by Dennis Crouch

The War Industry (formerly Defense) heavily invests in new technology and patents. But, we see very few patent infringement lawsuits. A key reason is 28 U.S.C. § 1498. That statute channels patent infringement claims involving government-authorized work away from private defendants and into the U.S. Court of Federal Claims, with the United States as the sole defendant (and a reasonable royalty as the only remedy). For government contractors and subcontractors, § 1498 operates as a powerful shield: if the infringing activity was performed "for the Government" and "with the authorization or consent of the Government," the patent holder's only remedy is a compensation action against the United States. The contractor walks free. This design reflects a deliberate policy choice. The government pays heavily for technology development with taxpayer dollars and, in exchange, retains control as the key point person - and it allows the administration to resolve patent disputes as it sees fit.

In Arlton v. AeroVironment, Inc., No. 2021-2049 (Fed. Cir. Feb. 2026) (nonprecedential), the Federal Circuit affirmed summary judgment shielding AeroVironment from patent infringement liability under § 1498 for its work developing NASA's Ingenuity Mars helicopter and a terrestrial copy called "Terry." The Arltons — co-inventors and co-owners of U.S. Patent No. 8,042,763, covering a counter-rotating coaxial rotor UAV — had developed the underlying technology under Small Business Innovation Research (SBIR) contracts with the military. When the government declined to award them follow-on work and instead contracted with AeroVironment through JPL and NASA, the Arltons sued AeroVironment for infringement.

by Dennis Crouch

Samsung and the U.S. government have filed briefs urging the Supreme Court to deny certiorari in Lynk Labs, Inc. v. Samsung Electronics Co., No. 25-308. At issue is whether a patent application filed before a challenged patent's priority date, but not published until afterwards, can serve as prior art in inter partes review. The Federal Circuit held that it can, applying the filing-date rule of pre-AIA 35 U.S.C. § 102(e)(1).  As I write below, I was not overly impressed with they briefing.

The case centers on the "Martin" reference, a patent application covering LED technology that was filed on April 16, 2003 and published on October 21, 2004. Martin was later abandoned and never became a patent. Lynk Labs' '400 patent claims a priority date of February 25, 2004, placing it squarely in the gap between Martin's filing and publication dates. Samsung successfully used Martin to challenge claims of the '400 patent as obvious in IPR.

As part of its streamlining effort, Congress limited what prior art can be used in inter partes review proceedings - only "prior art consisting of patents or printed publications." 35 U.S.C.  § 311(b).  Although Martin was not publicly accessible when Lynk Labs filed its application, Martin was later published and also qualifies as prior art under pre-AIA 102(e)(1) (or its parallel post-AIA statute 102(a)(2)).  In reading the statute, the court concluded that Martin can be used in an IPR because it satisfies each of the two requirements (prior art + printed publication) even though its prior art date is well before its publication date.  Lynk's cert petition frames this as a question about whether "printed publications" in § 311(b) carry the traditional public-accessibility timing requirement, or whether a published patent application can be backdated as prior art to its filing date in IPR.

I have previously written about this case at several stages. Dennis Crouch, Secret Springing Prior Art and Inter Partes Review, Patently-O (Oct. 2024); Dennis Crouch, Publications Before Publishing and the Federal Circuit's Temporal Analysis, Patently-O (Jan. 2025); Dennis Crouch, Prior Art Document vs. Prior Art Process, Patently-O (July 2025); Dennis Crouch, Supreme Court Asked to Resolve "Secret Springing Prior Art" in Inter Partes Review Proceedings, Patently-O (Sept. 2025); Dennis Crouch, Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents, Patently-O (December 2025).

Before getting into the merits of the responses, I first want to note how both briefs appear shockingly disingenuous in their discussion of the limited impact of the decision.

by Dennis Crouch

Last month I examined the challenges of single-reference obviousness rejections, where examiners attempt to show that a claimed invention would have been obvious based on just one prior art document. The opposite problem deserves equal attention: obviousness rejections that pile on reference after reference, sometimes combining five, seven, or even a dozen separate documents to reconstruct the claimed invention. In a thoughtful new working paper, patent attorney John Goodhue argues that the Federal Circuit should reconsider In re Gorman, 933 F.2d 982 (Fed. Cir. 1991), which held that "the criterion is not the number of references, but what they would have meant to a person of ordinary skill in the field." John Goodhue, Rethinking In Re Gorman: Why the Number of References Does Matter in Obviousness Determinations Under 35 U.S.C. § 103 (Working Paper, 2026). Goodhue's diagnosis: when an examiner assembles numerous disparate references to arrive at a claimed invention, this strongly suggests hindsight reconstruction rather than forward-looking obviousness analysis.

Goodhue proposes a tiered presumption framework keyed to reference count. Under his approach, one to two references would trigger no presumption; three references would create a weak presumption against obviousness; four to five references would create a moderate presumption; and six or more would create a strong presumption rebuttable only in exceptional circumstances. The presumption would yield to evidence that the references teach the same solution, that multi-reference synthesis is routine in the field, or that one reference explicitly directs combination with others. While I share Goodhue's concerns about kitchen-sink rejections, I suggest that creating numerical thresholds and novel presumptions is unnecessary. The existing doctrinal requirements of motivation to combine and reasonable expectation of success already contain the tools needed to police multi-reference combinations. When applied properly, these requirements simply become harder to satisfy as reference count increases.  In my view, courts and the Patent Office should recognize this relationship rather than layering on new presumptions.

by Dennis Crouch

In January 2026, USPTO Director John Squires issued his first decision targeting a Chinese state-linked entity's inter partes review petition, and the result is both less dramatic and more revealing than the national-security framing might suggest. Yangtze Memory Technologies Co. v. Micron Technology, Inc., IPR2025-00098 & IPR2025-00099, Paper 38 (USPTO Jan. 15, 2026).  The Director vacated the PTAB's decisions granting institution and denied YMTC's petitions challenging two Micron NAND flash memory patents (U.S. Patent Nos. 8,945,996 and 10,872,903). The decision is designated informative.

The case sits at the intersection focal points. The first is geopolitical. YMTC is a Chinese semiconductor manufacturer founded in 2016 by the partially state-owned Tsinghua Unigroup with approximately $24 billion in initial state-backed investment. The company was placed on the Bureau of Industry and Security's Entity List in December 2022 as an organization "reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States." 15 C.F.R. § 744.11. The Department of Defense separately designated YMTC as a "Chinese Military Company Operating in the United States" in January 2024. Against this backdrop, YMTC filed IPR petitions challenging two Micron NAND flash memory patents. After Micron sought Director Review, Dir. Squires issued a Show Cause order on November 10, 2025, requiring YMTC to justify why adjudicating its petitions was an appropriate use of the Office's limited resources given its Entity List designation. See Dennis Crouch, Shutting the Patent Office Door: YMTC and the Entity List, Patently-O (Nov. 16, 2025).

The second focal point is IPR process. Dir. Squires has been systematically tightening the IPR petition process, including the real-party-in-interest requirement. In September 2025, he de-designated SharkNinja Operating LLC v. iRobot Corp., IPR2020-00734, Paper 11 (PTAB Oct. 6, 2020), which had permitted PTAB judges to ignore RPI deficiencies in some instances. With SharkNinja gone, the statutory text of § 312(a)(2) returned to full force as an independent threshold requirement: a petition "may be considered" only if it identifies "all" real parties in interest.  Failure to disclose means the petition is simply not in condition for consideration.

by Dennis Crouch

The United States Patent and Trademark Office has filed two intent-to-use trademark applications for the mark BOARD OF PEACE, the name of the international body President Trump formally launched at the World Economic Forum in Davos on January 22, 2026. Trump described it as "the Greatest and Most Prestigious Board ever assembled at any time, any place." The trademark applications, both signed and filed personally by USPTO Director John A. Squires, represent an unusual instance of a federal agency seeking trademark protection for a nascent governmental initiative.

The first application, Serial No. 76720938, was filed on December 30, 2025, for a standard character mark. The second application, Serial No. 76720939, filed January 21, 2026, covers a design mark featuring a globe superimposed on a shield flanked by laurel branches. The logo used at the Board of Peace's inaugural meeting features a globe showing most of the United States along with portions of the Western Hemisphere, rendered in a gold color scheme. Both applications identify the USPTO itself as the applicant, described as an "Agency of the United States Government" holding rights in stewardship.

by Dennis Crouch

The Federal Circuit's decision in Range of Motion Products, LLC v. Armaid Company Inc., No. 2023-2427 (Fed. Cir. Feb. 2, 2026), affirms summary judgment of non-infringement in a design patent dispute involving body massaging devices.  The most important part of the case is Chief Judge Moore's dissent, which offers an attack on how the Federal Circuit has been applying the "plainly dissimilar" standard for design patent infringement. Drawing on psychological research, empirical survey data from recent amicus briefs, and a children's puzzle from Highlights magazine, Chief Judge Moore argues that the court's post-Egyptian Goddess framing has fundamentally shifted the infringement analysis away from the Supreme Court's "substantially similar" test in Gorham Co. v. White, 81 U.S. 511 (1871).

The majority opinion in this case, authored by Judge Cunningham and joined by Judge Hughes, dismisses these concerns in a footnote, setting up what may become a vehicle for Supreme Court review.  Note that in September 2025, the Federal Circuit denied en banc rehearing on a similar issue in North Star Technology v. Latham Pool Products, 23-02138 (Fed. Cir. 2025).

The oral arguments included lots of interesting statements including the following:

Judge Hughes: Well, first of all, the problem is you have failed to give a specific claim construction that would allow us to determine what's ornamental and what's not. You just say "the appearance." Well, that's just like your dumb patent ...

Chief Judge Moore: You said that out loud. That was not just in your head.

Judge Hughes: I'm perfectly content saying it out loud. I mean, you look at the front of your blue brief and you say the claim is this picture. Well, sure, that's the way you do design patents, but when you're doing claim construction, we use words and you have to give them words. And just saying "overall appearance" is not words.

Judge Hughes also authored the North Star Tech. opinion.  Listening to the North Star Tech oral arguments, I also note Judge Chen's disregard of the patent in that case:

Judge Chen: I mean, we've had rectangular pools since there were pools. We've had rectangular tanning ledges ever since there were tanning ledges. We've had full-width steps from tanning ledges to the other part of the pool since forever. We've had deep-end benches since forever. And so I don't understand what was the contribution. What's the ornamentality here? Because other than what I just identified, this pool design doesn't have anything. It's so elemental. So basic.

by Dennis Crouch

As January 2026 wraps up, I wanted to take a fresh look at the Supreme Court patent docket.  The centerpiece is Hikma v. Amarin after the Court granted certiorari on January 16, 2026. Hikma focuses on the doctrine of inducement - and particularly on how the patent doctrine fits with the Hatch-Waxman Act's skinny label provisions. The Court previously looked at Skinny Label litigation almost fifteen years ago in Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. 399 (2012). That earlier case addressed the Hatch-Waxman counterclaim provisions but did not resolve when a generic manufacturer's marketing conduct crosses the line into inducement. Several other petitions have attracted Court attention through "Response Requested" orders, including cases challenging the Federal Circuit's Section 101 jurisprudence and the scope of prior art available in inter partes review proceedings.

The docket's composition reflects persistent tensions in patent law. Three petitions have received orders requesting responses from parties who initially waived their right to respond: United Services Automobile Association v. PNC Bank N.A., No. 25-853 (abstract idea eligibility); Agilent Technologies, Inc. v. Synthego Corp., No. 25-570 (prior art enablement); and Lynk Labs, Inc. v. Samsung Electronics Co., No. 25-308 (printed publications in IPR), which has attracted a number of amicus briefs. Two petitions are scheduled to be decided at the February 20, 2026 conference, and two others are on deck - having received extensions of time to file. Two interesting trademark cases pending before the court include RiseandShine Corp. v. PepsiCo, Inc., No. 24-1016, asking whether trademark strength is a question of fact; and Curtin v. United Trademark Holdings, Inc., No. 25-435, which focuses on standing to oppose trademark registrations.

by Dennis Crouch

The Solicitor General has filed a brief urging the Supreme Court to deny certiorari in Thaler v. Perlmutter, the case testing whether artificial intelligence can be recognized as an author under copyright law. The government's opposition takes a notably restrained approach, relying entirely on statutory interpretation while avoiding the policy arguments about innovation incentives and economic impact that have dominated public discourse. The brief includes a strategic reframing of the question presented -- attempting to narrow the case its unusual facts while leaving open the genuinely difficult questions about human-AI collaboration that will define copyright's future in the near term. Brief for the Respondents in Opposition, Thaler v. Perlmutter, No. 25-449 (U.S. Jan. 2026).

The case arises from computer scientist Stephen Thaler's application to register copyright in "A Recent Entrance to Paradise," a visual artwork generated by his AI system called the "Creativity Machine." Thaler's application listed the Creativity Machine as the sole author and stated the work was "created autonomously by machine" without any human creative contribution.

The Trump Administration brief is notable for its restrained approach, relying entirely on statutory text and structure without invoking policy arguments about innovation or economic impact. At the same time, the government's framing of the human authorship requirement appears more permissive than the Copyright Office's recent registration decisions have suggested. The brief quotes the district court opinion for the proposition that that copyright protection remains available for AI-assisted works in very broad terms:

The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself.

This language could be read to encompass a broader range of AI users than the Office has previously accepted.

In these situations, the US Gov't brief will be signed by lawyers from both the DOJ and Copyright Office.  In this case, we only see DOJ attorneys, which suggests some disagreement in approach.  Of course, the Trump Administration (in control of the DOJ) is currently in litigation to remove the Copyright Registrar Shira Perlmutter, and so a lack of cooperation is not surprising.

The USPTO classifies patent applicants into three entity categories: large entities (regular undiscounted), small entities (businesses with fewer than 500 employees, independent inventors, nonprofits), and micro entities (those meeting additional income and filing history limits). These classifications determine fee structures, with small entities receiving a 61% discount and micro entities an 80% discount on most USPTO fees.  These fee categories create an convenient mechanism for categorizing patent applicants and their patenting activity.

I analyzed USPTO disposition data for published patent applications from January 1-27, 2026, examining applications that either issued as patents or were abandoned during this period. Frankly, I was surprised by the disparity. Overall, 74% of disposed applications resulted in patents. But the allowance rate varies dramatically by entity size: large entities achieved an 80% allowance rate, small entities 61%, and micro entities just 40%.

by Dennis Crouch

The Federal Circuit has affirmed summary judgment against a trade secret plaintiff who, in the court's view, failed to adequately identify the boundaries of its alleged secrets. Applied Predictive Technologies, Inc. v. MarketDial, Inc., No. 24-1751 (Fed. Cir. Jan. 28, 2026) (nonprecedential).  This is a reality of trade secret litigation today - plaintiffs must explain the bounds of their alleged trade secrets both with clarity and supporting evidence showing that the specific information derives independent economic value from not being generally known or readily ascertainable by proper means.

The case is also interesting because it involves a McKinsey business consultant who started a new company to compete with a former client.