by Dennis Crouch

Design patent prosecution has changed substantially over the past decade.  One place we see that is in the anticipation rejection rate. Among US-domestic design patents that actually issued, the share that received at least one §102 rejection during prosecution climbed from roughly 0.1% in 2008 to above 7% in early 2025. The rate has pulled back slightly under Director Squires to around 5-6%, but even at that level it sits at the highest sustained figure ever recorded. For practitioners who learned design prosecution in an era when prior art rejections were a relative rarity, that shift represents a fundamentally different examination environment.

The chart here shows the percentage of granted U.S. design patents that received at least one §102 or §103 rejection during prosecution, grouped by grant date. Granted patents only; abandoned applications are not reflected because the bulk of design patents (the U.S. originated ones) are kept secret and never published.

In a prior post, I looked at U.S. design patent applications that came through the Hague System (series-35); and the data here for series-29 applications is roughly the same for obviousness rejections - showing no post-LKQ rise.  Dennis Crouch, Prior Art Rejection Rates in Design Patent Prosecution, Patently-O (May 2026).  But, the domestic cases show a much higher rate of §102 anticipation rejections than what I found in Hague cases. I don't have a definitive explanation for it, but the most plausible hypothesis tracks the Amazon story that I dig into below.  Most of the rise in anticipation rejections has come from searches of US-facing marketplace platforms - Amazon.com in particular.  Those searches return results that reflect products already in the US consumer market. Domestic applicants are more likely to have their products listed on Amazon before or around the time of filing. Hague applicants skew heavily foreign, and foreign-originated goods may not yet have a US market presence at the time of examination, or may distribute through platforms like Alibaba that examiners are not searching.  Ultimately this means that U.S. originated cases may be receiving a more rigorous examination than their foreign counterparts.

by Dennis Crouch

Two Finnish sports-tech companies have been litigating U.S. Patent No. 6,537,227 in a Utah federal court since 2017. Polar Electro Oy — the heart rate monitor maker — owns the patent, which claims a process for estimating energy expenditure during exercise by combining a measured heart rate with a personalized physiological reference value tied to VO2max. Firstbeat Technologies Oy, a physiological analytics company acquired by Garmin in 2020, moved for summary judgment of patent ineligibility under 35 U.S.C. § 101 but, according to the record, supplied no prior art, no expert testimony, and no developed conventionality theory. The district court granted the motion anyway, assembling its own analysis from the prosecution history. The Federal Circuit affirmed without opinion (Rule 36). Polar is now asking the Supreme Court to take up three big questions. Polar Electro Oy v. Firstbeat Technologies Oy, No. 25-1268 (U.S. petition filed May 2026).

Questions:

• Whether a court may construct its own invalidity argument — independently identifying evidence and assembling rationales — when the challenger raised the defense but failed to support it, especially given § 282's presumption of validity and the clear-and-convincing standard.
• Whether a process that takes a real-world physiological input and uses it within an improved procedure to produce a more accurate technological result remains eligible under Diamond v. Diehr, 450 U.S. 175 (1981).
• Whether the judicially created exceptions for abstract ideas, laws of nature, and natural phenomena are impermissible judicial legislation the Court should overrule in favor of the statutory text.

The first question is the most legally ripe; the last is the most ambitious; the middle is the one the Court has repeatedly declined to resolve.

by Dennis Crouch

In a recent post, I shared a chart showing that the §103 rejection rate for design patent applications has stayed flat in the two years since LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc). Through Hague System disposals, only about 1% of design applications receive an obviousness rejection. That is roughly where the rate sat a decade ago, and a long way from what one might expect given the Federal Circuit's decision enabling more rigorous obviousness analysis. I wanted to dig into a handful of cases to see any difference from pre- and post-LKQ obviousness rejections.  Examiners have adapted their language and are also using prior art that would not have worked with the old Rosen framework, just not on a very aggressive basis.  It may be, as readers suggested, that examiners would do more if given more time to search.

For this study, I compared the text of about 150 pre-LKQ obviousness rejections (2023) against about 150 post-LKQ obviousness rejections (January 2025 through April 2026).  As you might expect, examiners are no longer citing Rosen or other pre-LKQ decisions.  80% of pre-LKQ case cited to Rosen or an equivalent case, with 0% of post-LKQ rejections. "Basically the same," the verbal marker of the Rosen primary-reference test and the Durling-era phrase "so related" both almost entirely fell off from the rejection text.

What replaced the old framework were a set of post-LKQ phrases: "visually similar" (0% → 90%) and "overall appearance" (40% → 75%) now dominate. Oddly, LKQ itself rarely cited (only 4% of rejections) and KSR is at 0%. Almost 90% of post-LKQ §103 rejections cite no obviousness precedent at all.

I worked through several rejections in detail to see whether examiners are pushing into prior art that the old framework would have blocked. Some are. Aristocrat's slot-machine GUI was rejected over a structurally different primary, and TOPPAN's curved-glass panel was rejected over a utility patent combined with four NPL web URLs.  But, the most aggressive single-reference stretch that I saw in the dataset is actually pre-LKQ: Apple's over-ear headphone rejected under Rosen-Durling over a Monster Cable in-ear earbud.

by Dennis Crouch

Ask a lay person what pH 13 means and you will get a straightforward answer: very basic, near the top of the 14-point scale. Ask a PhD patent attorney in a Hatch-Waxman dispute the same question and the answer becomes: it depends.

The Federal Circuit's decision in Actelion Pharmaceuticals Ltd v. Mylan Pharmaceuticals Inc., No. 2024-1641 (Fed. Cir. May 13, 2026), affirmed a finding of non-infringement that required refence to extrinsic evidence to understand the meaning of the claim term "pH of 13 or higher."  The problem is that the solution's pH varied depending upon whether taken at standard ambient temperature or instead at the temperature of the bulk solution during manufacture.

The same claim construction dispute was before the court in 2023. In that case, the court vacated the district court's first claim construction and remanded with instructions that extrinsic evidence had to be consulted before a proper construction could be reached. Actelion Pharm. Ltd. v. Mylan Pharm. Inc., 85 F.4th 1167 (Fed. Cir. 2023).

That first appeal raised a different latent ambiguity in the same claim phrase: how many significant figures does "13" carry? The current appeal raises the temperature question. The pairing is methodologically instructive. The phrase ("pH of 13") carried two distinct contextual ambiguities.  And, despite the primacy of the claims and specification in the claim construction process, both ultimately required extrinsic evidence to resolve. The decision also rejected Actelion's doctrine of equivalents theory on two independent grounds, prosecution history estoppel and the disclosure-dedication rule. That makes Actelion the second DOE rejection from the Federal Circuit this week, following Bissell, Inc. v. International Trade Commission, Nos. 2024-1509 & 2024-1709 (Fed. Cir. May 11, 2026).

by Dennis Crouch

The micro-entity discount created by Congress in the Leahy-Smith America Invents Act represents one of patent law's more generous gestures toward independent inventors. Under 35 U.S.C. § 123, applicants who qualify pay only 20% of the standard USPTO filing fees.  But the statute comes with a precise set of eligibility requirements, and inventors who miscalculate their status face stiff consequences.  A Federal Circuit decision issued today, Nesarikar v. USPTO, No. 2026-1167 (Fed. Cir. May 12, 2026) (nonprecedential), illustrates the traps.

• An administrative trap involves a misapplication of the § 123(b) prior-employment exception to the application-filing limit.
• A litigation trap involves what happened when the inventors tried to challenge that denial in court and discovered that the representations they made to the USPTO in support of micro-entity status had stripped them of Article III standing to sue.

The three Nesarikar inventors — Ashlesha, Anika, and Abhijit — are joint inventors on a portfolio of patent applications covering AI-based systems for autonomous vehicles. Their U.S. Patent Application No. 18/069,288, titled "Systems and Methods for Intelligent Awareness and Intent for Autonomous Vehicles" and claiming priority to a December 2021 provisional, was filed on December 21, 2022, along with seven sibling applications filed the same day.

All three inventors certified micro-entity status for the '288 application and paid the corresponding discounted fees. In April 2024, the USPTO sent a notice of payment deficiency, informing the Nesarikars that their micro-entity certification appeared to be in error, with each of the three being named on 10+ prior patent applications. The inventors responded by invoking the § 123(b) prior-employment exception, asserting that they were obligated to assign their prior applications — and the '288 application itself — to former employers. The Office found these representations unsupported and refused to accept them as sufficient. After a series of exchanges that resolved nothing, the '288 application was abandoned in February 2025. The Nesarikars then filed a pro se lawsuit in the Eastern District of Texas under the Administrative Procedure Act, which the district court dismissed for lack of standing. The Federal Circuit has now affirmed that dismissal.

by Dennis Crouch

When a patent holder wins a Section 337 investigation at the International Trade Commission, the victory comes with a caveat: a limited exclusion order bars the specific infringing products, not whatever the respondent ships next. A sophisticated respondent facing an exclusion order (or anticipating one) will redesign.

Sometimes that redesign is a substantial engineering effort, but in our current world it is most often accomplished through a firmware software update.  The Federal Circuit's decision in Bissell, Inc. v. International Trade Commission, Nos. 2024-1509 & 2024-1709 (Fed. Cir. May 11, 2026), provides an example.

The dispute involves wet/dry floor cleaner that automatically flushes the brushroll when docked. Bissell's patent includes a caveat - that the battery charging circuit "is disabled by the actuation of the self-cleaning mode input control and remains disabled during the unattended automatic cleanout cycle." U.S. Patent No. 11,076,735.  After Bissell filed its Section 337 complaint against Chinese manufacturer Tineco in March 2022, Tineco rewrote the code for its accused Floor One S3 and S5 Pro devices. The redesigned firmware altered the timing of the 120-second cleanout cycle so that the battery charging circuit activates twice during the cycle, briefly at the outset and again toward the middle, rather than staying off throughout.

The timing diagram above shows this visually - adding in those two brief charge cycles. This is a easy technical work-around - the momentary charging is a meaningless addition that avoids literal infringement. This case looks to me to be the exact situation that doctrine of equivalents was designed to address, but the ITC rejected the the equivalents argument.  Ultimately, the ITC found Tineco's original products infringed, entered a limited exclusion order against them. But, it found no infringement as to the redesigned ones.

On appeal, the Federal Circuit affirmed everything.

by Dennis Crouch

We saw a huge change in our U.S. Design Patent system two years ago. In May 2024, the Federal Circuit decided LKQ v. GM, and ushering in a flexible obviousness test. The prior test was both rigid and restrictive and very few design patent applications were ever rejected as obvious. The new test opens the door to more rigorous obviousness examination. But, as the chart shows below, that is not happening. The fact remains that only about 1% of applications receive an obviousness rejection.

For this analysis, I use Hague System cases because those file wrappers are public unlike ordinary design patent application files. The Hague agreement allows applicants to file a single international design application that can designate multiple countries, including the United States. This is PCT for design patents. In the U.S., Hague System applications are examined under the same substantive standards as domestic design patent applications.

Utility rejections under 35 U.S.C. § 101 have become something of a relic at the USPTO. The Office mailed mailed over 650,000 office action rejections in 2025 - only 294 raised a utility ground. And, as you'll see below, utility rejections are typically an indication that the underlying disclosure is genuinely strange.

I pulled a small random sample of utility-bearing office actions mailed in early 2026 and want to walk through each:

1. A pro se application for "curing leukemia and easy births" through time travel and "inspiration zones";
2. Energy production by recreating black hole conditions in a heated steel enclosure;
3. A cold-fusion-adjacent device, driven by "cycled electromagnetic radiation";
4. A biochemistry case, now in its thirteenth year of prosecution, about whether melanin can synthesize glucose from carbon dioxide; and
5. A room-temperature-superconductor application out of one of the most distinguished condensed-matter labs in the country.

This is a useful sample because each draws on a different strand of the utility doctrine, all tracing back through Brenner v. Manson, 383 U.S. 519 (1966), and the Federal Circuit's "implausible scientific principles" standard from In re Brana, 51 F.3d 1560 (Fed. Cir. 1995), that authorizes examiners to refuse claims premised on physics the applicant has not made credible.

by Dennis Crouch

In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), the Supreme Court set out its now familiar two step framework for determining eligibility under 35 U.S.C. § 101.  But the patent system did not really shift until two years later when the Court reiterated the same test. Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014).

Part of the story is that the legal framework only does some of the work.  In any system, we also have to look at how that law is administered.  For me, this means patent examination data. I have been pulling office action data going back to 2010 (several million rejections in total) and using a custom classifier to identify §101 rejections.

The headline finding is that ... (I know this is rude, but this data is so interesting that I decided keep it just for subscribers).