September 2025

Mea Culpa: Trump Administration Moves Swiftly on Tariffs Appeal

Patent

by Dennis Crouch

In my prior posts about the Federal Circuit's V.O.S. Selections decision, I suggested the Trump administration may "slow-walk the petition for certiorari while continuing to disrespect the judgement made by both the trial and appellate courts." I was wrong. Rather, the administration has already petitioned for certiorari and requested expedited consideration, filing just days after the Federal Circuit's August 29 decision. The petition frames this as an existential economic crisis, with Treasury Secretary Bessent declaring that tariffs are critical to save an America at "the brink of a major economic and national-security catastrophe."

Although obviously always unpredictable, I expect the Supreme Court will grant certiorari and will reverse the Federal Circuit's judgment that the Tariffs went beyond the statutory delegation of authority.

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Hyatt v. Stewart: Why Petrella and SCA Hygiene Don’t Save Long-Delayed Patent Prosecutions

Patent

by Dennis Crouch

The Federal Circuit’s new opinion in Hyatt v. Stewart affirms a bench-trial judgment that the USPTO may invoke prosecution laches to defeat four of Gilbert Hyatt’s pre-GATT civil actions under 35 U.S.C. § 145. The panel treated the availability of prosecution laches in § 145 as settled by Hyatt v. Hirshfeld (“Hyatt I”), 998 F.3d 1347 (Fed. Cir. 2021), and rejected Hyatt’s renewed argument that the Supreme Court’s recent decisions on laches (Petrella and SCA Hygiene) foreclose an equitable time-bar in patent-issuance litigation. The court also affirmed the district court’s prejudice findings and dismissed Hyatt’s cross-appeal for lack of Article III injury with respect to claims on which the Board had reversed the examiner.

But neither Hyatt I nor this new Hyatt decision dug deeply into the question of whether § 145 actions permit a prosecution-laches defense after Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), and SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580 U.S. 328 (2017). Those decisions restrict laches laches to “gap-filling” situations where no statute of limitations is available.  I expect Hyatt to seek en banc review to revisit the Federal Circuit’s reliance on the Symbol line of cases and to test the extent that Petrella/SCA undermined prosecution laches for § 145 actions.

As I explain below, I think Hyatt loses this one because there is no statute of limitations governing the overall patent prosecution timeline.

Now to be clear, I think the situation should be different for post-URAA patents whose term is measured as 20 years from the application filing date. That 20-year term creates the very statute of limitations that obviates the need for laches. Unlike Hyatt's pre-GATT applications, which benefit from the old 17-year-from-issuance term system where prosecution delays actually extend the total monopoly period, post-URAA applicants face a built-in temporal constraint: every day spent in prosecution is a day lost from the patent's enforceable life. This fundamental shift in incentives means that for modern patent applications, Congress has indeed provided the temporal SOL framework that Petrella and SCA Hygiene suggest should preclude equitable time-bars. The 20-year term effectively serves as an overarching statute of limitations for the entire prosecution process, filling the very gap that prosecution laches was designed to address.

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POPA Challenges Trump’s Union Busting “National Security” Designation for Patent Examiners

Patent

by Dennis Crouch

The Patent Office Professional Association (POPA) - the patent examiner union - filed suit in the U.S. District Court for the District of Columbia on September 2, 2025, challenging President Trump's executive order that stripped collective bargaining rights from USPTO patent examiners by designating them as "national security" workers. The lawsuit (which also includes the National Weather Service Employees Organization as a plaintiff) presents a direct constitutional challenge to what the unions characterize as presidential retaliation against federal employee organizations that have opposed Trump administration policies through grievance proceedings and public advocacy.

POPA has represented patent examiners at the USPTO for decades, negotiating collective bargaining agreements that govern working conditions, performance standards, telework arrangements, and grievance procedures for the agency's professional workforce.

An important data point: Following Donald Trump's election victory in November 2024, but before his January 2025 inauguration, POPA successfully negotiated an enhanced collective bargaining agreement with the outgoing Biden administration. This agreement strengthened remote work protections and provided additional job security guarantees for patent examiners who meet performance requirements. While under the agreement patent examiners continue to face termination for failing to meet USPTO's fairly rigorous production and quality standards, the agreement provides important protections that have thus far prevented the new administration from forcing a full return to office or employee purge.  But, the White House's new approach may do the trick.

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Same Evidence, Different Label: “Reference Recycling” in IPR Estoppel

Patent

by Dennis Crouch

The Federal Circuit is now considering a rehearing petition challenging the Federal Circuit's recent decision in Ingenico Inc. v. IOENGINE, LLC, 136 F.4th 1354 (Fed. Cir. 2025), which narrowed the scope of Inter Partes Review (IPR) estoppel under 35 U.S.C. § 315(e)(2).

Under the statute - an IPR petitioner is estopped from later re-challenging a patent's validity based upon grounds that could have been raised in the IPR:

[petitioner] may not assert either . . . that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.

The petition argues that the panel's interpretation of the term "ground" effectively guts the estoppel provision by allowing patent challengers to recycle identical prior art from failed IPR proceedings simply by relabeling their invalidity theories under different statutory provisions that are not subject to IPR challenge.  Question Presented:

Whether 35 U.S.C. § 315(e)(2) allows the petitioner in an inter partes review (“IPR”) that has resulted in a final written decision to avoid estoppel in a civil action by relabeling patents or printed publications that reasonably could have been raised as a “ground” in the IPR.

Whether 35 U.S.C. § 311(b) limits “a ground that could be raised under section 102 or 103” to only certain subparts of 35 U.S.C. §§ 102 or 103.

You might imagine a printed publication showing the details of a prior art machine unsuccessfully asserted in an IPR. The decision would allow the same evidence to later be used in court to challenge the patent if it was transformed to an on-sale bar or public use challenge, with the document serving as evidence of what was being sold/used.  In either approach, it is the same prior art reference being asserted, but in Ingenico, the court indicated that these are two different "grounds" for challenging the patent: (1) invalid as anticipated by a printed publication; versus (2) invalid as anticipated by prior sales activity or public use.

The Federal Circuit held that estoppel applies only to specific statutory grounds available in IPR (anticipation or obviousness based on patents or printed publications), not to the underlying prior art references themselves. This creates what I have previously referred to as "reference recycling."  This is a loophole that potentially undermines Congress's intent to prevent duplicative patent validity challenges through robust estoppel provisions.

I recognize the legitimate concern on the down-side of overly broad estoppel -- that it could shield invalid patents from necessary challenge, creating procedural barriers that protect weak patents.  But, the reality is that both the IPR system and district courts have been remarkably effective at invalidating and cancelling patents.  Ultimately, I believe the Federal Circuit erred here and unduly narrowed estoppel. The court should grant the rehearing.

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Remedial Restraint and the Rule of Law: When Courts Find Violations But Limit Relief

Patent

By Dennis Crouch

I was thinking more about the Federal Circuit’s recent en banc decision in V.O.S. Selections, Inc. v. Trump, No. 2024-1363 (Fed. Cir. Sept. 30, 2025).  The case is striking what might be seen as "remedial restraint."  The court found legal violations by the Federal Government in setting Tariffs, but limited any practical relief - at least for the time being.  The 7-4 Federal Circuit majority held that much of the President's sweeping tariff program is unconstitutional, but also vacated the CIT's injunction against the tariffs.  On remand, the CIT is charged with applying and considering the Supreme Court's new remedial framework from Trump v. CASA, Inc., 145 S. Ct. 1847 (2025).

This two-step dance - merits victory, remedial defeat - is something familiar to patent practitioners who have watched the Federal Circuit navigate similar tensions between legal rights and practical relief.  Even after proving infringement and defending against validity challenges, the eBay framework substantially limits patentee access to injunctive relief to stop ongoing infringement, and the rising tide against testimony for proving money damages.

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