by Dennis Crouch

In a significant victory for Register of Copyrights Shira Perlmutter, the D.C. Circuit Court of Appeals has granted her emergency motion for an injunction pending appeal, allowing her to continue serving in her role while challenging President Trump's attempt to remove her from office. Perlmutter v. Blanche, No. 25-5285 (D.C. Cir. Sept. 10, 2025). The per curium order is a terse one paragraph, but two judges filed a detailed concurring opinion explaining why a preliminary injunction is useful in this case -- writing that removal of Perlmutter “would be a grave intrusion by the President into the constitutional powers of a coordinate branch of government.” Although this is an intellectual property case, it is also fundamentally about separation of powers issues within the U.S. government -- and particularly about executive control over aspects of the government in situations where Congress has attempted to reduce or eliminate Presidential power.

Although Copyright Office control may be less important to the President than other areas, I still expect an emergency application to the Supreme Court from the DOJ to overturn this ruling. The court's order enjoins "Todd Blanche, Paul Perkins, Sergio Gor, Trent Morse, and the Executive Office of the President, and their subordinates and agents" from "interfering with appellant's service as Register of Copyrights and Director of the U.S. Copyright Office pending further order of the court." The district court had denied Perlmutter's request for a preliminary injunction.

President Trump has been successful in other situations at removing statutory-protected officers - with the Supreme Court rejecting similarly preliminary injunctions in Trump v. Wilcox, 145 S. Ct. 1415 (2025), and Trump v. Boyle, 145 S. Ct. 2653 (2025). Wilcox involved the President's removal of members of the National Labor Relations Board and Merit Systems Protection Board without cause, with the Supreme Court staying lower court injunctions that would have prevented the removals. Boyle applied identical reasoning to the Consumer Product Safety Commission.  The statutes provide the President with authority to remove these individuals for cause - based upon "neglect of duty or malfeasance" - but President Trump argues that he has inherent power to remove any member of the administration exercising executive power.   The Supreme Court did not decide the merits directly but found significant potential harm from allowing a removed officer to continue exercising executive power.

The Copyright Office situation is different because the Register serves in the Legislative Branch as part of the Library of Congress, with a primary responsibility of advising Congress on copyright matters rather than executing presidential policies.  The President has no statutory removal authority over the Register. And, as far as I know, this is the first time a President has ever attempted to remover the Register in the long history of the U.S. Copyright Office.

But, the Register also has clearly administrative functions, including registering copyrights and maintaining copyright deposits, recording transfers of copyright ownership, and exercising rulemaking authority.  The disagreement in the concurring and dissenting opinions focus on whether these roles constitute the exercise of substantial executive power, with the majority taking pains to distinguish Wilcox and Boyle.

While I believe the copyright issue is important, the upcoming big fight for the big banana is likely over the Federal Reserve and its ongoing independence from the other branches of government.

This post goes through a few comings and goings at the USPTO.  Although everyone has their political interest and particular bent, Dir. Stewart (and Secretary Lutnick)  have been able to attract serious patent law folks who are highly qualified with extensive background and commitment to the patent office.

New PPAC Leadership & Member

by Dennis Crouch

The Federal Circuit's decision in Future Link Systems, LLC v. Realtek Semiconductor Corporation, No. 2023-1056 (Fed. Cir. Sept. 9, 2025), provides important clarification on when a defendant becomes a "prevailing party" and thus eligible for attorney fees under 35 U.S.C. § 285 and costs under Federal Rule of Civil Procedure 54(d)(1).  Although the case had been voluntarily dismissed by the patentee without prejudice, Judge Albright had subsequently converted the status to with prejudice as a sanction for filing objectively baseless patent infringement suits. That conversion was sufficient judicial imprimatur to leave the defendant as prevailing party.

The Tea: The district court's sanctions decision appears to have been influenced by the discovery that the patentee Future Link had entered into a licensing agreement with MediaTek (a Realtek competitor) in 2019 that provided a litigation bounty: an extra $1 million if Future Link sued Realtek or forced it to pay a license fee by a set date.  See the U.S. Department of Justice’s Statement of Interest and Realtek’s publicly filed complaint here (PDF), which quotes the bounty terms, and a court-hosted copy of the allegations here.  The DOJ filing (under President Biden) highlighted allegations that the bounty fueled a series of PAE suits aimed at raising a rival’s costs rather than resolving genuine patent disputes.

by Dennis Crouch

In Magēmā (Maggie-May) Technology LLC v. Phillips 66, 2024-1342 (Fed. Cir. Sept. 8, 2025), the Federal Circuit reversed a district court's denial of a new trial motion, finding that defendants' "improper and prejudicial" trial arguments were not harmless error where the jury returned a general verdict of noninfringement. The case arose from Phillips 66's alleged infringement of patents related to desulfurizing heavy marine fuel oil to comply with International Maritime Organization sulfur content requirements.  See U.S. Patent No. 10,308,884.  One frame to see the case is as a backfire demonstration: Here, defendants fiercely resisted producing evidence during discovery, then later at trial pointed to the absence of that very evidence to defeat plaintiff's case. Although the district court permitted this approach, the appellate panel did not.

Writing for a three-judge panel, D.N.J. Chief District Judge Renée Marie Bumb (sitting by designation) found error in permitting Phillips to present this non-infringement argument.  Although there were alternative non-infringement theories, the general verdict meant that there was no way to discern whether the verdict was impacted by the "prejudicial noninfringement theory."

by Dennis Crouch

The Supreme Court's pending decision in Cox Communications v. Sony Music is a copyright case focused on internet service provider liability, but it also has the potential of reshaping patent law doctrine. Briefing is ongoing in the merits case which will be likely decided in Spring 2026. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-181 (U.S. cert. granted July 1, 2025). The case centers on whether an ISP can be held liable for contributory copyright infringement for continuing to provide internet access to subscribers it knows are repeat infringers, without proof of specific affirmative conduct to promote infringement. Adjudged infringer Cox argues that the Fourth Circuit's approach in the case uses a diluted standard for "material contribution" that threatens to unravel decades of carefully calibrated secondary liability doctrine. The music industry counters that Cox's conduct went beyond passive provision of service - by knowingly maintaining internet access for accounts that received tens of thousands of infringement notices, Cox substantially assisted ongoing piracy and should face liability.

While directly focused on copyright, the case is likely to have direct impact on patent law doctrine as well.  This spillover stems from the recognized "historic kinship" between patent and copyright contributory liability standards.  The two questions presented as:

1. Whether knowledge plus continued provision suffices for contributory liability; and
2. Whether willfulness requires awareness that one's own conduct is unlawful (i.e., infringement).

Answers to both questions will almost certainly influence how courts interpret parallel doctrines under under both § 271(b) (inducement) and § 271(c) (contributory infringement) as well as enhanced damages for willful infringement.

by Dennis Crouch

The Patent Office Professional Association (POPA) - the patent examiner union - filed suit in the U.S. District Court for the District of Columbia on September 2, 2025, challenging President Trump's executive order that stripped collective bargaining rights from USPTO patent examiners by designating them as "national security" workers. The lawsuit (which also includes the National Weather Service Employees Organization as a plaintiff) presents a direct constitutional challenge to what the unions characterize as presidential retaliation against federal employee organizations that have opposed Trump administration policies through grievance proceedings and public advocacy.

• National Weather Service Employees Organization v. Trump, Case No. 25-cv-02947 (D.D.C. 2025).
• Dennis Crouch, Remote Work on the Chopping Block: How Union Exclusion Reshapes USPTO Employment, Patently-O (August 28, 2025)

POPA has represented patent examiners at the USPTO for decades, negotiating collective bargaining agreements that govern working conditions, performance standards, telework arrangements, and grievance procedures for the agency's professional workforce.

An important data point: Following Donald Trump's election victory in November 2024, but before his January 2025 inauguration, POPA successfully negotiated an enhanced collective bargaining agreement with the outgoing Biden administration. This agreement strengthened remote work protections and provided additional job security guarantees for patent examiners who meet performance requirements. While under the agreement patent examiners continue to face termination for failing to meet USPTO's fairly rigorous production and quality standards, the agreement provides important protections that have thus far prevented the new administration from forcing a full return to office or employee purge.  But, the White House's new approach may do the trick.

by Dennis Crouch

The Federal Circuit is now considering a rehearing petition challenging the Federal Circuit's recent decision in Ingenico Inc. v. IOENGINE, LLC, 136 F.4th 1354 (Fed. Cir. 2025), which narrowed the scope of Inter Partes Review (IPR) estoppel under 35 U.S.C. § 315(e)(2).

• CAFC Decision: Ingenico Inc. v. IOENGINE, LLC - Entry BL-58
• Post about the Original Decision: Dennis Crouch, Reference Recycling and the Case for Sua Sponte Rehearing in Ingenico, Patently-O (May 19, 2025).
• En Banc Petition: Ingenico Inc. v. IOENGINE, LLC - Entry BL-70
• En Banc Response: Ingenico Inc. v. IOENGINE, LLC - Entry BL-82

Under the statute - an IPR petitioner is estopped from later re-challenging a patent's validity based upon grounds that could have been raised in the IPR:

[petitioner] may not assert either . . . that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.

The petition argues that the panel's interpretation of the term "ground" effectively guts the estoppel provision by allowing patent challengers to recycle identical prior art from failed IPR proceedings simply by relabeling their invalidity theories under different statutory provisions that are not subject to IPR challenge.  Question Presented:

Whether 35 U.S.C. § 315(e)(2) allows the petitioner in an inter partes review (“IPR”) that has resulted in a final written decision to avoid estoppel in a civil action by relabeling patents or printed publications that reasonably could have been raised as a “ground” in the IPR.

Whether 35 U.S.C. § 311(b) limits “a ground that could be raised under section 102 or 103” to only certain subparts of 35 U.S.C. §§ 102 or 103.

You might imagine a printed publication showing the details of a prior art machine unsuccessfully asserted in an IPR. The decision would allow the same evidence to later be used in court to challenge the patent if it was transformed to an on-sale bar or public use challenge, with the document serving as evidence of what was being sold/used.  In either approach, it is the same prior art reference being asserted, but in Ingenico, the court indicated that these are two different "grounds" for challenging the patent: (1) invalid as anticipated by a printed publication; versus (2) invalid as anticipated by prior sales activity or public use.

The Federal Circuit held that estoppel applies only to specific statutory grounds available in IPR (anticipation or obviousness based on patents or printed publications), not to the underlying prior art references themselves. This creates what I have previously referred to as "reference recycling."  This is a loophole that potentially undermines Congress's intent to prevent duplicative patent validity challenges through robust estoppel provisions.

I recognize the legitimate concern on the down-side of overly broad estoppel -- that it could shield invalid patents from necessary challenge, creating procedural barriers that protect weak patents.  But, the reality is that both the IPR system and district courts have been remarkably effective at invalidating and cancelling patents.  Ultimately, I believe the Federal Circuit erred here and unduly narrowed estoppel. The court should grant the rehearing.

By Dennis Crouch

I was thinking more about the Federal Circuit’s recent en banc decision in V.O.S. Selections, Inc. v. Trump, No. 2024-1363 (Fed. Cir. Sept. 30, 2025).  The case is striking what might be seen as "remedial restraint."  The court found legal violations by the Federal Government in setting Tariffs, but limited any practical relief - at least for the time being.  The 7-4 Federal Circuit majority held that much of the President's sweeping tariff program is unconstitutional, but also vacated the CIT's injunction against the tariffs.  On remand, the CIT is charged with applying and considering the Supreme Court's new remedial framework from Trump v. CASA, Inc., 145 S. Ct. 1847 (2025).

• Dennis Crouch, Marbury in the Trade Context: CAFed Declares Trump's Tariffs Illegal, but Limits Relief, Patently-O (Aug. 29, 2025).

This two-step dance - merits victory, remedial defeat - is something familiar to patent practitioners who have watched the Federal Circuit navigate similar tensions between legal rights and practical relief.  Even after proving infringement and defending against validity challenges, the eBay framework substantially limits patentee access to injunctive relief to stop ongoing infringement, and the rising tide against testimony for proving money damages.

by Dennis Crouch

In a 7–4 precedential decision, the Federal Circuit has affirmed a Court of International Trade (CIT) core ruling that the International Emergency Economic Powers Act (IEEPA) does not authorize the Trump Administration’s sweeping “reciprocal” and “trafficking” tariffs that the President imposed by executive order on virtually all imports from nearly every country. V.O.S. Selections, Inc. v. Trump, Nos. 2025-1812, -1813 (Fed. Cir. Aug. 29, 2025) (25-1812.OPINION.8-29-2025_2566151)

The analysis of any presidential power case begins with the US Constitution that identifies powers and roles of each branch of the government.  The key text comes from Article 1, Section 8, Clause 1 which provides Congress with the power over tariffs:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

The key question in the case is whether Congress handed at least some of those powers to the President via statute in the IEEPA in order to take swift actions to account for emergency situations.

The basic holding in the appeal: IEEPA’s grant to “regulate” importation in emergencies does not clearly include the power to impose open-ended, across-the-board tariff schedules, especially given Congress’s historic practice of delegating tariff authority expressly and with substantive and procedural limits. The Federal Circuit affirmed declaratory relief invalidating the orders but ultimately vacated the CIT’s nationwide injunction and instead ordered the tribunal to reconsider the availability and scope of injunctive relief under eBay and the Supreme Court’s recent limits on universal injunctions. Trump v. CASA (2025).

Throughout this litigation, the Federal Circuit has projected institutional caution about a frontal clash with President Trump or his tariff campaign. The court spoke en banc and per curiam - rather than spotlighting a single judge or even three judge panel - and also coupled its statutory ruling limiting Trump's power with remedial restraint by vacating the CIT’s universal injunction. That approach eases immediate pressure from the executive branch and the trade apparatus while preserving the core legal holding.

Like Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Federal Circuit chose to declare what the law is while carefully avoiding a direct institutional confrontation with the executive branch. The court firmly rejected the legal foundation for Trump's sweeping tariff regime but then immediately softened the blow by vacating the nationwide injunction that would have provided immediate coercive relief, creating a Marbury-like weave between judicial authority and institutional restraint.

by Dennis Crouch

The Federal Circuit this week decided a non-patent en banc case - focusing on standing to challenge government procurement decisions as a federal claim under 28 U.S.C. § 1491(b). Percipient.AI, Inc. v. United States, No. 2023-1970 (Fed. Cir. Aug. 28, 2025).

The statute provides jurisdiction to the Court of Federal Claims over actions filed by "an interested party objecting to (1) a solicitation by a Federal agency for bids or proposals for a proposed contract or to (2) a proposed award or the award of a contract or (3) any alleged violation of statute or regulation in connection with a procurement or a proposed procurement." 28 U.S.C. § 1491(b)(1) (numbering not found in statute).

Here, the 7-4 court concluded that an "interested party" under the statute must be "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract."  And, this definition applies even to the third prong where the objection is based upon the third prong rather than upon bids or proposed award.

by Dennis Crouch

The Federal Circuit recently decided its first AIA derivation proceeding appeal. In Global Health Solutions LLC (Burnam) v. Selner, No. 23-2009 (Fed. Cir. Aug. 26, 2025), the court affirmed a PTAB decision favoring the first-filer -- but found a harmless error with the Board's analysis (the Board erred by framing its analysis in first-to-invent terms rather than first-to-file).   Ultimately, the case outcome keeps derivation proceedings in their corner as narrow and rare exceptions to the general first-to-file rule.  The decision also serves as a reminder that, while conception timing remains relevant for establishing derivation and rebuttal, the AIA system fundamentally abandons any inquiry into which party conceived the invention first.

The case involved competing patent applications for an emulsifier-free wound treatment ointment filed by former collaborators.  Marc Selner filed his application on August 4, 2017, four days before Bradley Burnam's company Global Health Solutions LLC (GHS) filed its application.  GHS petitioned for a derivation proceeding, arguing that Selner derived the invention from Burnam's earlier conception and communication. Although Burnham established a prima facie case of derivation, Selner was able to rebut that presumption with evidence of prior conception.

The dispute was resolved based upon a 3 hour time difference between emails from the competing inventors on Valentine's Day 2014.