by Dennis Crouch In an unprecedented move, the Secretary of Commerce is terminating all current appointments to the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC), effectively removing the entire membership of both committees.  New members will apparently be appointed shortly, with the USPTO planning to proceed with previously scheduled public committee meetings in May 2025.  The statute requires that "any vacancy on an Advisory Committee shall be filled within 90 days after it occurs." Although my memory is sometimes faulty, I believe that thi ..read more

by Dennis Crouch I'm delivering a U.S. patent law year-in-review for the past year or so.  Here are Nine of the topics that deserve some focus. 1. The New USPTO under President Trump: The greatest ongoing issue is the about-face from President Trump to President Biden. The ultimate direction and outcome will become more clear as we move through 2025, but there have already been dramatic shifts, especially focused on workforce RTO and RIF and elimination of non-core USPTO activities. Meanwhile backlog is growing again. 2. The Only Federal Circuit En Banc Decision – LKQ v. GM: Shifts in des ..read more

The Supreme Court has denied BMC Software's petition for writ of certiorari -- formalizing the Fifth Circuit decision that nullified a $1.6 billion judgment against IBM.  The appellate court had overturned the district court's breach of contract finding and its subsequent large damages award. This case involves two large companies, each with billions of dollars in annual revenues. But, the setup will be familiar to so many innovative companies across the nation that are forced by market realities to do business with the very competitors that are likely to be their undoing. Small businesse ..read more

By Dennis Crouch The Federal Circuit has affirmed the denial of a preliminary injunction against Amgen's biosimilar version of Regeneron's blockbuster drug EYLEA (aflibercept). Regeneron Pharms., Inc. v. Mylan Pharms. Inc., No. 2024-2351 (Fed. Cir. Mar. 14, 2025) (Lourie, J.). This latest ruling stands in contrast to the court's January 2025 decisions upholding preliminary injunctions against Samsung Bioepis and Formycon, effectively blocking their biosimilar launches. All three cases are part of consolidated multi-district litigation in the Northern District of West Virginia. Each appeal invo ..read more

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The Federal Circuit recently heard oral arguments in the much-anticipated en banc review of EcoFactor, Inc. v. Google LLC, a case focusing on how courts evaluate expert testimony on patent damages.  And, in particular, when a court should step-in to bar expert testimony that does not have sufficient factual basis for its conclusions.  The arguments focused on whether EcoFactor's damages expert improperly derived royalty rates from license agreements that contained performative non-binding "whereas" clauses stating EcoFactor's belief about rates, while the operative provisions specifi ..read more

EcoFactor v. Google is the Federal Circuit’s first en banc utility patent case in years.  The court will beholding oral arguments this morning, starting at 10:00 am Eastern. Listen here: https://www.youtube.com/watch?v=lwEZ2MlyOv8 Ginger Anders (Google) will face off against Brian Ledahl (EcoFactor) before 10 members of the Court of Appeal. (Judge Newman is being excluded, and Judge Cunningham is not on the roster.) The case generally relates to a district court judge’s gatekeeper role to prevent the Jury from hearing less-than-stellar expert testimony. Early briefing in the en banc cas ..read more

by Dennis Crouch Bullshine Distillery LLC v. Sazerac Brands, LLC, 2023-1682 (Fed. Cir. March 12, 2025) In an interesting trademark decision, the Federal Circuit has clarified that terms once considered generic do not necessarily remain permanently unregistrable.  provides important guidance on genericness timing and addresses a question of first impression in trademark law. The case involves two alcohol producers: Bullshine Distillery sought to register “BULLSHINE FIREBULL” for alcoholic beverages; Sazerac, owner of “FIREBALL” branded cinnamon whiskey, and opposed the registration claimi ..read more

by Dennis Crouch Island Intellectual Property has filed a rare supplemental brief in its pending Supreme Court case, drawing the Court's attention to the growing body of certiorari petitions challenging Federal Circuit practices.  The brief, submitted under Supreme Court Rule 15.8, highlights several new petitions that address the same questions Island IP raised about summary judgment standards and the Federal Circuit's use of Rule 36 affirmances. The Court is set to decide whether to grant or deny certiorari at its next conference, scheduled for March 21, 2025.  The petition challen ..read more

by Dennis Crouch In CQV Co., Ltd. v. Merck Patent GmbH, No. 2023-1027 (Fed. Cir. Mar. 10, 2025), the Federal Circuit vacated and remanded a PTAB post-grant review (PGR) decision that had upheld the validity of Merck's patent against sales of a commercially available product. This case highlights a significant divergence between the evidentiary standards for proving prior art status in district court litigation versus AIA trials. It also sets up another increasingly common scenario where neither the patentee nor the patent challenger are US entities. Here, Merck is German and CQV is Korean. Mer ..read more