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.

by Dennis Crouch

Patent Term Adjustment (PTA) offers one of the most revealing windows into the USPTO's examination backlog. Under 35 U.S.C. § 154(b), the USPTO guarantees certain examination timelines: a first action within 14 months of filing, responses to applicant submissions within four months, and total prosecution wrapped up within three years. When the Office misses these marks, the patent term is extended day-for-day. The result is that average PTA across newly issued patents serves as a rough measure of how well the agency is keeping up with its own workload.

The chart above tracks the average PTA for utility patents issued each week from 2015 into early 2026, smoothed with a six-week moving average. The pattern is striking. In 2015, the average PTA hovered around 320 days, reflecting the agency's long struggle with a massive examination backlog. Over the next six years, the Office steadily ground that number down, reaching a low of approximately 120 days in mid-2021 as part of the COVID slow-down in filing. That progress has now fully reversed. Average PTA climbed back to 296 days by December 2025, approaching the decade-earlier peak. The agency spent years working down the backlog and has now given back nearly all of that progress.

by Dennis Crouch

Section 256 of the Patent Act is a remarkable statutory provision. It declares that a patent "shall not be invalidated" on the grounds of incorrect inventorship so long as the error "can be corrected." 35 U.S.C. § 256(a). Unlike its neighboring provisions for correcting other types of patent errors, Section 256 operates retroactively, reaching back to the patent's original filing date. And the statute imposes no express timing requirement: it does not say "if corrected within X days" or "if diligently pursued." The statute simply says "if it can be corrected." In Implicit, LLC v. Sonos, Inc., No. 2020-1173 (Fed. Cir. Mar. 9, 2026), however, the Federal Circuit held that the absence of a statutory deadline does not immunize a patentee from the consequences of delay. Forfeiture principles, the court ruled, can prevent a patent owner from relying on a Section 256 correction to mount a new argument in an inter partes review that it failed to raise during the original proceeding.

The case involved two patents owned by Implicit that originally named Edward Balassanian and Scott Bradley as co-inventors. Both were employees of BeComm Corporation, Implicit's predecessor. A third engineer, Guy Carpenter, had written the source code and authored the document that became the provisional application, but was not a named inventor.

by Dennis Crouch

When I set out to update my 2008 study on patent document size, I had a specific hypothesis in mind. The Supreme Court's 2014 decision in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), transformed how patent attorneys draft applications, particularly in the software and business method space. Practitioners responded to Alice's tightened eligibility standards by loading their specifications with technical detail, implementation examples, and hardware-integration language designed to demonstrate that an invention is more than an "abstract idea." If Alice changed drafting behavior, I expected to see a structural break in patent document metrics around 2014-2015. I found something different. Patent specifications have indeed gotten dramatically longer over the past twenty years, but the growth curve is smooth and monotonic. It was well underway before Alice was decided. Using the population of 7.6 million published patent applications from 2005 through early 2025, this study finds specifications nearly doubled, from about 7,600 words to over 13,000. But the growth in document length was not matched by growth in claims. Average claim count actually fell, reversing the upward trend I had documented back in 2008.

In 2008, I reported that patent documents were getting bigger in every dimension: longer specifications and more claims. Both trends moved in the same direction. The story was straightforward: patents were growing. The new data is a bit more complicated.  Specifications continued their upward march, but claim counts peaked around 2005 and have been declining ever since.

The chart below tells a twenty-year story about how fee structure shapes patent scope. In 2005, the distribution of claims per U.S. utility patent looked roughly like what you might expect: a broad spread, peaking somewhere around 8-14 claims, with a long tail extending past 50. The 20-claim mark was visible, but a bump. Only 6% of patents issued with exactly 20 claims that year. By 2025, the picture has changed beyond recognition. A full 28% of utility patents now issue with exactly 20 claims. That bar dominates the histogram (especially once I colored it red).

The cause is no mystery. Section 41(a)(1) of the Patent Act authorizes the USPTO to charge fees for each claim in excess of 20. Those fees have risen dramatically over the year and in January 2025 the USPTO doubled them from $100 to $200 per excess claim for large entities ($80 for small entities, $40 for micro entities). The fee for each independent claim beyond three also increased, from $480 to $600. The result is a system where the 20-claim threshold is beginning to function as a fairly hard wall. Patent applicants and their attorneys have responded rationally: they draft to the threshold and stop.

by Dennis Crouch

[PDF Version of this Essay]

Justice John Marshall Harlan earned the title "The Great Dissenter" of the 1800s. Judge Pauline Newman holds that title for the millennium era - with over 300 dissents in precedential cases in just the final two decades of her tenure alone. To an extent that existing scholarship has only begun to capture, Newman's voice of disagreement defined the Federal Circuit's internal dialogue on patent law. An empirical analysis of almost 5,000 precedential Federal Circuit opinions issued between 2004 and early 2026 reveals just how dramatically this one judge shaped the court's culture. We now have two full calendar years of post-Newman data, and the results are striking: in 2024 and 2025, the court's dissent rate fell dramatically.  The Federal Circuit has become, in the space of two years, one of the most consensus-oriented appellate courts in the federal system.

The data tell a straightforward story. From 2005 through 2022, the Federal Circuit's dissent rate in precedential opinions averaged about 19%. In some years it ran higher: the 2011-2013 period saw rates of >25%, the highest sustained period of disagreement in the dataset, driven by the doctrinal upheaval surrounding both Alice and the America Invents Act. In other years the rate dipped to around 13-14%. But it never once fell below double digits. In 2023, the year Newman was suspended from the bench, the rate dropped to 10%. In 2024, it fell to 6%,; and in 2025 the rate was even lower. The Federal Circuit's dissent rate is settling into a new equilibrium roughly one-third of what it was for the prior two decades.

The structural explanation for this decline is not complicated: Judge Newman dissented far more frequently than any of her colleagues, and when she was removed, the dissents left with her. But the magnitude of the effect is actually much greater than what can be accounted for from Newman's direct impact on panel opinions. As discussed below, the court's dissent rate has fallen not just by the amount attributable to Newman's own dissents, but to roughly half the historical baseline of even non-Newman panels—suggesting her departure transformed the court's broader culture of disagreement.