Insights

Crocs, Inc. recently filed a petition for a writ of certiorari before the U.S. Supreme Court (No. 26-421), asking the Court to review and resolve the question: “Whether an agency disposition is final as to some issues, thus triggering deadlines for judicial review, while other issues decided in the same disposition remain subject to further executive or administrative review.”

For 15 years, the question “Should we file an IPR?” was easy. The answer — almost invariably — was “yes.” High institution rates, a famously skeptical U.S. Patent Trial and Appeal Board (PTAB), and minimal downside made inter partes review (IPR) a nearly reflexive tool in the litigator’s arsenal. U.S. Patent and Trademark Office (USPTO) Director Squires’ precedential decision issued May 14, 2026, in Magnolia Medical Technologies, Inc. v. Kurin, Inc. (IPR2026-00097) provides clarity to that calculus.

Design patents offer protection for the ornamental appearance of a product, focusing on aspects like its shape and surface decoration, as opposed to the functional aspects protected by utility patents. The scope of a design patent is defined by the drawings and any descriptive language within the patent itself. Recent decisions by the Federal Circuit emphasize the need for clarity in the prosecution history of a design patent in order to preserve desired scope to preserve intentional narrowing (and to avoid unintentional sacrifice of desired claim scope).

Although the Supreme Court’s 2014 decision in Alice v. CLS Bank and its progeny affected the issuance and enforcement of software patents and led to a major shift in U.S. patent policy, software patents still have value today and such protection therefore should be pursued.

In 2023 and 2024, several U.S. states enacted extensive “Right to Repair” laws, reflecting a growing legislative focus on ensuring consumers have access to the parts and resources needed to repair their own products without relying on the product’s original manufacturer. Most recently, California, Colorado, Minnesota, New York, Massachusetts, and Oregon implemented comprehensive regulations aimed at providing consumers direct access to tools, parts, and information for the repair of various electronic devices and equipment, including digital products and agricultural machinery. As the “Right to Repair” movement continues to gain significant traction across the United States, it is critical that manufacturers understand these laws and how these laws will impact their individual businesses.

On November 22, 2024, World Intellectual Property Organization (WIPO) member states adopted the Riyadh Design Law Treaty (“Treaty”). This development is arguably the biggest advancement in international design law since 1999, when the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (“the Hague Agreement”) was adopted.

The Federal Circuit’s decision in University of South Florida Board of Trustees v. United States, 22-2248 (Fed. Cir. Feb. 9, 2024) hints at the broad scope of the federal government’s license rights under the Bayh-Dole Act. 

Design patents in the United States date all the way back to 1842, nearly 52 years after the first utility patent laws were passed in the Patent Act of 1790. The first U.S. design patent issued to George Bruce in 1842 and claimed a new printing typeface. Interestingly, the design patent was utterly devoid of art or images and featured only a written description of Mr. Bruce’s new typeface (for “Letters with Points, called in the printed impressions, New Double Small Pica Script, Two-line Long Primer Ornamented No. 3, Two-line Nonpareil Ornamented, and Long Primer Ornamented”). Even though this was 55 years before the first cathode ray tube display was publicly presented, and more than a century before the earliest LCD and LED technologies of modern display screens, it has served as a precedent that typefaces and other graphic displays are proper design patent subject matter. Design patents have enjoyed increasing popularity, jumping from only 12 other design patents issued in 1842 to about 15,000 design applications filed in 1995, and to a whopping 47,500 design filings in 2019. Not surprisingly, the steady rise in the number of design patent applications reflects meteoric advances in technology. And as noted by Director Vidal, because design patents have been shown to provide a “catalyst for growth” and a “competitive edge” for U.S. manufacturers, maintaining clear and current guidelines is crucial.

The U.S. Patent and Trademark Office (USPTO) recently issued the one millionth U.S. Design Patent on September 26, 2023. U.S. Design Patent 1,000,000 is directed toward the ornamental design of a dispensing comb and was issued to Agustina Huckaby, an inventor and licensed cosmetologist from Fort Worth, Texas. This significant milestone, 181 years after the first design patent was issued in 1841, comes during a time of increased interest in design patents. The USPTO reports that in 2022, more than 50,000 design patent applications were filed, and that the USPTO has seen an 20% increase in design applications over the past five years.

The USPTO has announced that it will commence issuing patent certificates only electronically through its electronic patent application filing and management system, Patent Center. This is in line with the USPTO's efforts to achieve fully electronic processing of patent applications. The paper patent issuance process, which involved physically delivering “ribbon copy” patents to the correspondence address of record, will be replaced with the issuance of patents electronically under a new digital USPTO seal and digital signature from the USPTO Director. Patent Center will enable the patentee and the public to view and print the official electronic patent grant immediately upon issuance. To implement electronic patent issuance, the USPTO is removing and reserving 37 CFR 1.315, which refers to the delivery or mailing of the patent upon issuance to the correspondence address of record.