by Dennis Crouch

With the USPTO's recent brief, In re Ablynx N.V., No. 2026-1333 (Fed. Cir.) is now teed up for the Federal Circuit to decide the nationwide policy on obviousness-type double patenting.  The case particularly asks whether an ODP rejection may be "based solely on the risk of harassment by multiple assignees."

• Ablynx USPTO Brief

Read my take below.

by Dennis Crouch

The Federal Circuit denied rehearing today in Range of Motion Products, LLC v. Armaid Co., No. 23-2427 (Fed. Cir. Aug. 11, 2026), leaving in place the panel decision I wrote about in February. 166 F.4th 981 (Fed. Cir. 2026). The denial is accompanied by two opinions. Judge Cunningham, who wrote the panel majority, concurred in the denial and was joined by Judge Hughes, the other member of that majority. Chief Judge Moore, who dissented from the panel decision, dissented again, joined by Judge Reyna. Judges Stoll and Stark dissented without opinion. Judge Newman did not participate, and the poll failed.

What the two opinions circle around is the question of whether Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), belongs in design patent cases at all. Markman gave claim construction duty to judges based on the idea that construing written instruments is something judges do better than jurors do. But nothing in law school or legal practice teaches judges to interpret design drawings. And, as the Chief explained, "[t]he entirety of a design patent is a series of pictures." In other words, the foundational premise doesn't fit. This is compounded by the ornamental-versus-functional sorting that is being pushed inside design patent claim construction. But that is really not interpretation but rather factfinding on evidence that doesn't appear in the patent document. Judge Cunningham's answer is that somebody has to fix the scope of the claim before a jury compares anything, and that in doing so the court "guides the jury like a trail guide, placing flags and signposts to delineate the boundaries of the claimed design."

by Dennis Crouch

Dental Monitoring SAS v. Align Technology, Inc., No. 2025-1752 (Fed. Cir. Aug. 10, 2026)

Patent law cases often turn on timing. In our first-to-file system, the question often boils down to whether the patent at issue was effectively filed before the competing patent application.  This case is about the prior-art date of a patent or published application.  We know that under 102(a)(2), they are back-dated to the date they were "effectively filed," and the case answers when we look-back all the way to the provisional filing date.  Today's decision is important because it overturns USPTO policy implementing the AIA and ultimately, this gives patent owners a new way to knock out references that reach back to a priority filing date.  Although this decision centers on priority to US provisional patent applications, it should also apply to foreign filings.  That makes it a big deal since patents claim priority to one or the other of these.

Section 102(d) spells out the effective prior art date of a patent or published application in some detail but is worded in a clunky fashion:

such patent or application shall be considered to have been effectively filed, with respect to any subject matter described in the patent or application . . . (2) if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), 365(b), 386(a), or 386(b), or to claim the benefit of an earlier filing date under section 120, 121, 365(c), or 386(c), based upon 1 or more prior filed applications for patent, as of the filing date of the earliest such application that describes the subject matter.

The analysis thus requires both a document and subject matter analysis: was priority properly claimed and does it disclose the right subject matter.  For any given disclosure in the reference, the prior art date is the filing date of the earliest application in the chain that (1) the reference is entitled to claim priority to or benefit from, and (2) itself describes that disclosure.

In the pre-AIA case of Dynamic Drinkware, LLC v. National Graphics, Inc., 800 F.3d 1375 (Fed. Cir. 2015), the Federal Circuit held that a reference does not get its provisional's filing date simply by claiming it. The provisional must supply § 112 support for the claims of the reference itself, and the party relying on the reference bears the burden of showing it. Because the rule is a necessary condition, a reference with no supported claim gets no earlier date at all, even where the provisional plainly describes the subject matter being used for the rejection.  But, the USPTO has been following a different and looser rule for post-AIA patents.  The agency reasoned that the new statute specifically states what is required, and that it requires less: the reference need only be "entitled to claim" priority, and the earlier application need only "describe the subject matter" being relied upon. Whether any claim of the reference is actually entitled to the earlier date drops out of the analysis.

Now, in Dental Monitoring, the Federal Circuit has rejected the USPTO's post-AIA approach and held instead that the same Dynamic Drinkware rule carries over to post-AIA prior art dating under 102(d)(2).  The outcome overrules the Board's precedential decision in Penumbra, Inc. v. RapidPulse, Inc., IPR2021-01466 (PTAB Mar. 10, 2023).

by Dennis Crouch

Director John Squires has issued another precedential decision, this time focusing on obviousness-type double patenting (ODP). In Ex parte Baurin, Appeal No. 2024-002920 (ARP Aug. 6, 2026), an Appeals Review Panel led by Director Squires (joined by Chief Administrative Patent Judge Deshpande and Acting Deputy Chief Judge Ankenbrand) reversed the Board and reinstated six ODP rejections of Sanofi antibody claims. The panel held that the risk of divided ownership and duplicative infringement suits, the "anti-harassment" rationale, independently supports an ODP rejection even though the rejected claims would expire five years before the reference patent.

The remarkable part is that the panel does not appear to believe in the rule it applies. They found the decision required by Federal Circuit precedent, but then explained in some detail why the standalone anti-harassment rationale should be abandoned or sharply limited, telling the Federal Circuit that the Office "would welcome" clarification.  The basic question: when - if ever - is a double patenting rejection proper in a pending application that will expire before the already-issued reference patent?

The CAFC has its opportunity to clarify. The same question is pending in In re Ablynx N.V., No. 26-1333 (Fed. Cir.), the appeal from Ex parte Baumeister, 2025 WL 3515282 (PTAB Nov. 20, 2025). The USPTO has not yet filed its brief in that appeal; after two extensions it is due August 14, 2026, with no further extensions anticipated. In these direct appeals the Office is represented by its own Solicitor's office rather than by the Department of Justice, so Director Squires controls the filing. I expect that Baurin reads as a preview of the USPTO's upcoming arguments.

by Dennis Crouch

Director John Squires has been in office for about ten months, and the patent application allowance rate appears to be continuing its downward trend that began under Director Vidal.

A big caveat here is that our data ends in January 2026. The chart is keyed to office action rejections that lead to abandonment. But when an examiner mails a rejection, the applicant gets six months (three plus three under 37 C.F.R. § 1.136(a)). Nothing is abandoned until that six-month period runs. So the curve above ends in January 2026, and the Squires portion of it is just four months.

The chart above updates the measure I introduced in March - which anchors each disposed application to the date of the examiner's last substantive action: the Notice of Allowance on one side and, on the other, the last rejection for cases later abandoned. See Dennis Crouch, The Third Way: Examiner Action Dates and the Allowance Rate Curve, Patently-O (Mar. 2, 2026).  I like to use this anchoring because it captures the moment the agency decides rather than the moment the paperwork catches up or the applicant takes action: this helps us zero in on patent office activity.

One additional note - I have refined the allowance calculation since March, which moved levels by about one percentage point in some areas, but the general shape of the curve is unchanged.

by Dennis Crouch

A few years ago the USPTO created an AI-patent classifier that identifies AI related patent applications.  I used that classifier to update activity through 2026. No surprise, AI application receive substantially more 101 eligibility rejections than their non-AI counterparts. An example - among applications whose first office action came in 2025, 42% of those containing AI have so far drawn a § 101 rejection, against 6.9% of those without.  The chart below shows no difference between the two categories for obviousness rejections, both of which hover close to 80%.

As you can see from the chart, the pre-COVID Revised Patent Subject Matter Eligibility Guidance cut the AI §101 rate about in half.  By 2025 that reduction has essentially disappeared. Whereas the eligibility rejection rate in non-AI applications  has not risen. From this data, I cannot tell the extent that the change is tied to changes by applicants in what is being filed or instead changes at the USPTO.

by Dennis Crouch

FedEx has asked the Supreme Court to decide whether any court can make the Patent Office follow 35 U.S.C. § 312(a)(2), the requirement that an IPR petitioner identify "all real parties in interest." The petition in Federal Express Corp. v. Qualcomm Inc., No. 26-170, seeks review of the Federal Circuit's precedential decision in Federal Express Corp. v. Qualcomm Inc., 174 F.4th 910 (Fed. Cir. 2026), where Judge Hughes wrote for a panel including Judges Cunningham and Stark. The Board in that case refused to decide whether Qualcomm's IPR petitions had named all real parties in interest, then went ahead and cancelled claims. The Federal Circuit held the refusal unreviewable because a challenge grounded in § 312(a)(2) "boils down to a challenge over whether there should have been institution at all."

Director Squires has reversed the underlying policy, but still argued that it was unreviewable on appeal.

This is the fifth petition now pending on the reach of § 314(d), and the first from the patent owner's side of the table. Google LLC v. VirtaMove, Corp., No. 25-1230, Intel Corp. v. Squires, No. 26-73, Tesla, Inc. v. Granite Vehicle Ventures LLC, No. 26-136, and the still-undocketed Kahoot! petition all come from challengers complaining that the Office will not institute. See Dennis Crouch, Four Petitions, One Question: Tesla Joins the Supreme Court's IPR Reviewability Docket, Patently-O (July 30, 2026). FedEx complains about the opposite: the Office instituted and adjudicated without satisfying a statutory precondition. Earlier this summer the Court denied certiorari in Dolby Laboratories Licensing Corp. v. Unified Patents, LLC, No. 25-1011, which raised the same question about the same agency practice.

by Dennis Crouch

The chart below is on a log scale to help fit the pieces together, but it is interesting to see how OpenAI has risen so rapidly in patent applications. Because of the publication delay, the solid lines run through the end of 2024. The dotted segments that follow cover filing months where publication is still incomplete.

Reference to Microsoft has remained at roughly 4% of all utility applications for twenty straight years, a nearly flat line running through the mobile transition, the decline of Windows as a share of computing, and the shift to cloud services. Google starts at 0.15% in 2005, passes IBM around 2011, and closes most of the remaining gap on Microsoft by the end of the series. IBM peaks near 2.2% in 2008 and drifts down to about 1.2%. Adobe peaks around 2011 and falls off from there. Hewlett-Packard runs the opposite path, starting near 0.9% in 2005, dropping below Adobe around 2009, and ending at about 0.2%. OpenAI went from nothing to passing both Adobe and Hewlett-Packard in about six years of measurable activity.

by Dennis Crouch

Representative Darrell Issa (R-CA) introduced H.R. 10026 on August 3, 2026, a bill that would designate Courtroom 201 of the Howard T. Markey National Courts Building at 717 Madison Place NW as the "Pauline Newman Courtroom." Room 201 is the Federal Circuit's main courtroom, where the court hears its argued cases and sits en banc. The bill, titled the Honoring Circuit Judge Pauline Newman Act of 2026, lists a set of findings and the only operative part designated the courtroom name.

Judge Newman has not sat in Room 201 since March 2023. Most recently, the Supreme Court denied certiorari in Newman v. Moore, No. 25-1101 (U.S. June 15, 2026), ending her three-year effort to get some Article III court to reach the merits of her constitutional challenge. Congress wrote the statute that allowed for her suspension, this bill though is only about a nameplate.