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:

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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.

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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.

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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).

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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.

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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.

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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.

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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).

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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.

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The Recentive Ratchet: RPI’s NLP Patent Falls to the New-Environment Rule

Patent

by Dennis Crouch

In Rensselaer Polytechnic Institute v. Amazon.com, Inc., No. 2024-1725 (Fed. Cir. Feb. 24, 2026), a panel led by Judge Dyk affirmed summary judgment invalidating U.S. Patent No. 7,177,798 as ineligible 35 U.S.C. § 101. The '798 patent claims a method for processing natural language inputs using case-based reasoning applied to a metadata database. Rensselaer and its exclusive licensee CF Dynamic Advances had asserted the patent against Amazon's Alexa virtual assistant technology. The district court (N.D.N.Y., Judge Sannes) granted Amazon's motion for summary judgment, finding the claims directed to patent-ineligible subject matter under Alice Corp. v. CLS Bank Int'l, 573 U.S. 208 (2014). The nonprecedential opinion applies the rule from Recentive Analytics, Inc. v. Fox Corp., 134 F.4th 1205 (Fed. Cir. 2025) (cert. denied) that applying a well-established AI technique to a new field does not overcome patent ineligibility. Judge Dyk authored both opinions.

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Parts vs. Whole: Federal Circuit Corrects District Court’s Component-Level Section 101 Analysis in Gene Therapy Case

Patent

by Dennis Crouch

At $3.2 million per dose, Elevidys is one of the most expensive drugs ever approved. The drug is used to treat Duchenne muscular dystrophy, a fatal genetic disease that progressively destroys muscle function and kills most patients in their twenties.  Elevidys represents both the remarkable promise and the profound access tension at the heart of gene therapy patents. The underlying technology was developed in the laboratory of Dr. James M. Wilson at the University of Pennsylvania, supported in substantial part by more than $105 million in NIH funding over Wilson's career, and then exclusively licensed to REGENXBIO Inc., which sued Sarepta for using the platform technology without authorization.

On February 20, 2026, the Federal Circuit reversed a Delaware district court's grant of summary judgment of ineligibility under 35 U.S.C. § 101, holding that the claimed genetically engineered host cells are not directed to a natural phenomenon. REGENXBIO Inc. v. Sarepta Therapeutics, Inc., No. 24-1408 (Fed. Cir. Feb. 20, 2026) (Stoll, J., joined by Dyk and Hughes).  The reversal applies settled doctrine that traces Diamond v. Chakrabarty through Myriad's cDNA holding and Diamond v. Diehr's prohibition on dissecting claims into old and new elements.  At the same time, the result here stands in sharp contrast to the § 101 struggles that have plagued software and diagnostic method claims over the past decade, where courts have routinely found "man made" items ineligible.

The patent at issue, US10526617, is owned by the University of Pennsylvania and exclusively licensed to REGENXBIO. The '617 patent expired in 2022, so this litigation was always about past damages, not injunctive relief. Representative claim 1 covers a cultured host cell containing a recombinant nucleic acid molecule encoding an AVV capsid protein having a sequence 95% identical to that listed.  The molecule also includes a heterologous non-AAV sequence."

The key term "heterologous" means derived from a different species. "Recombinant" means the molecule is created by chemically splicing together nucleic acid sequences from two separate biological sources.  Thus, the claimed cells do not themselves occur in nature -- but Judge Andrews still found the claims directed to a natural phenomenon.  REGENXBIO Inc. v. Sarepta Therapeutics, Inc., No. 20-cv-1226-RGA (D. Del. Jan. 5, 2024).

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SCOTUSGate: A New Portal to the Certiorari Pipeline

Patent

by Dennis Crouch

For many years, I relied on certpool.com to keep tabs on the Supreme Court’s certiorari docket. When that site went dark, I started building my own tracker in 2024, running it locally on my personal computer and checking it daily for new and interesting cases before the US Supreme Court. That project has now grown into SCOTUSGate.com, which I’m making publicly available for the first time. The site is very much in alpha, a work in progress, but it is functional and I’d welcome feedback from readers as it develops.

SCOTUSGate tracks petitions for certiorari and shadow-docket activity across the full Supreme Court docket. The database (named Cerberus, after the three-headed dog who guards the gates of the underworld) currently shows over 1,000 pending petitions, with structured data on conference scheduling, cert-stage briefing, CVSG invitations, and case dispositions. The site pulls docket information directly from the Court several times per day and I have incorporated both traditional text analysis tools as well as AI to extract questions presented from petition PDFs and assign topic tags for filtering and discovery.

The name works on a few levels. A gate as portal: the site is a point of entry into information about what the Court is considering. A gate as barrier: the certiorari process is itself a gate, with the Court granting review in only a small fraction of cases. And in the Watergate tradition of institutional-accountability naming: a site built on the conviction that the Court’s work should be visible and open to scrutiny, particularly at the cert and shadow-docket stages where transparency is most limited. (more…)

“Anonymous Work” and the AI Author Fight

Patent

by Dennis Crouch

The very first provision of the Copyright Act is a curious definition:

An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.

17 U.S.C. § 101. If Congress assumed every author must be a natural person, why would it need to define a category of works where no natural person is identified? That textual puzzle sits at the heart of Stephen Thaler's newly filed reply brief in Thaler v. Perlmutter, No. 25-449, which asks the Supreme Court to take up whether AI-generated works can receive copyright protection.  The case has been distributed for the Court's February 27, 2026, conference.

SCOTUSGate: Supreme Court Petition Tracker I have created a new website: SCOTUSGate (scotusgate.com), a tool for tracking petitions for certiorari at the Supreme Court. The site aggregates docket entries, briefing schedules, conference dates, and amicus filings for pending petitions. Cases can be browsed by topic, court of origin, or conference date. The Thaler case page is at scotusgate.com/case.php?number=25-449. The site also tracks cases flagged for response, relisted petitions, and CVSG orders, which are often early signals of the Court's interest in a case. SCOTUSGate is really at an Alpha stage - a work in progress - and I welcome feedback. -Dennis

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An Inexact Art: Willis Electric and the Limits of Damages Gatekeeping

Patent

by Dennis Crouch

For the past year, the Federal Circuit has been systematically tightening the screws on patent damages and particularly pro-patentee expert testimony on the issue. Beginning with EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025), the court vacated a $20 million reasonable royalty award for insufficient apportionment. Then came Jiaxing Super Lighting Electric Appliance Co. v. CH Lighting Technology Co., 146 F.4th 1098 (Fed. Cir. 2025), where the court vacated another award and suggested (in dicta) that experts must quantify their Georgia-Pacific adjustments. LabCorp v. Qiagen reversed a jury verdict on similar grounds. Coda Development v. Goodyear Tire "deflated" a $64 million award for inadequate apportionment. See Dennis Crouch, The Remedies Remedy is Almost Complete: EcoFactor v. Google, Patently-O (May 22, 2025); Dennis Crouch, Federal Circuit Extends EcoFactor Framework to Patent Damages Apportionment in Jiaxing Decision, Patently-O (Aug. 1, 2025); Dennis Crouch, Verdict Deflated: Fed Circuit Punctures Coda's $64M Win Over Goodyear, Patently-O (Dec. 8, 2025). The cumulative message to patentees seemed pretty clear: jury verdicts on damages face appellate scrutiny, and experts who failed to satisfy the court's increasing expectations would have their testimony excluded and the resulting awards overturned.

Today's decision in Willis Electric Co., Ltd. v. Polygroup Ltd., No. 2024-2118 (Fed. Cir. Feb. 17, 2026), suggests there is a limit. Writing for a unanimous panel, Chief Judge Moore affirmed a jury's $40+ million reasonable royalty award on a single dependent claim covering coaxial barrel connectors used in pre-lit artificial Christmas trees. The opinion runs to 37 pages, with the bulk devoted to a comprehensive defense of the damages verdict under Rule 702 and Daubert. The court upheld every challenged aspect of the patentee's expert testimony: her income-based apportionment, her market-based apportionment using comparable licenses, and her qualitative application of the Georgia-Pacific factors. Where EcoFactor drew a line against expert testimony predicated on inaccurate factual premises, Willis Electric draws a line in the other direction. It holds that methodological choices about how to model profitability, which licenses to consider comparable, and how to weigh qualitative factors are matters for cross-examination and jury deliberation, not judicial exclusion. The repeated refrain of the opinion is that reasonable royalty calculations "necessarily involve an element of approximation and uncertainty," EcoFactor, 137 F.4th at 1340, and Rule 702 must accommodate that reality.

For many years, I have seen the reasonable royalty "calculation" as a form of speculative science fiction. It is filled with such uncertainty that attempts for mathematical precision simply mask what is fundamentally a rough estimation exercise. The hypothetical negotiation is a legal fiction built on counterfactual assumptions, and the Georgia-Pacific factors provide structure without providing answers. Courts and experts have long struggled with how much rigor to demand from an inherently imprecise inquiry.

In Willis Electric, Chief Judge Moore engages with that tension directly, and several passages seem destined for heavy citation in future damages disputes. The court's core distinction is between (1) an expert who builds on erroneous factual premises -- ones that are "contrary to a critical fact upon which the expert relied" (the EcoFactor problem, warranting exclusion) and (2) an expert whose methodological choices reflect a "fact [dispute] over which reasonable minds can differ" (the Willis Electric situation, left to the jury). The opinion also deploys EcoFactor's own language about "approximation and uncertainty" as a shield rather than a sword, embedding it within a historical survey of reasonable royalty doctrine stretching back to Dowagiac Manufacturing Co. v. Minnesota Moline Plow Co., 235 U.S. 641 (1915), and even a 1960 Columbia Law Review student note. Recovery in Patent Infringement Suits, 60 Colum. L. Rev. 840 (1960).

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Hot Bench: Speaking Time and Opinion Writing at the Federal Circuit

Patent

by Dennis Crouch

Oral argument at the Federal Circuit typically lasts 30 minutes. But the judges on the panel do not divide that time equally among themselves.  I used a sample of 1000+ Federal Circuit oral arguments and found some big differences among the judges. 

Chief Judge Kimberly Moore leads the court with a median speaking time of 4.51 minutes per argument. Judge Taranto follows closely at 4.31. At the other end of the spectrum, Judge Lourie speaks for a median of just 0.86 minutes, and the newest member, Judge Cunningham for 0.92 minutes. That is a fivefold difference between the most and least talkative members of the court.

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Lynk Labs Resource Guide

Patent

The Supreme Court will shortly decide whether to grant cert in Lynk Labs. At the suggestion of a reader, I wanted to make these posts about the case available to non-subscribers seeking to research the issues.

  1. Dennis Crouch, Prior Art Document vs. Prior Art Process: How Lynk Labs Exposes a Fundamental Ambiguity in Patent Law, Patently-O (July 9, 2025), https://patentlyo.com/patent/2025/07/document-fundamental-ambiguity.html. Identifies a previously unnoticed conceptual tension in patent law between two competing frameworks—“prior art as document” versus “prior art as process.” I argue that this ambiguity explains why §311(b)’s seemingly straightforward language becomes so contentious when applied to §102(a)(2) springing prior art.
  2. Dennis Crouch, Lynk Labs: How the Least-Vetted Documents Destroy Issued Patents, Patently-O (Dec. 15, 2025), https://patentlyo.com/patent/2025/12/documents-destroy-patents.html. Argues the Federal Circuit’s decision creates perverse incentives by allowing abandoned, unexamined patent applications to be backdated as printed publications to invalidate issued patents. Surveys the substantial amicus landscape supporting cert, including briefs from former USPTO Director Kappos, former Chief Judge Michel, and IP scholars led by Professor Sichelman.
  3. Dennis Crouch, Thinking back on Milburn and Secret/Springing Prior Art, Patently-O (July 15, 2025), https://patentlyo.com/patent/2025/07/thinking-milburn-springing.html. Traces the historical foundation of the springing prior art doctrine from the Supreme Court’s 1926 Milburn decision through its modern expansion, providing doctrinal context for the Lynk Labs dispute.
  4. Tim Hsieh, 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., Patently-O (Dec. 3, 2025), https://patentlyo.com/patent/2025/12/hsieh-lynk-loper.html. Professor Hsieh argues that the Federal Circuit’s decision effectively resurrects Chevron-style deference under a different label by tracking USPTO policy rationales rather than exercising independent judicial judgment, framing Lynk Labs as a critical test of Loper Bright’s reach.
  5. Dennis Crouch, Secret Springing Prior Art and Joint Research: Lessons from Merck v. Hopewell, Patently-O (Nov. 4, 2025), https://patentlyo.com/patent/2025/11/springing-research-hopewell.html. Examines the Federal Circuit’s Merck v. Hopewell decision clarifying when a collaborator’s patent qualifies as prior art “by another,” and how the AIA has changed this category of secret springing prior art through §102(b)(2) and §102(c).
  6. Dennis Crouch, Publications Before Publishing and the Federal Circuit’s Temporal Gymnastics, Patently-O (Jan. 14, 2025), https://patentlyo.com/patent/2025/01/publications-publishing-gymnastics.html. Analyzes the Federal Circuit’s decision holding that published patent applications are prior art as of their filing date in IPR proceedings, even when they were non-public at the time the challenged patent was filed.
  7. Dennis Crouch, Supreme Court Asked to Resolve ‘Secret Springing Prior Art’ Controversy in IPR Proceedings, Patently-O (Sept. 18, 2025), https://patentlyo.com/patent/2025/09/springing-controversy-proceedings.html. Covers the filing of Lynk Labs’ cert petition (No. 25-308) asking whether patent applications that became publicly accessible only after the challenged patent’s critical date qualify as “prior art … printed publications” under §311(b).
  8. Dennis Crouch, Should Abandoned Applications Be Presumed Enabling? Supreme Court Asks for Response, Patently-O (Dec. 23, 2025), https://patentlyo.com/patent/2025/12/abandoned-applications-presumed.html. Addresses the related cert petition in Agilent v. Synthego, asking whether abandoned patent applications filled with prophetic examples should be presumed enabling as anticipatory prior art—a question with direct implications for the evidentiary standards governing the documents at issue in Lynk Labs.
  9. Dennis Crouch, The ‘Narrow’ Question That Appears in Half of PTAB Obviousness Decisions, Patently-O (Feb. 2026), https://patentlyo.com/patent/2026/02/question-obviousness-decisions.html. Critiques the BIO briefs filed by Samsung and the U.S. government urging denial of cert, finding their arguments about the decision’s limited impact “shockingly disingenuous” given that the post-AIA statute contains an essentially identical provision to the pre-AIA scheme at issue.
  10. Dennis Crouch, Secret Springing Prior Art and Inter Partes Review, Patently-O (Oct. 4, 2024), https://patentlyo.com/patent/2024/10/secret-springing-partes.html. Previews the Federal Circuit appeal and coins the term “secret springing prior art” to describe references that were secretly on file at the USPTO when a patent was filed but only became publicly accessible upon later publication.

The Director Unbound: Federal Circuit Holds NHK-Fintiv Exempt from APA Rulemaking

Patent

by Dennis Crouch

In Apple v. Squires, the Federal Circuit has again reinforced the USPTO Director's broad and largely unchecked discretionary power at the IPR institution stage. Over the past several years, the court has systematically closed every door that petitioners have tried to open. Most recently, it denied a wave of mandamus petitions challenging Director Squires' discretionary denials, holding that 35 U.S.C. § 314(d) bars review of institution decisions even when petitioners raise constitutional and APA claims. In its 2023 decision in this very case, the court held that substantive challenges to the NHK-Fintiv framework were themselves unreviewable. Apple Inc. v. Vidal, 63 F.4th 1 (Fed. Cir. 2023). Now, in the new decision, the court closed the next (and potentially last remaining) opening: the claim that the NHK-Fintiv instructions should have been adopted through notice-and-comment rulemaking under the Administrative Procedure Act. Apple Inc. v. Squires, No. 2024-1864 (Fed. Cir. Feb. 13, 2026).

Background:

Writing for a panel that included Judges Lourie and Chen, Judge Taranto held that the NHK-Fintiv instructions are a "general statement of policy" exempt from APA rulemaking requirements under 5 U.S.C. § 553(b). The reasoning rests on a structural feature of post-Arthrex patent administration that carries consequences well beyond the Fintiv factors themselves: because the Director is the statutory holder of institution authority, and the PTAB acts only as a delegatee whose decisions the Director can always displace, instructions to the Board about how to exercise that delegated authority cannot "bind" the agency in the APA sense.

The decision seems to confirm that there is no procedural legal constraint, short of a major constitutional challenge, on the Director's power to restrict or shut down IPRs through internal policy pronouncements.

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Ingevity’s $85 Million Lesson: Antitrust Tying Still Has Teeth

Patent

by Dennis Crouch

The Federal Circuit has affirmed an $84.9 million antitrust patent-misuse judgment against a patent owner who conditioned licenses on exclusive purchase of unpatented products, finding that the products were "staple goods" with substantial non-infringing uses and therefore outside the Congressionally created safe harbor 35 U.S.C. § 271(d). Ingevity Corp. v. BASF Corp., No. 2024-1577 (Fed. Cir. Feb. 11, 2026) (Lourie, J.).  Tying cases have used to be much more common in patent litigation, but largely went dormant after the Supreme Court's decision in Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006), which eliminated the presumption that patents confer market power.

In this essay, I look at the particular dispute between Ingevity and BASF and also the historic trajectory of this sort of antitrust liability for improper extension of patent rights.

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