After “Schedule A”: The Cross-Border IP Enforcement Gap

Patent

by Dennis Crouch

In a comprehensive 24-page opinion that may reshape intellectual property enforcement against foreign online merchants, Judge Kness of the Northern District of Illinois has systematically dismantled the already weak doctrinal foundations of "Schedule A" litigation in Eicher Motors Limited v. The Partnerships and Unincorporated Associations Identified on Schedule "A", No. 25-cv-02937 (N.D. Ill. Aug. 8, 2025). The decision represents the most thorough judicial examination to date of whether this mass litigation mechanism comports with fundamental principles of civil procedure and due process. [Eicher Motors][Eicher Motors II].

Schedule A cases typically involve brand owners suing dozens or hundreds of foreign defendants for trademark, copyright, or patent infringement, seeking ex parte temporary restraining orders and prejudgment asset freezes against online marketplace accounts. The names of the defendants are not found on the complaint but rather listed in an attachment ("Schedule A") that is filed under seal and without immediately informing the defendants of the lawsuit. Plaintiffs use this secrecy to seek TROs and asset restraints before defendants can move their money or modify their online operations. When defendants finally learn about the litigation, it is typically only after their marketplace accounts have been frozen and funds restricted. The vast majority of defendants subsequently default, with Schedule A cases "almost exclusively get[ting] resolved after the entry of a preliminary injunction, dismissal of some defendants, settlements with others, and a default judgment against the remainder." In this case, motorcycle manufacturer Eicher Motors sued fifty defendants for allegedly selling counterfeit ROYAL ENFIELD products through platforms like Aliexpress and Alipay. After imposing a comprehensive stay on all Schedule A cases, Judge Kness concluded that the mechanism violates multiple procedural requirements and denied plaintiff's motion for emergency relief.

But, as I note below, I see Schedule A cases as representing a symptom of a larger structural problem in intellectual property enforcement against the modern reality of cross-border e-commerce. The surge in Schedule A litigation reflects the absence of practical enforcement mechanisms when rights holders face hundreds of small, foreign marketplace sellers whose individual economic impact cannot justify single-defendant federal litigation or Section 337 proceedings at the International Trade Commission (ITC). In essence, Schedule A has evolved into "337-Lite" - a rapid, low-cost substitute for ITC exclusion orders that targets the same imported articles through marketplace compliance rather than Customs enforcement. While Judge Kness's procedural analysis exposes serious constitutional and rule-based deficiencies in current Schedule A practice, his decision also highlights a potential enforcement gap that may require congressional rather than judicial solutions. The thousands of Schedule A cases filed annually suggest genuine "demand" for middle-tier remedies against fast-moving, offshore infringement that neither individual civil actions nor comprehensive ITC investigations can adequately address.

The fact that it has taken this long to see a strong anti-Schedule-A opinion is also remarkable, given that Schedule A cases have been proliferating for years. Federal litigation is fundamentally designed as an adversarial system with competing parties presenting their best arguments to neutral judges who facilitate resolution through reasoned decision-making. This system works pretty well when both sides actively and proportionately participate, but it systematically breaks down in default scenarios where defendants simply don't show up (or here, where they are never notified).  In those default situations, judges cannot rely on the usual adversarial testing of facts and law, and should instead (IMO) step up as more active gatekeepers to ensure that the unrepresented party is not being unduly duped through procedural manipulation or legal overreach. The Schedule A phenomenon suggests that many N.D. Ill. courts have been too willing to grant extraordinary ex parte relief based on boilerplate allegations, essentially permitting plaintiffs to short-circuit the adversarial process without the heightened scrutiny that such departures from normal procedure should require.

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Fintiv Patent Case Against Apple Ends; Fintiv RICO case Against Apple Begins

Patent

by Dennis Crouch

After a second trip to the Federal Circuit and back, Fintiv, Inc. v. Apple Inc. (W.D. Tex. No. 1:21-cv-00896-ADA) has ended with a final judgment for Apple. On August 7, 2025, Judge Alan Albright granted summary judgment of noninfringement on most of the asserted claims of U.S. Patent No. 8,843,125, finding that Fintiv failed to identify any actual “widget” in Apple’s accused mobile wallet products as required by the claims.  Fintiv then voluntarily dismissed the remaining claims - indicating that it will appeal yet again.

Having lost its patent clam, Fintiv has also filed a new corporate theft and racketeering lawsuit against Apple.  This post first looks at the dismissed patent case and then moves over to the RICO claims.

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Upcoming Public Events

Patent

I’m looking forward to a few upcoming CLE related events:

Hope to see you there! Dennis

 

Patent Damage Arguments Move to the Supreme Court: Built-In-Apportionment

Patent

by Dennis Crouch

R.J. Reynolds has petitioned the Supreme Court to review a $95 million patent damages award that relied on the Federal Circuit's "built-in apportionment" doctrine, setting up a potential Supreme Court showdown. In R.J. Reynolds Vapor Company v. Altria Client Services LLC, Reynolds argues that the Federal Circuit effectively nullified the Supreme Court's 140-year-old mandate in Garretson v. Clark, 111 U.S. 120 (1884), that patent damages "must in every case" be apportioned between patented and unpatented features. [RJR v Altria Petition][RJR v. Altria - Appendix]

The RJR opinion released prior to the Federal Circuit's recent en banc decision in EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025), and that case may be enough to warrant a new outcome (although note that EcoFactor does not mention RJR).  And, the petition for certiorari asks the Supreme Court to "grant, vacate, and remand in light of the Federal Circuit's recent en banc decision in EcoFactor."

The petition also asks a more fundamental question focusing Supreme Court precedent: "whether the Federal Circuit's "built-in apportionment" exception violates Garretson's apportionment requirement."

Meanwhile, EcoFactor has filed for an extension application so that its own petition for certiorari will be due mid-September 2025, with a likely parallel focus on the Federal Circuit's approach to patent damages expert testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  A third case focusing on apportionment, Jiaxing Super Lighting Electric Appliance Co. v. CH Lighting Technology Co. (Fed. Cir. July 28, 2025), would make an interesting trio for the Supreme Court to consider.

Famed Patent Litigator Bill Lee and Stanford professor Mark Lemley recently published an influential article that provides grounding for RJR's petition. William F. Lee & Mark A. Lemley, The Broken Balance: How “Built-In Apportionment” and the Failure to Apply Daubert Have Distorted Patent Infringement Damages, 37 Harv. J.L. & Tech. 256 (2024). The article extends prior work by both, including Lee's 2016 article with Prof. Melamed. Douglas A. Melamed and William F. Lee, Breaking the Vicious Cycle of Patent Damages, 101 Cornell L. Rev. 385 (2016).

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The Federal Circuit’s Heavy Lifting on Automation Patents

Patent

by Dennis Crouch

In a decision that should provide welcome clarity for mechanical device patents, the Federal Circuit reversed a district court's dismissal of patent infringement claims involving automated exercise equipment, holding that claims incorporating an electric motor to automate previously manual dumbbell weight selection are not directed to abstract ideas under Alice step one. PowerBlock Holdings, Inc. v. iFit, Inc., No. 24-1177 (Fed. Cir. Aug. 11, 2025).  While the decision provides a victory for mechanical automation patents, the court's reasoning appears to turn primarily on the physical nature of the claimed system - using an electric motor to move mechanical components.

A few issues buried inside:

  • Mechanical vs. software distinction - Court emphasized the physical nature of the invention (electric motor moving mechanical components) as distinguishing it from purely software-based automation patents. In other words physical automation is much more likely eligible.
  • CAFC Erred in decided on narrow claim - Court focused analysis on detailed claim 1 then summarily declared broader claim 20 also eligible, despite parties arguing the claims separately and meaningful distinctions between them.  I see this as an error that should get a rehearing.
  • Section 101 boundary warning against ignoring old elements - The decision included an explicit caution to "parties and courts" against conflating patent eligibility with novelty/obviousness inquiries by ignoring conventional elements in the eligibility analysis.  The interesting bit is that the court inverted quotes from Mayo and Flook to justify its statements.

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Rapunzel, Rapunzel, Let Down Your Generic Hair (and Let the Supreme Court In)!

Patent

by Dennis Crouch

Rebecca Curtin, an IP-focused Suffolk law professor and a parent who purchases princess dolls, is setting up to file her petition for writ of certiorari to the Supreme Court on her pending trademark case.  In Curtin v. United Trademark Holdings, Inc., No. 23-2140 (Fed. Cir. May 22, 2025), the Federal Circuit affirmed the TTAB dismissal of Curtin’s opposition to United Trademark Holdings’ application to register “RAPUNZEL” for dolls and toy figures under International Class 28. Curtin had challenged the mark as generic, merely descriptive, and failing to function as a trademark – arguing that registration refusal is necessary to protect the public’s right to use common language to describe categories of goods. The Federal Circuit’s ruling, however, concluded that consumers like Curtin lack statutory standing to bring such challenges under 15 U.S.C. § 1063, effectively limiting opposition proceedings to commercial actors with competitive interests in the marketplace.

Any person who believes that he would be damaged by the registration of a mark upon the principal register . . . may, upon payment of the prescribed fee, file an opposition . . .

The statute – quoted above – appears quite broad, but the Federal Circuit has tightly limited its application.  Curtain’s brief is now due October 3, 2025.

The case represents a significant departure from earlier Federal Circuit precedent and raises fundamental questions about the scope of public participation in the trademark registration process. (more…)

USAA v. PNC: Costume Changes in the IPR Theatre

Patent

by Dennis Crouch

Last week a friend of mine was stopped by the police for jaywalking across Ninth Street here in Columbia, Missouri. If you know that block by Sparky's, you know it functions almost like a pedestrian mall. She was asked to sit on the curb while the officer wrote the ticket -- meanwhile a dozen other folks made the same cross‑over. Same place, same manner of crossing, but only one citation. The experience was mildly absurd and somewhat humiliating and it captures a basic fairness intuition that also animates administrative law: treat like cases alike.

That is the theme of a new petition for certiorari in USAA v. PNC, arguing that the USPTO's IPR decision was "arbitrary and capricious" because it failed to "justify a different result reached on saliently similar facts, but involving a different party."  [20250805161943722_1. Petition][20250805161952153_1a. Petition Appendix]

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CAFC: Even Anticipation Requires Explanation

Patent

by Dennis Crouch

American Science and Engineering v. Stewart, No. 23-2127 (Fed. Cir. 2025)

In this short non-precedential opinion, the Federal Circuit vacated and remanded the PTAB's anticipation conclusion -- finding too many gaps in the Board's analysis.  The invention here is an X-Ray inspection system used for moving objects.  The claims require two "pencil-beams" shot in specific perpendicular directions with reference to the object's direction of motion. Detectors are then used to collect the scattered radiation and integrate the overlapping bi-directional results.  In the IPR, the PTAB found a number of claims anticipated by "Seppi" and AS&E appealed - arguing that the finding lacked substantial evidence.

The central complaint is that the Board failed to explain its intermediary fact finding -- i.e., that "the Board failed to find Seppi’s scatter detectors can detect scattered radiation from two perpendicular pencil beam sources."

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Red-Lining Revelations: Edits between Patent Families Continue to be Highly Relevant to Claim Construction

Patent

by Dennis Crouch

The Federal Circuit recently expanded its doctrine associated with specification changes in family member patent applications -- using minor changes in the specification justify differing claim construction across a patent family.  FMC Corporation v. Sharda USA, LLC, No. 24-2335 (Fed. Cir. Aug. 1, 2025).  This is helpful for careful patent attorneys, but also requires care when drafting non-provisional applications claiming priority back to a provisional.  Notably, in both FMC and the 2024 DDR case, the construction hurt the patentee.

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Exception Meets Exception: The Federal Circuit’s Collateral Estoppel Morass

Patent

by Dennis Crouch

The Federal Circuit has denied en banc rehearing in Kroy IP Holdings, LLC v. Groupon, Inc., leaving in place a February 2025 panel decision that significantly limits the collateral estoppel effect of Patent Trial and Appeal Board (PTAB) unpatentability determinations. The denial includes contrasting from Chief Judge Moore and Judge Dyk. [23-1359.ORDER.8-1-2025_2553055]

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OED: Supreme Court Petition Challenges USPTO’s Moral Character Standards

Patent

by Dennis Crouch

A former USPTO patent examiner has petitioned the Supreme Court to review his exclusion from practicing before the USPTO.  Shah Behnamian argues that the USPTO wrongfully denied his application to register as a patent attorney based on a disciplinary suspension that he claims was discriminatory retaliation. The case raises some questions about how the USPTO evaluates the moral character of former employees seeking to practice before the agency, and whether patent examination itself constitutes a "profession" warranting certain procedural protections under federal regulations. Behnamian v. Coke Morgan Stewart, No. 25-5251 (U.S. July 26, 2025) (Behnamian Petition) (Behnamian Appx).

Behnamian worked as a patent examiner from 2009 until May 2020, advancing to GS-14 level primary examiner with consistently outstanding performance ratings until close to the end of his employment. He ultimately resigned following what he alleges was discriminatory suspension related to his wife's pregnancy.  In particular, in 2019, he was charged with being Absence Without Leave (AWOL) for 30 hours and 15 minutes over several days between April and June 2019, while still allegedly logging hours.  He received a five-day suspension that he served in March 2020 and resigned a couple of months later.

After resigning, Behnamian applied to practice before the USPTO as a patent agent.  The USPTO Office of Enrollment and Discipline initially granted his application, but then reversed course after learning (1) about the suspension that (2) Behnamian did not disclose in his registration application.  Behnamian has been pursuing registration since then, in litigation that has now reached the Supreme Court.

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Mandamus Denied: Fintiv’s Trial Moves Forward

Patent

by Dennis Crouch

In a brief order, the Federal Circuit has denied Fintiv's mandamus petition seeking relief from Judge Alan Albright's decision to move forward with an expedited trial in Fintiv v. Apple.  Jury selection started this week and the trial is set to begin on Monday, August 4, 2025.

Bravo to the Federal Circuit for handling this efficiently.

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Federal Circuit Extends EcoFactor Framework to Patent Damages Apportionment in Jiaxing Decision

Patent

by Dennis Crouch

The Federal Circuit's decision in Jiaxing Super Lighting Electric Appliance Co. v. CH Lighting Technology Co., decided July 28, 2025, represents the first significant application of the court's recent en banc EcoFactor decision to patent damages expert testimony.  The appellate panel vacated the $14 million damages award and remanded for a new trial once the district court applies EcoFactor's heightened reliability standards to evaluate the damages expert's testimony regarding apportionment of portfolio license agreements.

Separately, the court also reversed a JMOL of no-invalidity regarding two other patents -- finding that the district court abused its discretion by excluding key evidence that would have supported the invalidity defense.  In the post, I take these issues in reverse order - first the JMOL then Damages.

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USPTO Closes AAPA Door: New Memo Practically Reverses Shockwave from Below

Patent

by Dennis Crouch

The USPTO moved swiftly to shut down any hope that the Federal Circuit's recent decision in Shockwave Medical, Inc. v. Cardiovascular Systems, Inc., No. 2023-1864 (Fed. Cir. July 14, 2025) had opened a broader pathway for using applicant-admitted prior art (AAPA) to supply missing claim limitations in inter partes review (IPR) proceedings. In a memorandum dated July 31, 2025 (two weeks after Shockwave), Acting Director Coke Morgan Stewart announced that the agency will "enforce and no longer waive" the requirement of 37 C.F.R. § 42.104(b)(4) that IPR petitions "must specify where each element of the claim is found in the prior art patents or printed publications relied upon."  This regulatory enforcement appears to effectively prohibits the use of AAPA, expert testimony, common sense, and other forms of "general knowledge" to supply missing claim limitations, regardless of whether petitioners carefully avoid labeling such evidence as the "basis" of their challenges.

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Ideology, Expertise, and the Evolving Federal Circuit

Patent

by Dennis Crouch

In my recent post, I traced how the Federal Circuit’s composition has shifted from a 10-1 Republican majority in the early 1990s to its present 8-3 Democratic-appointed tilt. Dennis Crouch, The Federal Circuit's Shifting Political Balance, Patently-O (June 15, 2025).  That transformation has not only symbolic weight, but also real jurisprudential and institutional consequences, especially as the court faces more politically charged litigation such as the pending V.O.S. Selections v. Trump case.  I note that the Federal Circuit’s response—en banc proceedings and unanimous per curiam orders—may reflect an institutional effort to shield itself from claims of partisanship.

Jason Rantanen and co-authors Paul Gugliuzza and Jonathan Nash have added more empirical substance to this conversation with a major study of separate opinions and dissents at the Federal Circuit from 2008–2021. Their article, Expertise, Ideology, and Dissent, provides powerful data to help make sense of how political ideology, judicial expertise, and institutional dynamics intersect at this court.

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Federal Circuit Steps Into Apple-Fintiv Discovery Fight Days Before August 4 Trial

Patent

by Dennis Crouch

In an unusual move, the Federal Circuit on July 29, 2025, ordered Apple to respond to Fintiv's petition for writ of mandamus seeking to halt the upcoming August 4 trial date over unresolved discovery disputes. In re Fintiv, Inc., Docket No. 25-00142 (Fed. Cir. July 29, 2025).  Fintiv Petition.

Fintiv is primarily seeking discovery related to meetings between Fintiv's predecessor (CorFire) and Apple three years before Apple Pay's launch.  In those meetings, CorFire allegedly shared key aspects of its patented mobile wallet technology. This includes documents and depositions of three individuals with deep knowledge of those meetings, including one who at the time worked for CorFire and later became Apple's Director of Apple Pay & Wallet Product Management.

Apple's response is due July 31, 2025.

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The New Trump-Lutnick Patent Tax: Trading Innovation Policy for Deficit Reduction

Patent

by Dennis Crouch

The Trump administration is reportedly considering a radical transformation of the US patent system that would replace the current flat-fee maintenance structure with a percentage-based "property tax" on patent value, according to a recent Wall Street Journal report. Howard Lutnick and his Commerce Department team are discussing a tax of between 1% and 5% of overall patent value annually, a shift that could dramatically increase costs for certain patent holders while making the US an international anomaly among major patent systems.  The report led to market drops - especially in biotech.

Under the current system established by the Patent Act, patent holders pay three flat maintenance fees: at 3.5 years, 7.5 years, and 11.5 years after patent issuance. The final fee is the largest (currently $8,280), and almost half of all patents are abandoned without paying this final fee. For patents that have become virtually worthless by their 11.5-year mark, owners might actually prefer a value-based tax (2% of nothing...). However, any new proposal would likely be additional to existing maintenance fees rather than a replacement.

Implementation Strategy: Targeting High-Value Patents

One potential approach would focus revenue collection on patents that are demonstrably high-value, using existing public mechanisms for identification. This targeted system could include:

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The Great Power Competition: Federal Circuit Reinforces Commerce’s Anti-China Trade Arsenal

Patent

by Dennis Crouch

The Federal Circuit's recent decision in Jilin v. US underscores how US courts are fortifying legal foundations for aggressive trade enforcement against China as part of the ongoing global power competition between the two great nations.  In a unanimous ruling reversing the Court of International Trade (CIT), the Federal Circuit validated Commerce's decades-old presumption that all Chinese exporters are government-controlled unless they can prove otherwise. See Jilin Forest Industry Jinqiao Flooring Group Co. v. United States, No. 2023-2245 (Fed. Cir. July 28, 2025).  Some presumptions are easy to overcome, but this burden that has proven nearly insurmountable in practice.

China's designation as a "non-market economy" (NME) lies at the heart of the case. Under WTO antidumping rules, investigating authorities typically compare export prices to domestic prices in the exporting country to determine if "dumping" has occurred. However, NME status allows the US to disregard Chinese domestic prices entirely, instead using "surrogate country" methodology that substitutes prices from third countries deemed more "market-oriented." The US Tariff Act defines an NME country as "any foreign country that the administering authority determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise." 19 U.S.C. § 1677(18)(A).  This use of surrogate markets produces systematically higher dumping margins, with Chinese companies face antidumping duties that are substantially higher than other countries.  China has (unsuccessfully thus far) argued that this discriminatory treatment should have ended in 2016 when certain provisions of its WTO accession protocol expired.

In its decision, the CIT sided with Jilin on multiple grounds that challenged the fundamental legal basis of Commerce's NME presumption that all Chinese exporters are government-controlled. The court found that Commerce had failed to identify any statutory authority for its policy of presuming all Chinese exporters are government-controlled, noting that "Commerce makes no claim to Chevron deference and . . . identify[ies] no statutory source for the NME presumption." More importantly, the CIT determined that Commerce's presumption directly conflicts with the Anti-Dumping Act's explicit statutory requirement to calculate "individual weighted average dumping margins" for each "known" exporter, including mandatory respondents like Jilin. The court emphasized that while Commerce may apply adverse facts available in certain circumstances, "the statute does not indicate that Commerce can simply assign a rate to a mandatory respondent based on its relationship to an NME government." As Jilin argued in its CAFC brief: "An agency policy is not tantamount to a statute or regulation and is not entitled to deference under Chevron or any other framework."

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Copyright Thicket and President Trump’s AI Training Data Solution

Patent

by Dennis Crouch

President Trump’s recent remarks at the White House AI summit signaled an important policy shift in the AI copyright debate. “Common sense” application of intellectual property rules should allow AI developers to train on books and articles without paying or negotiating a license for each one.  The bottom line: requiring copyright licensing would hamper the US’s ability to have continued AI growth.

 You can’t be expected to have a successful AI program when every single article, book, or anything else that you’ve read or studied, you’re supposed to pay for. Gee. I read a book. I’m supposed to pay somebody. And, you know, we we appreciate that, but you just can’t do it because it’s not doable. And if you’re going to try and do that, you’re not going to have a successful program.

The US continues to see AI development as a particular American national interest — both as the key to continued economic growth and for national security purposes.  For Trump, China immediately comes to mind, with his statement “China’s not” paying for copyright. “And if you’re going to be beating China . . . you have to be able to play by the same set of rules.”

Although his suggestion here is that training data should be fair use, President Trump concludes that outputs should not be copied: “Of course, you can’t copy or plagiarize an article. But if you read an article and learn from it, we have to allow AI to use that pool of knowledge without going through the complexity of contract negotiations of which there would be thousands for every time we use AI.” (more…)

Fuel of Interest, Fire of Genius: Lincoln’s Patent Philosophy

Patent

by Dennis Crouch

Abraham Lincoln holds a unique distinction as the only U.S. President to hold a patent. U.S. Patent No. 6469, granted in 1849, covered a device for lifting riverboats over shallow waters using bellows and air chambers. Lincoln also litigated patents in his role as a lawyer.  His experience with the patent system informed what would become one of the most quoted aphorisms in intellectual property law, delivered during Lincoln’s largely forgettable 1858 lecture on “Discoveries and Inventions.” In that lecture delivered in Bloomington, Illinois, Lincoln declared that the patent system “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” IMO, this elegant formulation captured the fundamental economic theory underlying patent law.  Humans have natural creativity and genius that is always burning, but the material incentive of exclusive rights is often needed to spur innovation.

Lincoln’s lecture traced the evolution of human innovation from the biblical first human invention (fig leaf clothing) to the Industrial Revolution.  He specifically praised the U.S. Constitution’s Patent Clause as itself a “a great step in the progress of civilization.”

I have already intimated my opinion that in the world’s history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing — the discovery of America, and the introduction of Patent-laws.

The speech does not delve into contemporaneous decisions such as O’Reilly v. Morse, 56 U.S. 62 (1854), that raised the concern of overclaiming and monopolizing a broad principle (or abstract idea). However, the “fire” metaphor may have been an intentional inversion of Thomas Jefferson’s earlier fire imagery. In his 1813 letter to Isaac McPherson, Jefferson argued that ideas are “like fire, expansible over all space, without lessening their density in any point” and thus should spread freely rather than be subject to “exclusive appropriation.” Jefferson’s fire metaphor emphasized the non-rivalrous nature of knowledge – that ideas, like flames, can be shared infinitely without diminishing the original source. (more…)