 159 F.4th 30 (Fed. Cir. Nov. 6, 2025), and collectively establish that the "final and nonappealable" language of 35 U.S.C. § 314(d) bars virtually all judicial oversight of institution decisions, whether framed as constitutional due process claims, statutory ultra vires arguments, or Administrative Procedure Act challenges. The practical effect is stark: accused infringers now have no meaningful avenue to contest the USPTO's decision to deny IPR, even when those denials rest on criteria found nowhere in the America Invents Act.

The lead case, In re Cambridge Industries USA Inc., No. 2026-101 (Fed. Cir. Dec. 9, 2025), squarely addressed the "settled expectations" doctrine that has become the USPTO's primary tool for denying institution. The agency denied institution on two patents that had been in force for seven and nine years, finding the patent owner had "settled expectations" in those rights. The Federal Circuit refused to disturb that decision, rejecting Cambridge's arguments that the settled expectations factor exceeds statutory authority, was imposed without notice-and-comment rulemaking, and violates due process. The court emphasized that it was not deciding whether the USPTO's actions were correct or permitted by statute, but only that Cambridge had not shown a "clear and indisputable right" to mandamus relief given the limits on judicial review.

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Verdict Deflated: Fed Circuit Punctures Coda’s $64M Win Over Goodyear

Patent

by Dennis Crouch

A jury awarded $64 million to a Czech inventor who claimed Goodyear stole his self-inflating tire technology. The district court threw out the verdict. The Federal Circuit has now affirmed that decision, holding that no reasonable jury could have found trade secret misappropriation on any of the five asserted trade secrets. Coda Development s.r.o. v. Goodyear Tire & Rubber Co., No. 2023-1880 (Fed. Cir. Dec. 8, 2025). The decision offers a thorough examination of what it means to define a trade secret with "sufficient particularity" under state uniform trade secret acts (UTSAs), distinguishing between those that describe functional outcomes versus those that identify actual protectable knowledge.

The case also continues an observable pattern at the Federal Circuit: juries finding for IP holders, only to have courts conclude that no reasonable jury could have reached that verdict. The following is an incomplete list of some of these anti-jury pro-JMOL cases from 2024 and 2025 that I've been tracking in the patent context:

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Subject Matter Eligibility Declarations (SMEDs) to Overcome Eligibility Rejections

Patent

by Dennis Crouch

The USPTO has issued new guidance on using Rule 132 declarations to address subject matter eligibility rejections. The two memoranda, signed by Director John A. Squires on December 4, 2025, provide a new roadmap for how applicants can submit evidentiary declarations to overcome § 101 rejections. One memorandum is directed to the Patent Examining Corps, explaining how examiners should evaluate these submissions. The other is directed to applicants and practitioners, outlining best practices for preparing what the USPTO now calls "Subject Matter Eligibility Declarations" or SMEDs. The guidance does not create new procedures but instead highlights an existing and underutilized path under 37 C.F.R. § 1.132 for submitting evidence that may help establish patent eligibility.

The SMED guidance arrives as part of Director Squires's broader effort to address what he has characterized as "conflicting (and confusing) questions about patent subject matter eligibility." In his view, Examination and Eligibility are two distinct issues that should be separated. On his first day in office, Squires signed two patents in technical fields that have frequently faced eligibility challenges: distributed ledger/crypto technologies and medical diagnostics. Three days later, he issued the In re Desjardins Appeals Review Panel decision, Appeal No. 2024-000567 (PTAB Sept. 26, 2025), vacating a PTAB sua sponte § 101 rejection of claims directed to training machine learning models while preserving prior tasks. That decision, which Squires designated as precedential on November 4, 2025, warned against overbroad eligibility rejections and emphasized that improvements in "computational performance, learning, storage, data sets and structures" can constitute patent-eligible technological advancements under the Alice framework. The SMED memoranda represent the next step in this initiative, providing applicants with tools to build an evidentiary record supporting eligibility.

In the past, many patent attorneys have avoided filing Rule 132 declarations except as a last resort. The reasons are familiar: expense, the difficulty of establishing a sufficient nexus between the evidence and the claims, and concern about seeding the prosecution record with testimonial statements that could later be used against the patent owner in litigation. But I believe the SMED memoranda represent a new opportunity. Here, the Director is affirmatively inviting these submissions and signaling that they will be given meaningful weight in the eligibility analysis. For applications of potential value, practitioners should consider whether a SMED might strengthen their response to a § 101 rejection, ideally after vetting the approach with experienced patent litigation counsel who can help navigate the prosecution history implications.

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The Mythic Source of USPTO Institution Discretion?

Patent

by Dennis Crouch

We have another mandamus petition at the Federal Circuit challenging the USPTO's IPR institution denials. In re Tesla, Inc., No. 26-116 (Fed. Cir. filed Dec. 2, 2025). The case involves patents asserted by Granite Vehicle Ventures LLC against Tesla's Self-Driving technology. But the petition's significance extends well beyond this particular dispute. Tesla advances a statutory interpretation argument that, if accepted, would fundamentally constrain the USPTO's claimed authority to deny IPR institution based on factors Congress never authorized.

The core legal question is simple: Does 35 U.S.C. § 314(a) grant the Director unfettered discretion to invent new reasons to deny IPR institution? The USPTO has increasingly claimed discretionary power to justify denials based on a variety of novel explanations including "time-to-trial" concerns, "settled expectations," and other criteria that do not appear in AIA or its legislative history.  In its petition, Tesla argues the USPTO's approach transforms a provision limiting the Director's authority into an unlimited grant of power to nullify IPR entirely.

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Guest Post: The Supreme Court Should Clarify How to Apply Loper Bright in the Patent Law Case of Lynk Labs, Inc. v. Samsung Co. Ltd.

Patent

By Professor Timothy T.  Hsieh, Associate Law Professor, Oklahoma City University School of Law

For the past five years, I have taught Legislation & Regulation at Oklahoma City University School of Law, a course situated at the intersection of administrative law, statutory interpretation, and legislative design. Each semester, my students and I return to a foundational question: when, if at all, should courts defer to agency views, and when must the judiciary exercise independent interpretive judgment?

Loper Bright and Administrative Law

When the Supreme Court issued Loper Bright Enterprises v. Raimondo last year—squarely rejecting Chevron and instructing courts to independently interpret statutes—it marked a watershed moment in administrative law. Yet nearly a year later, the Court has provided virtually no guidance on how Loper Bright should be applied. That silence leaves courts, practitioners, and those of us training future lawyers without real-world examples to illuminate this new interpretive landscape.

That is why I submitted an amicus brief in Lynk Labs, Inc. v. Samsung Co. Ltd., urging the Court to grant review. Although the case arises in the patent arena, it presents a far more universal question: whether lower courts may quietly sidestep Loper Bright by elevating agency policy preferences over statutory text. (more…)

When Juries Don’t Matter: Written Description Effectively Becomes a Question of Law

Patent

by Dennis Crouch

In consecutive weeks, the Federal Circuit has reversed two jury verdicts totaling over $80 million in pharmaceutical patent disputes, holding in both cases that the specifications failed (as a matter of law) to satisfy §112(a)'s disclosure requirements. Seagen Inc. v. Daiichi Sankyo Company, Ltd., Nos. 2023-2424 (Fed. Cir. Dec. 2, 2025); Duke University v. Sandoz Inc., No. 2024-1078 (Fed. Cir. Nov. 18, 2025).

In my view, these cases represent a significant doctrinal development. I see these as revealing three interconnected trends:

  1. The Federal Circuit's increasing willingness to treat patent specifications as legal texts subject to judicial interpretation of the text rather than factual determinations of its meaning;
  2. The practical (re)convergence of written description and enablement into a unified adequacy inquiry; and
  3. The court's growing confidence in overturning jury verdicts on §112(a) grounds as a matter of law.

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So You’re Telling Me There’s a Chance: IPR Institution Rate Rises to 4%

Patent

by Dennis Crouch

The big USPTO news is that IPR grant rate has shifted from 0% up to 4%.  Although this is still incredibly low, breaking that zero-energy threshold is a major event. It calls to mind the immortal words of Lloyd Christmas (played by Jim Carey) "So you're telling me there's a chance."  

Since late October 2025, USPTO Director John Squires has issued a series of notices deciding institution of IPR petitions under his centralized review policy. The results through December 1, 2025 tell a stark story: of 105 IPR petitions fully processed, 99 were denied on discretionary grounds, 2 were denied on the merits, and just 4 have been granted institution. For finalized decisions, the institution rate now stands at approximately 4%.  I expect this to rise somewhat as the remaining 65 receive their judgment, but the numbers will not quickly return to the historic average institution rate of roughly 67%. 

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Objective Boundaries or Bust: CAFC Reaffirms Indefiniteness for the Best Metrics

Patent

by Dennis Crouch

The Federal Circuit has affirmed a judgment invalidating patent claims for indefiniteness where the claims used "optimal" and "best" language without providing objective boundaries for those terms of degree. Akamai Technologies, Inc. v. MediaPointe, Inc., No. 2024-1571 (Fed. Cir. Nov. 25, 2025).

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USPTO’s “Don’t Ask, Don’t Tell” Policy: The Quiet Death of Thaler and the Legal Fiction of Human Inventorship

Patent

by Dennis Crouch

The Federal Circuit's 2022 decision in Thaler v. Vidal seemed to settle a fundamental question: only natural persons can be inventors under U.S. patent law.  But, the bigger near-term question has always been about human-AI collaboration - and what level of human contribution is sufficient to qualify as inventive.  Director Kathi Vidal implemented a team-based framework that allowed patenting if the human made a "more than insignificant contribution" to the invention.  This approach basically asked whether the human had done enough to be considered a joint joint inventor (alongside the AI). While that approach had some conceptual problems (permitting patenting without complete human inventorship), it - at least - set a standard for the agency to consider.

In a November 2025 guidance, new USPTO Director John Squires has rejected the Vidal approach and instead established a "don't ask, don't tell" policy for AI-assisted inventions creates a presumption of human inventorship so long as any natural person is willing to sign the oath.  For all practical purposes, this approach is also a repudiation of Thaler, so long as the patent applicant is able to find a human close to the invention willing to self-identify as the inventor. The system now effectively rewards an old habit in invention culture: when attribution becomes optional and unverifiable, someone will always be willing to step forward and claim the mantle of inventor.  In a chapter I wrote a few years ago examining corporate invention, I observed: "It is easy to identify a human with some relation to the product or innovation and prop-up that human as the inventor." Dennis Crouch, Legal Fictions and the Corporation as an Inventive Artificial Intelligence in R. Abbott ed., Research Handbook on Intellectual Property and Artificial Intelligence (Edward Elgar Publ’g 2022).

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Happy Thanksgiving: CLE and a Tax Question

Patent

It is wonderful to spend a few days with friends and family.  This morning I’m booking travel for some upcoming events.

Hope to see you there.

CLE can be expensive: My understanding is that US lawyers can now use a 529 Education plan to pay for CLE (tuition but not travel). Is this something that lawyers are doing, or is it not available if being reimbursed by the firm? And, does it matter if characterized as client development?

Can Money Talk? Latest IPR Mandamus Petitions Seek Workarounds to § 314(d) Bar

Patent

by Dennis Crouch

Three new mandamus petitions recently arrived at the Federal Circuit, each attempting to navigate around the court's November 6 decisions that rejected challenges to the USPTO's expanded use of discretionary denials.

The new petitions raise arguments their counsel contend are distinct from those already rejected in In re Motorola Solutions, Inc., No. 2025-134 (Fed. Cir. Nov. 6, 2025) (precedential). The petitions challenge both the "settled expectations" rule and parallel proceeding denials, while advancing novel theories designed to overcome the § 314(d) bar that has proved insurmountable for prior petitioners. Whether these distinctions carry legal weight remains to be seen, but the filings reflect a coordinated effort to keep pressure on the Federal Circuit as Director John Squires continues to deny IPR institution at a 0% rate.

Since assuming personal control of all IPR institution decisions in October 2025, Director Squires has denied every petition reaching his desk, now totaling 91 consecutive denials. These summary notices contain no reasoning or analysis, listing only IPR numbers alongside the statement institution "is denied." The practice stands in stark contrast to the PTAB's historic institution rate of approximately 67%. Meanwhile, the USPTO's proposed rulemaking (comments due December 2, 2025) would codify categorical bars to IPR institution without addressing the "settled expectations" doctrine or the practice of no-explanation denials. (Note that these  new petitions are all based upon actions by Acting Dir. Stewart, the Squires-prompted petitioners are coming next month).

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Should American Trademark Law Speak English

Patent

by Dennis Crouch

The Solicitor General has urged the Supreme Court to deny certiorari in Vetements Group v. Squires, defending the PTO's practice of translating foreign-language marks into English to assess their protectability. The French fashion company petitioned SCOTUS for review after the Federal Circuit affirmed the TTAB's refusal to register VETEMENTS (the French word for "clothing") as a trademark for clothing and clothing-related retail services. The government's opposition crystallizes a fundamental dispute about whose understanding of the marketplace should control trademark registration: Should marks be evaluated as encountered by American consumers in their linguistic diversity, or should they be systematically translated into English to prevent monopolization of generic terms?

Beneath the doctrinal arguments lies a deeper tension between two competing visions of American identity. One tradition emphasizes English as the baseline language of American commerce, treating foreign terms as American consumers actually encounter them (often without understanding their meaning). The opposing tradition recognizes America's multilingual reality, where millions speak French, Spanish, and Chinese; and insists their understanding must count in the marketplace. The case asks the Court to choose: is there an "ordinary American consumer" who processes commerce in English, or are we a polyglot nation where linguistic diversity shapes how brands communicate meaning?

The focus here is the continued vitality of the "doctrine of foreign equivalents," a judicially created guideline that requires translation of foreign words from common modern languages to determine whether they are generic or merely descriptive. The Federal Circuit applied this doctrine to conclude that an "appreciable number" of American consumers would "stop and translate" VETEMENTS into "clothing," rendering it generic and thus ineligible for federal registration. Vetements Group argues this translation-first approach conflicts with 19th Century Supreme Court precedent treating foreign terms as inherently protectable and with the consumer-perception principle that the Court reaffirmed in USPTO v. Booking.com, 591 U.S. 549 (2020). The government responds that the doctrine reflects sound policy, has deep historical roots predating the Lanham Act, and was implicitly ratified by Congress in 1946.

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Time to Merge the Copyright Office with the USPTO

Patent

by Dennis Crouch

In May 2025, President Trump terminated Copyright Register Shira Perlmutter from office, one day after she released a report concluding that in some situations AI training on copyrighted works scraped from the internet does not qualify as fair use.  But, the D.C. Circuit Court of Appeal put her back in office pending resolution of the lawsuit.  Most recently, the Trump Administration has asked the Supreme Court to vacate that injunction in Blanche v. Perlmutter, No. 25A478, arguing that Article II empowers the President to remove executive officers regardless of their organizational placement within the government.  The crux of the dispute centers on the odd structure of the Copyright Office -- designated as part of the Library of Congress and under Congressional control rather than as an executive branch.

A new bill introduced by Rep. Morgan Griffith would restructure the Copyright Office entirely, severing it from the Library of Congress and reconstituting it as a standalone executive branch agency under direct presidential control. H.R. 6028. The Legislative Branch Agencies Clarification Act, represents one approach to resolving the separation of powers problems now before the Court.

I believe there is a better path forward: Consolidating the Copyright Office with the United States Patent and Trademark Office to create a unified United States Intellectual Property Office (USIPO).

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0% Institution Rate Holds, but Shows Signs of Potential Rise

Patent

by Dennis Crouch

Director John Squires has released a new set of IPR institution decisions. The third grouping since taking personal charge of the institution decision making process in October 2025. Once again, the institution rate remains 0%, but the newest batch include some ray of hope for petitioners.

Let me explain. By mid-November, Dir Squires had decided 34 institution decisions - denying each and resulting in my 0% institution rate post.  The newest batch includes three groupings:

  • 56 new cases discretionarily denied;
  • 31 new cases that were not denied, but that still need to "be reviewed for merits and non-discretionary considerations;"
  • 1 new case denied on the merits; and
  • 0 new cases instituted.

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Federalism on Trial: Idaho’s Attempt to Regulate Patent Litigation

Patent

by Dennis Crouch

Micron v. Longhorn IP, Appeal No. 2023-2007 (Fed. Cir. 2025)

This interesting pending case focuses on an Idaho state law  regulating patent trolls. Idaho Code § 48-1703(1).

"It is unlawful for a person to make a bad faith assertion of patent infringement in a demand letter, a complaint or any other communication."

Back in 2022, Katana, an affiliate Longhorn, sued Micron for patent infringement in the W.D.Tex. Micron responded in two ways: it asserted a counterclaim under Idaho's statute in the Texas case and, one month later, filed a separate Idaho action against Longhorn under the same theory. The cases were later consolidated in Idaho, and Judge David Nye ordered Longhorn or Katana to post an $8 million bond under the Idaho law before the case could move forward.  In the process, Judge Nye upheld the Idaho law against preemption and First Amendment (petition the government) challenges and also found a "reasonable likelihood" of bad faith assertion by Katana. The case is now on appeal before the Federal Circuit with oral arguments held recently before Judges Lourie, Schall, and Stoll.

Idaho is the only state whose anti-troll statute expressly regulates complaints filed in federal court. Most states, including Vermont, explicitly exclude litigation conduct from their statutes. Vt. Stat. Ann. tit. 9, § 4197(a). Idaho's statute also authorizes an uncapped bond when a target shows "reasonable likelihood" of bad faith, without requiring findings equivalent to either the Federal Circuit's established standard for bad faith assertion liability which requires objective baselessness plus subjective bad faith.  See also, Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, 508 U.S. 49 (1993) (sham litigation test).

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