Insights

Organizations facing cyber incidents increasingly encounter follow-on civil litigation alleging failures to implement reasonable security measures. In response, a growing number of states — the most recent being Oklahoma this year — have enacted safe harbor laws designed to both protect consumers and reward organizations that take a proactive, documented, and structured approach to cyber threats.

On March 11, 2026, U.S. Patent and Trademark Office (USPTO) Director Squires issued a memorandum (2026 memo) to all Patent Trial and Appeal Board (PTAB) users titled “Additional Discretionary Institution Considerations — U.S. Manufacturing and Small Business Use of AIA Proceedings.”[1] In the 2026 memo, the director adds three new factors in determining whether to institute inter partes review (IPR) and post-grant review (PGR) proceedings.[2] The factors focus on domestic manufacturing and the use of these proceedings by small businesses.[3] The memo applies immediately to all pending IPR and PGR proceedings in which the due date for the patent owner’s discretionary brief has not yet elapsed.[4] Patent owners, petitioners with domestic manufacturing ties, and small business petitioners should take note.

On November 4, 2025, the USPTO in Ex parte Desjardins designated as precedential an earlier Appeals Review Panel (ARP) decision overruling the Patent Trial and Appeal Board (Board), instead holding that claims directed to training a machine learning model are patent-eligible under 35 U.S.C. § 101 when they integrate a mathematical concept into a practical application that improves how the model operates. That precedential designation represents a material shift in legal precedent in the § 101 arena post-Alice, and it has already driven updates to the MPEP and examiner practice. As a result, Desjardins signals an adjustment in practice in favor of AI and software eligibility at the USPTO.