Insights

Ex parte reexamination is seeing a resurgence in popularity as a cost-effective means to challenge a patent’s validity and should be part of your patent strategy. An ex parte reexamination is a proceeding in which any party — including a patent owner or an anonymous third party — may submit prior art to request that the United States Patent and Trademark Office (USPTO) reassess an issued patent's validity. Once overshadowed by the introduction of inter partes review (IPR) and post-grant review (PGR) following the enactment of the America Invents Act in 2012, ex parte reexamination is now experiencing a significant resurgence as a strategic alternative to both proceedings. This client alert explains what is driving ex parte reexamination’s resurgence and what it means for your patent strategy.

On February 13, 2026, the U.S. Department of Homeland Security (DHS) announced upcoming virtual town hall meetings scheduled for March 2026 regarding the implementation of the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA).  The meetings will allow industry stakeholders to provide input to DHS to refine the “scope and burden” of the forthcoming CIRCIA final rule.

The federal Defend Trade Secrets Act (“DTSA”) is celebrating its 10th anniversary.  After many years of consideration, in 2016, Congress passed and the President signed the DTSA.  Patterned on the Uniform Trade Secrets Act adopted in most states, the DTSA creates a federal cause of action for misappropriation of trade secrets and thereby gives litigants a direct avenue into federal court.  Since then, the federal courts have been grappling with how to manage DTSA cases.  One issue still to be resolved is the absence of model jury instructions in most jurisdictions.

The U.S. Court of Appeals for the 6th Circuit may no longer be as favorable a venue for health plans engaged in legal disputes with members who allege that insufficiently detailed claim denials violate the Employee Retirement Income Security Act’s (ERISA) protections against “arbitrary and capricious” decision making.

On January 5, 2026, District of Colorado Magistrate Judge Cyrus Chung issued a recommendation that the district court grant a motion to quash a Department of Justice (DOJ) administrative subpoena that sought records about the provision of gender-related care by Children’s Hospital Colorado (Children’s) in In re: Department of Justice Administrative Subpoena No. 25-1431-030, U.S. District Court for the District of Colorado, No. 1:25-mc-00063. The court concluded that the DOJ had failed to carry its “light” burden, noting that no other courts that had considered the more than 20 similar subpoenas issued by DOJ had ruled in the DOJ’s favor.  

California state and federal courts continue to see extensive litigation involving the California Invasion of Privacy Act (“CIPA”). When enacted in 1967, CIPA targeted traditional telephone wiretapping. However, its reach has expanded as new technologies enter the market. Today, private CIPA claims often concern website tracking and a business’s choice to embed analytic tools on its website.

The United States Trademark Trial and Appeal Board (TTAB or Board) recently issued a refreshed opinion in the trademark dispute Naterra International, Inc. v. Samah Bensalem, where Naterra International, Inc. petitioned the TTAB to cancel Samah Bensalem’s registration for the mark BABIES' MAGIC TEA based on its own BABY MAGIC mark. On remand from the U.S. Court of Appeals for the Federal Circuit, the TTAB reconsidered an expert’s opinion about relatedness of goods based on the concept of “umbrella branding” and found that the goods are unrelated and therefore again denied the petition for cancellation.

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.

Since the signing of Executive Order 14187 (“Protecting Children from Chemical & Surgical Mutilation”) in late January 2025, the Trump Administration has made its skeptical stance on gender-affirming care—especially regarding services provided to minors—clear.

On November 12, 2025, Judge King in the U.S. District Court for the Western District of Washington granted in part Haldiram India Ltd.’s (“Plaintiff” or “Haldiram”) motion for a preliminary injunction against Punjab Trading, Inc. (“Defendant” or “Punjab Trading”), a seller alleged to be importing and distributing gray market snack food products not authorized for sale in the United States. The court found that Haldiram was likely to succeed on the merits of its trademark infringement claim because the products at issue, which were intended for sale in India, were materially different from the versions intended for sale in the U.S., and for this reason were not genuine products when sold in the U.S. Although the court narrowed certain overbroad provisions in the requested order, it ultimately enjoined Punjab Trading from importing, selling, or assisting others in selling the non-genuine Haldiram products in the U.S. market.

Patent claims must be clear and definite, as they set the boundaries of the patentee’s rights. Occasionally, however, claim language contains errors, such as typographical mistakes or incorrect numbering. Courts possess very limited authority to correct such errors. The United States Court of Appeals for the Federal Circuit has emphasized that judicial correction is appropriate only in rare circumstances, where (1) the error is evident from the face of the patent, and (2) the proposed correction is the sole reasonable interpretation in view of the claim language, specification, and prosecution history. See Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297, 1303 (Fed. Cir. 2005) and Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1357 (Fed. Cir. 2003).

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).

Claim construction is a key stage of most patent litigations, where the court must decide the meaning of any disputed terms in the patent claims.  Generally, claim terms are given their plain and ordinary meaning except under two circumstances: (1) when the patentee acts as its own lexicographer and sets out a definition for the term; and (2) when the patentee disavows the full scope of the term either in the specification or during prosecution.  Thorner v. Sony Comput. Ent. Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012).  The Federal Circuit’s recent decision in Aortic Innovations LLC v. Edwards Lifesciences Corp. highlights that patentees can act as their own lexicographers through consistent, interchangeable usage of terms across the specification, effectively defining terms by implication.

The Federal Trade Commission (FTC) and National Advertising Division (NAD) of BBB National Programs laid out their enforcement priorities during the 2025 ANA Masters of Advertising Law Conference, at which Crowell & Moring attorneys spoke on and attended various panels.

On September 23, Judge Vernon D. Oliver partially granted and partially denied the defendant’s motion for summary judgment in Post University Inc. v. Learneo, Inc., 3:21-cv-1242 (VDO) (D. Del. Sept. 23, 2025). For background, the defendant in this case, Learneo, Inc. (commonly known as Course Hero), is an online platform for college, trade, and high school students that provides access to user-submitted documents via a paid subscription. Course Hero allows users to search the documents that have been uploaded by school, textbook, book title, and subject, but only users with a subscription can view the documents. Users without a subscription may access a preview version of the document, consisting of a blurred and truncated version created by Course Hero. Course Hero users have uploaded documents to the platform for many thousands of colleges, grad schools, high schools, and trade schools.

The United States, European Union, and United Kingdom have significantly escalated Russia-related sanctions the past month, including the Trump Administration’s first sanctions directly imposed on Russia. These coordinated actions—which particularly target the Russian energy sector—indicate that Russia sanctions remain on the geopolitical agenda and require multinational companies to remain vigilant in their compliance with those sanctions.

A new series of lawsuits have been filed in California courts alleging violations of the state’s Business and Professions Code § 17529.5 (the “Anti-Spam Law”). These cases target companies that send marketing and promotional emails to California residents, and they could present serious legal and financial risks for businesses engaged in email marketing.

On September 29, 2025, the U.S. Department of Commerce Bureau of Industry and Security (BIS) announced a sweeping Interim Final Rule (IFR), (the “Affiliates Rule”) expanding which entities qualify as Entity List or Military End-User entities, thereby subjecting those entities to elevated export control restrictions under the Export Administration Regulations (EAR). U.S. export restrictions applicable to entities on the Entity List, Military End-User (MEU) List, and Specially Designated Nationals and Blocked Persons (SDN List) now apply to foreign affiliates that are, in the aggregate, owned 50% or more by one or more of the aforementioned entities. An entity that becomes subject to these restrictions because of its ownership structure will be subject to the most restrictive controls that attach to any of its parent entities, regardless of ownership stakes.

On September 25, 2025, the Northern District of Texas granted plaintiffs’ motion for summary judgment in Humana v. Becerra, vacating CMS’s 2023 Final Rule regarding risk adjustment data validation (RADV) audits. In the litigation, Humana challenged CMS’s decision in the Final Rule to not continue applying a Fee-for-Service (FFS) adjuster to its RADV audit methodology.

On August 28, 2025, France, Germany, and the UK (the E3) initiated the process to reinstate (or snapback) UN sanctions on Iran. The snapback mechanism (which was set to expire on October 18, 2025) is outlined in UN Security Council Resolution 2231 (UNSCR 2231).