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 The nonprecedential decision, authored by Judge Cunningham, illustrates continuing difficulty patentees face when attempting to frame mathematical signal processing operations as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.

by Dennis Crouch

In Ethanol Boosting Systems, LLC v. Ford Motor Company, No. 2024-1381 (Fed. Cir. Dec. 23, 2025), the Federal Circuit affirmed three PTAB final written decisions holding MIT-owned patents on fuel management systems unpatentable as obvious under 35 U.S.C. § 103. Judge Chen wrote for a panel that included Judges Clevenger and Hughes. The patents claim dual-injection engine architectures designed to suppress "engine knock" through evaporative cooling from direct fuel injection. The case arrives with an unusual procedural history: the Board initially denied institution based on a district court claim construction, then granted Ford's rehearing petition fifteen months later after the Federal Circuit vacated part of that construction in an earlier appeal. EBS argued this delay was ultra vires agency action, but the court found § 314(d) bars any challenge that functionally seeks to "de-institute" an IPR proceeding. On the merits, the court rejected EBS's argument that the claims require an anti-knock agent other than gasoline, finding the specification's disclosure of a "gasoline only" embodiment precludes adding that implicit limitation into the claims.

Reading this case and the patents brought me back to my Princeton Mechanical Engineering course titled "mobile power plants."  The technical subject matter here involves work by three MIT researchers attempting to address engine knock for ethanol boosted gasoline engines. Engine knock involves unburned air/fuel mixture in a cylinder that spontaneously autoignites before the spark-initiated flame front reaches it. This premature detonation creates damaging pressure waves and limits engine performance. The patents propose a solution using two fuel injection mechanisms operating in different torque regimes. At lower torque values, only the port injector operates. Knock is not a constraint in this regime because cylinder pressures and temperatures remain well below the autoignition threshold. At higher torque values, both injectors engage, with the direct injector supplying an increasing fraction of the total fuel as torque rises. The key insight here is thermodynamic: liquid fuel directly injected into the cylinder vaporizes by absorbing heat from the compressed charge, dropping the cylinder temperature in a way that avoids autoignition. The patents particularly contemplate ethanol as the directly injected fuel because ethanol's latent heat of vaporization (855 kJ/kg) is nearly three times that of gasoline (306 kJ/kg), providing substantially greater evaporative cooling.

by Dennis Crouch

Today's post takes us back in time over the past five years (2020-2025) and looks at the Federal Circuit decisions that subsequently have become the most cited.  As you might guess, this list is dominated by the older cases - since they have had more time to be cited. But, the is also dominated by § 101 patent eligibility decisions, with pleading standards, enablement, and procedural doctrine also featuring prominently. What follows is a brief tour through the top eleven.

by Dennis Crouch

The Supreme Court has called for a response in Agilent Technologies, Inc. v. Synthego Corp., No. 25-570, a petition that challenges foundational assumptions about the use of prior art references. The response is due in January 2026. The basic question in the case is whether printed publications asserted as anticipatory prior art should be presumed enabling, and whether the Federal Circuit's holding in Rasmusson v. SmithKline Beecham Corp., 413 F.3d 1318 (Fed. Cir. 2005), that "proof of efficacy is not required" for a reference to anticipate, should be vacated or narrowed.

In this case, the allegedly anticipatory reference is an abandoned patent application filled with prophetic examples describing modifications that, according to Agilent, nobody has ever shown to work. The petition asks the Court to reconsider whether modern patent law has drifted too far from the principle articulated in Seymour v. Osborne, 78 U.S. (11 Wall.) 516 (1870), that a prior art reference must actually "communicate" the invention to the public in a meaningful sense to defeat a patent.

The Supreme Court's call for response (CFR) carries some procedural significance. The Court receives thousands of certiorari petitions each year and grants fewer than 80. Most petitions are denied without any response from the opposing party. When the Court requests a response, it signals that at least one Justice believes the questions warrant fuller consideration. This does not mean certiorari is likely; most CFR cases still result in denial. But it elevates the petition above the thousands that receive no engagement whatsoever. For a patent case raising questions about anticipation doctrine, this level of interest is worth noting. The enablement requirement for anticipatory prior art is not a question the Court has addressed directly in the modern era, and the petition frames the issue as one of growing practical importance as the nature of "printed publications" continues to shift.

The Enablement Presumption for Prior Art When a patent challenger argues that a prior art reference anticipates a patent claim, courts apply a presumption that the reference is enabling. This means the challenger need not affirmatively prove the reference teaches a person of ordinary skill how to make and use the disclosed invention. Instead, the patentee bears the burden of proving the reference is not enabling. The rationale traces to an assumption that published technical documents generally reflect real knowledge. But this presumption can be rebutted by showing the reference contains inoperable embodiments or would require undue experimentation to practice.

The underlying dispute involves Agilent's patents on modified guide RNAs used in CRISPR-Cas9 gene editing. Synthego challenged the patents before the PTAB, asserting anticipation based on a Pioneer Hybrid patent application. That application disclosed various guide polynucleotide modifications, including sequences presented in what the parties call "Table 8." The catch is that Pioneer Hybrid was abandoned, its examples were entirely prophetic rather than actually performed, and Agilent contends the vast majority of what it disclosed simply does not work. The Federal Circuit heard oral argument in the appeal from the PTAB's anticipation finding, and that case remains pending. But the Supreme Court petition challenges the doctrinal framework itself, regardless of how the Federal Circuit resolves the specific factual disputes.

The oral argument before the Federal Circuit, featuring Professor Mark Lemley for the patentee Agilent and Edward Reines for Synthego, illuminates the doctrinal stakes. Lemley framed two distinct but related arguments. First, that Pioneer Hybrid never actually disclosed functionality sufficient to put a person of ordinary skill in the art in possession of working guide RNAs. Second, even if some disclosure existed, the reference failed to enable because it "threw everything at the wall" without teaching which of the "quadrillion quadrillion possibilities" would actually function. Judge Prost pressed Lemley on whether these were anything more than substantial evidence arguments, asking whether the Board's detailed factual findings should receive deference. Lemley responded that the legal question was whether a reference that says "try anything" can satisfy enablement when a person of skill would have to conduct extensive trial-and-error experimentation to identify operable embodiments.

In my mind, the "throw everything at the wall" problem should receive a special spotlight as AI-generated technical content proliferates. Large language models have been producing vast quantities of plausible-sounding scientific disclosures. These are synthetic publications that read as authoritative but are untethered from actual experimentation -- and often from reality itself. Some of these AI-generated predictions will, by combinatorial luck, accurately describe functional embodiments. Yet nothing in their presentation distinguishes the prophetic hits from the prophetic misses; all carry the same veneer of technical respectability. Current anticipation doctrine, which presumes enabling disclosure and places the burden on patentees to prove otherwise, seems ill-equipped for a landscape where machine-generated prior art can flood the technical literature with untested possibilities. Requiring meaningful proof that a reference actually enables what it purports to disclose is one doctrinal lever for ensuring that anticipation remains grounded in genuine contributions to public knowledge rather than algorithmic speculation.