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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Power Shift at Patent Office: Senior PTAB Leaders Reassigned in Surprise Move

Patent

by Dennis Crouch

In what appears to me as a significant demotion of senior Patent Trial and Appeal Board leadership, Chief Judge Scott R. Boalick and Vice Chief Judge Mike Tierney are being reassigned to lead the USPTO's Central Reexamination Unit, according to a Bloomberg Law article by Aruni Soni published August 28, 2025.

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Marbury in the Trade Context: CAFed Declares Trump’s Tariffs Illegal, but Limits Relief

Patent

by Dennis Crouch

In a 7–4 precedential decision, the Federal Circuit has affirmed a Court of International Trade (CIT) core ruling that the International Emergency Economic Powers Act (IEEPA) does not authorize the Trump Administration’s sweeping “reciprocal” and “trafficking” tariffs that the President imposed by executive order on virtually all imports from nearly every country. V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813 (Fed. Cir. Aug. 29, 2025) (25-1812.OPINION.8-29-2025_2566151)

The analysis of any presidential power case begins with the US Constitution that identifies powers and roles of each branch of the government.  The key text comes from Article 1, Section 8, Clause 1 which provides Congress with the power over tariffs:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The key question in the case is whether Congress handed at least some of those powers to the President via statute in the IEEPA in order to take swift actions to account for emergency situations.

The basic holding in the appeal: IEEPA’s grant to “regulate” importation in emergencies does not clearly include the power to impose open-ended, across-the-board tariff schedules, especially given Congress’s historic practice of delegating tariff authority expressly and with substantive and procedural limits. The Federal Circuit affirmed declaratory relief invalidating the orders but ultimately vacated the CIT’s nationwide injunction and instead ordered the tribunal to reconsider the availability and scope of injunctive relief under eBay and the Supreme Court’s recent limits on universal injunctions. Trump v. CASA (2025).

Throughout this litigation, the Federal Circuit has projected institutional caution about a frontal clash with President Trump or his tariff campaign. The court spoke en banc and per curiam - rather than spotlighting a single judge or even three judge panel - and also coupled its statutory ruling limiting Trump's power with remedial restraint by vacating the CIT’s universal injunction. That approach eases immediate pressure from the executive branch and the trade apparatus while preserving the core legal holding.

Like Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Federal Circuit chose to declare what the law is while carefully avoiding a direct institutional confrontation with the executive branch. The court firmly rejected the legal foundation for Trump's sweeping tariff regime but then immediately softened the blow by vacating the nationwide injunction that would have provided immediate coercive relief, creating a Marbury-like weave between judicial authority and institutional restraint.

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Anthropic Settles the Authors’ Class Action on Training Data: What It Means for Fair Use, Compensation, and Competition

Patent

by Dennis Crouch

Anthropic and a certified class of book authors have reportedly reached a class-wide settlement in Bartz v. Anthropic PBC, the Northern District of California case challenging the company’s ingestion of millions of books as training data to build Claude. The parties filed a notice on August 26, 2025, stating that they executed a binding term sheet and will seek preliminary approval in early September. The procedural posture reveals two critical features: (1) Judge Alsup’s June order finding that training on lawfully obtained books constituted fair use as a matter of law; and (2) his conclusion that Anthropic’s acquisition and storage of “pirated” works in a central library could constitute infringement—potentially exposing the company to staggering statutory damages.

The settlement averts that trial (and class certification appeal) but not the broader policy questions surrounding AI training and copyright. Judge Alsup’s analysis demonstrates why fair use isn’t a blanket defense for LLM development. While he granted summary judgment for Anthropic on training with lawfully obtained copies, he distinguished between “training” and maintaining a “shadow library” as separate uses under copyright law. This distinction matters: even where certain training uses qualify as fair use, developers remain exposed to infringement claims based on how they acquire and store training materials. The ruling reinforces that fair use under 17 U.S.C. § 107 requires a fact-specific, work-by-work analysis—not a categorical exemption for AI development.

The Evolving Policy Landscape

The settlement occurs against a shifting federal backdrop on AI and copyright policy. Earlier this year, the U.S. Copyright Office released a pre-publication report concluding that many scraping-based training regimes would constitute infringement absent explicit permission from rightsholders. However, the day after the report’s release, President Trump removed Register of Copyrights Shira Perlmutter – a move I interpret as partially reflecting the administration’s prioritization of AI development over copyright enforcement concerns.

This policy tension raises fundamental questions about the appropriate balance between innovation incentives and authorial rights. One way to frame current developments is as an effort to normalize uncompensated use of copyrighted works for AI “infrastructure.” From a constitutional perspective, if the government were to mandate or effectively authorize such uncompensated use, this might constitute a Taking requiring just compensation under the Fifth Amendment. Alternatively, one might invoke the more provocative analogy of Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), which describes assertions of sovereign prerogative over private interests without compensation requirements. (more…)

Non-IP En Banc: Federal Circuit Limits Federal Procurement Protests

Patent

by Dennis Crouch

The Federal Circuit this week decided a non-patent en banc case - focusing on standing to challenge government procurement decisions as a federal claim under 28 U.S.C. § 1491(b). Percipient.AI, Inc. v. United States, No. 2023-1970 (Fed. Cir. Aug. 28, 2025).

The statute provides jurisdiction to the Court of Federal Claims over actions filed by "an interested party objecting to (1) a solicitation by a Federal agency for bids or proposals for a proposed contract or to (2) a proposed award or the award of a contract or (3) any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1) (numbering not found in statute).

Here, the 7-4 court concluded that an "interested party" under the statute must be "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract."  And, this definition applies even to the third prong where the objection is based upon the third prong rather than upon bids or proposed award.

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Remote Work on the Chopping Block: How Union Exclusion Reshapes USPTO Employment

Patent

by Dennis Crouch

 

In a significant labor relations development that will reshape working conditions for thousands of patent examiners, President Trump issued an executive order on August 28, 2025, excluding the USPTO's entire Patents business unit from federal collective bargaining protections.  The order, titled "Further Exclusions from the Federal Labor-Management Relations Program," adds "Office of the Commissioner for Patents and subordinate units, Patent and Trademark Office" to the list of agencies excluded from Chapter 71 of Title 5, United States Code (the federal labor-management relations statute). This exclusion effectively terminates union representation for patent examiners by the Patent Office Professional Association (POPA), which has represented USPTO examiners for years based upon negotiated collective bargaining agreements that govern everything from telework arrangements to performance evaluation procedures.

The executive order relies on the President's authority under 5 U.S.C. § 7103(b)(1), which permits excluding agencies or subdivisions when the President determines they have "as a primary function intelligence, counterintelligence, investigative, or national security work" and that Chapter 71 "cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations." According to Acting USPTO Director Coke Morgan Stewart's internal message to staff, "the administration has determined that the Patents business unit and the Office of the Chief Information Officer (OCIO) business unit have 'as a primary function . . . national security work,'" rendering federal labor protections inconsistent with national security considerations. The changes took effect immediately and remove POPA's bargaining rights for patent examiners.

I want to pause in the analysis to acknowledge that thousands of patent examiners now face significant uncertainty about their working conditions and job security, including big questions about whether they will need to uproot their family in order to keep a job.

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Google v. Sonos: Federal Circuit Validates Strategic Patent Continuation Practice (With Limits)

Patent

by Dennis Crouch

The Federal Circuit has now wiped away Judge William Alsup's dramatic post-trial decision in Sonos v. Google. In a nonprecedential opinion, the court reversed the lower court's finding of prosecution laches, reiterating that laches is an equitable defense reserved for rare cases. Google LLC v. Sonos, Inc., No. 2024-1097 (Fed. Cir. Aug. 28, 2025).

Prosecution laches requires both (1) an unreasonable and unexplained delay in patent prosecution and (2) a showing of prejudice to the accused infringer in the form of intervening rights (e.g. evidence that others "invested in, worked on, or used the claimed technology during the period of delay"). Here, Google failed to present evidence that it (or others) changed their position or made investments in reliance on Sonos's delay and so laches could not apply. At times, egregious delay can trigger laches absent a specific showing of harm. Here, however, the panel emphasized that standard continuation practice, even over more than a decade, is not itself an "egregious misuse" of the system sufficient to trigger laches in the absence of specific prejudice. Prior prosecution laches cases all involved pre-1995 patents and decades of delay and this was the first time prosecution laches had been used to render a post-1995 patent unenforceable in a situation where delays in prosecution automatically delayed patent term as well. The court ultimately reversed Judge Alsup's unenforceability ruling and reinstated the jury's $32 million verdict on the Sonos "zone scenes" patents.

Although Sonos won the appeal, the decision does not provide a full green light to the continuation practice found here - particularly where claims covering competitor activity are first added to the patent family long after the original filing and publication dates. The Federal Circuit's analysis focused heavily on the fact that Sonos's 2007 patent application previously published, well before Google's alleged investments began in 2014-2015. This meant Google could not claim prejudice from incorporating into its products a feature that was already publicly disclosed in a pending patent family.

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Love Letters Gone Wrong: Federal Circuit’s First AIA Derivation Appeal Hinges on Valentine’s Day Emails

Patent

by Dennis Crouch

The Federal Circuit recently decided its first AIA derivation proceeding appeal. In Global Health Solutions LLC (Burnam) v. Selner, No. 23-2009 (Fed. Cir. Aug. 26, 2025), the court affirmed a PTAB decision favoring the first-filer -- but found a harmless error with the Board's analysis (the Board erred by framing its analysis in first-to-invent terms rather than first-to-file).   Ultimately, the case outcome keeps derivation proceedings in their corner as narrow and rare exceptions to the general first-to-file rule.  The decision also serves as a reminder that, while conception timing remains relevant for establishing derivation and rebuttal, the AIA system fundamentally abandons any inquiry into which party conceived the invention first.

The case involved competing patent applications for an emulsifier-free wound treatment ointment filed by former collaborators.  Marc Selner filed his application on August 4, 2017, four days before Bradley Burnam's company Global Health Solutions LLC (GHS) filed its application.  GHS petitioned for a derivation proceeding, arguing that Selner derived the invention from Burnam's earlier conception and communication. Although Burnham established a prima facie case of derivation, Selner was able to rebut that presumption with evidence of prior conception.

The dispute was resolved based upon a 3 hour time difference between emails from the competing inventors on Valentine's Day 2014.

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F-Bombs Away: Federal Circuit Sends Brunetti Back to TTAB to Consider its Failure to Function Doctrine

Patent

by Dennis Crouch

In a divided decision that highlights ongoing tensions around trademark law's Failure to Function doctrine, the Federal Circuit in In re Brunetti, No. 2023-1539 (Fed. Cir. Aug. 26, 2025), vacated a TTAB refusal to register the word FUCK as a trademark for various consumer goods and retail services. The court rejected most of applicant Erik Brunetti's constitutional challenges but concluded that the Board failed to articulate a coherent standard for determining when widely-used words can function as source identifiers.

Writing for the majority, Judge Dyk criticized the Board's apparent "I know it when I see it" approach to failure-to-function refusals, while Judge Lourie dissented, arguing that substantial evidence clearly supported the Board's conclusion that the "f-word" cannot serve as a trademark for the applied-for goods. (While the majority used FUCK a total of 19 times, Judge Lourie was content with "f-word" and "f[]."  I would have used "F-Bomb.")

The case represents Brunetti's second major trademark dispute to reach the Federal Circuit, following his successful Supreme Court challenge in Iancu v. Brunetti, 588 U.S. 388 (2019), which invalidated the Lanham Act's prohibition on registering "immoral or scandalous" marks. However, this case involved different trademark applications - seeking registration of FUCK (not FUCT as in the prior case) for goods including sunglasses, jewelry, backpacks, and retail services - and raised entirely different legal issues centered on the fundamental requirement that trademarks function as source identifiers under 15 U.S.C. § 1127.

Patent Alert: The Federal Circuit's emphasis on consistency in Brunetti offers a potential parallel argument against USPTO decision-making in the patent context as well. As discussed below, the court's reliance on Booking.com's mandate that the PTO "consider its 'own past practice' in developing a 'comprehensive rule'" suggests that patent applicants facing inconsistent rejections may now have stronger grounds to challenge the USPTO's rejections.

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Hips Don’t Lie, But Patent Specs Might: CeramTec’s Color Conundrum and Trade Dress After Patenting

Patent

by Dennis Crouch

CeramTec has now filed its petition for certiorari challenging the Federal Circuit’s affirmance of the TTAB’s cancellation of CeramTec’s “pink ceramic hip” trade‑dress registrations based upon overlapping utility patent protection. In its 2001 TrafFix decision, the Supreme Court held that a utility patent constitutes "strong evidence" that the claimed features are functional, thereby creating a presumption against trademark protection for those features.  [20250820165039977_CeramTec Cert Petition]

CeramTec's fake-hips are pink and the company used that in marketing is Biolox Delta product and has established market distinctiveness in the color itself.  The USPTO initially agreed and registered the color pink for the ceramic bones.

The problem is that the pink color arises from from the addition of chromia to the ceramic compound -- an important aspect of the (now expired) utility patent (US5830816) covering its product.  Although CeramTec admits that its pink product is covered by the patent -- and that the pink is caused by the 0.33 wt% chromia used in their product -- that result is not required by the patent.  In particular, the patent does not claim or even mention the pink color and chromia addition within the claim scope can yield a spectrum of colors in zirconia‑toughened alumina (ZTA_ depending upon the concentration used, including “pink, red, purple, yellow, black, gray [or] white.”  Although CeramTec chose 0.33 wt% chromia for its product, nothing in the patent indicates that concentration is unique or more beneficial than other concentrations within the claim scope.

Hips don't lie?: An additional interesting and potentially important fact. The utility patent provides a number of reasons why chromium is important as an addition to the zirconium dioxide ceramic, it:

  1. strengthens the alumina matrix,
  2. restores hardness lost by adding zirconia, and
  3. improves thermal and wear resistance.

However, as this lawsuit developed, CeramTec's position changed dramatically. In response to CoorsTek's cancellation petition, CeramTec argued to the Board that "although it had once believed that adding chromia provided material benefits to ZTA ceramics, that belief was mistaken and has since been disproven." This reversal was supported by experimental testing conducted by a government-sponsored research agency in related German litigation, which found that adding chromia at various levels (0.0, 0.1, 0.3, and 0.5% by weight) had no effect on hardness or wear resistance.

This alteration in utility means that chromia - although claimed - is not actually functional.  This is highlighted by the CoorsTek competing product which achieves the same ZTA features without chromia.  CoorsTek though wanted to ensure that the ortho purchasers understand its product is effectively the same as CeramTec's and so added pink dye in order to guarantee visual similarity.

In 2014 CoorsTek petitioned to cancel CeramTec’s color registrations as functional. After some delay because of parallel litigation, the TTAB ultimately granted cancellation, and the Federal Circuit affirmed.  The TTAB applied the Morton‑Norwich framework and also credited TrafFix’s “strong evidence” rule.  It concluded that the patent record (and other materials) showed chromia conveyed utilitarian advantages to ZTA and that pink is a “natural byproduct” of the concentration CeramTec chose. On that view, the expired patent became “strong evidence” that the pink trade dress is functional. The Board also found CoorsTek's criticisms of the testing methodology and scope to be persuasive.

On appeal, the Federal Circuit held that TrafFix does not demand that the patent explicitly claim the exact design feature (pink) or that the marked feature be the “central advance” of the patent; it sufficed that “the addition of chromia causes ZTA ceramics to become pink.” The court treated the “central advance” phrasing in TrafFix as illustrative rather than as a threshold requirement.  I summarized the Federal Circuit’s decision when it issued, noting the cautionary lesson for patent prosecutors: statements in a utility patent about functional benefits can later loom large in a trademark functionality fight.

The new petition for writ of cert to the Supreme Court asking:

Question Presented: Whether under this Court’s decision in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), a utility patent that produces a product with a wide array of designs is “strong evidence” that every aspect of every design produced by practicing the patent is functional rather than arbitrary, incidental, or ornamental.

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When ‘Patented’ Becomes False Advertising: Crocs Takes Its Dastar Fight to the Supreme Court

Patent

by Dennis Crouch

In July 2025, Crocs asked the Supreme Court to decide a seemingly clean legal question: whether the Lanham Act’s false advertising provision, § 43(a)(1)(B), covers misrepresentations about a product’s intangible attributes, such as its patent status. Two new filings complicate the story somewhat. The Accessories Council, in an amicus brief supporting Crocs, urges the Court to take the case to prevent what it sees as a chilling effect on both patent enforcement and routine commercial speech. Dawgs’ brief in opposition reframes the case entirely, insisting that this dispute is about false claims tied to tangible product attributes—not abstract questions about intangibles at all.

The case stems from a protracted legal battle between Crocs and Double Diamond (maker of "Dawgs" shoes) that began in 2006 with design patent infringement litigation. The current dispute centers on Double Diamond's false advertising counterclaim, alleging that Crocs misled consumers by marketing its "Croslite" foam material as "patented," "proprietary," and "exclusive" when the material was neither patented nor unique. Rather it was essentially the same EVA foam used by many competitors.

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New Clothes for the Doctrine of Foreign Equivalents?

Patent

by Dennis Crouch

Earlier in 2025, the Federal Circuit affirmed a TTAB’s refusal to register VETEMENTS (both standard-character and a block-letter stylization) for clothing and online retail store services for clothing.  Pardon my French, but the problem here is that “vêtements” directly translates into "clothing" -- rendering the word generic for goods and at least highly descriptive for clothing related services.  In re Vetements Group AG, 137 F.4th 1317 (Fed. Cir. 2025).  The case falls under the "Doctrine of Foreign Equivalents" (DFE) which the court was careful to characterize as a guideline rather than a firm rule.  Here, the Federal Circuit applied the guideline and concluded that an "appreciable" number of American consumers would likely "stop and translate" the word and recognize it as generic to the goods in question.

Vetements has now filed a petition for certiorari asking the Court to decide, first, whether protectability of a non-English mark should turn on consumer perception of the mark as encountered (without translation) or on its English translation; and second, what the proper test is for genericness or descriptiveness of non-English marks. The petition frames the Federal Circuit’s approach as inconsistent with Menendez v. Holt, 128 U.S. 514 (1888), and the “bedrock” consumer-perception principle reiterated in USPTO v. Booking.com, 591 U.S. 549 (2020). The petition also highlights divergent approaches among the circuits and the TTAB.  Vetements Grp. AG v. Stewart, No. 25-215 (U.S. Aug. 19, 2025) (petition for cert. filed).

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No Fault for USTA: Federal Circuit Protects Non-Party Defenses against Attempted Default Slam

Patent

by Dennis Crouch

The Federal Circuit has affirmed a district court's refusal to hold the United States Tennis Association (USTA) in contempt of a temporary restraining order, emphasizing that non-parties retain their right to defend against infringement allegations even when bound by injunctions against defaulting defendants. In Group One Ltd. v. GTE GmbH, 2024-1273 (Fed. Cir. Aug. 21, 2025), the court also reversed the district court's denial of mandatory post-judgment interest while affirming strict limits on damages awards in default judgment cases.

Group One sued German company GTE GmbH and its owner Ralf Weigel for patent infringement of tennis let detection technology covered by U.S. Patent Nos. 10,583,341 and 10,272,307, claim a system for measuring net tension to indicate whether a ball has clipped the net during a serve and allow umpires to control shot clocks. GTE and Weigel defaulted - i.e., did not show up to court - and the district court entered default judgment finding infringement based on defendants' sale of their "Trinity" let detection system for use at the 2019 and 2020 U.S. Open Tennis Championships. The court also issued a temporary restraining order preventing use of infringing Trinity systems during the 2021 U.S. Open. USTA went ahead and used a Trinity system at the 2021 tournament and Group One sought to enforce the TRO against USTA as a non-party acting "in concert" with the defaulting defendants -- particularly seeking a contempt finding.

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Obviousness-Type Double Patenting: Challenging the Allergan First-Issued Safe Harbor

Patent

A new en banc petition challenges the Federal Circuit's odd approach to double-patenting and patent term adjustment issues stemming from In re Cellect, 81 F.4th 1216 (Fed. Cir. 2023) and Allergan USA, Inc. v. MSN Laboratories Private Ltd., 111 F.4th 1358 (Fed. Cir. 2024).  As I discuss below, the new case is Acadia Pharmaceuticals Inc. v. Aurobindo Pharma Ltd., No. 2024-1401 (Fed. Cir. 2025) and the patentee is the current winner -- but the patent challenger (MSN) believes that the court's ruling is improper because it insulates a PTA-extended patent from ODP invalidity based upon the Allergan exception - thereby allowing two obvious patents to coexist with different expiration dates, without restrictions on divided ownership, and effectively prolonging exclusivity. [Acadia v. Aurobindo Petition]

Obviousness-type double patenting (ODP) is a judicially-created doctrine with shifting justifications that has evolved over more than 150 years. Originally designed to prevent patent owners from extending exclusivity beyond the term of an original patent by obtaining subsequent patents for obvious variations of the same invention, see Miller v. Eagle Manufacturing Co., 151 U.S. 186 (1894), the doctrine's rationale has morphed significantly over time. Early cases like Odiorne v. Amesbury Nail Factory, 18 F. Cas. 578 (1819), focused on preventing indefinite patent term extension, while later decisions have emphasized theories of public dedication of unclaimed subject matter and prevention of harassment through multiple enforcement actions by different assignees. See In re Hubbell, 709 F.3d 1140 (Fed. Cir. 2013).

The 1995 Uruguay Round Agreements Act (URAA) fundamentally altered patent terms from 17 years from issuance to 20 years from the earliest effective filing date.  This change eliminated the most egregious ODP concerns since patents with common priority dates would typically expire simultaneously. Gilead Sciences, Inc. v. Natco Pharma Ltd., 753 F.3d 1208 (Fed. Cir. 2014).  But, Congress's introduction of patent term adjustment (PTA) in 1999, codified at 35 U.S.C. § 154(b), to compensate patentees for USPTO examination delays reintroduced variability in expiration dates among family members sharing priority dates. Most patents are part of a family, and it is common for one or more to have received an ODP rejection - overcome with a terminal disclaimer.  Notably, the PTA statute contains a provision (§ 154(b)(2)(B)) that terminal disclaimers filed to overcome ODP forfeit any PTA beyond the disclaimed expiration date.

The setup in the bulk of these cases reflects a structural quirk of patent prosecution. In a family where two patents/applications claim obvious variations of the same invention, the USPTO only polices double patenting a situation where one patent has already issued and an application is still pending claiming an obvious variant.  For the issued patent, its prosecution is closed, and the Office does not ask the owner to go back and file a terminal disclaimer to synchronize its term with issued family members.  This practice made sense when term was calculated from issuance date - the later issued would normally always expire later.  But today it is actually more common for earlier issued patents to expire later -- that is because prosecution is often longer in the first application than in continuations.  As a result, the disclaimer requirement falls only on the follow-on application, while the first-issued patent retains whatever PTA the statute provides. This asymmetry is at the heart of the current controversy: whether the judiciary should treat those earlier patents as vulnerable to ODP challenges?

The chart above shows this setup for Acadia. The ’740 patent was filed first (1/15/2004), issued first (10/13/2009), and—absent any adjustment—would have expired on 1/15/2024, but it received 980 days of PTA that pushed its term to 9/21/2026 (the subsequent PTE to 4/29/2030 is not at issue here). The later‑filed family member, the ’271 patent, issued on 2/14/2017 with no PTA and therefore expired on the ordinary 20‑year date, 1/15/2024. The ODP question is whether that later‑filed, later‑issued, earlier‑expiring ’271 patent can be used invalidate the '740 patent since no terminal disclaimer was filed in the parent.

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Guest Post: Quintara Clarifies — and Complicates — Trade Secret Identification Under the DTSA

Patent

Guest Post by Matthew D’Amore, Professor of the Practice, Cornell Tech and Cornell Law School.

Should a plaintiff in a trade secret case under the DTSA be required to detail its alleged trade secrets before discovery? Can a district court give the question of trade secret particularity to the jury? The Ninth Circuit’s recent decision in Quintara Biosciences v. Ruifeng Biztech rejects importing California’s pre-discovery “reasonable particularity” rule into the Defend Trade Secrets Act, reaffirming that federal law imposes no such up-front requirement. But while Quintara endorses an iterative identification process, it also embraces a problematic notion — that “reasonable particularity” is a fact question for the jury — creating new uncertainty for courts and litigants managing DTSA cases. (more…)

Wilco v. Weeks Marine: When Expert Disagreements Don’t Create Genuine Disputes of Material Fact

Patent

by Dennis Crouch

The Federal Circuit's recent decision in Wilco Marsh Buggies and Draglines, Inc. v. Weeks Marine, Inc., 23-2320 (Fed. Cir. Aug. 19, 2025) (nonprecedential), illustrates how the Federal Circuit appears to be increasingly disregarding the jury's role in fact finding -- in this case disputes about whether a competitor's prior sales were anticipating based upon the on sale bar. Looking at it from an alternative perspective, the decision demonstrates how the Federal Circuit's regular disregard of conclusory expert testimony can vaporize what appear to be genuine factual disputes.

The case involved U.S. Patent No. 6,918,801, directed to an amphibious vehicle with tracked pontoons and retractable spuds for stabilization during excavation operations. Weeks Marine successfully argued that a 1993 sale of the MudMaster amphibious dredge anticipated the asserted claims under the on-sale bar of 35 U.S.C. § 102(b). The Federal Circuit affirmed summary judgment of invalidity, finding that no reasonable jury could conclude the 1993 MudMaster lacked a "chassis" as required by the claims, despite what appeared to be competing expert testimony on this critical element.

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