by Dennis Crouch

The Logic Games are no longer on the LSAT, but they are still present in the law, often arising in the context of complex civil litigation.  This regularly arises with jury verdict forms, with judges seeking the simplest verdict form possible that still asks all the necessary questions.  In Ollnova Technologies Ltd. v. ecobee Technologies ULC, No. 2025-1045 (Fed. Cir. June 4, 2026), the Federal Circuit found that Judge Gilstrap (E.D.Tex.) had gone too far on the side of simplicity.

The infringement case asserted claims from four different patents, but the jury was asked simply did the Plaintiff (patentee) prove "that ecobee, the Defendant, infringed ANY of the Asserted Claims of the Asserted Patents?"  As you can see from my screenshot above, the jury answered "yes" and ultimately awarded $11.5 million in damages.

What the verdict fails to tell us is which patent (or which claim of which patent) ecobee infringed.  More importantly for the appeal, the verdict leaves open the possibility that some jurors thought a claim of the '495 patent was infringed while others thought it was a claim of the '282 patent. In his decision, Judge Chen treated that gap as a constitutional defect, vacating the infringement and damages judgments and ordering a new trial.  The risk here was the potential of non-unanimous verdict as to infringement of any particular claim.

Judge Gilstrap also asked the jury to an eligibility question under Alice step two: whether the claims involve merely well-understood, routine, or conventional technology.  The appellate panel found this jury instruction lacking - particularly because the jury was never told what the claimed abstract idea was (in the '495 patent), or that the abstract idea itself cannot supply the inventive concept.

The panel affirmed that the asserted claims of the '887 and '371 patents are not directed to an abstract idea at step one, and affirmed the denial of ecobee's motion for judgment as a matter of law on '371 non-infringement.

by Dennis Crouch

The Supreme Court has spent several recent Terms assembling a general law of secondary liability, and on June 4, 2026, it folded patent inducement into that project. In Hikma Pharmaceuticals USA Inc. v. Amarin Pharma, Inc., No. 24-889, 608 U.S. ___ (2026), a unanimous Court (Jackson, J.) held that a brand manufacturer cannot state a claim for active inducement under 35 U.S.C. § 271(b) merely by alleging that physicians could read a generic competitor's statements as an instruction to infringe. The question, the Court explained, is whether the generic actively encouraged the infringing use, not whether the audience might have heard encouragement in what was said.  Because the Court found the accused conduct at most consistent with infringing substitution, rather than designed to bring it about, the case could not survive Hikma’s motion to dismiss.  This is the only Supreme Court patent case for the 2025-2026 Supreme Court term.

The dispute arises from the skinny-label mechanism that lets a generic enter the market for a drug's unpatented uses while carving out the methods of use that remain under patent. Amarin's Vascepa (icosapent ethyl) is approved both for severe hypertriglyceridemia and for reducing cardiovascular risk in patients who already take statins.  But, in-force patents only cover the cardiovascular risk use.  Hikma's generic carried a label covering only the unpatented severe hypertriglyceridemia indication. But, as everyone expected, the drug was widely prescribed and taken for the much more common patented use. Amarin sued Hikma for actively inducing that infringement -- pointing to Hikma's statements across its label, its patient information leaflet, its website, and its investor press releases.

The District of Delaware dismissed the complaint under Rule 12(b)(6). The Federal Circuit reversed, reasoning that it was plausible a physician could read the statements as encouragement.  The Supreme Court took the case and ultimately reversed again -- reinstating the dismissal and finding that the reader-focused inquiry failed to state a claim.

The court also appears to announce here a limited safe harbor:

We decline to put generic manufacturers between a rock and a hard place by turning adherence to the law and industry standards into building blocks for illegal conduct.

The decision is not a formal safe harbor, but it operates as a strong anti-bootstrapping rule: compliance with Hatch-Waxman and ordinary generic marketing conventions cannot themselves become the “active steps” required for inducement.

by Dennis Crouch

Patent marking represents a quirky notice doctrine. Section 287 provides that a patentee may mark "any patented article" that is being made, sold or imported "for or under them." A penalty applies for failure to mark:

In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.

But the statute is silent about whether a non-practicing patentee - one who does not make or sell the patented product - can still collect back damages. The Supreme Court directly answered this question in Wine Railway Appliance Co. v. Enterprise Railway Equipment Co., 297 U.S. 387 (1936), holding that a patentee that has neither manufactured nor authorized anyone else to manufacture patented articles may recover full damages without any marking requirement. The opinion began with a statement that the public issuance of the patent serves as constructive notice. And, although the marking statute provides a limitation on back damages, it was not intended "to impose a new and different burden upon non-producing patentees" or to "deprive" them of their common-law right to full damages. Ultimately, the Wine Railway court concluded that the NPE should not be penalized for "failure" to mark, because there was no opportunity to mark.

In this framework, the marking requirement also kicks in when the patentee authorizes manufacture by a third party via patent license.  Licensees also need to mark the products for the patentee to get back damages.

The newest development in this area comes in Ortiz & Associates Consulting, LLC v. Vizio, Inc. (Dec. 17, 2025), with a cert petition asking whether the grant of rights in litigation (a covenant not to sue) constitutes authorization sufficient to trigger marking obligations. 

by Dennis Crouch

In 2008, I published a short empirical study showing that U.S. patents were growing in every dimension. Specifications were getting longer and claims were getting more numerous, and the two trends moved together. The story was simple: patents were getting bigger.

Nearly two decades later, the picture has split in two. My new article, The Expanding Patent Document: Fewer Claims, More Words, and the Drivers of Growth, 33 J. Intell. Prop. L. 371 (2026), draws on the full population of published utility applications and their issued patents. Specifications have nearly quadrupled over four decades. Claim counts, by contrast, peaked around 2005 and have declined ever since. The patent document is expanding in one direction while contracting in the other.

My central claim in the article is that this divergence reflects supply-side economics rather than any demand-side response to patent doctrine. The leading demand-side candidate is Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014), which tightened eligibility for software and business methods and might have been expected to push applicants toward more detailed technical disclosure. The data show no such effect. Specification growth is smooth and monotonic across two decades, with no structural break at Alice, at the America Invents Act, or at any other doctrinal event. Growth is also uncorrelated with the USPTO allowance rate, which swung nearly thirty percentage points over the study period. Alice changed how examiners evaluated applications. It did not change how long specifications are.

by Dennis Crouch

It seems a bit crazy to me that almost every patent case involves a process of claim construction.  Those claims were already drafted by skilled patent attorneys and survived a rigorous examination process designed to wring-out  any uncertainty or ambiguity.  But, I calm down a bit when I look at court interpretation of other texts.  Courts typically struggle through their "first impression" of a newly enacted statute, not to mention the vagaries of contract interpretation.

In litigation, it is often the accused infringer seeking a specific construction - either a narrow construction to avoid infringement or a broad construction to trigger invalidity.  More to point, that construction process puts the case in the hands of the judge who - the defendant hopes - will dismiss the case before it even reaches the jury.  Patentees more often push for "plain and ordinary meaning" -- this is code for "trust the jury" to receive the evidence, including understanding of a skilled artisan.

Claim construction is itself an intermediary step, a preliminary question of law that is supposed to tee up the real issues rather than resolve them. In practice it is frequently the step that decides everything. Infringement and validity are factfinder (jury) questions, but only if they reach the jury, and a construction can keep them from getting there. One hazard here is over-construction. A court asked to settle a genuine dispute about what a term means can slide into deciding how that term applies to the accused device or whether it is taught by the prior art, writing the definition so that the claim does, or does not, extend to relevant product or reference. That is no longer construing the claim. It is deciding infringement or invalidity and calling it construction.

= = =

This week, I tuned in to oral arguments in Woodway v. LifeCORE Fitness (Assault).  This is a pretty simple case and I'm hoping for a well written precedential opinion that I can use for teaching -- I often use sports equipment patent examples because they are physically demonstrable and typically intuitively understandable.

The appeal involves two cases that have been running in parallel -- with the patentee Woodway originally losing in both the PTAB and district court:

• 2025-1323 comes from an inter partes review and turns on whether the prior art discloses a "curved running surface."
• 2025-1431, comes from the Southern District of California and turns on the meaning of "substantially prevents" in Woodway's curved-treadmill patent family.

Both fights concern the same product line, Woodway's manually powered CURVE treadmill, and the accused Assault AirRunner (Shown below).

by Dennis Crouch

This past week, seven amicus briefs were filed in support of Google's petition challenging the "Settled Expectations" doctrine that emerged from the mist in 2025 as the leading cause of death of IPR petitions. The petition asks two questions:

• whether the USPTO lacks statutory authority to deny IPR institution based on a patent owner's "settled expectations" arising from the age of the patent, and
• whether courts may review a denial that rests on a ground contrary to statute.

The PTO waived its right to respond on May 22. VirtaMove's brief in opposition and any amici supporting the respondent are not yet due, and the most probable next development is a call for a response from the Court.

Although each has a somewhat different perspective, the amici converge on the same two propositions (1) the six-year rule is an extra-statutory limitations period the agency had no authority to create, and (2) that the Federal Circuit was wrong to treat 35 U.S.C. § 314(d) as a bar to any court ever addressing the ultra vires action.

The basic difficulty in the the case is that both the Supreme Court and Federal Circuit have thus far been highly deferential to USPTO decisions on institution.   Congress implicitly provided the Director with deference and made that appealable. And, these decisions are being made by the Director, not judges.  That means the court would need to be pushing back against the two other of government in its decision.

by Dennis Crouch

I've been waiting to write about the impact of the major fee changes that the USPTO implemented just before President Trump took office in January 2025. This first cut looks at applicant citations to prior art in their information disclosure statements. What the chart below shows is that the number of references applicants are submitting has dropped tremendously over the past 16 months, and I expect the decline to continue because of the timing lag.

The Federal Circuit has wiped out a $452 million trade secret verdict on statute of limitations grounds, holding that Insulet Corporation knew or should have known enough to sue its competitor more than three years before it filed suit. Insulet Corp. v. EOFlow, Co., No. 2025-1807 (Fed. Cir. May 28, 2026). Judge Dyk wrote for the panel, joined by Judge Reyna, with Judge Prost dissenting.

The decision is the sequel to a case I covered two years ago, when the same court reversed a preliminary injunction in Insulet's favor and faulted the district court for ignoring the limitations defense entirely. Dennis Crouch, Trade Secret Misappropriation Preliminary Injunction Reversed, Patently-O (June 17, 2024). On remand, a five-week jury trial produced a huge nine-figure award, paired with a global injunction. All of it is now gone because of delays in filing the lawsuit.

The decision turns on when a trade secret claim accrues under the Defend Trade Secrets Act. The DTSA requires suit within "3 years after the date on which the misappropriation with respect to which the action would relate is discovered or by the exercise of reasonable diligence should have been discovered." The DTSA's statute is similar to copyright law's three year statute of limitations, with a couple of major caveats.

• DTSA makes clear that "a continuing misappropriation constitutes a single claim of misappropriation." 18 U.S.C. § 1836(d).  Copyright takes the contrary path. Under Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014), each infringing act is a discrete wrong that starts its own three year clock.
• The discovery rule is not stated in the copyright statute and continues to be in some dispute about how and whether it applies.  But, the DTSA also makes clear that the clock starts running only once the misappropriation is discovered or reasonably should have been.

It is this second point - the reasonable discovery rule - that is the central debate between the majority and dissent, with Judge Prost accusing the majority of converting a discovery rule into a more onerous inquiry-notice standard.

by Dennis Crouch

The standard story about American patenting is growth. Published U.S. utility patent applications roughly doubled over the past two decades, climbing from around 200k in 2002 to a peak near 425k in 2024 before easing back in 2025. That top line (grey in the chart below) looks like a steady expansion of American inventive activity. But, the chart actually tells a different story once you separate out what is actually growing.

The blue band at the base counts only U.S.-origin originals: applications whose first-named inventor sits in the United States and that are not continuations, divisionals, or continuations-in-part. That band has not grown. It sits in a flat or even declining range across the full twenty-plus years -- and even higher in the mid-2000s than in the most recent completed years.  As a share of the total, U.S.-origin originals fell from roughly a third early in the series to about 13% in 2022 through 2024.

The growth found in grey comes from two sources:

1. The first source is domestic continuation practice, which has increased over the years. These are follow-on patents relying on the same underlying disclosure of that U.S. original.  Additional exclusive rights without the corresponding additional innovation.
2. The second source is foreign-origin filing, the rest of the world seeking U.S. patent rights.  These have also grown significantly over the years as more nations come on-line as tech generators.

Neither of these measure growth in domestic original inventive output.

The interesting wrinkle is at the far right of the chart. The 2026 projection, scaled from the first 22 weeks of publication data, projects the U.S.-origin share rising back toward 18%. That reversal has two separate factors.  One is a drop in continuation filings traceable to the January 2025 fee changes. The other is a small increase in U.S.-origin original applications that I don't yet have an explanation for.

Note that timing wise, original applications published thus far in 2026 were almost all filed in 2024 (either as a provisional or non-provisional application). This was before the new administration took charge and began to shift the patenting outlook.

by Dennis Crouch

The Solicitor General has now filed the government's brief in opposition in Hyatt v. Squires, No. 25-1049, urging the Supreme Court to leave the Federal Circuit's prosecution laches doctrine undisturbed. The court previously denied parallel cases in:

• Lemelson Medical, Educational & Research Foundation v. Symbol Technologies, Inc., 537 U.S. 825 (2002),
• Barr Laboratories, Inc. v. Cancer Research Technology Ltd., 565 U.S. 977 (2011), and
• Personalized Media Communications, LLC v. Apple Inc., 144 S. Ct. 290 (2023).

All three of these cases involved variations on the same theme: a direct challenge to the Federal Circuit's authority to use prosecution laches to defeat patent rights when the applicant has complied with every statutory deadline Congress prescribed.

Petitioner Gilbert Hyatt is, in the government's understated description, a "prolific patent filer and litigant." 31 years ago, during the months before the 1995 GATT amendment changed the U.S. patent term from seventeen years from issuance to twenty years from filing, Hyatt filed 381 patent applications, more than any other applicant during what the Federal Circuit has called the "GATT Bubble." Each application was a photocopy of one of eleven earlier filings, each hundreds of pages long and eventually amended to include roughly 300 claims apiece for a total of approximately 115,000 claims across the portfolio. Hyatt's filings sat in the top 0.02% of all applications by claim count per patent. The USPTO ultimately assembled a 12-examiner unit dedicated to processing his portfolio under special procedures (including many USPTO initiated delays), and prosecution of the four applications at issue here extended for decades.  But Hyatt never missed a statutory deadline and eventually sued in district court to get his patents issued.  The district court ruled for the agency on prosecution laches after a three-week bench trial and the Federal Circuit affirmed in August 2025.

Hyatt's cert petition focuses in on two key Supreme Court cases: SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 580 U.S. 328 (2017), and Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663 (2014). Those decisions limited laches to a "gap-filling" role and held particularly that the equitable doctrine cannot apply where Congress has enacted statutory timing provisions. Hyatt argues that the Patent Act contains comprehensive timing rules governing every step of prosecution, leaving no gap for the Federal Circuit's judicially created doctrine to fill.

The Solicitor General responds by changing frameworks entirely. The government's brief barely engages with the gap-filling question, instead grounding prosecution laches in a different line of cases: 19th-century equitable doctrines that survived the 1952 Patent Act as "background principles" of patent adjudication, under the framework articulated more recently in Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559 (2021).

The debate is about which body of precedent governs the doctrinal question in the first place.