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 Biden Administration is seeking comment on its proposed framework for how how agencies should evaluate exercising “march-in rights” over federally funded inventions. For those familiar with march-in rights, this guidance has been a long time coming. While these powers have technically existed for years under the Bayh-Dole Act, the lack of clear procedures around their use has rendered them largely theoretical. This proposal could change that.

Congratulations to Sharon Israel on her new leadership role at the USPTO.  I was happy to learn that Director Vidal has appointed Sharon Israel as its new Chief Policy Officer and Director for International Affairs. Ms. Israel has been a leader of the patent bar for many yeas and will bring tremendous expertise to this important role overseeing the USPTO's policy and international programs.  For the past few years, she has been a partner at Shook Hardy focusing on patent litigation -- primarily on the defense side.

Hsuanyeh Law Group v. Winston & Strawn, 23-cv-11193 (S.D.N.Y. 2024)

A recent copyright infringement lawsuit filed by small Boston intellectual property boutique Hsuanyeh Law Group PC (HLG) against international giant Winston & Strawn LLP focuses a dividing line that can highlight when copying the work of another firm is permissible.  I believe that Winston & Strawn will eventually prevail based upon a fair use defense, but it is still an embarrassing situation for the firm and attorneys involved.  I hope that they did not overbill the client.  The role of attribution is also receiving increasing focus as attorneys begin to rely more heavily on AI outputs for their legal documents.

by Dennis Crouch

In PureCircle USA Inc. v. SweeGen, Inc., No. 22-1946 (Fed. Cir. Jan. 2, 2024) (non-precedential) [PureCircle Decision], the Federal Circuit affirmed a district court summary judgment siding against the patentee, PureCircle.  The court concluded that the stevia production method claims were all invalid, either for: (1) lack of written description for the genus claim or (2) lack of eligibility because the claims are directed to a natural phenomenon combined with an abstract idea.  Judge Dyk authored the opinion of the court that was joined by Judges Schall and Stark affirming the ruling of C.D.Cal Judge James Selna.

The written description portion of the opinion parallels the Supreme Court's 2023 Amgen decision that focused on the sibling doctrine of enablement. Although non-precedential, the eligibility portion appears important because of the way it combines prohibited eligibility categories and rules that method claims requiring a particular purity level are themselves an abstract idea absent requirement of specific steps on how that purity level is achieved.

by Dennis Crouch

The U.S. Court of Appeals for the Federal Circuit has begun 2024 [2023] with its first precedential patent decision in DexCom, Inc. v. Abbott Diabetes Care, Inc., 2023-1795 (Fed. Cir. January 3, 2024).  In an opinion by Judge Stoll, the court affirmed a district court decision denying DexCom’s motion for a preliminary injunction. The patentee had requested an order barring Abbott from pursuing its IPR challenges - based upon a forum selection clause that was part of a prior settlement between the parties. Judges Dyk and Hughes were also on the panel.