by Dennis Crouch

Voluntary dismissal: Under Rule 41(a), a plaintiff can walk away from a lawsuit before the defendant answers or moves for summary judgment, no questions asked, no permission required. The tactic gets used strategically all the time: to avoid an unfavorable ruling, to refile in a better forum, etc. Courts have generally tolerated this practice, recognizing that voluntary dismissals serve important functions in managing litigation. But, there has always been some concern about strategic over-use.  In Ascendis Pharma A/S v. BioMarin Pharmaceutical Inc., No. 26-1026 (Fed. Cir. Mar. 26, 2026), the Federal Circuit drew a line, holding that a party cannot use voluntary dismissal to restart a statutory deadline it already missed. The court affirmed the district court's denial of a mandatory stay under 28 U.S.C. § 1659(a)(2), holding that Ascendis's dismiss-and-refile maneuver could not revive the 30-day window for requesting that the district court halt proceedings pending a parallel ITC investigation.

The case arises from a pharmaceutical patent dispute between two drug manufacturers developing treatments for achondroplasia (ACH), a genetic condition that causes short-limbed dwarfism. BioMarin sells Voxzogo, an FDA-approved ACH treatment covered by U.S. Patent No. RE48,267. Ascendis filed a New Drug Application for its competing product, TransCon CNP, on March 31, 2025. The very next day, BioMarin filed a complaint with the U.S. International Trade Commission alleging that Ascendis's importation of TransCon CNP infringed the '267 patent. Ten days later, on April 11, 2025, Ascendis filed a declaratory judgment action in the Northern District of California seeking a declaration of non-infringement with the argument that its imports were within the 35 U.S.C. § 271(e)(1) safe harbor - i.e., for reasons directly related to obtaining FDA approval.

This setup with parallel ITC and district court proceedings sets up a discussion of the mandatory stay provision of 28 U.S.C. § 1659(a).  That section provides that the district court shall stay proceedings with respect to any claim involving the same issues, at the request of a party that is also a respondent in the ITC proceeding.  But, the stay mandate is only required if requested within 30 days after the district court action is filed.

In our case, Ascendis had waited more than 30 days to request a stay - it then voluntarily dismissed its DJ action without prejudice and immediately refiled a nearly identical complaint the same day for the express purposes of resetting the clock.  Apparently Ascendis realized the DJ action created a problem: once the FDA approved the drug, BioMarin could use the pending district court case as a vehicle to seek a preliminary injunction. A mandatory stay under § 1659 would protect against that occurrence.

by Dennis Crouch

The Supreme Court today reversed the billion-dollar copyright verdict against Cox Communications, holding that an internet service provider (ISP) cannot be held contributorily liable for its users' copyright infringement simply because it knows about the infringement and continues providing service. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (U.S. Mar. 25, 2026).  Justice Thomas wrote the opinion for seven justices; Justice Sotomayor, joined by Justice Jackson, concurring in the judgment.

Unlike patent law, the copyright statute does not include a particular statutory framework for contributory infringement. For decades, however, the Supreme Court has attempted to treat the two doctrines in parallel - with copyright often borrowing elements from patent's statutory treatment of 35 U.S.C. 271(b) and 271(c).  In Cox, the court continued this approach and solidified contributory copyright liability to just two pathways: inducement and providing a service "tailored to infringement." Because Cox did neither, its continued provision of internet service to subscribers flagged as past and future infringers did not make it an infringer.  This case will now sit along side the court's prior key decisions in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005), and Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

With oral arguments in Hikma Pharmaceuticals v. Amarin Pharma, No. 24-889, set for April 29, the Court's insistence that knowledge of infringement is not enough for secondary liability is a troubling signal for the branded pharmaceutical company trying to hold a generic manufacturer liable for induced patent infringement.

by Dennis Crouch

One of the topics I teach in my internet law course is the steady erosion of the boundary between digital and physical privacy. For years, privacy debates centered on what we do online: how we scroll, what we buy, who we email. But location tracking has collapsed that distinction. Your phone knows where you sleep, which doctor you visit, and whether you attended a protest. And because that data is collected continuously, stored indefinitely, and held by private companies, it is available to law enforcement with the right legal process. The question the Supreme Court will take up in April is just how much process the Fourth Amendment requires.

In Chatrie v. United States, No. 25-112, the Court is hearing its first case addressing the constitutionality of geofence warrants. A geofence warrant works differently from a traditional warrant. Instead of identifying a suspect and then seeking evidence, law enforcement identifies a location and a time window and then asks a technology company to hand over data on every device that was nearby. In this case, a detective investigating a 2019 bank robbery in Midlothian, Virginia, obtained a warrant directing Google to search its Sensorvault database, which at the time held continuous location records for over 500 million users of Google's Location History service. The warrant defined a geofence with a 150-meter radius centered on the bank and a one-hour window around the robbery.

Google's initial search returned anonymized location data for 19 devices in the zone. What followed was a three-step process designed by Google. The detective, without returning to a judge, selected nine of the 19 accounts for expanded tracking over a two-hour window with no geographic limits. He then asked Google to de-anonymize three of those accounts, again without judicial approval. One belonged to Okello Chatrie.

by Dennis Crouch

The Patent Term Adjustment statute guarantees that USPTO delays will not unduly shorten patent term. 35 U.S.C. § 154(b). The first guarantee an applicant encounters is the 14-month clock: the USPTO must issue a First Office Action on the Merits (FAOM) or a Notice of Allowance (NOA) within 14 months of filing. When the agency misses that mark, the applicant earns day-for-day patent term adjustment under what we call "A delay" or "(A)(i) delay."  § 154(b)(1)(A)(i).  The chart above shows how well the USPTO has been hitting that target, broken down by the fiscal year of the first substantive examiner action.

The short answer: not well.

by Dennis Crouch

Congress set the patent term at twenty years from the earliest effective filing date. 35 U.S.C. § 154(a)(2) (not counting provisional or foreign national filing). But that statutory baseline is just the starting point. But, the actual term is shaped by a series of prosecution decisions, USPTO delays, terminal disclaimers, and patent family structure.  The chart below shows the distribution of expected remaining patent term (measured from issuance) for utility patents issued between March 2025 and March 2026. The calculation accounts for patent term adjustment (PTA) and terminal disclaimers, though the latter relies on a heuristics and so is not perfectly precise. Still, the overall shape tells a vivid story about what the patent system actually delivers.The most striking feature is

by Dennis Crouch

Congress set the patent term at 20 years from filing. But the effective term for most U.S. patents is considerably shorter - but these are self-selected patents. USPTO's maintenance fee records shows that roughly 60% of all patentees now abandon their patents before the full term expires, choosing not to pay the escalating series of post-issuance maintenance fees required to keep a patent in force. The rate of full-term patent maintenance has fallen to approximately 40%, approaching the lowest levels recorded in the past two decades, and the trajectory suggests further decline.

Under 35 U.S.C. § 41(b), patent holders must pay maintenance fees at three intervals after issuance: 3.5 years, 7.5 years, and 11.5 years. Failure to pay (including during a six-month grace period with surcharge) results in expiration of the patent. The chart below tracks the percentage of patentees who paid all three maintenance fees, grouped by the month their final (11.5-year) fee came due. The data reveals a striking arc: a steady rise from about 41% in 2002 to a peak of roughly 52% around 2012-2013, followed by a sustained decline back to approximately 40% today. The 11.5-year maintenance fee for large entities has nearly tripled during this period, from $3,100 in 2001 to $8,280 as of January 2025, well above the rate of inflation for this period. The question is whether this fee escalation is the primary driver of the decline, or whether other forces are at work.

by Dennis Crouch

I recently spoke by phone with Judge Pauline Newman. At 98 years old, she seemed sharp, engaged, and fully conversant -- particularly regarding the legal questions swirling around her case (and its impact on the patent system). She turns 99 in June.

Judge Newman has been barred from exercising any function of her judicial office since late 2023, when she issued her last opinion. She remains, in name, an active-service judge on the United States Court of Appeals for the Federal Circuit. But, in every practical respect, she has been removed from the bench by her colleagues, without impeachment, without an actual finding of disability, and without any court ever reaching the merits of her constitutional claims. This week, her attorneys filed a petition for certiorari asking the Supreme Court to consider her case.

Newman v. Moore, No. 25-___ (U.S. Mar. 12, 2026), presents two questions about the Judicial Conduct and Disability Act of 1980 (28 U.S.C. § 357(c)) that bars judicial review of judicial council "orders and determinations."

• Whether that bar extends to ultra vires acts that exceed the council's statutory and constitutional authority.
• Whether the bar forecloses claims seeking prospective injunctive relief against future unlawful orders.

Both questions arise against a factual backdrop that the D.C. Circuit itself described as raising "important and serious questions" about due process and judicial independence, while holding that its hands were tied by 25-year-old circuit precedent.