by Dennis Crouch

In a significant labor relations development that will reshape working conditions for thousands of patent examiners, President Trump issued an executive order on August 28, 2025, excluding the USPTO's entire Patents business unit from federal collective bargaining protections.  The order, titled "Further Exclusions from the Federal Labor-Management Relations Program," adds "Office of the Commissioner for Patents and subordinate units, Patent and Trademark Office" to the list of agencies excluded from Chapter 71 of Title 5, United States Code (the federal labor-management relations statute). This exclusion effectively terminates union representation for patent examiners by the Patent Office Professional Association (POPA), which has represented USPTO examiners for years based upon negotiated collective bargaining agreements that govern everything from telework arrangements to performance evaluation procedures.

The executive order relies on the President's authority under 5 U.S.C. § 7103(b)(1), which permits excluding agencies or subdivisions when the President determines they have "as a primary function intelligence, counterintelligence, investigative, or national security work" and that Chapter 71 "cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations." According to Acting USPTO Director Coke Morgan Stewart's internal message to staff, "the administration has determined that the Patents business unit and the Office of the Chief Information Officer (OCIO) business unit have 'as a primary function . . . national security work,'" rendering federal labor protections inconsistent with national security considerations. The changes took effect immediately and remove POPA's bargaining rights for patent examiners.

I want to pause in the analysis to acknowledge that thousands of patent examiners now face significant uncertainty about their working conditions and job security, including big questions about whether they will need to uproot their family in order to keep a job.

by Dennis Crouch

The Federal Circuit has now wiped away Judge William Alsup's dramatic post-trial decision in Sonos v. Google. In a nonprecedential opinion, the court reversed the lower court's finding of prosecution laches, reiterating that laches is an equitable defense reserved for rare cases. Google LLC v. Sonos, Inc., No. 2024-1097 (Fed. Cir. Aug. 28, 2025).

Prosecution laches requires both (1) an unreasonable and unexplained delay in patent prosecution and (2) a showing of prejudice to the accused infringer in the form of intervening rights (e.g. evidence that others "invested in, worked on, or used the claimed technology during the period of delay"). Here, Google failed to present evidence that it (or others) changed their position or made investments in reliance on Sonos's delay and so laches could not apply. At times, egregious delay can trigger laches absent a specific showing of harm. Here, however, the panel emphasized that standard continuation practice, even over more than a decade, is not itself an "egregious misuse" of the system sufficient to trigger laches in the absence of specific prejudice. Prior prosecution laches cases all involved pre-1995 patents and decades of delay and this was the first time prosecution laches had been used to render a post-1995 patent unenforceable in a situation where delays in prosecution automatically delayed patent term as well. The court ultimately reversed Judge Alsup's unenforceability ruling and reinstated the jury's $32 million verdict on the Sonos "zone scenes" patents.

Although Sonos won the appeal, the decision does not provide a full green light to the continuation practice found here - particularly where claims covering competitor activity are first added to the patent family long after the original filing and publication dates. The Federal Circuit's analysis focused heavily on the fact that Sonos's 2007 patent application previously published, well before Google's alleged investments began in 2014-2015. This meant Google could not claim prejudice from incorporating into its products a feature that was already publicly disclosed in a pending patent family.

by Dennis Crouch

In a divided decision that highlights ongoing tensions around trademark law's Failure to Function doctrine, the Federal Circuit in In re Brunetti, No. 2023-1539 (Fed. Cir. Aug. 26, 2025), vacated a TTAB refusal to register the word FUCK as a trademark for various consumer goods and retail services. The court rejected most of applicant Erik Brunetti's constitutional challenges but concluded that the Board failed to articulate a coherent standard for determining when widely-used words can function as source identifiers.

Writing for the majority, Judge Dyk criticized the Board's apparent "I know it when I see it" approach to failure-to-function refusals, while Judge Lourie dissented, arguing that substantial evidence clearly supported the Board's conclusion that the "f-word" cannot serve as a trademark for the applied-for goods. (While the majority used FUCK a total of 19 times, Judge Lourie was content with "f-word" and "f[]."  I would have used "F-Bomb.")

The case represents Brunetti's second major trademark dispute to reach the Federal Circuit, following his successful Supreme Court challenge in Iancu v. Brunetti, 588 U.S. 388 (2019), which invalidated the Lanham Act's prohibition on registering "immoral or scandalous" marks. However, this case involved different trademark applications - seeking registration of FUCK (not FUCT as in the prior case) for goods including sunglasses, jewelry, backpacks, and retail services - and raised entirely different legal issues centered on the fundamental requirement that trademarks function as source identifiers under 15 U.S.C. § 1127.

Patent Alert: The Federal Circuit's emphasis on consistency in Brunetti offers a potential parallel argument against USPTO decision-making in the patent context as well. As discussed below, the court's reliance on Booking.com's mandate that the PTO "consider its 'own past practice' in developing a 'comprehensive rule'" suggests that patent applicants facing inconsistent rejections may now have stronger grounds to challenge the USPTO's rejections.

by Dennis Crouch

CeramTec has now filed its petition for certiorari challenging the Federal Circuit’s affirmance of the TTAB’s cancellation of CeramTec’s “pink ceramic hip” trade‑dress registrations based upon overlapping utility patent protection. In its 2001 TrafFix decision, the Supreme Court held that a utility patent constitutes "strong evidence" that the claimed features are functional, thereby creating a presumption against trademark protection for those features.  [20250820165039977_CeramTec Cert Petition]

CeramTec's fake-hips are pink and the company used that in marketing is Biolox Delta product and has established market distinctiveness in the color itself.  The USPTO initially agreed and registered the color pink for the ceramic bones.

The problem is that the pink color arises from from the addition of chromia to the ceramic compound -- an important aspect of the (now expired) utility patent (US5830816) covering its product.  Although CeramTec admits that its pink product is covered by the patent -- and that the pink is caused by the 0.33 wt% chromia used in their product -- that result is not required by the patent.  In particular, the patent does not claim or even mention the pink color and chromia addition within the claim scope can yield a spectrum of colors in zirconia‑toughened alumina (ZTA_ depending upon the concentration used, including “pink, red, purple, yellow, black, gray [or] white.”  Although CeramTec chose 0.33 wt% chromia for its product, nothing in the patent indicates that concentration is unique or more beneficial than other concentrations within the claim scope.

Hips don't lie?: An additional interesting and potentially important fact. The utility patent provides a number of reasons why chromium is important as an addition to the zirconium dioxide ceramic, it:

1. strengthens the alumina matrix,
2. restores hardness lost by adding zirconia, and
3. improves thermal and wear resistance.

However, as this lawsuit developed, CeramTec's position changed dramatically. In response to CoorsTek's cancellation petition, CeramTec argued to the Board that "although it had once believed that adding chromia provided material benefits to ZTA ceramics, that belief was mistaken and has since been disproven." This reversal was supported by experimental testing conducted by a government-sponsored research agency in related German litigation, which found that adding chromia at various levels (0.0, 0.1, 0.3, and 0.5% by weight) had no effect on hardness or wear resistance.

This alteration in utility means that chromia - although claimed - is not actually functional.  This is highlighted by the CoorsTek competing product which achieves the same ZTA features without chromia.  CoorsTek though wanted to ensure that the ortho purchasers understand its product is effectively the same as CeramTec's and so added pink dye in order to guarantee visual similarity.

In 2014 CoorsTek petitioned to cancel CeramTec’s color registrations as functional. After some delay because of parallel litigation, the TTAB ultimately granted cancellation, and the Federal Circuit affirmed.  The TTAB applied the Morton‑Norwich framework and also credited TrafFix’s “strong evidence” rule.  It concluded that the patent record (and other materials) showed chromia conveyed utilitarian advantages to ZTA and that pink is a “natural byproduct” of the concentration CeramTec chose. On that view, the expired patent became “strong evidence” that the pink trade dress is functional. The Board also found CoorsTek's criticisms of the testing methodology and scope to be persuasive.

On appeal, the Federal Circuit held that TrafFix does not demand that the patent explicitly claim the exact design feature (pink) or that the marked feature be the “central advance” of the patent; it sufficed that “the addition of chromia causes ZTA ceramics to become pink.” The court treated the “central advance” phrasing in TrafFix as illustrative rather than as a threshold requirement.  I summarized the Federal Circuit’s decision when it issued, noting the cautionary lesson for patent prosecutors: statements in a utility patent about functional benefits can later loom large in a trademark functionality fight.

• Dennis Crouch, "Cert Petition Preview: Federal Circuit's Broad Reading of TrafFix in CeramTec," Patently-O (June 19, 2025)
• Dennis Crouch, "Federal Circuit: Pink Hip Implants Are Functional, Cannot Be Protected as Trade Dress," Patently-O (Jan. 8, 2025)
• Dennis Crouch, "Pink Ceramic Hip Implants: When Functionality Trumps Trade Dress," Patently-O (Oct. 10, 2024)

The new petition for writ of cert to the Supreme Court asking:

Question Presented: Whether under this Court’s decision in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), a utility patent that produces a product with a wide array of designs is “strong evidence” that every aspect of every design produced by practicing the patent is functional rather than arbitrary, incidental, or ornamental.

by Dennis Crouch

In July 2025, Crocs asked the Supreme Court to decide a seemingly clean legal question: whether the Lanham Act’s false advertising provision, § 43(a)(1)(B), covers misrepresentations about a product’s intangible attributes, such as its patent status. Two new filings complicate the story somewhat. The Accessories Council, in an amicus brief supporting Crocs, urges the Court to take the case to prevent what it sees as a chilling effect on both patent enforcement and routine commercial speech. Dawgs’ brief in opposition reframes the case entirely, insisting that this dispute is about false claims tied to tangible product attributes—not abstract questions about intangibles at all.

• SCOTUS Crocs Docket with Briefs.
• Dennis Crouch, False Patent Marking as False Advertising: Overcoming Dastar (Apr. 17, 2024) https://patentlyo.com/patent/2024/04/marking-advertising-overcoming.html
• Dennis Crouch, Distinguishing Dastar: False Patent Marking Claims Get New Life Under the Lanham Act (Oct. 4, 2024) https://patentlyo.com/patent/2024/10/patent-marking-claims.html
• Dennis Crouch, The Services Problem That Undermines Crocs' Textualist False Advertising Defense (July 2025) https://patentlyo.com/patent/2025/07/undermines-textualist-advertising.html

The case stems from a protracted legal battle between Crocs and Double Diamond (maker of "Dawgs" shoes) that began in 2006 with design patent infringement litigation. The current dispute centers on Double Diamond's false advertising counterclaim, alleging that Crocs misled consumers by marketing its "Croslite" foam material as "patented," "proprietary," and "exclusive" when the material was neither patented nor unique. Rather it was essentially the same EVA foam used by many competitors.

by Dennis Crouch

Earlier in 2025, the Federal Circuit affirmed a TTAB’s refusal to register VETEMENTS (both standard-character and a block-letter stylization) for clothing and online retail store services for clothing.  Pardon my French, but the problem here is that “vêtements” directly translates into "clothing" -- rendering the word generic for goods and at least highly descriptive for clothing related services.  In re Vetements Group AG, 137 F.4th 1317 (Fed. Cir. 2025).  The case falls under the "Doctrine of Foreign Equivalents" (DFE) which the court was careful to characterize as a guideline rather than a firm rule.  Here, the Federal Circuit applied the guideline and concluded that an "appreciable" number of American consumers would likely "stop and translate" the word and recognize it as generic to the goods in question.

Vetements has now filed a petition for certiorari asking the Court to decide, first, whether protectability of a non-English mark should turn on consumer perception of the mark as encountered (without translation) or on its English translation; and second, what the proper test is for genericness or descriptiveness of non-English marks. The petition frames the Federal Circuit’s approach as inconsistent with Menendez v. Holt, 128 U.S. 514 (1888), and the “bedrock” consumer-perception principle reiterated in USPTO v. Booking.com, 591 U.S. 549 (2020). The petition also highlights divergent approaches among the circuits and the TTAB.  Vetements Grp. AG v. Stewart, No. 25-215 (U.S. Aug. 19, 2025) (petition for cert. filed).

• Read the petition.
• Read the Federal Circuit decision.

by Dennis Crouch

The Federal Circuit has affirmed a district court's refusal to hold the United States Tennis Association (USTA) in contempt of a temporary restraining order, emphasizing that non-parties retain their right to defend against infringement allegations even when bound by injunctions against defaulting defendants. In Group One Ltd. v. GTE GmbH, 2024-1273 (Fed. Cir. Aug. 21, 2025), the court also reversed the district court's denial of mandatory post-judgment interest while affirming strict limits on damages awards in default judgment cases.

Group One sued German company GTE GmbH and its owner Ralf Weigel for patent infringement of tennis let detection technology covered by U.S. Patent Nos. 10,583,341 and 10,272,307, claim a system for measuring net tension to indicate whether a ball has clipped the net during a serve and allow umpires to control shot clocks. GTE and Weigel defaulted - i.e., did not show up to court - and the district court entered default judgment finding infringement based on defendants' sale of their "Trinity" let detection system for use at the 2019 and 2020 U.S. Open Tennis Championships. The court also issued a temporary restraining order preventing use of infringing Trinity systems during the 2021 U.S. Open. USTA went ahead and used a Trinity system at the 2021 tournament and Group One sought to enforce the TRO against USTA as a non-party acting "in concert" with the defaulting defendants -- particularly seeking a contempt finding.

by Dennis Crouch

The Federal Circuit's recent decision in Wilco Marsh Buggies and Draglines, Inc. v. Weeks Marine, Inc., 23-2320 (Fed. Cir. Aug. 19, 2025) (nonprecedential), illustrates how the Federal Circuit appears to be increasingly disregarding the jury's role in fact finding -- in this case disputes about whether a competitor's prior sales were anticipating based upon the on sale bar. Looking at it from an alternative perspective, the decision demonstrates how the Federal Circuit's regular disregard of conclusory expert testimony can vaporize what appear to be genuine factual disputes.

The case involved U.S. Patent No. 6,918,801, directed to an amphibious vehicle with tracked pontoons and retractable spuds for stabilization during excavation operations. Weeks Marine successfully argued that a 1993 sale of the MudMaster amphibious dredge anticipated the asserted claims under the on-sale bar of 35 U.S.C. § 102(b). The Federal Circuit affirmed summary judgment of invalidity, finding that no reasonable jury could conclude the 1993 MudMaster lacked a "chassis" as required by the claims, despite what appeared to be competing expert testimony on this critical element.

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.

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.