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. 
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:
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
Three weeks ago I wrote a big post on §101 rejection rates from the past 16 years pulled from several million office actions -- and also arguing that examiner behavior on eligibility tracks USPTO administrative policy more closely than it tracks Supreme Court doctrine. See Dennis Crouch, Sixteen Years of §101: What Actually Moves Examiners, Patently-O (May 8, 2026). After publishing, I went back through the collection pipeline and found that I had been missing a small, but meaningful slice of the data. Two errors: the optical-character-recognition (OCR) step had been silently failing on the longest office actions, and the bulk USPTO dataset itself had dropped a substantial number of rejections that I then reconstructed using the USPTO API (pulling and parsing each retrieved action individually). I have now reprocessed the full series through May 15, 2026 (adding an additional week of data). The corrected chart does not disturb the central thesis, but it does provide additional insight.
The chat here shows the corrected series (solid) against the original, pre-correction version (dashed). The two are nearly identical through early 2019 but then diverge afterward, with the gap widening through 2024 and 2025.
What you see here is that the post-2019 recovery is substantially larger than my original chart showed, carrying the rejection rate back up to roughly 15.5% by mid-2025, within striking distance of the pre-PEG peak. The most recent decline, running through the Stewart and Squires tenures, is also larger than the original series indicated, though it remains small set against the size of the post-2019 trajectory.
The chart above tracks IPR petitions filed by month from 2015 through May 2026. For most of that decade, filings hovered in a band between 100 and 185 per month, with a long-run trend line sloping gently downward. Then something dramatic happened: beginning in 2025 , filings fell off a cliff. The numbers for 2026 are the lowest since the AIA’s post-grant review system was fully operational.
The story of 2025 was collapsing institution rates. Director Squires assumed personal control of all institution decisions in October 2025 and proceeded to deny
The IPR system, at least in its original form as a cost-effective alternative to district court litigation for challenging patent validity, is functionally suspended.
In Otsuka Pharmaceutical Co. v. Lupin Ltd., No. 24-2297 (Fed. Cir. May 21, 2026) (nonprecedential), a Federal Circuit panel affirmed Judge Andrews’s bench-trial judgment that Lupin’s tolvaptan ANDA process does not infringe Otsuka’s U.S. Patent Nos. 8,273,735 and 8,501,730, and that the asserted method claims are invalid as obvious over Kondo’s 1999 small-scale synthesis paper.
I want to use this fact-bound affirmance as a vehicle for a broader doctrinal point. With Director Squires having effectively shut down inter partes review for most filers, district courts are now being asked to step up and do the §103 obviousness invalidation work. The PTAB has spent more than a decade building out the operational process of obviousness adjudication, with thousands of final written decisions parsing motivation to combine, motivation to modify, reasonable expectation of success, lead compound and lead reference selection, and the weighing of secondary considerations. That body of decisional law is the most extensive working corpus of patent obviousness doctrine in the United States. For bench trials, where the judge wears the factfinder hat, that corpus should be treated as persuasive authority and cited directly. For jury trials, the same corpus is much harder to deploy because the PTAB did the bulk of its work as a factfinder, and that role belongs to the jury, not the court.
Pre-AIA, defense counsel often steered away from §103 invalidity in district court and were especially wary of putting obviousness to a jury. The presumption of validity and clear-and-convincing burden, and the natural complexity of almost every patent made an obviousness finding seem like a long shot. But, I believe we are at a different place now. The PTAB has cancelled thousands of claims on obviousness grounds over the past dozen years, demonstrating that many issued patents have §103 vulnerabilities that may also be exploited in district court litigation.
by Dennis Crouch
Twelve years ago I posted a chart on Patently-O tracking three patterns of functional claim language across U.S. utility patents from 1976 through 2013. The chart showed the steep post-1994 collapse of traditional means-plus-function claims and the simultaneous rise of "configured to/for" as the patent attorney functional replacement of choice. See Dennis Crouch, Functional Claim Language in Issued Patents, Patently-O (Jan. 23, 2014). [Read this post via PDF]
That data was collected and published the year before the en banc decision in Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015). This post extends the dataset up to May 2026 and adds a fourth time series capturing the construction Williamson brought within the reach of 35 U.S.C. § 112(f): a generic "nonce" noun coupled with a functional linker phrase (e.g., "module for"). The full dataset now covers approximately 8.3 million utility patents issued from January 1976 through mid-May 2026.
The headline updates from 2014 are dramatic but unsurprising. "Configured to/for" now appears in almost 50% of utility patents issued. It overtook "means for" around 2008-2009 and surpassed the "for [Verb]ing" construction in 2014. Traditional means-plus-function language has fallen to less than 3% of utility patents, a huge decline from its 1980s modern peak.
The new finding, and the one I focus on more in this post is a new fourth line. The Williamson-targeted "nonce" words rose from roughly 11% of utility patents in 1976 to a peak of 20% in 2010-2014, then turned downward through the post-Williamson decade and now sits at about 16%. A companion per-word chart below shows the decline concentrated in exactly the nonce terms the Federal Circuit has flagged: "unit" and "module" both peak at 2014 and decline thereafter, while potentially structurally loaded terms like "device" continue rising. Williamson appears to have done meaningful work, at least to shift language.
by Dennis Crouch
I was out in the woods this past weekend staffing an MKP retreat and so missed the Federal Circuit’s annual Judiciary Conference. But, the highlight was almost certainly the debut of the Federal Circuit’s first (and so far only) theme song, a Schoolhouse Rock-style cartoon explainer of the court.
See Dani Kass, Fed. Circ. Drops A Theme Song, Talks Guest Judges, Law360 (May 15, 2026).
The Federal Circuit has also expanded its Center for Innovation & Law and is opening the doors to a new exhibit: “Justice Up Close, History All Around,” a free America 250 program offering timed-entry tours, mock trials in a working courtroom, Dolley Madison’s restored parlor, NASA artifacts, and direct conversations with federal judges.
May 19: If you want free tickets, the first wave is available May 19 at 11:30 a.m. Eastern, at innovationcenter.cafc.uscourts.gov.
The U.S. Court of Appeals for the Federal Circuit is the only federal court of appeals defined by subject matter rather than geography. Congress created it through the Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25, by merging the old Court of Customs and Patent Appeals with the appellate jurisdiction of the Court of Claims. Its docket runs across patent cases under 28 U.S.C. § 1295(a)(1), Court of Federal Claims and Tucker Act cases, Court of International Trade cases, Merit Systems Protection Board appeals, veterans benefits appeals from the Veterans Court, and trademark cases from the TTAB.
The buildings themselves are super interesting, including the Cutts-Madison House, where Dolley Madison lived after James Madison’s death in 1836. The neighboring property housed the National Woman’s Party during the suffrage movement, and NASA used the complex as its first Washington headquarters during the Mercury and Apollo programs.
I’ve been reading through a lot of office actions lately. I think these two charts are interesting that show opposite workflow patterns for the two main §112 rejection grounds. For indefiniteness under §112(b), examiners make these more-often-than-not in the first non-final office action. For written description and enablement under §112(a), the pattern flips: final rejection rates exceed first non-final rates.
The §112(b) gap is consistent with the standard prosecution workflow. Examiners flag indefiniteness problems on the first office action. Applicants then amend claims to tighten-up the scope, and many of those problems are resolved before the application reaches a final rejection. Indefiniteness is, in this sense, often a “drafting fixable” defect. This is not absolutely true since applicants might add new problems through amendment, or examiners might notice the problem later in time.
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
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.
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.