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 Cir. June 11, 2026) (nonprecedential)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.

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).