Recent Senate testimony from Commerce Secretary nominee Howard Lutnick provides a window into how intellectual property rights will likely become a central battlefield in escalating international trade tensions. During his confirmation hearing before the Senate Commerce Committee, Lutnick articulated an aggressive stance on protecting American intellectual property, particularly focusing on stated abuses by China.
I have cued his testimony in the video below to begin with his a retelling of key aspects of his life story that is truly a testament to extraordinary resilience.
In early January 2025, I wrote about Peterson v. Minerva Surgical, No. 24-712, a case involving a former Minerva sales director (Dan Peterson) seeking Supreme Court review of an arbitration award that went against his whistleblower claims. See Dennis Crouch, Patents as Product Liability Admissions: A Cert Petition Highlights Novel Use of Patent Filings in Whistleblower Case, Patently-O (Jan. 4, 2025). As I explained in that post, Peterson's argument for review relies on Minerva's own patent filings as evidence that the company knew about safety issues with its endometrial ablation device —and that it fraudulently provided contradictory testimony during the arbitration proceedings.
The case has now drawn additional attention through an amicus brief filed by Lift Our Voices (LOV), filed by my University of Missouri Law School colleague Professor Michael Tripp. LOV, led by former Fox News anchor Gretchen Carlson, advocates for workplace safety and equity -- and has particularly focused on how forced arbitration and non-disclosure agreements lead to a continuation of sexual harassment in the workforce. The brief presents the case as emblematic of broader concerns about the use of forced arbitration and non-disclosure agreements (NDAs) to shield corporate misconduct from public scrutiny.
Federal Appellate Judge: "I have No Power": LOV's brief emphasizes how the Tenth Circuit's extreme deference to arbitrators has effectively nullified any meaningful judicial review. The brief directly quotes the circuit court's striking admissions of powerlessness, including statements that federal courts "do not have discretion," "do not have power," and "cannot set aside an arbitration award based on legal error." This language, LOV argues, represents a concerning abdication of Article III judicial authority that Congress never intended when enacting the Federal Arbitration Act (FAA) -- concluding that the Arbitrator was faced with a factual dispute about safety and decided that the device had not yet been proven unsafe.
The case provides stark language about the extremely limited scope of judicial review over arbitration awards. Specifically, the Tenth Circuit emphasizes in Peterson v. Minerva Surgical, Inc., No. 24-3003 (10th Cir. Aug. 15, 2024): "the standard of review of arbitral awards 'is among the narrowest known to the law.'" The court goes on to state directly that "federal courts do not have power to review an arbitrator's factual findings." And when it comes to legal errors, the court explains that it "cannot set aside an arbitration award based on legal error unless it amounts to 'a manifest disregard of the law, defined as willful inattentiveness to the governing law.'"
In a pair of significant decisions issued today, the Federal Circuit upheld preliminary injunctions blocking the launch of biosimilar versions of Regeneron's blockbuster drug EYLEA® (aflibercept). Regeneron Pharms., Inc. v. Mylan Pharms. Inc., No. 2024-1965 (Fed. Cir. Jan. 29, 2025) (precedential); and Regeneron Pharms., Inc. v. Mylan Pharms. Inc., No. 2024-2009 (Fed. Cir. Jan. 29, 2025) (nonprecedential). The cases pit Regeneron against foreign manufacturers, including Samsung Bioepis (SB) and Formycon AG, who had obtained FDA approval for their biosimilar products under the Biologics Price Competition and Innovation Act (BPCIA). Writing for a unanimous panel, Judge Taranto focused on three key issues: (1) personal jurisdiction over foreign biosimilar manufacturers; (2) obviousness-type double patenting in the biologics context; and (3) standards for preliminary injunctive relief. The decisions effectively maintain Regeneron's market exclusivity for EYLEA®, which generates approximately $6 billion in annual sales and serves as a primary treatment for several serious eye conditions including wet age-related macular degeneration. U.S. Patent No. 11,084,865.
The briefs - one from Law Professor Michael Risch along with a group of patent trial attorneys and another from the Alliance of U.S. Startups and Inventors for Jobs (USIJ) argue that Google's position - further limiting expert damages testimony - threatens to undermine core aspects of patent damages law while potentially violating the Seventh Amendment's right to a jury trial. The third brief, filed by Professor Gregory Dolin argues that Judge Newman - who the court "temporarily" suspended in 2023 - should be permitted to sit on the en banc panel. (I put "temp" in scare quotes because it appears that this suspension is - in fact - permanent).
The Supreme Court is being asked to decide a case that could have a major impact on copyright law. The case involves photographs taken by Michael Grecco in 2017, but the lawsuit was not filed until 2021. The key question is whether the Copyright Act's three-year statute of limitations runs from when copyright infringement occurs or from when the copyright holder discovers it. The circuits are currently split on this issue, and the Supreme Court may finally settle the issue that has been brewing for years. (Note that the split overwhelmingly favors the discovery rule but there are differences in how it is applied).
Although we don't delve into the issues of model-rights here -- it is interesting to note that Michael Grecco was the photographer; the model is a famous model Amber Rose (not involved in the lawsuit) and the shoes are designed by famed designer Ruthie Davis, who is also the accused infringer.
The Supreme Court will soon consider whether to hear an important case about fraud on the court (and the USPTO) and the judiciary's obligation to address it. Marco Destin, Inc. v. Levy, Case No. 24-787. The issue now before the Court asks whether it was proper for the lower court to overlook fraud that affects the judicial process itself in favor of finality of judgment. [Marco Destin Petition]
Fraud cases are typically interesting reads, and this one fits the bill. In 1993, L&L Wings entered into a trademark license agreement with Shepard Morrow for the use of the "WINGS" mark in retail store services -- particularly for use on beach merchandise. L&L Wings made only the initial $10,000 royalty payment under the agreement, then defaulted on the remaining payments. Despite losing its rights to the mark, L&L Wings continued using the mark and even began sublicensing it to others, including Marco Destin (Alvin's Island) in 1998.
In 2007 L&L Wings (owned by respondents Shaul Levy and Meir Levy) sued Marco Destin for trademark infringement in the Southern District of New York. According to the cert petition, L&L's attorney Bennett Krasner knew at the time that L&L Wings had no rights to the mark, having personally negotiated the earlier failed licensing deal with Morrow. Yet the complaint omitted any mention of Morrow's ownership or L&L Wings' status as a former licensee.
During that litigation, Krasner allegedly deepened the deception by obtaining a federal trademark registration for "WINGS" through what the petition characterizes as fraudulent representations to the USPTO. The application claimed L&L Wings had been in "continuous high-profile use" of the mark for nearly 30 years and failed to disclose Morrow's prior ownership. After obtaining the registration, Krasner introduced it as evidence in the New York case, leading to summary judgment against Marco Destin and ultimately a $3.5 million settlement.
The fraud only came to light years later through separate litigation in North Carolina between L&L Wings and Beach Mart. There, a jury found that L&L Wings had knowingly made false representations to the USPTO to obtain the WINGS registration. The court canceled the registration and awarded $12.5 million in punitive damages. This verdict drove L&L Wings into bankruptcy.
Armed with evidence of the fraud, Marco Destin sought to vacate the earlier $3.5 million settlement through an independent action authorized under Federal Rule of Civil Procedure 60(d)(3). As suggested above, all of this is part of the L&L Wings bankruptcy proceedings and and so Marco Destin is unlikely to obtain its full recovery even if it wins this case -- instead it will form part of the queue with the other creditors.
I have been following the Steuben Foods appeal for the past year - thinking that it may be the case where the Federal Circuit nails in the coffin on the reverse doctrine of equivalents. The new decision ultimately left this question open, but it provides a fascinating exploration of three distinct doctrines of equivalence in patent law:
The Reverse Doctrine of Equivalents (RDOE): This centuries-old defense, originating from the Supreme Court's 1898 Boyden Power-Brake decision, allows an accused infringer to escape liability even when their device falls within the literal scope of the claims. A key question here was whether this doctrine even survived the 1952 Patent Act.
The Doctrine of Equivalents (DOE): This traditional doctrine allows patent holders to prove infringement even when the accused device falls outside the literal scope of the claims. In this case, the court examined whether continuous sterilant addition could be equivalent to intermittent addition.
Means-Plus-Function Equivalents: Under 35 U.S.C. § 112(f), means-plus-function claims cover not only the corresponding disclosed structure but also its equivalents. The court here analyzed whether rotary wheels could be equivalent to the disclosed conveyor structures.
In a significant development likely affecting USPTO operations, the Office of Personnel Management (OPM) has issued detailed implementation guidance for President Trump's January 20, 2025 return-to-office mandate. The guidance provides strict timelines and requirements that could force dramatic changes at the USPTO, where remote work has been a cornerstone of operations for decades.
The OPM memo, signed by Acting Director Charles Ezell, requires agencies to take immediate action, with initial steps due by January 24, 2025 (tomorrow).
The Technology: The patent at issue (U.S. Patent No. 7,332,277) relates to methods for non-invasive fetal DNA testing. This is an incredibly important area of technology because the leading prior form of testing (amniocentesis) is relatively dangerous to the growing fetus. Cell free fetal DNA (cffDNA) floats around in the mother's blood stream. But, not very much, and what is there tends to be somewhat unstable. The claimed method involves analyzing cell-free fetal DNA from maternal blood samples while using agents that prevent cell lysis (breakdown). The key independent claim requires "determining the sequence of a locus of interest on free fetal DNA" from a maternal blood sample that includes both the fetal DNA and a cell lysis inhibitor. A dependent claim specifically identifies the inhibitor as being selected from glutaraldehyde, formaldehyde, or formalin. The patent at issue here lists Ravgen's founder Ravinder Dhallan as the inventor and claims back to a 2003 provisional application filing.
The chart above is not an EKG. Rather, it shows the ebb and flow of USPTO activity -- the heartbeat of the 10,000+ patent examiners whose activity follows the bi-weekly quota system. The regular peaks come every two weeks, but the chart shows an overlay of two additional quotas: quarterly quotas (the higher blip every 3 months) and yearly quotas (the messy blip at the end of each fiscal year). Like their patent attorney counterparts, patent examiners are also deadline driven and their output increases as each deadline approaches.
The next chart focuses in on a single 14 day biweek and the blue line shows data collected from from more than a million non-final and final office actions entered 2022-2024.
Trading Technologies (TT) has petitioned the Supreme Court to review a Federal Circuit decision raising three significant questions about patent law and civil procedure. The case stems from TT's patent infringement suit against IBG LLC and Interactive Brokers LLC over patents related to electronic trading user interfaces. U.S. Patent Nos. 6,766,304, 6,772,132, 7,676,411, and 7,813,996. (I have mentioned this previously, but TT is a former client and I was involved with enforcing the '304 and '132 patents in the past).
The case caption now lists Harris Brumfield as trustee following TT's 2021 sale, though the litigation began and was primarily conducted by Trading Technologies. 20250103171844464_2025-01-02 No 24- Petition.
Two executive orders issued by President Trump on January 20, 2025, may present significant challenges for the USPTO's operations. The first order mandates a return to in-person work across federal agencies, while the second implements a broad federal hiring freeze. Although the outcome is still unclear, these directives could substantially impact the USPTO's approximately 13,000 remote workers, most of whom are patent examiners, and potentially disrupt the office's plans to expand its examining corps to address growing application backlogs and increasing pendency.
USPTO officials will likely be seeking exemptions, but the sheer number of USPTO remote workers may well undermine the administration's broader return-to-office messaging if left unreduced.
Just after President Trump spoke the oath of office, Coke Morgan Stewart was also sworn in as Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO on January 20, 2025. She is serving as Acting Director. The previous Director, Kathi Vidal, departed to Winston & Strawn in December, and Deputy Director Derrick Brent, who had been serving in an interim capacity, has also now resigned. Commissioner Vaishali Udupa is remaining in her position for now as is Commissioner Gooder.
I've been looking at some of the fastest issued US patents. A majority of the fastest issued are part of the Global IP5 Patent Prosecution Highway (PPH) pilot that gives substantial weight to patent allowances from a partner country. A substantial number of Chinese applications are using this program to great effect -- especially when coupled with the remarkable speed of the China National Intellectual Property Administration (CNIPA).
The PPH program allows applicants who receive a ruling from a first patent office that at least one claim is patentable to request accelerated prosecution of corresponding claims in a second patent office. The program aims to reduce examination workload and speed patent grants through work-sharing between patent offices.
The following are a couple of new patents that I picked out from the many available. Both patents moved from filing to issuance in less than four months (including receiving and responding to a non-final rejection).
The America Invents Act (AIA) created a delicate dance between district court litigation and inter partes review (IPR) proceedings. Patent owners often race to reach trial before the PTAB rules on validity, while accused infringers typically seek stays pending IPR. The one-year statutory deadline for IPR final written decisions provides some comfort to district courts considering stays - the delay, while substantial, is at least bounded. But what was initially conceived as a streamlined alternative to litigation has evolved into a potentially years-long process, with final written decisions now being followed by requests for USPTO Director Review and subsequent Federal Circuit appeals. This timeline extension puts courts in a difficult position when considering stays, particularly late in district court proceedings.
A recent mandamus petition highlights this tension. In In re Viasat, Inc., No. 2025-110 (Fed. Cir. Jan. 17, 2025), Judge Albright took the unusual step of sua sponte staying a patent case just days before trial in a case that had completed its IPR review and was instead awaiting Federal Circuit's appellate review. The IPR decision had cancelled some of the asserted claims, but left Claim 16 as untouched - and the patent challenger appealed to the Federal Circuit. The patentee then narrowed the litigation to focus only on that sole remaining claim and asked the court to proceed with trial. The Federal Circuit has now declined to disturb that stay through mandamus.
A new petition for certiorari asks the Supreme Court to resolve a critical question about the global reach of U.S. trade secret law: Does the Defend Trade Secrets Act (DTSA) allow American companies to recover damages for trade secret misappropriation that occurs outside the United States? The case, Hytera Communications Corp. v. Motorola Solutions, Inc., stems from a massive jury verdict against Chinese radio manufacturer Hytera for stealing Motorola's trade secrets and source code. [Read the Petition]. The district court awarded damages for both copyright infringement and trade secret misappropriation -- with most of the money coming from Hytera's foreign sales. On appeal, the Seventh Circuit split on the two forms of IP - finding that the non-us-originated damages were fine for DTSA violations, but prohibited under U.S. Copyright law. Hytera petitioned to the Supreme Court only on the DTSA issue.
The Federal Circuit has earned a reputation as the most technically demanding appellate court in the federal system when it comes to procedural compliance. I regularly review federal court dockets and continue to be astounded by the prevalence of filing errors and subsequent correction requirements in Federal Circuit appeals - even among the nation's most sophisticated appellate practitioners. The situation has become so routine that finding a Federal Circuit appeal without at least one notice of non-compliance is more noteworthy than finding one with multiple filing corrections. The court's exacting standards create a procedural gauntlet that seems designed to catch all but the most careful attorneys willing to check in with the clerks office before each filing. Although I have not done a comprehensive study, my experience is that the Federal Circuit clerk's office rejects filings as non-compliant much much more often than any other Circuit Court of Appeal.
In 2023 the Federal Circuit Clerk's Office issued a memo detailing "Common Filing Errors" - apparently recognizing the scope of the problem and attempting to push the responsibility onto the filers. However, the practitioners continue to demonstrate the exact same errors as those cited in the memo. It's as if many folks didn't get the memo - quite literally. That said, given the consistently high caliber of counsel involved and the monetary importance of these appeals, a substantial part of the difficulty may well lie with the clerk's office's approach rather than with the practitioners.
A new petition for certiorari filed by Provisur Technologies challenges the Federal Circuit's approach to reviewing jury verdicts in patent cases, particularly regarding willful infringement findings. In its opinion, the Federal Circuit had rejected a jury verdict of willful infringement and the judge's resulting damages enhancement. The petition argues that this is an improper reexamination of the jury's factual findings and a violation of the JMOL standard. Provisur v. Weber, No. 24-723.
The USPTO's new AI Strategy document both recounts the work the USPTO has already done and sets forth something of a vision for artificial intelligence. Of course the document's release just one week before the transition to the Trump administration raises questions about its ultimate implementation. Time will tell whether the document is shelved, substantially modified, or implemented as written.
Back in October 2024, I previewed the Federal Circuit case of Lynk Labs v. Samsung in a post titled Secret Springing Prior Art and Inter Partes Review. The court has now released its decision -- holding that in IPR proceedings a published patent application is considered prior art as of its filing date. [Read it here] This solidifies the approach already taken by the USPTO and is significant because a substantial percentage of references relied upon to cancel patent rights represent "secret prior art" that were non-public at the time the patent was originally filed. The court's analysis delves deep into statutory interpretation, legislative history, and the balance between different sections of patent law. Unfortunately, the Judge Prost opinion is almost unintelligible at its most critical point - where it explains how the legal term "printed publication" is date agnostic.
