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).

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The Federal Circuit’s nonprecedential decision in NimbeLink Corp.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.

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.

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).

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

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).

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.

By Dennis Crouch

When a university scientist invents something valuable, a familiar sequence follows. The inventor assigns rights to the university as a condition of employment. The university licenses the patent to a corporate partner while the inventor retains a royalty interest. If infringement litigation erupts, the inventor watches from the sidelines while lawyers representing the university and its licensee make decisions that will determine the value of that royalty stream.  The inventor's interests often align with the university - but certainly not always.

A new cert petition filed by Dr. Monib Zirvi highlights this structural problem. Zirvi v. Akin Gump Strauss Hauer & Feld, LLP, No. 25-940 (petition filed February 2026). Zirvi, a Cornell-trained scientist who co-invented "ZipCode" DNA sequencing technology, claims that the law firms controlling patent infringement litigation on behalf of Cornell University and its exclusive licensee Thermo Fisher Scientific told him that his interests were "aligned" with theirs and that they "represented his interests." He spent hundreds of hours preparing confidential technical analysis at the lawyers' request. But when the case settled, he had no seat at the negotiating table.

Zirvi later sued the lawyers for malpractice, but ultimately received a one-two civil procedure punch.

by Dennis Crouch

When Alexander Graham Bell filed his patent application on February 14, 1876, he titled it "Improvement in Telegraphy." Not "Telephone." Not "Apparatus for Transmitting Speech by Electricity." Just a modest tweak to the existing telegraph art. The United States government later alleged this was no accident. In United States v. American Bell Telephone Co., 128 U.S. 315 (1888), the government's bill of complaint charged that Bell "purposely framed his said application and claim in ambiguous and general terms" and "did not set forth or declare that his alleged invention had any relation to the art of transmitting articulate speech by means of electricity." The strategy worked, at least initially: the Patent Office examiner "did not understand the application to lay claim to the art of transmitting speech" and so "did not make an inquiry as to the state of that art or the patents or the printed publications concerning it." No search for the work of Reis, Meucci, or even the caveat filed that same day by Elisha Gray. Bell got his patent on March 7, 1876, three weeks after filing. The case raised serious fraud allegations that the Supreme Court addressed in a companion case, The Telephone Cases, 126 U.S. 1 (1888), but the patent survived.

Nearly 150 years later, patent attorneys are still doing the same thing, though the tools are better and the practice now has a name: targeted drafting. The basic idea is to frame an application so the USPTO routes it to a favorable art unit, where the examiner corps is more likely to allow claims. The mechanism is different from Bell's era, but the impulse is identical. A good negotiator picks a willing counterpart. A good patent prosecutor picks an art unit where the odds favor allowance. Analytics vendors have for years been marketing tools to predict art unit assignment and suggesting language changes to steer applications toward friendlier examiners.

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.