by Dennis Crouch

In my post on Monday, I created a time series chart showing the average/median wait time for utility patent applications from filing to the first action on the merits. But, that office-wide average hides some major differences across technology areas.  For this post, I broke out the data for the past three months by technology family as shown in the chart below.

The dashed line on the chart marks 14 months -- the benchmark in the patent term adjustment statute. The solid line is the all-family average, about 20 months on this measure.

The 33 technology families are my own groupings. I created them to keep the number of groups manageable, combining art units that appear to share similarities in both technology and prosecution process.  I also have a table at the end of the post that lists the art units in each family.

by Dennis Crouch

Range of Motion Products, LLC v. Armaid Co., No. 26A564 (U.S. 2026)

I have been following Range of Motion v. Armaid since before the Federal Circuit's divided panel decision in February. Range of Motion Prods., LLC v. Armaid Co., 166 F.4th 981 (Fed. Cir. 2026). The design patent case is now starting its Supreme Court journey. Most recently, Chief Justice Roberts granted the patentee's unopposed application for a 42-day extension -- making its petition for certiorari due December 21, 2026. Noted IP-focused Supreme Court counsel Joshua Rosenkranz (Orrick) is handling the case on behalf of the patentee.

Your lawyering professor likely taught that every court filing provides an opportunity to make your case. This includes applications for extending a filing deadline. The application filed here previews two questions. The first is whether the "plainly dissimilar" noninfringement shortcut from Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), conflicts with the "substantially the same" test that the Supreme Court set out in Gorham Co. v. White, 81 U.S. 511 (1871). The second asks whether judges may resolve factual disputes over which features of a design are functional as part of claim construction -- or whether that is a question for the jury.

Range of Motion contends that leaving those disputes to the judge conflicts with the Seventh Amendment jury right and with Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). Both questions divided the Federal Circuit. When the court denied rehearing en banc in August, Chief Judge Moore dissented, joined by Judge Reyna, and Judges Stoll and Stark dissented without opinion.

by Dennis Crouch

I have been looking at patent applications that appear to be lost within the USPTO digital files. A common pattern is abandonment, followed by revival on petition, but then the file is apparently forgotten about for years. In many cases the PTO's internal docket flag remained abandoned.

This post takes a closer look at one of those files: U.S. Application No. 13/734,654, filed by IBM in 2013 and owned by Lenovo since 2014.

The application was allowed in December 2014, but the issue fee was not paid on time. In October 2015, the USPTO granted a petition to revive (the fee came with the petition) and sent the file off to be printed as a patent. Eleven years later, it still has not issued. Meanwhile, the patent term adjustment clock continues to run. If the Office printed it now, the patent would expire around 2044 rather than 2033 - more than a decade after its own continuation.

Question for you: Should this patent issue? Or should we blame the applicant for eleven years of silence?

by Dennis Crouch

The wait for a first action on the merits (FAOM) has eased a bit over the past year, but the numbers are still about seven months over target. Most recently, the average application waited about 21 months from filing to receive an action. That is down from about 24 months at the peak, and still well above the 16 months of 2020.

The chart below tracks the average by month mailed (a trailing three-month average) for utility applications in the USPTO's public file-wrapper data. The dashed line is the USPTO's own dashboard figure. Mine runs about half a month higher because the USPTO counts a restriction requirement as stopping the clock.

by Dennis Crouch

I recently received a question from a practitioner about how long patents are now taking to issue after the issue fee is paid. The short answer is about twice as long as this spring. For utility patents issued in the first half of 2026, the median wait from payment to grant was 29 days. For patents issued September 1 through October 20, the median was 60 days, with almost no patents issuing within four weeks of the fee-payment.

The irony is that the delay appears to come from an efficiency gain. Early this year, the USPTO reworked how it handles notices of allowance, cutting processing time from 25 minutes per application to 6. In April, the Office used that new speed to clear its backlog of allowance notices -- mailing about 17,000 in a single week, roughly two and a half times the usual number. Applicants have three months to pay the issue fee, and the payments arrived in a July (heat) wave. But the speed-up in one part of the system was then slowed down by another part. In particular, the problem appears to be that the Office of Patent Publication was not prepared for the influx. That group kept issuing about 6,000 utility patents a week, and the pile of paid-but-unissued applications grew from its usual ~28k to a peak of ~54k in early October. It now stands at about 51k and appears to be slowly shrinking.

And, the Office has stepped up the number of patents being readied for issue each week -- now issuing over 7,000 per week. But, even at the stepped up pace, the queue probably won't fully clear until early 2027.

by Dennis Crouch

Barron v. United States, Nos. 2025-1179, -1459 (Fed. Cir. Oct. 22, 2026). This is not a patent case, but decisions from the Court of Federal Claims are also appealed to the Federal Circuit -- making the case relevant to my interests.

One of my favorite parts of living in Columbia, Missouri is the MKT Trail, which connects to the Katy Trail - about 240 miles across the state, much of it along the Missouri River. The Katy is a rails-to-trails success story, but it also stepped on some property rights. Under Missouri law, the corridor would have reverted to the neighboring farmers when the railroad gave up the line in 1986. Instead, the federal Trails Act, 16 U.S.C. § 1247(d), kept it intact as a trail, and the landowners sued the United States. Glosemeyer v. United States, 45 Fed. Cl. 771 (2000). The first thirteen landowners were awarded about $410,000 in 2002, with nearly 300 more claims behind them.

Whether the adjacent landowners get paid depends upon what the railroad owned. If the railroad held only an easement limited to railroad purposes, the neighbors own the underlying fee - the servient estate - and state law would return all rights to the fee owner once rail service ended. The federal Trails Act prevents that by providing that interim trail use is not an abandonment, but the resulting trail easement would be a taking for which the United States owes just compensation -- because it goes (too far) beyond the scope of the original easement. On the other hand, if the railroad owned the strip in fee simple, the neighbors have nothing for the trail to take. The sketch below that I would use in Property Law class shows the difference.

The Federal Circuit's October 2026 decision in Barron stems from creation of the Legacy Trail in Sarasota, Florida. The court has sided with the government -- holding that the railroad owned its corridor outright and thus the government owes nothing. The court read seven deeds to the Seaboard Air Line Railway as unambiguous fee conveyances. It treated a 1926 condemnation judgment taking the strip "for use as a right of way" as ambiguous, but found that the record of the 1926 case pointed to a fee.

by Dennis Crouch

I have been reading a number of PTAB decisions recently. Two new ones from this week caught my attention because they both turned on claim-reading doctrines that the Board raised on its own. The Board labeled its move a new ground of rejection in the first case but not in the second -- and that label controls what the applicant can do next.

In Ex parte Lowder, Appeal No. 2026-001025 (PTAB Oct. 22, 2026), the Board reversed the obviousness rejections of a cannabidiol formulation -- but only pro forma, because the Board also entered its own rejection holding the claims indefinite. The problem, according to the Board, is that one ingredient (Labrafil M2125 CS) can serve as either an oily solvent or a surfactant. The claim names that ingredient by its chemistry and weight percentage and never says which role it plays.

Ex parte Gross, Appeal No. 2026-002355 (PTAB Oct. 22, 2026), is Apple's second trip to the Board with its application. The claims cover a phone that detects a place named during a call and then opens a map application populated with that location. This time, the Board has affirmed the obviousness rejections of all fifteen claims. For dependent claim 11 though, the Board did not rely on the examiner's prior art finding. Rather, it found that the added limitation - an instruction from the user that the call "should be analyzed" - is printed matter entitled to no patentable weight.

by Dennis Crouch

This is an update to my September post on the Supreme Court's patent docket. The big news is the denial of certiorari in the IPR discretionary denial case of Google LLC v. VirtaMove, Corp., No. 25-1230. This was the lead case among five petitions asking for review of the USPTO's refusal to institute inter partes review.

After denial in VirtaMove, I expect the other four petitions to be denied as well. Tesla's recently filed reply brief explained to the Court that it had vehicles "from every relevant angle" and listed VirtaMove alongside its own case, Intel, and Kahoot!. If the Justices were interested in any of those companions, I would have expected the Court to hold VirtaMove or relist it until the others were ready. Rather, the Court denied certiorari at the first conference after briefing closed. I still see Kahoot! AS v. Interstellar Inc., No. 26-198, as a cleaner test case than VirtaMove. But, the outright denial substantially reduces its chances in my view.

By my count, twelve petitions arising from patent disputes are now pending, and five more patent cases have open extension applications. The rest of this post walks through those petitions and extension applications filed since September, then the remaining Section 314(d) cases, the status of the other pending petitions, and the recent denials.