Federal Circuit Affirms: Rule 60(b) Motion Filed Too Late to Revive Patent Case

Patent

"You only get one shot, do not miss your chance to blow. This opportunity comes once in a lifetime, yo." Emenim

The Federal Circuit recently affirmed the District of Delaware's denial of Franz Wakefield's motion for relief from judgment under Rule 60(b), underscoring the importance of timely raising arguments during the normal appeal process. Wakefield v. Blackboard Inc., Nos. 2024-2030 (Fed. Cir. Apr. 23, 2025).

Wakefield, proceeding pro se, sought to reopen a judgment invalidating his U.S. Patent No. 7,162,696 based on indefiniteness grounds more than two years after the district court's original judgment and more than a year after the Federal Circuit's affirmance. The Federal Circuit panel of Judges Lourie, Dyk, and Chen had little difficulty concluding that the district court did not abuse its discretion in finding the Rule 60(b) motion untimely. As the court emphasized, Rule 60(b) is not a substitute for appeal.

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Masters of Their Own Petition: The Federal Circuit’s Latest Stance on AAPA

Patent

by Dennis Crouch

One ongoing debate at the PTAB has been the role of Applicant Admitted Prior Art (AAPA) in inter pates review proceedings. AAPA refers to statements made by the patentee that admit that certain subject matter is part of the prior art. These statements are typically found in the background section and might include language like:

  • “It is well known that …”
  • “Conventional systems use …”
  • “Prior work includes …”
  • “As described in [reference], it is known that …”

Examiners rely heavily on AAPA, but IPR proceedings are limited to anticipation and obviousness grounds "and only on the basis of prior art consisting of patents or printed publications."   In Qualcomm Inc. v. Apple Inc., 24 F.4th 1367 (Fed. Cir. 2022) ("Qualcomm I"), the Federal Circuit sided with the patentee (Qualcomm), holding that AAPA contained within the challenged patent does itself constitute such prior art.  Still,  the obviousness determination looks at evidence beyond the prior art, such as the level of skill in the art, and motivation to combine references.  And, the court held that AAPA could be used to prove those facts. The court noted particularly that a petitioner may properly rely on AAPA "as evidence of the background knowledge possessed by a person of ordinary skill in the art" for purposes such as "furnishing a motivation to combine" or "supplying a missing claim limitation" as part of the obviousness analysis.  But see Arendi v. Apple (Fed. Cir. 2016).

Following Qualcomm I, the USPTO issued updated guidance in on the treatment of AAPA in IPRs. Director Katherine Vidal's new guidance explicitly acknowledged the Federal Circuit's ruling that "under § 311, 'patents or printed publications' that form the 'basis' of a ground for inter partes review must themselves be prior art to the challenged patent" and not the challenged patent itself or any admissions therein. The guidance clarified that it is "impermissible for a petition to challenge a patent relying on solely AAPA without also relying on a prior art patent or printed publication."

But, the updated USPTO guidance established what would later be termed an "in combination" rule, providing that "[i]f an IPR petition relies on admissions in combination with reliance on one or more prior art patents or printed publications, those admissions do not form 'the basis' of the ground and must be considered by the Board in its patentability analysis." The guidance identified several permissible uses of AAPA in IPR proceedings, including: "(1) supply[ing] missing claim limitations that were generally known in the art prior to the invention...or the effective filing date of the claimed invention; (2) support[ing] a motivation to combine particular disclosures; or (3) demonstrat[ing] the knowledge of the ordinarily-skilled artisan at the time of the invention...for any other purpose related to patentability."

Back to Qualcomm: On remand, the PTAB applied the USPTO's "in combination" rule to conclude that Ground 2 of Apple's IPR petition complied with § 311(b). The Board determined that since Apple's challenge relied on AAPA "in combination with" prior art patents (Majcherczak and Matthews), the AAPA did not form "the basis" of the ground in violation of § 311(b). The Board rejected Qualcomm's argument that Apple had expressly included AAPA as part of the "Basis" of Ground 2 in its petition tables, concluding that these statements merely described how the grounds included both AAPA and prior art patents used "in combination."

On appeal, the Federal Circuit has once again reversed. Qualcomm Incorporated v. Apple Inc., Nos. 2023-1208, 2023-1209 (Fed. Cir. Apr. 23, 2025) (Qualcomm II). The new panel concluded that Board's interpretation contravened the plain meaning of § 311(b). Rather, the Federal Circuit held that Apple's express designation of AAPA in the "Basis" of Ground 2 was determinative, ruling that the Board erred in concluding the challenged claims were unpatentable under Ground 2 when that ground improperly included AAPA as part of its basis in violation of § 311(b).

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The Priority Paradox: In re Floyd Highlights the Dual Standards of Written Description and Anticipation

Patent

by Dennis Crouch

While a design patent can technically claim priority to a prior utility patent, that approach takes some planning and forethought to ensure that the utility patent's drawings and disclosure sufficiently show possession of the specific ornamental design features that will later be claimed in the design application.  Ideally, the drawings in the utility filing would be identical to those later included in the design application.

This situation is exemplified by the Federal Circuit's recent decision In re Floyd (Fed. Cir. April 22, 2025) (non-precedential).  The claimed design is a cooling blanket -- with the drawings showing a 6x5 array pattern.  The priority filing included a 6x6 array, a 6x4 array, and a statement that the array could include a plurality of array layouts.  But, the priority filing did not specifically and expressly include the 6x5.  The result: priority claim denied for lack of written description.

The case also illustrates the "daylight" between written description and anticipation standards, creating a trap where an applicant's own published application can both fail to provide written description support yet anticipate a later filing.  In this case, although Floyd's prior published application was insufficient as a priority document, the court found it served perfectly well as an anticipatory reference.

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The Hughes-Reyna Divide Continues: Dongkuk v. US

Patent

by Dennis Crouch

In a new decision released April 21, 2025, the Federal Circuit has given us another example of the jurisprudential divide between Judges Hughes and Reyna–something that I’ve followed across numerous opinions. Dongkuk v. US continues this pattern in a case involving antidumping duties on Korean wind towers.

Anti-Dumping Law: Under the Tariff Act of 1930 (19 U.S.C. § 1673 et seq.), the Commerce Department investigates whether foreign manufacturers are selling products in the U.S. at less than fair value (“dumping”). This process begins when a domestic industry files a petition simultaneously with both the Commerce Department and the U.S. International Trade Commission (19 U.S.C. § 1673a(b)). Commerce compares U.S. export prices with either home market prices (19 U.S.C. § 1677b(a)(1)(B)) or a “constructed value” when home market sales are inadequate or below cost (19 U.S.C. § 1677b(e)). The constructed value calculation includes the cost of materials and fabrication, selling expenses, profits, and packaging costs (19 U.S.C § 1677b(e)(1)-(3)). If Commerce determines dumping has occurred, it calculates a “dumping margin” and imposes corresponding antidumping duties (19 U.S.C. § 1673).  Commerce’s final determinations are first appealed to the Court of International Trade (CIT) and then to the Federal Circuit, which has exclusive jurisdiction over appeals from the CIT pursuant to 28 U.S.C. § 1295(a)(5).

In Dongkuk, the Wind Tower Trade Coalition filed a petition alleging Korean utility-scale wind towers were being dumped in the U.S. market. Commerce selected Dongkuk S&C (DKSC) as the mandatory respondent and ultimately determined its products were being sold at less than fair value, imposing a 5.41% antidumping duty.  The CIT affirmed (after some back-and-forth). On appeal, the Federal Circuit has now also affirmed, with Judge Hughes writing for the majority and Judge Reyna in dissent. (more…)

Seymour’s Shadow: Reviving the Supreme Court’s Standard for Prior Art Enablement

Patent

by Dennis Crouch

Pending Supreme Court petition in Converter Manufacturing v. Tekni-Plex (No. 24-866), focuses on the question of who bears the burden of proving whether prior art references enable the claimed invention, and what standard should apply. As far as I can discern, the Federal Circuit's basic approach stems from ex parte patent appeals and has three key elements:

  1. In order to be anticipating, the prior art must enable the claimed invention; and
  2. The party challenging the patent claim has the ultimate burden of proving enablement; BUT
  3. The "proof" is made so much easier by a quite strong presumption that prior art patents and printed publications are enabling.

The court's approach effectively shifts the burden to the patentee to prove non-enablement.  But, it is clear from all the old patent cases that the patent challenger has the burden, not the patentee (particularly once the patent issues). The key case on point here is Seymour v. Osborne, 78 U.S. 516 (1870) along with subsequent Supreme Court precedent in the late 1800s.

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“Do it on AI” claims are Abstract Ideas

Patent

by Dennis Crouch

The Federal Circuit's AI-patent decision this week affirmed a district court's dismissal of the claims as ineligible, holding that "generic" machine learning technology is itself an abstract idea. Recentive Analytics, Inc. v. Fox Corp., No. 2023-2437 (Fed. Cir. Apr. 18, 2025).

In its decision, the court acknowledged the growing importance of machine learning, and exerted some care in limiting its holding:

Machine learning is a burgeoning and increasingly important field and may lead to patent-eligible improvements in technology. Today, we hold only that patents that do no more than claim the application of generic machine learning to new data environments, without disclosing improvements to the machine learning models to be applied, are patent ineligible under § 101.

At oral arguments, the patenee's attorney Robert Fredrickson (Goodwin) explained that one reason his client did not claim a new algorithm is that it would have raised 101 issues:

This wasn't an invention of a new machine learning technique, because that would fall into another one of this court's section 101 traps, is if the claim is improving the mathematical algorithm or making machine learning better, then we're claiming the natural law, the mathematical algorithm itself.

That question --  scope of protection for new machine learning algorithms -- will be left for another day.

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I Know I’m Going to Love a Brief That Repeatedly Cites Marbury v. Madison

Patent

by Dennis Crouch

Back when he was a law professor here at Mizzou, I recall taking with Sen. Josh Hawley about his favorite Supreme Court case - Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).  The case has come to stand for the principle of judicial review, establishing the Supreme Court's authority to determine the constitutionality of laws and executive actions.  In the recent Federal Circuit case Xerox v. Facebook, Xerox relied on Marbury in a novel constitutional argument challenging the relationship between the PTAB and and Article III courts when it comes to claim construction -- arguing that the executive branch (the PTAB) is violating separation of powers principles by ignoring Article III court opinions. If you recall, the USPTO and PTAB have historically interpreted claims using broadest reasonable interpretation (BRI) rather than the standard approach outlined in Phillips v. AWH.  But, the USPTO changed its approach a few years ago and linked the standards -- with the result that the issue should not simply be ducked.

The basic question: does the PTAB have to follow a district court's prior claim construction of a patent term under principles of stare decisis?

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Patent Issuance Timeline Accelerated

Patent

by Dennis Crouch

The USPTO is shrinking the typical timeline from issuance to he USPTO has announced a significant improvement to their patent issuance process that will benefit inventors and patent holders across the nation. Beginning May 13, 2025, the time between Issue Notification and Issue Date will be reduced from approximately three weeks to just two weeks.   When everything is in order, the issue notification typically comes 1-2 weeks after paying the Issue Fee.

The USPTO formerly needed time for formatting the printing, but now that we have moved to electronic grants (eGrants), the issuance will come that much sooner.  Good work USPTO.

In addition to quicker patent issuance, the timeline also reduces the lame duck period where the inventors and attorneys still have a duty to submit known prior art relevant to patentability, but where such submission could significantly delay issuance.

But . . .

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PHOSITA is no Ordinary Person

Patent

by Dennis Crouch

In this post, I use the Federal Circuit's recent decision in Sage Products, LLC v. Stewart, Appeal No. 23-1603 (Fed. Cir. April 15, 2025) to delve into the increasingly fictional construct at the center of patent law: the Person Having Ordinary Skill in the Art (PHOSITA).  In our stories, PHOSITA is typically the antagonist, attempting to undermine our hero, the inventor. PHOSITA didn't invent, but now says that he would have done so if only he were a real boy.  And, the ever-expanding knowledge base imputed to PHOSITA helps justify that claim--while naturally raising concerns about the system's fairness, predictability, and effectiveness.

In this case involving sterilized chlorhexidine products, the court imputed detailed knowledge of British regulatory standards to a U.S.-based innovator—another example of how "ordinary skill" has become anything but ordinary. This decision continues a troubling evolution in which courts attribute unrealistic knowledge and capabilities to the hypothetical PHOSITA, creating an ever-widening gap between this legal fiction and the actual capabilities of real-world mechanics and artisans.

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Jack Dorsey and Elon Musk Call for Abolition of “All IP Law”

Patent

In a characteristically terse post on X, twitter co-founder Jack Dorsey declared “delete all IP law.” Elon Musk quickly agreed with Dorsey’s statement.  It is unclear to me which of these sub-declarations are included within the “all IP law.”

  • Delete all Patent Law?
  • Delete all Copyright Law?
  • Delete all Trade Secrecy Law?
  • Delete all Trademark Law?
  • Delete all rights of publicity protecting individuals’ name-image-and-likeness?

Musk has previously remarked that “patents are for the weak.” In a sense, he’s right—but perhaps not in the way he might intend. That “for the weak” statement can be made of all property rights and the rule of law more generally. The “strong”—those with immense capital, entrenched market positions, and even private security forces—can often get by without formal legal protections. Might makes right. But the rule of law exists precisely to protect those without such power. Intellectual property rights, like patents and copyrights, offer individuals and small enterprises a measure of leverage—a tool to bargain with or push back against more powerful entities. That is a feature of the system, not a bug. (more…)

Silicon Valley Judicial Ties: The Cellspin Recusal Case

Patent

by Dennis Crouch

Google has skipped its chance to respond to Cellspin's petition for writ of certiorari  in a case raising questions about judicial recusal standards. In Cellspin Soft v. Fitbit, the petitioner asks the Supreme Court to address when federal judges must recuse themselves under 28 U.S.C. § 455 and whether appellate courts must determine recusal issues before reaching the merits of a case.  The petition stems from patent infringement litigation initiated by Cellspin against several technology companies, including Fitbit (owned by Google), asserting Bluetooth media upload patents.

The recusal issue emerged after N.D. Cal. Judge Yvonne Gonzalez Rogers granted summary judgment of non-infringement to all defendants. Cellspin subsequently filed a motion seeking the judge's recusal under 28 U.S.C. § 455, which governs judicial disqualification. The motion was based primarily on two grounds: (1) the judge's spouse worked as an operating partner at Ajax Strategies, a venture capital firm with financial ties to Google (seemingly as co-investors), and (2) the judge personally owned investments in a hedge fund worth between $5-25 million with undisclosed investments.

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Judge Shopping vs. Judge Dodging: Federal Circuit Denies SAP’s Transfer Request

Patent

by Dennis Crouch

In a precedential opinion, the Federal Circuit has denied SAP's mandamus petition seeking to transfer its patent infringement case from the Marshall Division to the Sherman Division within the Eastern District of Texas -- and also change judges. In re SAP America, Inc., No. 2025-118 (Fed. Cir. Apr. 10, 2025).   Although SAP made good arguments in the case, they just were not good enough to overcome the particularly high burdens for transfer and mandamus.

Although it has failed, the bold petition is a continuation of the successful extra-legal campaign that turned Judge Albright's Waco courtroom back into a ghost town. On the legal side, the decision highlights the high bar for obtaining mandamus relief in disputes over convenient venue, particularly for intra-district transfers under 28 U.S.C. 1404(a).  The case is also notable as the first Federal Circuit appeal brought by Kathi Vidal since leaving her role as USPTO director and rejoining her old 1,000 attorney firm Winston & Strawn. Matthew Berkowitz (Reichman Jorgensen) and his team successfully defended against the mandamus petition, which the court decided without oral arguments. (I also hope that neither of them are too upset by their ChatGPT image remakes)

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When Five Years of Use Isn’t Enough: The High Bar for Highly Descriptive Marks

Patent

by Dennis Crouch

Federal Circuit has affirmed the Trademark Trial and Appeal Board's (TTAB) finding that "iVoterGuide" and "iVoterGuide.com" are highly descriptive terms that failed to acquire distinctiveness. Heritage Alliance, AFA Action, Inc. v. The American Policy Roundtable, No. 2024-1155 (Fed. Cir. Apr. 9, 2025). The ruling maintains the dismissal of Heritage's opposition to American Policy Roundtable's (APR) applications to register "iVoters" and "iVoters.com" as trademarks.

This case presents a classic trademark problem: When is a mark distinctive enough to receive protection, especially when it describes the service being offered?

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Non-Tariff Countermeasures to U.S. Tariff Hikes: IP, Services, and Investment Implications

Patent

by Dennis Crouch

In April 2025, President Trump took initiative to sharply increased tariffs on imports, citing trade imbalances and reciprocity. In response, major trading partners such as the European Union (EU), China and others are considered countermeasures that go beyond tit-for-tat tariffs. President Trump's actions were ostensibly driven by the large U.S. trade deficit in goods, but it also threatens key areas of U.S. strength – namely services, intellectual property (IP), and foreign investment where the U.S. runs global surpluses that far outpace the goods deficit. This asymmetry means that broad U.S. tariffs on goods can be met by partners' retaliation in areas where U.S. firms rely heavily on foreign markets. Non-tariff measures (NTMs) can include a variety of impediment to open markets reducing access without raising a customs duty. NTMs have been a major aspect of global trade initiatives over the past several decades--with the U.S. most often pushing our global partner nations to reduce barriers and provide open markets with free trade. That world has now changed.

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Federal Circuit on Trade Secret Remedies in AMS-OSRAM v. Renesas

Patent

by Dennis Crouch

The Federal Circuit issued a significant trade secret remedies decision AMS-OSRAM USA Inc. v. Renesas Electronics America, Inc., Nos. 2022-2185, 2022-2186 (Fed. Cir. Apr. 4, 2025). The court made a number of holdings (applying Texas trade secrecy law), most notably:

  1. A trade secret becomes "properly accessible" when it could have been reverse-engineered rather than when it actually was reverse-engineered - limiting the appropriate "head-start period" for calculating damages; and
  2. But, disgorgement of profits is proper for all sales arising from a misappropriation-based "design win" that occurred during the head-start period, even if actual sales occurred later;
  3. A plaintiff may recover damages for both trade secret misappropriation and breach of contract when the damages are based on different sales or injuries.

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No Provisional Rights for Expired Patents

Patent

by Dennis Crouch

In a unique decision, the Federal Circuit has dismissed an appeal seeking to obtain a patent that would have issued after its expiration date. In re Forest, No. 2023-1178 (Fed. Cir. Apr. 3, 2025).   The dismissal on jurisdictional grounds holds that the would-be patent owner (here, the inventor) has no standing to appeal because any resulting patent would have no zero patent term.  (Note - I might have written "appears to hold" since the court does not actually use the term "standing")

The focus of the decision is on a novel argument about provisional rights under 35 U.S.C. § 154(d).  Ordinarily, we think of a patentee having only inchoate rights until the patent issues. While that is generally true, "provisional rights" provide some potential of back-pay for infringement that occurs between publication and issuance.  In particular, once a patent issues, the a patentee can collect a reasonable royalty from parties were infringing the claims even while pending - so long as they were on actual notice of the application publication and the issued claims are "substantially identical" to those that in the published application.  Importantly, as suggested, these provisional rights can only be enforced retroactively after a patent actually issues.

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Judge our 14th Annual Patent Moot Court Competition

Patent

Calling IP Attorneys — Come Judge our 14th Annual Patent Moot Court Competition taking place via Zoom on April 14th and 16th, 2025. This is a memorable capstone experience for the students but it requires your expertise.

This year’s group is larger than usual and that means I need more judges. No Presidential Appointment is necessary, but you do need a JD, IP law experience, and most importantly passion for supporting the next generation of attorneys. Connect with talented law students and other judges passionate about patent and IP law; Engage with complex, current issues in patent law; etc.

I have modeled the competition after a recent pair of PTAB final written decisions in Meta v. VL (VideoLabs), both of which include a dissenting opinion by Judge McKone.  The appeals are currently pending before the Federal Circuit with both sides expected to file cross appeals.

I’ll provide a comprehensive judge’s brief and preparation meeting so that you don’t have to.

Multiple time slots available (evenings on April 14th and 16th)

Interested? Sign up here: https://lnkd.in/gZPG8Us9

Please share with colleagues who might be interested in contributing to legal education.

= = =

Here are the IPR Decisions that serve as the basis of the moot court.

Challenging the Server Test for Image Embedding

Patent

by Dennis Crouch

McGucken v. Valnet, Inc., No. 24-1040 (Supreme Court 2025)

Photographer Elliot McGucken has petitioned the Supreme Court to review a Ninth Circuit decision involving what has become known as the "Server Test" in copyright -- law has permitted websites to avoid copyright infringement by embedding images hosted on third-party servers rather than storing and hosting them directly.  Another name for this may be the "Embedding Liability Shield." Embedded images and video can appear seamlessly on a website even though the media is not served by the site's servers.

In McGucken v. Valnet, Inc., the basic setup is that Valnet embedded on its thetravel.com site a number of links to McGucken's Instagram posts.  To be clear, the Instagram posts are authorized by the photographer, but he argues that others should not be permitted to embed his Instagram posts into their sites. The Ninth Circuit sided with Valnet, but McGucken has now petitioned the Supreme Court for review.

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The Return of Robust Discretionary Denials

Patent

by Dennis Crouch

Last week, Acting USPTO Director Coke Morgan Stewart granted Director Review and vacated the PTAB's decision instituting several inter partes reviews (IPRs) in Motorola Solutions, Inc. v. Stellar, LLC. [IPR2024-01205, -01206, -01207, -01208 Director Review Decision] Stewart's March 28 decision applies the Fintiv factors more aggressively than the Board, signaling a shift toward increased discretionary denials under 35 U.S.C. § 314(a). This is a situation where denial seems appropriate in my opinion. The Stellar's infringement lawsuit was filed in August 2024, with Motorola waiting 11 months to file IPR petitions.  District Court Judge Sam Jordan (E.D.Tx) has has already issued Markman orders and parties have filed their summary judgment. A jury trial is set for July 2025.

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Convoyed Sales: Federal Circuit Washes Away $2.6M in Patent Damages

Patent

by Dennis Crouch

The Federal Circuit’s March 2025 decision in Wash World v. Belanger, attempts to clarify an important distinction between apportionment and convoyed sales in patent damages jurisprudence, dissolving nearly $2.6 million from a jury’s $9.8 million lost profits award. Wash World Inc. v. Belanger Inc., No. 2023-1841, slip op. at 26 (Fed. Cir. Mar. 24, 2025). A jury found that Wash World’s “Razor EDGE” car wash system infringed Belanger’s U.S. Patent No. 8,602,041, which claimed a vehicle spray washer with lighted spray arms.  Adding lights is a simple transformation, but apparently the particular arrangement of flashing lights running down the length of each during vehicle entry to create a “goalpost effect” that guides drivers to position their vehicles.

The infringed claim covers a “a spray-type car wash system” that expressly recites a carriage and spray arms with their lighting system. Although other components such as dryers are traditionally part of the wash system and sold together, the claims themselves do not recite anything about the dryers or additional components.

In denying JMOL, the district court analyzed the damage award under the apportionment standards of Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978).  The judge concluded that the patentee Belanger sufficiently accounted for apportionment of lost profits between patented and unpatented features by satisfying the Panduit factors. I.e., the jury had enough evidence to reach its decision.   On appeal though, the Federal Circuit shifted focus — holding that the non-patented features required a convoy analysis under Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538 (Fed. Cir. 1995). Ultimately, the court issued a remittitur — ordering the district court to shrink the ultimate award. (more…)