by Dennis Crouch

The USPTO has proposed to end anonymous ex parte reexamination as we have known it. A notice of proposed rulemaking scheduled for Federal Register publication on July 22, 2026 would add 37 CFR 1.510(b)(7), requiring every third party request for ex parte reexamination to include a statement identifying all real parties in interest to the request. Docket No. PTO-P-2025-0545, RIN 0651-AD94. Comments are due 30 days after publication, or about August 21. A requester may ask that the statement be kept confidential, and the Office would then exclude it from the patent and reexamination files. But confidential is not the same as secret. A key part of the rule is that the Office would know who is behind a request even when the public does not.

Inter partes review has always demanded that a petitioner name all real parties in interest: the statute lets the Office consider a petition "only if" it does so. 35 U.S.C. 312(a)(2). Ex parte reexamination never has. Section 302 lets "any person" request reexamination, and Section 301(e) lets that person ask to have its identity excluded from the patent file and kept confidential. Anonymity here is a congressional design feature that has sometimes made reexamination attractive, but that feature appears gone.

by Dennis Crouch

The en banc Ninth Circuit will hear argument during the week of September 28, 2026, in San Francisco, on the future of the "intrinsic test," the subjective half of the circuit's two-part test for copyright infringement. Sedlik v. Von Drachenberg, No. 24-3367 (9th Cir.). This is the second post about Sedlik. The June post covered the en banc grant and the now-vacated panel decision. Amicus briefing wrapped up this month, with the last two of nine briefs accepted for filing on July 20, and my reading is that these set out five distinct options for the court.

One thing the court has not done is frame the question. The June 9 order granting rehearing is two sentences long: rehearing granted, panel opinion vacated. No questions presented, and as of this writing no supplemental merits briefing has been ordered. So the option set comes from the vacated concurrences and the amicus briefs.

The underlying dispute: celebrity tattoo artist Kat Von D used Jeffrey Sedlik's 1989 finger-to-lips portrait of Miles Davis as the reference for a tattoo on a friend's arm, tracing the photograph on a light box, and her shop promoted the result on social media as "100% exactly the same as the reference." Sedlik sued for infringement, but the jury sided with Von D. The panel affirmed on the ground that the verdict rested on the intrinsic test, which is essentially unreviewable. In honor of the case, you can see my new tattoo of Von D creating the (allegedly) infringing work.

The Rule Being Replaced. Since Sid & Marty Krofft Television Productions v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), a Ninth Circuit infringement plaintiff must win twice: once under the objective "extrinsic" test (element-by-element comparison, filtration of unprotectable material, expert testimony allowed, resolvable as a matter of law) and again under the subjective "intrinsic" test (the ordinary observer's overall impression, no experts, jury only). Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) shifted analytic work into the extrinsic prong. What remained of the intrinsic prong is basically a "total concept and feel" comparison: the "subjective judgment" of the jury that is "virtually devoid of analysis." The Ninth Circuit has never reversed a jury's no-infringement verdict under the intrinsic test.

by Dennis Crouch

The Supreme Court has been asked to decide whether an act of Congress can reallocate ownership of foreign copyrights. In BMG Rights Management (US) LLC v. Vetter, No. 25-1391, four music publishing entities represented by Paul Clement are seeking review of the Fifth Circuit's holding that when an author exercises the termination right of 17 U.S.C. § 304(c), the author recaptures the work throughout the world and not merely in the United States. Vetter v. Resnik, 163 F.4th 951 (5th Cir. 2026). The Fifth Circuit decision affirmed the district court in full and added a second holding: the renewal interest that vests in a deceased co-author's heirs under the 1909 Act was worldwide as well.

The panel rejected the theory that there are "multiple and separate copyright interests in each country" in favor of a single copyright granted under the U.S. Copyright Act and then "recognized by member countries" pursuant to the Berne and Universal Copyright Conventions. In patent law we assume the complete opposite: national patents are independent of one another, and a U.S. patent stops at the border. Five amicus briefs support certiorari. The brief in opposition, and any amici supporting Vetter, have not yet been filed.

Termination rights: Authors often sell their work before anyone knows what it is worth or from a disadvantaged bargaining position. Congress decided that bargain deserves a do-over. Under 17 U.S.C. § 304(c), an author who transferred rights before 1978 gets a five-year window, opening 56 years into the copyright, to cancel the deal and take the rights back. Section 203 does the same at year 35 for later transfers. This is a moral right personal to the author that cannot be signed away (and only transferred to heirs). It works "notwithstanding any agreement to the contrary," so no publisher can draft around it. The key statutory statement important for this case is that termination reaches only rights that "arise under this title," and "in no way affects rights arising under any other Federal, State, or foreign laws."

Vetter and Smith wrote "Double Shot," the song at the center of this litigation, in Baton Rouge in 1962. The first recording, by Dick Holler and the Holidays, never charted. Then in 1966 the Swingin' Medallions released an organ version that reached No. 17 on the Billboard Hot 100 and sold a million copies, even after some stations pulled it over its references to drinking.

by Dennis Crouch

When do patent attorneys actually file? Not first thing in the morning, and not in a rush at the end of the business day. Across roughly 475,000 USPTO electronic filings May-June 2025, volume climbs steadily through the morning, peaks in the 3:00 p.m. hour Eastern, and then runs down a long evening tail. A quarter of everything arrives after 5:00 p.m.  Weekends account for under 2%.

The clock here sits in Virginia. Under 37 C.F.R. § 1.6(a)(4), the receipt date of anything submitted through Patent Center is the Eastern Time date when the USPTO received it. A California attorney who clicks submit at 10:00 p.m. Pacific gets the next day's filing date.

by Dennis Crouch

The Request for Continued Examination has become the ordinary answer to a final rejection. An RCE lets an applicant reopen prosecution and keep working with the same examiner by paying a fee, rather than filing a fresh application or taking the case up to the Board. Weekly RCE filings are following something of a wave, with a high point in 2016 and 2017, before dropping and now rising again. It is not clear to me what is causing the recent rise in RCE filings over the past year. 

One dramatic outlier in the series is old: the last week of October 2007 drew nearly 7,000 RCEs as applicants raced to file ahead of the PTO's new caps on continued examination, caps that Judge Cacheris enjoined the day before they took effect. Tafas v. Dudas, 511 F. Supp. 2d 652 (E.D. Va. 2007).

The second chart here adds parallel numbers for patent issuances and abandonments.

by Dennis Crouch

The Federal Circuit's new decision in 4DD Holdings, LLC v. United States, No. 2024-1996 (Fed. Cir. July 16, 2026) is a copyright case that runs almost entirely on patent damages doctrine.

The unanimous opinion authored by Judge Hughes affirmed that the Court of Federal Claims (CFC) could fix the government's liability for infringing 4DD's TETRA healthcare-data software through a hypothetical negotiation rather than simply using the rates in the parties' prior license. But, the court still vacated the $12.7 million award based upon overuse of what courts call the "book of wisdom" and the lack of enhanced statutory damages available for infringement actions against the United States. The court remanded for a fresh damages analysis.

The dispute grew out of the Defense Department's effort to make military and veterans' health records talk to one another. The government bought TETRA through a reseller, licensing 64 processing cores and 50 user seats, and then, through its lead contractor, made thousands of unauthorized copies while adapting the software for its secure networks. The Court of Federal Claims found the government had exceeded its license by 290,000 cores and 170,000 seats.

4DD asked the court to apply its list prices copy by copy, which would have put damages in the billions. The trial court instead constructed a hypothetical negotiation and awarded $12,683,065.86.

by Dennis Crouch

The USPTO has finalized a rule requiring foreign-domiciled patent applicants, inventors, and owners to be represented by a registered patent practitioner in nearly everything they file. The final rule, signed by Director John Squires, was published at 91 Fed. Reg. 13510 (Mar. 20, 2026) and takes effect July 20, 2026. It amends 37 C.F.R. §§ 1.9, 1.31, 1.32, and 1.33 and applies to every covered paper received on or after that date, without regard to when the application was filed. In many ways this is a fairly small change since already about 97% of foreign-origin non-provisionals already list a U.S. patent practitioner of record.  So the rule mostly formalizes existing practice.

A "juristic entity" applicant such as a corporation has long needed a registered practitioner, so the population this rule newly reaches is the foreign individual inventor who has been prosecuting on their own. The trademark side has run a version of this since 2019, when the Office began requiring foreign-domiciled applicants and registrants to appoint a U.S.-licensed attorney.

by Dennis Crouch

On July 14, 2026, the full Senate Judiciary Committee held its hearing "From Genes to Machines: The Patent Eligibility Debate," which Chairman Chuck Grassley described as the first time the whole committee, rather than Senator Thom Tillis's Intellectual Property Subcommittee, has taken up the Patent Eligibility Restoration Act of 2025, S. 1546, 119th Cong. (2025) (companion H.R. 3152). PERA would erase the judicial exceptions to Section 101 that the Supreme Court expanded in Alice and Mayo, and replace them with a narrow statutory list of things that cannot be patented. No vote or markup was scheduled, and Grassley was candid that many members are still studying the bill (i.e., do not yet support the legislation).

Tillis, who is retiring at the end of this Congress, said he is willing to change PERA's human-gene language, and he asked Debra Leonard, the witness most opposed to aspects of the bill to send him wording that would, in her view, preserve Myriad.

Four witnesses testified, split evenly. Andrei Iancu (former USPTO Director) and Sue Peschin (Alliance for Aging Research) urged passage. J. John Lee (Computer and Communications Industry Association) and Dr. Leonard (Professor Emerita of Pathology at the University of Vermont and a past president of the Association for Molecular Pathology, the named plaintiff in Myriad) asked the committee to leave current law alone.  I found Dr. Leonard's discussion of gene patenting outdated at this point - that gold rush is over.  The isolated natural sequences behind her 1990s licensing letters have long since been sequenced and published, and those patents are expired, so a fresh claim to one would fail for want of novelty or nonobviousness, whatever Myriad says at the eligibility threshold. What is worth claiming today runs the other way, toward the engineered constructs she herself credited, CRISPR edits and gene therapies, and the cDNA that Myriad already treats as eligible.  But, she also mentioned basic correlations associated with human health - the diagnostic discoveries that continue to be ripe areas for research and that are largely blocked by Mayo.

by Dennis Crouch

The petition for rehearing en banc in Range of Motion Products, LLC v. Armaid Co., 166 F.4th 981 (Fed. Cir. 2026), has now been pending for 102 days. Range of Motion filed on April 3, 2026, after a divided panel (Cunningham, J., joined by Hughes, J., with Chief Judge Moore dissenting) affirmed summary judgment of non-infringement.  I have previously written about this case: the panel decision, the en banc petition, and a later look at the same doctrine as it surfaced in a second pending appeal.

The en banc petition raises two questions, both drawn from Chief Judge Moore's dissent:

• Whether the "plainly dissimilar" threshold from Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), inverts the ordinary observer test of Gorham Mfg. Co. v. White, 81 U.S. 511 (1871); and
• Whether a judge's functionality findings at claim construction improperly take a question from the jury in tension with the Seventh Amendment and Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).

Why 102 days matters. The Federal Circuit disposes of the ordinary en banc petition quickly and quietly, usually with a one-line order denying rehearing, and usually within about 30 days.

The petitions that sit longer are ones that at least one judge has asked to hold, the ones drawing a request for a vote, or the ones that generate a detailed writing. Elapsed time is therefore a rough signal of how seriously the court is treating a petition, and this one has now passed a meaningful mark.  And, each additional day of delay increases the odds of a rehearing.