by Dennis Crouch

The PTAB is likely to undergo a dramatic transformation in 2026 based upon the convergence of two parallel developments.  (1) The ex parte appeal inventory has plummeted from approximately 27,000 pending appeals in FY2012 to under 3,000 today, with the trajectory suggesting near-zero inventory within months. (2) Simultaneously, Director John Squires has effectively shut down inter partes review through aggressive use of institution denials. The combination means the PTAB's role is shrinking on both fronts, raising fundamental questions about what happens to an institution built for a workload that no longer exists.

The workforce implications are stark. Before President Trump's inauguration, the PTAB employed approximately 230 Administrative Patent Judges plus roughly 120 support staff. That number has already dropped to fewer than 200 APJs through DOGE attrition and early retirement incentives. But I believe this reduced headcount is still dramatically oversized for the emerging workload. 

by Dennis Crouch

This week I'm delivering a talk on Patent Law issues from 2025.  The year has been defined by institutional upheaval, including the the effective shutdown of new inter partes review institutions and a USPTO willing to fill doctrinal voids that Congress and the courts have left open. The following are seven issues that I think deserve ongoing consideration. 

by Dennis Crouch

In Technology in Ariscale, LLC v. Razer USA Ltd., No. 2024-1657 (Fed. Cir. Jan. 6, 2026), the Federal Circuit affirmed the district court's judgment that claims 1 and 14 of U.S. Patent No. 8,139,652 are invalid under 35 U.S.C. § 101 for claiming patent-ineligible subject matter. The nonprecedential decision, authored by Judge Cunningham, illustrates continuing difficulty patentees face when attempting to frame mathematical signal processing operations as concrete technological improvements. The case also demonstrates how a patent's own specification can undermine eligibility arguments in situations where the disclosed benefits do not map directly to the actual claim language.

by Dennis Crouch

The Federal Circuit heard oral argument today in Apple Inc. v. Squires, 24-1864, a long-running challenge to the USPTO's Fintiv discretionary denial framework. Apple, Cisco, Google, and Intel argue that the NHK-Fintiv rule should have been adopted through notice-and-comment rulemaking under the Administrative Procedure Act (APA) rather than through precedential Board designations. The case presents a narrow but consequential question: when the Director instructs the PTAB how to exercise delegated institution authority, does that instruction constitute a "substantive rule" requiring APA procedures, or merely a "general statement of policy" that the agency may adopt without public input? The panel of Judges Lourie, Taranto, and Chen pressed both sides on whether a rule binding only on the Board triggers notice-and-comment requirements when the Director remains free to deviate from it entirely.

This is an important case, but some amount of practical obsolescence based upon the dramatic 2025 changes to institution practice. Still, as I explain at the end of the post, a strong win for the government could have a much larger impact on how the USPTO operates within the Federal regulatory framework.

• Unofficial Transcript of Oral Argument Apple v. Squires

by Dennis Crouch

Things look pretty thin. The Supreme Court has not granted certiorari in any patent cases this term and only four are still pending before the Court. But the ones that are pending include some important questions. Of the four, one stands out as the most likely candidate for certiorari: Hikma Pharmaceuticals v. Amarin Pharma, a Hatch-Waxman induced infringement case that received a supportive call-for-the-views-of-the-Solicitor-General (CVSG) response. The January 9, 2026 conference also includes one other patent cases along with one trademark dispute. A two additional patent cases remain in briefing: Lynk Labs v. Samsung and Agilent v. Synthego.

by Dennis Crouch

The Patent Trial and Appeal Board (PTAB) has doubled its rate of reversing Section 101 rejections since Director John Squires took office, according to my new analysis of ex parte appeal decisions involving eligibility challenges from 2024 and 2025.  The reversal rate, which hovered between 8% and 12% for most of 2024 and early 2025, jumped to 18% in October 2025 and spiked to 29% in November. A recent rehearing decision in Ex parte Mercer, Appeal 2024-002371 (PTAB Oct. 31, 2025), illustrates one aspect of the Board's new approach: demanding evidentiary support for findings that claimed elements are "well-understood, routine, conventional activity" under Alice step two.

The chart above shows the percentage of Section 101 rejections reversed by the Board (without a new ground of rejection) in ex parte appeals, by month.  As I discussed in October, the Board's Section 101 reversal rate began climbing shortly after Director Squires took office. Dennis Crouch, PTAB Responds to New Director with Increased § 101 Reversals, Patently-O (Oct. 2025). The trend has accelerated. The November 2025 reversal rate of 29% represents nearly a threefold increase from the rates that prevailed through most of 2024.

by Dennis Crouch

The USPTO issued ~325,800 utility patents in calendar year 2025, a figure virtually unchanged from the ~325,600 issued in 2024. This stability marks another year in what has become a post-pandemic plateau for utility patent issuances, with annual totals hovering around this mark since 2021. The days of dramatic year-over-year growth appear to be behind us, at least for now.  Over the past two years, allowance rates have also remained virtually unchanged.

Design patents tell a different story. The 52k design patents issued in 2025 represent a 10% increase over 2024 and mark the highest annual total on record. This growth reflects the continued global importance of design protection, with non-U.S. applicants increasingly seeking design patent rights in the American market. The design patent surge stands in contrast to the flat utility numbers and suggests that different forces are shaping these two branches of patent protection.

by Dennis Crouch

I'm watching the pending eligibility appeal in 10Tales, Inc. v. TikTok Inc., No. 2024-1792 (Fed. Cir.).  The appellant is challenging a Northern District of California's grant of judgment on the pleadings finding claim 1 of U.S. Patent No. 8,856,030 directed to the abstract idea of "presenting personalized content to a user based on information about the user." In some ways, the case presents a straightforward application of the Court's targeted-content precedents, but the patent's timing raises interesting questions about how we should evaluate innovation with the benefit of hindsight.

The '030 patent, filed in April 2003, is directed to a system that retrieves information about users from their interactions in online communities and uses that information to select and substitute digital media assets, creating personalized content displays. The district court held that claim 1 fails both steps of the Alice framework: at step one, the claim is directed to the abstract idea of personalizing content; at step two, the claim elements are conventional computer functions that do not supply an inventive concept. On appeal, 10Tales argues that the district court over-generalized the claim at step one and failed to recognize that retrieving "user social network information" from external sources and performing "rule based substitution" of digital assets constituted inventive features at step two.

by Dennis Crouch

The Federal Circuit has affirmed an exceptional case finding and attorney fee award against Ortiz & Associates in its patent infringement action against Vizio. Ortiz & Associates Consulting, LLC v. Vizio, Inc., No. 2024-1783 (Fed. Cir. Dec. 17, 2025) (nonprecedential). Writing for the panel, Judge Bryson found no abuse of discretion in the district court's determination that the case "stands out from others" under Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014).

The decision also raises (but doesn't decide) an underdeveloped issue involving NPE litigation and patent marking.

The Patent Marking Statute Many of us are familiar with products marked as PATENTED and then listing the patent number. Patent marking allows a patentee to provide constructive notice and thus permits collection of back damages for up to six years. Under 35 U.S.C. 287(a), "[i]n the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter." A huge caveat to the rule is that back damages are permitted without notice in situations where there is no product to be marked. This is typically the case for non-practicing entity (NPE) litigation where the plaintiff's key asset is the patent. But, the NPE status goes away once the patent is licensed, which is the common result of patent litigation settlement.