by Dennis Crouch

Back in May 2026, I wrote that Williamson found its mark. After the Federal Circuit’s 2015 en banc decision, functional claims that rely upon a function coupled with a generic noun such as “module” or “unit” turned downward for the first time in forty years. But I had a couple of questions left over that I wasn't able to answer with the data that I had at that time. If patent attorneys are backing away from "module" and "unit," what are they writing instead? And is the pullback coming from U.S. drafters, or from somewhere else?

Warning: this post is longer than my usual and takes a deep dive into functional claiming.

Only about 3% of U.S. utility patents issued so far in 2026 include a claim element written with the word “means” (“locking means,” “means for latching”). That is down from 7% in 2015, the year of Williamson, and from a peak of 60% back in 1987. (I last looked at this in 2023.)

But functional claiming has not gone anywhere. In 1976, 65% of patents had an apparatus or product claim that tied a function to a claim element in one of the forms that I count here. In 2026 that figure is 74%. In other words, throughout this time, patent attorneys have kept the functional claims, while shifting the words they use to get there.

Functional claiming has always been a lure for patent attorneys. The marketplace generally cares about an invention's functional capability - what it does for users - rather than the particular nuts and bolts of how it actually operates.  A competitor can often swap out one structure for another to achieve the same or similar results.  What that means is that it is much harder to design around a claim directed to the function. This is particularly important for technology that is likely to move forward over the 20-year life of a patent. Functional language ages well. In other words, a claim written to the function can reach later-developed technology that the inventor never built or even imagined, so long as that new technology achieves the same results.  And, there is also a practical side that is focused on software and electronics - where in the industry components are typically described by engineers in terms of their function. And applications are regularly filed before the final design is settled.  But the push-back here is that the law has never been comfortable with a claim that covers every way of achieving a result. That discomfort is what gave us Section 112(f), and it is also seen regularly in enablement, written description, and eligibility doctrine.

Four replacements for “means.” The way I see it, the chart above shows “means” handing its role off to four other claim forms.

by Dennis Crouch

Point-of-novelty claiming is now rare in U.S. patents. Only about 0.03% of U.S. utility patents issued this year include a claim in Jepson form ("In a widget having A and B, the improvement comprising C"). This is down from about 14% in the early 1980s. The European two-part form ("A widget having A and B, characterized in that C") runs twelve to sixteen times higher, but it is also rare at still well under 1% of issued U.S. patents. In 2025 that came to about 1,200 patents with a two-part claim and 76 with a Jepson claim, out of 325k utility patents.

This updates my November 2023 post on Jepson claims (and the 2017 version before it). For this one I used a broader text search that also catches variants such as "the improvement wherein" and dependent claims to "the improvement of claim 1." That raises the early-1980s figures substantially (the 2023 chart peaked near 8%, this one near 14%) but makes almost no difference after 2015, when nearly every remaining Jepson claim uses the literal "improvement comprising" wording.

In re Xencor, Inc., No. 2024-1870 (Fed. Cir. Mar. 13, 2025), held that a Jepson preamble is a limitation that must be supported by the written description, so the applicant bears the burden of showing that what the preamble calls conventional was in fact well known in the art, with the amount of disclosure required scaling with the unpredictability and newness of the field. The upshot is a double burden unique to the form: the preamble counts as an admission of prior art against the applicant yet still has to be described like any other claim element. Ultimately this makes the form even less user-friendly. I wrote about the decision when it came down.

by Dennis Crouch

We didn't have any new precedential opinions yesterday and so instead I listened to several oral arguments. The most interesting for a court watcher was J&M Manufacturing Co. v. Kinze Manufacturing, Inc., No. 2025-1654 (Fed. Cir. argued Oct. 5, 2026). Chief Judge Moore opened Monday's argument by rebuking the patentee's lawyers for the way they litigated claim construction in the district court. As the Chief Judge described the Markman hearing, J&M's team introduced its advocate by reciting his mechanical engineering degree and 28 years of technical experience, and then told the district judge that two of its lawyers had clerked for Judge Prost, the author of O2 Micro. Her response from the bench: "Shame. Shame."

Still, the panel seems sympathetic to the appellant. Chief Judge C.J. Williams (N.D. Iowa) had granted summary judgment that the claim term "askewed angle" is indefinite. All three judges pressed Kinze on why the term is not simply broad. The full oral argument is on SCOTUSGate. The court heard oral arguments in Chicago at Northwestern University Pritzker School of Law, and Judge Stoll paused a couple of times to have counsel explain the doctrine "for the benefit of the students in the room."

by Dennis Crouch

Judge Alan Albright left the bench at the end of August and is now a partner at A&O Shearman. The Federal Circuit has since granted mandamus against one of his final venue rulings, ordering USC's infringement suit against Google transferred from Austin to the Northern District of California. In re Google LLC, No. 2026-157 (Fed. Cir. Oct. 6, 2026) (nonprecedential). The per curiam order from Judges Dyk, Mayer, and Stark may be the last in a long series of transfer orders that began during Covid times. See In re Adobe Inc., 823 F. App'x 929 (Fed. Cir. 2020).

USC sued in October 2025 on two patents listing former USC professor Michael Naimark as the sole inventor. U.S. Patent Nos. 8,026,929 and 8,264,504. The claims cover posing user-uploaded 2D photographs as aligned overlays within a pre-existing 3D model, and USC accuses the display of user-contributed imagery in Google Earth, Maps, and Street View. Naimark was also on the MIT team that built the late-1970s Aspen Movie Map, an interactive videodisc map often described as a forerunner of Street View. USC is in Los Angeles, Google is in Mountain View, and Naimark lives in Northern California. USC pointed to Google's Austin offices as the Texas connection, but the reality is that the case was filed in Texas in order to appear before a more patent-friendly judge.

by Dennis Crouch

Can a patentee rely on the presumption of validity when filing suit, even after the PTO has rejected closely related claims as ineligible? In Epic Tech, LLC v. Pen-Tech Associates, Inc., No. 2025-1624 (Fed. Cir. Sept. 30, 2026), the Federal Circuit said that, on that record, the presumption alone "does not suffice" for a patentee and its counsel facing "multiple indicators" that the claims are unpatentable. The court vacated an order denying Rule 11 sanctions and attorney fees and remanded for a better explanation. It did not decide whether sanctions are warranted.

Epic Tech's U.S. Patent No. 8,545,317 covers an electronic sweepstakes gaming system. It issued in October 2013, eight months before Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). After Alice, examiners rejected claims in three related applications under § 101, and Epic Tech abandoned all three. In two of those applications the examiner had also found the pending claims patentably indistinct from claims of the '317 patent.

Still, Epic Tech sued Pen-Tech for infringement.  Its litigation counsel, Baker Donelson, had been prosecuting Epic Tech's applications since 2018.  The district court found the claims ineligible on summary judgment.  This appeal focused on the resulting motions for sanctions and fees against both Epic Tech and the firm.

by Dennis Crouch

This post updates my September 21, 2026 post on FY2026 utility grants that was projecting out to end of the FY. The year is now over. I have also added two new cuts of the data: published applications by origin and cross-border inventor teams.

The USPTO issued 315,825 utility patents in FY2026, down 3.8% from FY2025. About half of this drop is due to a calendar artifact -- FY2025 had 53 Tuesdays (the day patents issue) and FY2026 was back to the usual 52. But the weekly rate was down overall about 2%.

The two shifts in the mix that I reported in September held up. Continuing applications (continuations, divisionals, and CIPs) accounted for about 26% of FY2026 utility grants, down from 36% in FY2025. That is a major drop I discussed in prior posts.  Patents whose first-named inventor claims US residence fell below 40% for the first time.

by Dennis Crouch

The Third Circuit has affirmed partial summary judgment that ROSS Intelligence infringed Thomson Reuters's copyrights when it used Westlaw headnotes to train a competing AI legal search tool. Thomson Reuters Enterprise Centre GmbH v. ROSS Intelligence Inc., No. 25-2153 (3d Cir. Sept. 29, 2026).

Judge Bibas held as a matter of law that ROSS infringed 2,243 headnotes and that the copying was not fair use. He then certified two questions for immediate appeal: whether the headnotes are original, and whether ROSS's use was fair. The Third Circuit answered both for Thomson Reuters in an opinion by Judge Montgomery-Reeves. What remains for trial in Delaware is whether some of those copyrights have expired, the claims on the remaining headnotes, and damages. I previously wrote about Judge Bibas's decision (Feb. 11, 2025) and ROSS's opening brief on appeal (Sept. 23, 2025).

ROSS never showed a headnote to its users. The headnotes were copied and used to write AI training memos, and the finished tool returned only passages from judicial opinions. ROSS argued that this sort of intermediate copying is fair use under cases like Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021). The court disagreed. In its reading, those cases turn on necessity, and ROSS already had the opinions and copied the headnotes because that was easier. "Unlike necessity, ease is not a justification for copying." The court called the dispute "no more than an ordinary copyright case" and set generative AI aside in a footnote responding to the Trump Administration's recent statement of interest in the OpenAI litigation.

by Dennis Crouch

The Federal Circuit has affirmed invalidity of Satius's wireless-coupler patent, but on a different ground than the district court. Satius Holding, LLC v. Samsung Electronics Co., No. 2025-1446 (Fed. Cir. Oct. 1, 2026). Claim 1 of U.S. Patent No. 6,711,385 recites an apparatus "for transmitting electric or electromagnetic signals over air." Everyone agrees the first option is impossible: electromagnetic signals travel through air; electric signals do not. Magistrate Judge Burke (D. Del.) held the claims indefinite on that basis. Chief Judge Moore's opinion for the panel (joined by Judges Lourie and Hughes) rejects that reasoning, holding that a claim can be clear about its scope even when part of that scope is physically impossible. The court then held the claims invalid for lack of enablement, an issue the district court had found waived.

Judge Hughes previewed the result at oral argument: "If I claim the transporter from Star Trek, everybody knows what I'm claiming. It's impossible. But it's impossible because it's not enabled, not because it's indefinite." The panel's precedential opinion adopts that view.

by Dennis Crouch

The Federal Circuit has denied rehearing en banc in Teva v. Eli Lilly, leaving in place Judge Prost's April decision reinstating Teva's $177 million jury verdict against Lilly over its migraine drug Emgality. Teva Pharms. Int'l GmbH v. Eli Lilly & Co., 172 F.4th 1367 (Fed. Cir. 2026). Judge Dyk dissented, writing that the panel decision "creates confusion as to the enablement standards for method claims" and is contrary to Amgen Inc. v. Sanofi, 598 U.S. 594 (2023). In Amgen, the Supreme Court held that claims to an entire class of antibodies, defined only by their ability to bind a cholesterol-regulating protein called PCSK9 and block its activity, were not enabled.

Patently-O has followed this case since the 2024 appeal briefing. The April post focused on the panel's reasoning, and the July post on Lilly's en banc petition.

The claims cover a method of "treating headache in a human" by administering "an effective amount of an anti-CGRP antagonist antibody" that is a "humanized monoclonal antibody." CGRP is a protein associated with migraine pain, and both Teva's Ajovy and Lilly's Emgality are antibodies that block it. The specification disclosed one humanized antibody within that genus (G1, Ajovy's active ingredient). It also described twelve mouse antibodies (shown in the figure above), which the panel viewed as just a routine humanization step away from the claimed genus. The panel assumed, for argument's sake, that making and humanizing every anti-CGRP antagonist antibody would take undue experimentation. Even with that assumption, it reversed the JMOL of non-enablement, reasoning that the claims recite only the use of the antibodies to treat headache, that anti-CGRP antagonist antibodies were already well known and humanizing them was routine, and that the specification taught that all of them treat headache.

Judge Dyk thought the method-versus-antibody distinction does no work: "Claiming a method of use that depends on a recited component cannot excuse the enablement requirement of the component."