by Dennis Crouch

I recently wrote about first actions on the merits, the share that arrive as allowances rather than rejections, and the premium that prioritized-examination (Track 1) cases enjoy. See Dennis Crouch, The First Offer Accepted: First-Action Allowances and the Track 1 Premium, Patently-O (June 17, 2026). This follow-on looks at two confounding factors, both mundane rather than mysterious: (1) whether the filing is a continuation filed where the parent app has issued; and (2) the tech-center and art unit handling the case.

Continuations come pre-negotiated. A continuation claims the benefit of an earlier application's filing date under 35 U.S.C. 120, and it is often filed after the parent application has already received a notice of allowance. The applicant knows what the examiner found allowable and can draft the continuation's claims that include the key limitations that were already allowable. The data bear this out to some extent.  Continuations of applications that issue as U.S. patents are more likely to receive a first-action allowance.  But, that gap has narrowed in recent years (and I don't really know why).

by Dennis Crouch

A first action allowance comes with both excitement and some fear. For the client it means a faster patent at lower cost, and for the attorney it looks like a clean win. And yet, in my own years of practice, a first action allowance always left me with a feeling that I had somehow underbid. It is that same sensation having your opening bid in a immediately accepted by the other side, before any negotiation has begun. You get the deal, but you also walk away wondering how much more you might have asked for. In that spot I believe I always counseled the client to file a continuation and find out whether the examiner had left something on the table.

For this post I look at first actions over the past couple of decades -- measuring two things: how long applicants waited for the first action, and how often the first action was a Notice of Allowance rather than a rejection. The share of first action allowances fell from about 17% in early 2004 to roughly 7% during 2008 and 2009, then recovered slowly to 15% range by the late 2010s, where it sits today. The pattern I find more interesting involves prioritized examination. Track 1 applications, which pay an extra fee for expedited treatment, draw a first-action allowance 17% to 20% of the time, several points above the ordinary-track rate. The two lines crossed for good around 2014, and Track 1 has stayed higher ever since.

by Dennis Crouch

This is the second post about the DTSA case Insulet Corp. v. EOFlow, Co., No. 2025-1807 (Fed. Cir. May 28, 2026). The last post covered the merits. This one is about appellate jurisdiction, and about a jurisdictional holding whose reach may run well beyond its modest-looking facts. Although Insulet's original complaint included a patent infringement claim, Insulet voluntarily dismissed that claim without prejudice and amended the complaint to remove it, a step that ordinarily moves the appeal to the regional circuit. The Federal Circuit kept the case anyway. It held that the dismissal was effectively with prejudice because the patent statute's six-year recovery period, 35 U.S.C. § 286, had run on one of the infringing acts Insulet had pleaded.

The Federal Circuit hears appeals in patent cases, not in trade secret cases. The jurisdictional statute, though, is overinclusive. When a single action mixes patent and non-patent claims, the patent claims pull the entire appeal into the Federal Circuit, even if only the non-patent issues are contested on appeal. The route the court used to keep Insulet matters beyond this case, because it can apply to a broad class of voluntary dismissals.

Although I have not run the numbers on this, my experience is that most patent litigation involve claims to the full six years of back damages. That means that any dismissal of the patent claims - even on the day following the complaint filing - would be captured by this exception and direct any eventual appeal (of the non-patent issues) to the Federal Circuit.

This is a situation where, I believe, the court should have done more work in a modified Gunn v. Minton analysis to determine whether the case should have remained with the regional circuit.

by Dennis Crouch

The USPTO Rule late-continuation surcharge became effective January 19, 2025 and imposes a $2,700 fee on continuing applications filed more than six years after the earliest non-provisional U.S. filing in the §120 chain, and $4,000 on those filed more than nine years out. The pre-rule rush was dramatic. In the three weeks before the rule took effect, filers submitted several thousand continuations with priority chains older than six years to beat the new fee schedule. On Friday, January 17, 2025, the operational deadline (since the rule's January 19 effective date fell on the Sunday of a long weekend), the USPTO received about six times the number of continuation applications of a normal day. And, over half of those January 17 filings carried priority chains older than six years.

The eight months that followed tell a quieter story. The share of continuations carrying long priority chains has dropped by about 3 percentage points on the 6-year tier and about 2 points on the 9-year tier (from 9.0% to roughly 7%), and overall continuation volume has run about 13% below the 2024 monthly average. Whether that step-down reflects durable deterrence, a one-time depletion of long-EBD applications that were already front-loaded into January, or partial right-censoring of recent filings is not yet possible to say from the data in hand. What is already clear is that the policy moved a large amount of filing activity in a short window, and that the post-rule monthly composition has not snapped back to the pre-rule baseline.

by Dennis Crouch

The Federal Circuit currently has two design patent disputes pending that present the same doctrinal question from opposite directions. In Range of Motion Products, LLC v. Armaid Co., 166 F.4th 981 (Fed. Cir. 2026), the full court is considering an en banc petition arguing that the "plainly dissimilar" test from Egyptian Goddess has inverted the Supreme Court's ordinary observer test by training judges to hunt for differences rather than assess overall sameness. Meanwhile, a panel of Judges Dyk, Prost, and Schall has under submission Jacki Easlick, LLC v. AccEncyc US, Nos. 2024-1538, -1826 (Fed. Cir., argued March 9, 2026), an appeal from a preliminary injunction denial that rests squarely on that same plainly dissimilar test.

The Easlick patent covers a TOTE HANGER. U.S. Design Patent No. D695,526. Judge William Stickman (W.D. Pa.) identified three ornamental differences between the patented design and an accused Amazon listing, declared the designs plainly dissimilar, and never reached the prior art.

Figs. 1 and 8 of U.S. Design Patent No. D695,526: the claimed handbag hanger hook, and the environmental view showing the rod hook above and the offset purse hook below.

The appeal carries a second storyline. Easlick filed its case as a "Schedule A" action, suing 67 online sellers in a single sealed complaint and obtaining a same-day ex parte temporary restraining order that froze more than $40,000 in AccEncyc's Amazon account. AccEncyc represented that its total accused sales were under $500. Four intellectual property scholars (Sarah Fackrell, Eric Goldman, Elizabeth Rosenblatt, and Saurabh Vishnubhakat), represented by Stanford's IP Clinic, filed an amicus brief supporting affirmance and urging the court to confront the scheme of mass-defendant internet enforcement. This makes Easlick worth watching on two fronts: the substance of design patent infringement analysis, and the procedural machinery of modern online IP enforcement.

by Dennis Crouch

Dynapass IP Holdings LLC v. Bank of America Corp., No. 25-1222 (Fed. Cir. June 11, 2026) (nonprecedential)

Last week's oral arguments included an odd question from Judge Chen. He asked asked Dynapass's counsel whether handing someone bread and cheese counts as giving them a cheese sandwich. The decision, released on June 11, 2026, applies that to the claims, holding that receiving a passcode and a token separately is not "receiving the password" which requires the two be joined.  U.S. Patent No. 6,993,658.

Dynapass framed the construction as a textbook embodiment-exclusion error. The claims do not require concatenation and the specification particularly describes providing the passcode and token separately in an alternative embodiment.  But, the panel rejected the premise, holding that the language of the claims prevails, even if it excludes an alternative embodiment. The court found that Claim 1's text "requires generating a password from the passcode and token before receiving the password," and the individual components "are not the claimed 'password.'"

by Dennis Crouch

The USPTO announced today that it is waiving the petition fee for its Streamlined Claim Set Pilot Program, effective for petitions filed on or after June 10, 2026. The waiver eliminates the 37 C.F.R. § 1.17(h) fee that has accompanied petitions under the program since its launch last fall.  I have not previously written about the program, but it deserves attention because the deal is now remarkably good for applicants who fit its narrow eligibility window: free expedited examination in exchange for a lean claim set.

The basic structure: an original, noncontinuing utility application filed under 35 U.S.C. § 111(a) before October 27, 2025, that presents no more than one independent claim and ten total claims may be advanced out of turn (accorded special status) for its first Office action. Applications whose claims do not currently comply can be brought into compliance with a preliminary amendment filed before or with the petition (Form PTO/SB/472). The program runs until October 27, 2026, or until each Technology Center has docketed roughly 200 pilot applications, whichever comes first. As of today, every Technology Center still has open slots.

by Dennis Crouch

In Hafeman v. Google LLC, No. 2024-1600 (Fed. Cir. June 5, 2026) (precedential), the Federal Circuit held that 35 U.S.C. § 314(d) bars review of the Board's decision not to terminate six inter partes reviews after the petitioners breached the Sotera stipulation that had supported institution. The challenge reached the court on appeal from the final written decisions, but the court found that it had institution as its subject and therefore fell outside its jurisdiction. The procedural sequence frames the holding.

• • July 2021. Carolyn Hafeman sues LG in the Western District of Texas, asserting three patents that cover a screen displaying owner return information at boot-up on a lost or stolen computer.
  • July 2022. Google and Microsoft file six IPR petitions, two against each patent, and identify LG as a real party in interest. The petitions include no stipulation.  LG ultimately provided a Sotera stipulation, promising not to pursue in district court any ground raised or that reasonably could have been raised in the IPRs.
  • January 2023. The Board institutes all six reviews, relying on the stipulation to conclude that duplication concerns did not justify discretionary denial.
  • February 2023. LG moves for summary judgment of invalidity in district court on the same priority-date theory raised in the petitions.
  • April 2023. The district court finds the motion violated the stipulation and estops LG from pressing the priority-date challenge.
  • Later in 2023. Hafeman asks the Board to terminate the IPRs based on the district court's breach finding, but the Board refuses.
  • January 2024. The Board issues three final written decisions holding all claims obvious over Jenne and Cohen, without addressing the breach.
  • June 2026. The Federal Circuit dismisses the stipulation-based challenge under § 314(d) and affirms the unpatentability rulings.

by Dennis Crouch

The Supreme Court recently decided Hikma v. Amarin, its only patent case of the October 2025 term.  But, the docket of pending petitions is climbing again.  More than a dozen patent matters now sit before the Court, either as filed petitions for certiorari or as pending applications for extensions of time.

The largest focus involves the recurring question: how much discretion does the USPTO Director hold in refusing to act, and whether courts may review that refusal. Google LLC v. VirtaMove, Corp., No. 25-1230, is the leading case right now, challenging the agency's "settled expectations" basis for denying inter partes review  proceedings of patents that have been in force for 6+ years. Two petitions raise Seventh Amendment objections to the way the Federal Circuit reviews jury verdicts, two press patent eligibility under 35 U.S.C. § 101, and Hyatt v. Squires, No. 25-1049 focuses on prosecution laches.

In addition to the petitions, there are also six extension applications -- cases where the petitioner has asked for additional time in preparing the petition for writ of certiorari.  Those applications typically signal that a petition is coming and often include a preview of the upcoming petition.

I also want to note one particular non-patent case: Newman v. Moore. In that case, Judge Pauline Newman, the Federal Circuit's most senior judge, asks the Court to review the orders that have "temporarily" removed her from the bench since 2023. The first named respondent is Chief Judge Kimberly Moore, who is the face of Judge Newman's removal. It is the rare petition that asks the Justices to examine how the court handling patent appeals governs itself.

by Dennis Crouch

In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), the Supreme Court set aside a years-old infringement judgment after it emerged that the patentee had ghostwritten a trade journal article, published it under the name of an ostensibly disinterested expert, and used it to prevail both at the Patent Office and on appeal. Judicial integrity, the Court held, outweighed the finality of a corrupted judgment:

The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

That tension between exposing fraud and protecting final judgments keeps returning to patent litigation. See Dennis Crouch, Fraud on the Court: Finality and the Ghost of Hazel-Atlas, Patently-O (Jan. 26, 2025). The newest entry is Capital Security Systems, Inc. v. NCR Corp., No. 25-11532 (11th Cir. Feb. 26, 2026) (per curiam), where the court refused to let a fraud-on-the-court claim proceed, not because the alleged fraud was implausible, but because the plaintiff had already litigated the same facts and lost.