by Dennis Crouch

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

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 Cir. Feb. 2026) (nonprecedential), the Federal Circuit affirmed summary judgment shielding AeroVironment from patent infringement liability under § 1498 for its work developing NASA's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

by Dennis Crouch

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

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

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

by Dennis Crouch

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

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

by Dennis Crouch

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

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

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

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

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

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

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

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

by Dennis Crouch

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

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

by Dennis Crouch

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

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

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

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

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

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

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

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

by Dennis Crouch

The Federal Circuit's recent nonprecedential decision in Guardant Health v. University of Washington focuses on single-reference obviousness findings.

The vast majority of obviousness cases are based upon two or more references that, when combined, teach each limitation of the claimed invention.  The key question in those cases boils down to whether a person of ordinary skill in the art would have had a sufficient motivation to combine those references to form the invention as well as a reasonable expectation of success in that endeavor.  In the single reference situation, the Federal Circuit in Guardant Health found that neither of those test make sense - particularly when elements appear together in a single embodiment in the prior art.

by Dennis Crouch

IPR institution rates under Director John Squires have begun to climb. My tracking data shows the six-week moving average rising from lows around 15% in August and September 2025 to somewhere in the range of 35-55% by late December 2025 and into January 2026. The rebound remains far below the historic average of roughly 67% that prevailed before Acting Director Coke Morgan Stewart began centralizing discretionary denial authority followed by Director Squires assumption of personal control of all institution decisions in October 2025.

Still, the uptick signals something meaningful: the IPR system is not dead, and a discernible framework for institution has begun to emerge from what initially appeared to be an era of blanket denials. The patterns in recent grants reveal that Director Squires is operating with something resembling an equitable framework that requires petitioners to go beyond the statutory "reasonable likelihood" threshold to encompass broader considerations of fairness and systemic efficiency. The USPTO's recent designation of numerous institution decisions as precedential or informative in early January 2026 provides additional clarity about the principles the Office considers settled enough to guide future practice.

by Dennis Crouch

The Federal Circuit has a new expert witness case -- this time siding with the patentee and finding that two experts were improperly excluded mid-trial. But, the case includes a sharp dissent over where to draw the line between a court's Daubert gatekeeping function and the jury's role as factfinder. Barry v. DePuy Synthes Companies, No. 2023-2226 (Fed. Cir. Jan. 20, 2026).

In the case, the experts had presented testimony that strayed somewhat from the court's claim construction and also included survey results using questionable methodology.  Writing for the majority, Judge Stark concluded that this testimony was (1) permissible applications of the court's claim construction and (2) that methodological criticisms went to evidentiary weight rather than admissibility. Judge Prost dissented, warning that the majority's approach "contravenes the principles embraced in EcoFactor and the 2023 amendments" to Federal Rule of Evidence 702 and "will undermine district courts' abilities to exercise their important gatekeeping function."

by Dennis Crouch

I only recently started using mobile check deposits.  I don't get very many checks these days, but when I do it is a real pain to drag myself to the the bank to deposit -- particularly because I don't carry my ATM card with me.  Great convenience -- and also a great patent story.

USAA is a financial services association cooperatively owned by U.S. military members, veterans, and their families. Because USAA serves military families whether stationed at home or deployed overseas to places like Iraq and Afghanistan, it does not operate a traditional branch network. This created a persistent problem: how could USAA members deposit checks when stationed far from any bank? Starting around 2005, a team at USAA began researching technology that would allow members to deposit checks from anywhere in the world using devices they already owned. The challenge was formidable: as of the 2006 priority date, the banking industry conventional wisdom was that specialized check-scanning equipment was the only way to reliably capture check images meeting the technical requirements for remote deposit under the Check 21 Act. USAA's engineers developed a system using a downloaded mobile app to assist customers in capturing compliant check images without specialized equipment, launching Deposit@Mobile in 2009 as the first mobile check deposit service offered by any U.S. bank. Within a month, it became the number one financial app in the Apple app store, with members depositing over 1.5 million checks in the first year.

• United Services Automobile Ass'n v. PNC Bank N.A., No. 25-853 (petition for cert. filed Jan. 14, 2026).

by Dennis Crouch

The Supreme Court has granted certiorari in Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., No. 24-889, likely the only patent case this term. In doing so, it takes up the question of whether a generic drug manufacturer can face induced infringement liability when it markets a product using a "skinny label" that fully carves out patented uses.

The case presents the Court's first opportunity to directly address the intersection of patent inducement doctrine and the Hatch-Waxman Act's section viii carve-out provisions, which allow generics to obtain FDA approval for non-patented indications while omitting still-patented methods of use from their labeling. Hikma's generic version of Amarin's Vascepa (icosapent ethyl) received FDA approval only for severe hypertriglyceridemia, with the more valuable cardiovascular risk reduction indication carved out pursuant to section viii.

The Federal Circuit nonetheless permitted Amarin's inducement claims to proceed, finding that Hikma's marketing statements and press releases, combined with its label, plausibly alleged that Hikma encouraged doctors to prescribe the generic for the patented cardiovascular use.

The grant follows the Solicitor General's December 2025 brief recommending review, which argued that the Federal Circuit's approach threatens to undermine Congress's purpose in creating the skinny-label pathway.

In my view, the generic Hikma is likely to win before the Supreme Court.  But, the court is unlikely to create an express skinny-label exception.  Rather, I believe the court will decide the case based upon traditional inducement liability doctrine.  That means that the resolution will shape not only pharmaceutical competition but potentially the scope of inducement liability across all patent-intensive industries.

by Dennis Crouch

The Federal Circuit affirmed a PTAB obviousness rejection in In re Blue Buffalo Enterprises, Inc., No. 2024-1611 (Fed. Cir. Jan. 14, 2026), holding that the claim terms "configured to" and "configured for" mean "capable of" performing the recited function absent specification language suggesting a narrower construction. The nonprecedential decision, authored by Chief Judge Moore and joined by Judge Taranto and visiting District Judge Chun, rejected the applicant's argument that "configured to" should be construed as "specifically designed to" perform the claimed function. Blue Buffalo's application claimed a wet pet food packaging container with deformable sidewalls and an integrated tool portion for tenderizing food. The claim recited sidewalls "configured to be readily deformable" and the integrated tool having projections "configured for use in breaking up and/or tenderizing the food product." The Board construed both phrases as requiring only that the structures be capable of performing these functions, which allowed the Coleman prior art reference to anticipate the limitations. Blue Buffalo conceded at oral argument that it was not challenging the obviousness determination under the "capable of" construction, effectively staking its entire appeal on claim construction.

The case arrives at an apt moment to note that the law surrounding "configured to" claim language has become something of a dog's breakfast. Over the past two decades, prosecutors have increasingly deployed "configured to" as an alternative to means-plus-function language under 35 U.S.C. § 112(f), hoping to capture functional aspects of an invention without limiting claims to the structures disclosed in the specification and their equivalents. The appeal of "configured to" is that it sounds structural while still defining the invention by its functional results. But this strategy carries real risk. In addition to the categorization in this case, the court could have instead found that the language invokes § 112(f) after all.

At oral argument, Chief Judge Moore cut to the heart of the matter with a question that frames the entire dispute. After Blue Buffalo's counsel argued that "configured to" should mean "specifically designed to," Judge Moore responded:

My concern at a high level is that you're taking a product claim that has to have structural limitations and you're infusing an intent element. Intent. That the person had to design this structure with this intent in mind, as opposed to: we designed this structure without that intent, but it happens to actually do that. I feel like that's good enough because it's a product claim.

Oral Arg. at 3:06 (Chief Judge Moore).  Judge Taranto pressed the point further, asking whether "configured to" could become "magic words added anywhere to have the effect that you're talking about, to add this intent element." Oral Arg. at 6:40. Judge Taranto followed up with the key problem of adding an intent element into a product claim:

You [would] have to identify either the ...  defendant's designer or manufacturer, and what that entity or person was thinking about when creating this particular structure.

Oral Arg. at 7:44 (Judge Taranto).

I wanted to add a quick update here on pending Supreme Court cases.

The court has denied cert in two cases: SurfCast v. Microsoft (25-555) (R.36 case) and Vetements v. Stewart (25-215) (international translation in trademarks).  Most notably, it redistributed the skinny label case of Hikma v. Amarin (24-889) to its January 16 - a signal typically seen as increasing the likelihood of grant. Several other patent cases remain in various stages of briefing, with one presenting an unusual procedural posture.

Hikma's redistribution follows the traditional trajectory toward certiorari. The case asks whether a generic drug manufacturer that fully carves out patented uses from its FDA-approved label can face induced infringement liability based on marketing statements and publicly available information about the branded product. The Solicitor General filed a supportive brief in December 2025 recommending that the Court grant review, arguing that the Federal Circuit's approach creates uncertainty about the scope of protection the Hatch-Waxman framework provides for skinny-label generics. See Dennis Crouch, Label-Plus Liability: The Government Warns the Federal Circuit Misread Hatch-Waxman, Patently-O (Dec. 2025). Cases receiving favorable CVSG responses historically have high grant rates, and redistribution to a second conference further increases the odds.