Twenty and Done: The Fee-Driven Collapse of Claim Count Diversity

Patent

The chart below tells a twenty-year story about how fee structure shapes patent scope. In 2005, the distribution of claims per U.S. utility patent looked roughly like what you might expect: a broad spread, peaking somewhere around 8-14 claims, with a long tail extending past 50. The 20-claim mark was visible, but a bump. Only 6% of patents issued with exactly 20 claims that year. By 2025, the picture has changed beyond recognition. A full 28% of utility patents now issue with exactly 20 claims. That bar dominates the histogram (especially once I colored it red).

Distribution of Claims per U.S. Utility Patent: 2005 vs 2025. The 2005 histogram shows a broad distribution with 6% at 20 claims. The 2025 histogram shows 28% of patents at exactly 20 claims.

The cause is no mystery. Section 41(a)(1) of the Patent Act authorizes the USPTO to charge fees for each claim in excess of 20. Those fees have risen dramatically over the year and in January 2025 the USPTO doubled them from $100 to $200 per excess claim for large entities ($80 for small entities, $40 for micro entities). The fee for each independent claim beyond three also increased, from $480 to $600. The result is a system where the 20-claim threshold is beginning to function as a fairly hard wall. Patent applicants and their attorneys have responded rationally: they draft to the threshold and stop. (more…)

Soak and Pounce: 1920’s Style Submarine Patents

Patent

by Dennis Crouch

Long before patent lawyers coined the term “submarine patent,” practitioners had a different name for the same mischief. I was reading through briefing in the old laches case of Chapman v. Wintroath, 252 U.S. 126 (1920) where respondent’s counsel Paul Synnestvedt described the practice of letting an application

Soak in the office for years until the trade had  independently developed the invention, when the applicant would come out with a divisional application and pounce upon the unfortunates who had proceeded to build up a business on the invention.

Soak and pounce.  It isn’t clear to me if Synnestvedt was intending “soak” to be in the same hidden-under-water sense as submarining, or if it was more of a marinade. Either way, the complaint is that applicants were using the Patent Office’s procedures to lie in wait while industry invests in technology, then emerging with claims calibrated to capture those investments by others. (more…)

Patently Unreasonable: Hyatt’s Return to the Supreme Court and the Fight Over Prosecution Laches

CAFC, Patent

by Dennis Crouch

Gilbert P. Hyatt has been litigating with the U.S. Patent and Trademark Office for longer than many patent attorneys have been alive. In 1968, Hyatt quit his engineering job at Teledyne and retreated to the family room of his Northridge, California home to design a computer that could fit on a single silicon chip. He filed his first patent application in December 1970, and the Patent Office eventually granted him US Patent No. 4,942,516 for “Single Chip Integrated Circuit Computer Architecture.” That was in 1990, twenty years after filing. The patent was later partially invalidated in an interference with Texas Instruments, but Hyatt had already collected millions in licensing fees from Sony, Nikon, Sharp, Toshiba, Philips, and Panasonic.

Hyatt holds 75 issued patents. And, he is also no stranger to the Supreme Court. In Kappos v. Hyatt, 566 U.S. 431 (2012), a unanimous Court sided with him on the scope of de novo review in § 145 civil actions against the PTO. And the Justices heard Franchise Tax Board of California v. Hyatt three separate times, in 2003, 2016, and 2019, in a sprawling tax dispute that ultimately led the Court to overrule Nevada v. Hall and hold that states have sovereign immunity from private suits in sister-state courts. 587 U.S. 230 (2019). Now, at 87, Hyatt is petitioning the Supreme Court once again, this time asking the Justices to take up a question that has been brewing for more than two decades: whether the judicially created doctrine of “prosecution laches” can override the Patent Act’s statutory timing provisions to deny a patent to an applicant who met every deadline Congress set. Hyatt v. Squires, No. 25-1049 (cert. petition filed Mar. 2, 2026).

The petition presents a clean and focused question of law with potentially major consequences. Hyatt argues that the Federal Circuit’s prosecution laches doctrine directly conflicts with the Supreme Court’s holdings in SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328 (2017), and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), both of which held that laches is a “gap-filling doctrine” that cannot apply when Congress has enacted statutory timing rules. The Patent Act, Hyatt argues, contains comprehensive timing provisions governing every step of prosecution, from initial filing through continuation practice, office action responses, PTAB appeals, and judicial review. With no gap to fill, there is no room for the courts or the PTO to invent their own timeliness rules.

Although Hyatt’s case involve extreme timelines, there are many who would like to expand the laches doctrine to encompass a much wider swath of cases. According to PTO data cited in the petition, nearly 20% of all continuation patent applications are filed more than six years after earliest US filing date, and over a third of the patents protecting the most successful pharmaceutical products exceed that threshold. Under the Federal Circuit’s six-year delay presumption used in other contexts, all of these patents are potentially vulnerable. (more…)

Two Rejections Per Allowance

IPR, Patent

by Dennis Crouch

Over the past several weeks, I published a trilogy of posts examining USPTO allowance rates from three different temporal vantage points: filing cohort dates, applicant disposal dates, and examiner action dates.

Each approach answers a slightly different question about when and how examination policy produces outcomes. This post adds a complementary dataset: instead of looking at final outcomes (allowance or abandonment), it looks at the office actions themselves.

Three charts below are all built from a dataset of published utility patent applications and plotted as three-month moving averages that smooths the data a bit. (more…)

Forthwith, Part II: CIT Orders Refunds for All Importers, Not Just Litigants

CAFC, ITC, Patent

by Dennis Crouch

Two weeks after the Supreme Court declared the IEEPA tariffs illegal, and two days after the Federal Circuit issued its mandates returning the case to the trial court, U.S. Customs and Border Protection was still liquidating import entries with the unlawful duties baked in. No refunds had been issued. White House controlled CBP Automated Commercial Environment system kept churning through previously filed entries as if Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026), had never happened.

In Atmus Filtration, Inc. v. United States (Ct. Int’l Trade Mar. 4, 2026), Judge Richard Eaton issued an order that goes well beyond the individual case before him. Eaton declared that “all importers of record whose entries were subject to IEEPA duties are entitled to the benefit of the Learning Resources decision” and directed CBP to liquidate all unliquidated entries “without regard to the IEEPA duties.” For entries already liquidated but not yet final, CBP must reliquidate on the same terms. The order applies regardless of whether an importer has filed its own complaint. To hold otherwise, Judge Eaton wrote, “would be to thwart the efficient administration of justice and to deny those importers who have filed suit the efficient resolution of their claims, and to deny entirely importers who have not filed suit the benefit of the Learning Resources decision.” The CIT’s Chief Judge has designated Eaton as the sole judge for all IEEPA refund cases, and Eaton has scheduled a closed conference for March 6 at which the government must present a plan for administering refunds without requiring each of the thousands of affected importers to file individual complaints. (more…)

The Law/Fact Lever: How the Federal Circuit Can Control Obviousness Outcomes

CAFC, Obviousness, Patent

by Dennis Crouch

Obviousness occupies an unusual place in patent law’s procedural architecture. The Supreme Court in Graham v. John Deere Co., 383 U.S. 1 (1966), declared it “a question of law” while simultaneously identifying four “underlying factual inquiries” that must be resolved: the scope and content of the prior art, differences between the prior art and the claims, the level of ordinary skill, and any objective indicia of nonobviousness.  The Graham test does not explain where we fit in additional inquiries of motivation-to-combine and reasonable-expectation-of-success, but we do know that these are also factual questions.  What that means procedurally is that the judgment of the fact finder (often a jury or PTAB panel) is given deference on appeal.

But the mixed character of obviousness gives the Federal Circuit a powerful tool. By recharacterizing a fact-finder’s assessment of the evidence as reflecting error of a “legal standard,” the court can sidestep deferential review entirely.  Questions of law are reviewed afresh – de novo – on appeal without any deference given to the lower court’s judgment or reasoning.  A new nonprecedential decision illustrates how this works in practice. Medivis, Inc. v. Novarad Corp., No. 2024-1794 (Fed. Cir. Mar. 3, 2026).

The patent at issue, US11004271, covers methods of augmenting a surgeon’s real-time view of a patient through an augmented reality headset. (more…)

Federal Circuit Dissent Rates Collapse After Newman’s Removal

Patent

by Dennis Crouch

Justice John Marshall Harlan earned the title “The Great Dissenter” of the 1800s. Judge Pauline Newman holds that title for the millennium era – with over 300 dissents in precedential cases in just the final two decades of her tenure alone. To an extent that existing scholarship has only begun to capture, Newman’s voice of disagreement defined the Federal Circuit’s internal dialogue on patent law. An empirical analysis of almost 5,000 precedential Federal Circuit opinions issued between 2004 and early 2026 reveals just how dramatically this one judge shaped the court’s culture. We now have two full calendar years of post-Newman data, and the results are striking: in 2024 and 2025, the court’s dissent rate fell dramatically.  The Federal Circuit has become, in the space of two years, one of the most consensus-oriented appellate courts in the federal system.

The data tell a straightforward story. From 2005 through 2022, the Federal Circuit’s dissent rate in precedential opinions averaged about 19%. In some years it ran higher: the 2011-2013 period saw rates of >25%, the highest sustained period of disagreement in the dataset, driven by the doctrinal upheaval surrounding both Alice and the America Invents Act. In other years the rate dipped to around 13-14%. But it never once fell below double digits. In 2023, the year Newman was suspended from the bench, the rate dropped to 10%. In 2024, it fell to 6%,; and in 2025 the rate was even lower. The Federal Circuit’s dissent rate is settling into a new equilibrium roughly one-third of what it was for the prior two decades.

Federal Circuit Dissent Rate in Precedential Opinions, 2005-2026

The structural explanation for this decline is not complicated: Judge Newman dissented far more frequently than any of her colleagues, and when she was removed, the dissents left with her. But the magnitude of the effect is actually much greater than what can be accounted for from Newman’s direct impact on panel opinions. As discussed below, the court’s dissent rate has fallen not just by the amount attributable to Newman’s own dissents, but to roughly half the historical baseline of even non-Newman panels—suggesting her departure transformed the court’s broader culture of disagreement.

(more…)

Guest Post: Design Patents at the ITC

Design Patent, ITC, Patent

By Sarah Fackrell, Professor of Law at Chicago-Kent College of Law

In the Matter of Certain Cameras, Camera Systems, and Accessories Used Therewith, No. 337-TA-1400 (ITC 2026).

Last week, the ITC issued a limited exclusion order in a dispute between GoPro, Inc. and Arashi Vision, Inc. (d/b/a Insta360). The order covered “certain cameras and camera systems” which, in the Commission’s view, infringed U.S. Patent No. D789,435.  In reaching this conclusion, the ITC appears to be requiring a much lower standard of visual similarity than the Federal Circuit does.

In deciding that the D’435 patent was infringed, the Commission affirmed—without  further discussion—the finding of infringement in the Initial Determination that was issued by ALJ Doris Johnson Hines on July 10, 2025. In that decision, Judge Hines seems to have been persuaded to not only require a lower overall level of similarity than the Federal Circuit currently requires, but to also effectively ignore several claimed design elements, disregarding them as visually “minor,” “trivial,” or otherwise unimportant.

It is true that there is a longstanding line of Federal Circuit cases saying that “minor differences between a patented design and an accused article’s design cannot, and shall not, prevent a finding of infringement.” See Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed. Cir. 1984). But that doesn’t—and shouldn’t—mean that a judge (or a jury) can completely read claimed visual elements out of a design patent claim. (For more on how I’m using the word “element” here, see Intelligent Design & Egyptian Goddess, 68 Duke L.J. Online 94, 109 (2019)).

For example, consider this image (from GoPro’s expert report) that Judge Hines included in her decision:

(more…)

Cleaning House: Director Squires Responds to Examiner Conflict-of-Interest Scandal

Patent

by Dennis Crouch

Last week I reported on the $500,000 settlement between the Department of Justice and patent examiner Daxin Wu, who allegedly examined at least nine patent applications from companies in which she held substantial stock positions—including holdings exceeding $300,000 in one company—and reviewed applications from competitors of a company in which she held more than $900,000 in stock. Dennis Crouch, Patent Examiner Pays $500K for Financial Conflicts — But the Real Story may be Systemic, Patently-O (Feb. 26, 2026). That post traced the enforcement action back to a damning 2024 Inspector General report estimating that roughly 2,100 patent examiners—about 30% of those required to file financial disclosures—had potential financial conflicts that went undetected. U.S. Dep’t of Commerce, Office of Inspector General, The Department Needs to Strengthen Its Ethics Oversight for USPTO Patent Examiners, Final Report No. OIG-24-013-I (Feb. 14, 2024). Today, Director John Squires has responded. In a memorandum dated March 2, 2026 and addressed to all employees in the Office of the Commissioner for Patents, Director Squires directs that any Patents employee who participates in deciding the scope of patent rights must affirmatively recuse from examining any application where they hold stock or bonds—publicly traded or privately held—in any listed applicant, regardless of the dollar value of those holdings. Director Squires’ memo on examiner stock ownership. (more…)

Forthwith: Federal Circuit Issues Mandates in V.O.S. Selections, Clearing the Way for $175 Billion Refund Reckoning

CAFC

by Dennis Crouch

The Federal Circuit’s role as the appellate court for international trade disputes has thrust it into the center of the most consequential separation-of-powers case in a generation. On February 20, 2026, the Supreme Court affirmed the Federal Circuit’s en banc ruling that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs. Learning Resources, Inc. v. Trump, 607 U.S. ___ (2026); Trump v. V.O.S. Selections, Inc., 607 U.S. ___ (2026). And today, the Federal Circuit dissolved the stay that had held its mandate in abeyance since August 2025, ordering its mandates to “issue forthwith.” V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813 (Fed. Cir. Mar. 2, 2026) (en banc per curiam). The case now returns to the Court of International Trade (CIT), which faces the formidable task of overseeing what could be the largest government refund obligation in American history: an estimated $175 billion in IEEPA tariff collections that the nation’s highest court has declared unlawful.

The briefing on the mandate motion offers a window into the pace of potential refunds. Former US Solicitor Neal Katyal (now with Milbank), representing the V.O.S. plaintiffs, filed the motion on February 24, arguing that the Supreme Court’s judgment satisfied the express condition this Court had set for releasing the mandate and that every day of delay inflicted real harm on the small businesses awaiting refunds. The motion quoted Treasury Secretary Bessent’s public statement that refunds would not issue until the CIT ordered them, and President Trump’s suggestion that the question would “get litigated for the next two years.” The government’s opposition, filed by the DOJ Appellate Staff, urged the court to wait at least until the Supreme Court formally sends down its certified judgment (32 days after entry under Supreme Court Rule 45.3), and cross-moved for a 90-day stay to “allow the political branches an opportunity to consider options.” The government invoked Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), where the Supreme Court stayed its own judgment to give Congress time to respond. DOJ also characterized the plaintiffs’ monetary harm as compensable rather than irreparable, and warned that the refund process would be protracted regardless.  Katyal’s reply, filed over this past weekend was pointed: the government “cites nothing” for the proposition that this Court must wait for the Supreme Court’s certified judgment and the government notably did not deny the force of its own stipulations guaranteeing refunds to all similarly situated plaintiffs. (more…)

Intitled to Tie Him Up: Can 18th-Century Chancery Practice Restore Patent Injunctions?

Patent

by Dennis Crouch

Two centuries before Samsung put 4G/5G receiver algorithms into its Galaxy smartphones, the Lord Chancellor was granting injunctions to stop patent infringement in England’s Court of Chancery. That historical practice is now at the center of a(nother) frontal challenge to the post-eBay injunction framework, with the U.S. government weighing in for a third time to support NPE access to injunctive relief.

On February 27, 2026, Judge Gilstrap of the Eastern District of Texas received two filings in Collision Communications, Inc. v. Samsung Electronics Co., No. 2:23-cv-00587-JRG (E.D. Tex.): a Statement of Interest from the DOJ Antitrust Division and USPTO supporting injunctive relief for non-practicing patent owners, and Collision’s own motion for a permanent injunction that goes much further than the government’s position. The Collision argues that the Supreme Court’s 2025 decision in Trump v. CASA, Inc., 606 U.S. 831 (2025) offers the opportunity to revisit seemingly settled law — particularly that case requires courts to apply 18th-century Chancery practice when evaluating the eBay four-factor test.  And, historians suggest that if that history is examined then the result will be a presumption that ongoing patent infringement is irreparable harm as a matter of law. If Judge Gilstrap accepts this argument, it would effectively reverse two decades of Federal Circuit precedent limiting NPE injunctions.

In my mind, the question is largely whether the Supreme Court is genuinely committed to recovering the historical principles of equity or instead invoking that history as a tool to reach today’s policy goals.

Read the briefs here: (more…)

The Third Way: Examiner Action Dates and the Allowance Rate Curve

Patent

by Dennis Crouch

This is the third installment in a trilogy of posts examining USPTO allowance rates from different vantage points. The first post took the filing-cohort approach, tracking every published utility application filed in a given month and following it to resolution. The second post used an applicant-focused approach, measuring outcomes by the dates that patents issued and abandonments were recorded. That method captures when the applicant’s decision becomes final, whether by paying the issue fee or letting a response deadline lapse. It makes sense to center the applicant because the applicant ultimately controls whether to continue prosecution, pay the issue fee, or walk away.

USPTO Examiner Allowance Rate by Director Tenure

This third approach asks a different question: when did the examiner actually make the call? For each disposed application, I anchor the outcome to the date of the examiner’s last substantive action: the mailing of the Notice of Allowance for applications that received one, and the mailing of the last office action rejection for applications that were abandoned after rejection. This strips away the administrative lag inherent in my prior two charts. The result is a more precise measure of examination policy as it operates in real time. Of the three approaches, this one offers the most direct window into USPTO policy. We are measuring the moment the agency acts, the last examiner decision that set the legal outcome in motion.

As with the prior posts, this analysis covers only published utility patent applications. A further caveat: most patent applications are part of a family of related U.S. patent applications, including continuations, divisionals, and continuations-in-part. The analysis here treats each application individually rather than tracking family-level outcomes, which means a single inventive effort may appear multiple times in the data.

Examiner Mail Dates: The USPTO's electronic records contain paired event codes for examiner actions: a "record" code when the examiner completes the action and a "mail" code when it is sent to the applicant. This study uses mail dates because that is when the examiner's decision takes legal effect. The mailing of a Notice of Allowance under 37 C.F.R. § 1.311 starts the three-month period for paying the issue fee. The mailing of a final rejection starts the six-month period under 37 C.F.R. § 1.136(a) for response or abandonment. This is also the most direct link to patent office policy: we are measuring the last USPTO action that led to the legal right or its abandonment.

The chart above plots the three-month moving average of the examiner allowance rate from January 2005 through June 2025, with shaded bands marking the tenures of confirmed USPTO Directors. Because the examiner-action-date method captures the moment of decision rather than its downstream administrative consequences, these bands align more precisely with actual policy effects than they do in charts using grant or abandonment dates. (more…)

The Real-Time View: USPTO Allowance Rate “Dips” to 75%

Patent

by Dennis Crouch

In February 2026, I published a study tracking the patent allowance rate by filing-date cohort, following every published utility application from filing to final resolution. See Dennis Crouch, The 20-Year Allowance Rate Arc, Patently-O (Feb. 27, 2026). That approach answer backward-looking question: of all the applications filed in a given month, what share ultimately became patents.  It is the right metric for understanding how the patent system treats a generation of filings, but it carries an inherent delay. An application filed in 2020 does not resolve for two to four years, meaning the cohort data tells us about examination culture circa 2022-2024, not about what the agency is doing right now.

Today I want to offer a complementary view. Instead of grouping applications by when they were filed, the chart below groups them by when they were resolved. Each data point represents the percentage of applications disposed of in a given month (either issued as patents or abandoned) that resulted in issued patents. I call this the “disposal allowance rate,” and it functions as a more immediate signal of the agency’s examination posture.

(more…)

Five Petitions, Five Denials: The Federal Circuit’s Mandamus Wall Grows Higher

CAFC, IPR, Patent

by Dennis Crouch

Five more mandamus petitions challenging IPR institution denials. Five more denials. In a series of nonprecedential orders issued between February 24 and 27, 2026, the Federal Circuit rejected every theory that petitioners offered for why the USPTO’s discretionary denial of inter partes review should be subject to judicial oversight. The petitioners included major technology companies (Intel, Tesla), a Chinese communications firm (Kangxi Communication Technologies), an education technology company (Kahoot!), and a startup founded by the very inventors of the patents it sought to challenge (Tessell). Each presented a different factual scenario and a different legal theory. None succeeded. In re Kangxi Communication Technologies (Shanghai) Co., Ltd., No. 2026-115 (Fed. Cir. Feb. 24, 2026); In re Intel Corp., No. 2026-113 (Fed. Cir. Feb. 24, 2026); In re Tessell, Inc., No. 2026-117 (Fed. Cir. Feb. 24, 2026); In re Kahoot! AS, No. 2026-119 (Fed. Cir. Feb. 25, 2026); In re Tesla, Inc., No. 2026-116 (Fed. Cir. Feb. 27, 2026). (more…)

No Sunshine, No Standing? The Federal Circuit’s Informational Rights Gap in IPR

CAFC, IPR, Patent

by Dennis Crouch

The America Invents Act requires that every IPR petition “identif[y] all real parties in interest.” 35 U.S.C. § 312(a)(2). The statute uses mandatory language: the petition “may be considered only if” this condition is satisfied. On its face, the provision creates an obligation directed at petitioners and a corresponding entitlement for patent owners and the public. But does the failure to comply with that requirement give a patent owner the kind of concrete injury that Article III demands? The Federal Circuit says no. Dolby Laboratories is now asking the Supreme Court to disagree.

The petition for certiorari in Dolby Laboratories Licensing Corp. v. Unified Patents, LLC, No. 25-1011 (U.S., filed Feb. 20, 2026), challenges the Federal Circuit’s June 2025 decision holding that the AIA does not create an “informational right” for patent owners to know the identities of all real parties in interest. Dolby Laboratories Licensing Corp. v. Unified Patents, LLC, 138 F.4th 1363 (Fed. Cir. 2025).

Dolby had won the IPR, but still wanted to know the identity of the people behind the patent challenge.  But, the Federal Circuit dismissed Dolby’s for lack of Article III standing, despite statutory text that conditions the consideration of an IPR petition on full RPI disclosure. The case raises two questions:

  • Whether a patent owner suffers an injury in fact when the Board refuses to enforce the RPI identification requirement, and
  • Whether 35 U.S.C. § 314(d) bars judicial review of the Board’s RPI determinations in its final written decision.

These questions fit within an an area known as “informational standing doctrine” often tied to FOIA and Sunshine law requests. The Supreme Court has recognized that the denial of information to which a plaintiff is legally entitled can constitute a cognizable injury in fact, at least in certain statutory contexts. See, TransUnion LLC v. Ramirez, 594 U.S. 413 (2021). In Public Citizen v. Department of Justice, 491 U.S. 440 (1989), the Court held that the denial of access to records from an advisory committee constituted injury in fact because the Federal Advisory Committee Act (FACA) requires that advisory committee records be made publicly available. In FEC v. Akins, 524 U.S. 11 (1998), the Court found standing where the Federal Election Campaign Act (FECA) required political committees to disclose detailed reports of donors and expenditures, and FECA provided an express statutory cause of action for any party who believed a violation had occurred.

The Federal Circuit in Dolby distinguished these sunshine-law contexts and the AIA. Chief Judge Moore’s opinion reasoned that the purpose of FACA and FECA is to grant public access to information, while the purpose of the AIA is “to establish a more efficient and streamlined patent system that will improve patent quality and limit unnecessary and counterproductive litigation costs.” quoting Thryv, Inc. v. Click-To-Call Techs., LP, 590 U.S. 45 (2020). Because the AIA’s purpose is efficiency rather than transparency, the court concluded, § 312(a)(2) does not create an “informational right” at all. And even if patent owners have some right to have RPI disputes adjudicated, “such a right only arises in the context of IPR proceedings; there is no freestanding right to that information.”

In these cases, the patent owner wants that information for a few reasons:

  • Enforcing the statutory estoppel provisions of 35 U.S.C. § 315(e), which attach to “the petitioner” and “the real party in interest or privy of the petitioner.”
  • Administer the one-year time bar of § 315(b), which prevents institution when a real party in interest was served with an infringement complaint more than a year before the petition was filed.
  • Ensuring PTAB judges avoid conflicts of interest, which they cannot effectively do so if the actual parties behind a petition are unknown.

The Federal Circuit dismissed each of these as too speculative on the facts of this case.

The § 314(d) Problem. The Federal Circuit also held that, even if patent owners have some right to RPI adjudication, § 314(d) bars judicial review of the Board’s decisions concerning the § 312(a)(2) RPI requirement.  The basic conclusion here is that RPI identification is part of the institution decision, and institution decisions are not subject to appeal. Dolby’s petition invokes SAS Institute, Inc. v. Iancu, 584 U.S. 357 (2018), as directly contrary. In SAS, the Supreme Court confronted the Director’s practice of “partial institution” and found that appealable.  § 314(d) as precluding review of the Director’s “initial determination” under § 314(a), but does not bar review of whether the agency exceeded its statutory bounds in conducting the proceeding.

The 20-Year Allowance Rate Arc: From Trough to Peak and Back Again

Patent

by Dennis Crouch

Every patent application eventually resolves into one of two outcomes: it issues as a patent or it is abandoned. I have been tracking those outcomes (along with those applications “still pending”) for every published utility application filed at the USPTO over the past two decades – and see some striking patterns. The patent allowance rate, measured as the percentage of resolved applications that issued as patents, traces a deep V-curve across two decades. Applications filed in 2001 had an allowance rate of about 71%. That figure dropped steadily to a trough of 59% for applications filed in May 2006. It then reversed course and climbed, year after year, through 67% in 2010, 74% in 2015, and up to 82% for those filed in early 2020. That is a 23-percentage-point swing from trough to peak.

The first chart below plots the allowance rate by filing month for all published U.S. utility patent applications filed between January 2001 and July 2024. The allowance rate is calculated as the number of applications that issued as patents divided by the number that have been resolved (issued plus abandoned), excluding applications that remain pending. For cohorts filed before late 2021, fewer than 10% of applications remain pending, making the data highly reliable. For more recent filing months, the dashed line reflects preliminary data that will almost certainly shift (downward) as the remaining applications resolve.

(more…)

Patent Examiner Pays $500K for Financial Conflicts — But the Real Story may be Systemic

Patent

by Dennis Crouch

A USPTO patent examiner has agreed to pay $500,000 to resolve allegations that she examined patent applications from companies in which she held substantial stock positions. The settlement, announced by the Department of Justice on February 25, 2026, resolves allegations against Daxin Wu, who allegedly worked on at least nine patent applications submitted by companies in which she held financial interests between January 2019 and May 2022. The dollar amounts are striking. Wu allegedly reviewed applications for companies in which she owned more than $300,000 and $140,000 worth of stock, respectively. She also allegedly reviewed applications from commercial competitors of a company in which she held more than $900,000 in stock. These holdings dwarf the regulatory de minimis thresholds that permit patent examiners to hold limited stock positions in companies whose applications they review. Under 5 C.F.R. § 2640.202, an examiner may hold up to $15,000 in stock in a single company whose application they are reviewing, or up to $25,000 in aggregate across companies within the industry sector covered by their art unit. Wu’s alleged holdings exceeded these thresholds by orders of magnitude.

The Wu case did not emerge from a vacuum. Two years ago, the Commerce Department’s Office of Inspector General issued a report concluding that the USPTO and the Department of Commerce “did not effectively administer the Department’s ethics program to protect against potential conflicts of interest by patent examiners.” U.S. Dep’t of Commerce, Office of Inspector General, The Department Needs to Strengthen Its Ethics Oversight for USPTO Patent Examiners, Final Report No. OIG-24-013-I (Feb. 14, 2024). That report, triggered by hotline referrals, found systemic failures at every level of the ethics oversight process. The OIG sampled 73 examiners and found that 26 had potential financial conflicts that ethics officials failed to identify. Projecting those results across the roughly 7,000 examiners required to file confidential financial disclosure reports, the OIG estimated that approximately 2,100 patent examiners (about 30%) had potential financial conflicts that went undetected in calendar year 2022.

The Wu settlement appears to be the first public enforcement action arising from those referrals. The OIG report noted that it “referred potential violations of law ” to the Office of Investigations. The timeline aligns: Wu’s alleged conduct covers 2019 through May 2022, and the hotline referrals began arriving in March 2022. The investigation then took roughly four years to produce yesterday’s civil settlement. (more…)

Not So Sure: Federal Circuit Vacates Summary Judgment of Inequitable Conduct Despite Inventor’s ‘Smoking Gun’ Statement

CAFC, Patent

by Dennis Crouch

During patent prosecution, an inventor wrote to his attorney in the margin of a draft declaration: “I am not sure it is a good idea to disclose this document.” The district court called this “a rare example of direct evidence of an intent to defraud.” A magistrate judge agreed. The patent was declared unenforceable for inequitable conduct on summary judgment. Case closed. Or so it seemed.

In Global Tubing LLC v. Tenaris Coiled Tubes LLC, No. 23-1882 (Fed. Cir. Feb. 26, 2026), the Federal Circuit vacated the district court’s summary judgment of inequitable conduct and also vacated summary judgment on a related Walker Process antitrust claim, finding genuine disputes of material fact on both. (more…)

Tie Goes to the Runner? Three Months of SMED Practice at the USPTO

Patent

by Dennis Crouch

In baseball, there is a folk rule on force-outs that “tie goes to the runner.” The idea is straightforward: if the ball and the runner arrive at the base simultaneously, the runner is safe. In fact, the Official Rules of Baseball do not admit that a tie is even possible, but rather the question is simply whether the fielder tagged the base before the runner arrived. But the folk rule persists because it reflects an instinct about how close calls should break: and in baseball it is the fielder’s duty to force the out.

Director John Squires has brought a version of this thinking to patent examination. Since taking office in September 2025, Squires has repeatedly signaled that close calls on patent eligibility should favor the applicant. The December 4, 2025 memoranda on Subject Matter Eligibility Declarations (SMEDs) formalized the invitation: applicants facing Section 101 rejections should submit evidentiary declarations under 37 C.F.R. § 1.132, and examiners should treat that evidence seriously when evaluating eligibility under the preponderance-of-the-evidence standard. Dennis Crouch, Subject Matter Eligibility Declarations (SMEDs) to Overcome Eligibility Rejections, Patently-O (Dec. 5, 2025). The theory is that a well-drafted SMED, supported by concrete technical evidence, should create enough disputed facts to tip the balance in the applicant’s favor. But the question remains whether examiners on the ground will agree.

After looking through several hundred R. 132 declarations, I eventually found seven SMEDs that specifically target Section 101 eligibility. The sample is small but instructive. These seven declarations span a range of technologies: data center infrastructure automation, financial analytics, robotic process automation, cybersecurity risk modeling, plant genomics, and blockchain systems. The declarants  range from solo inventors with decades of software experience to PhD scientists at venture-backed startups. And the early results are mixed. So far, none have received a notice of allowance and others have been rejected (with the bulk still awaiting response from the examiner). (more…)

Extolling the Virtues: ‘Space-Efficient’ Preamble Fails to Limit

Patent

by Dennis Crouch

The Federal Circuit’s nonprecedential decision in NimbeLink Corp. v. Digi International Inc., No. 2024-2292 (Fed. Cir. Feb. 23, 2026) has a split decision:

  1. Reversed a finding that the patent claims were invalid as indefinite;
  2. Affirmed the dismissal of NimbeLink’s breach-of-contract claims arising from two non-disclosure agreements.

The patent issue turned on a familiar question: whether the claim preamble adds a substantive limitation.

(more…)