Insights

On June 10, 2025, the United States Patent and Trademark Office (USPTO) published a final rule that will discontinue the Accelerated Examination program for utility applications, beginning July 10, 2025. The final rule also modifies the rules of practice to clarify the grounds for which a petition to make special may be granted and when a fee is required for such a petition. Currently, Applicants have several ways to expedite examination of their patent applications. For example, an Applicant can expedite examination of utility patent applications by either petitioning to make their application special through the Accelerated Examination program or by applying through the Prioritized Patent Examination Program (“Track One” program).

Last week, artificial intelligence companies won two significant copyright infringement lawsuits brought by copyright holders, marking an important milestone in the development of the law around AI. These decisions – Bartz v. Anthropic and Kadrey v. Meta (decided on June 23 and 25, 2025, respectively), along with a February 2025 decision in Thomson Reuters v. ROSS Intelligence – suggest that AI companies have plausible defenses to the intellectual property claims that have dogged them since generative AI technologies became widely available several years ago. Whether AI companies can, in all cases, successfully assert that their use of copyrighted content is “fair” will depend on their circumstances and further development of the law by the courts and Congress.

The U.S. Court of Appeals for the Federal Circuit has relaxed the standard and clarified the analysis for the showing of a nexus to a patented invention when patent licenses are presented as objective indicia of nonobviousness.

Crowell attorneys have closely monitored developments related to the California Invasion of Privacy Act (“CIPA”). In particular, we have watched plaintiffs attempt to extend this wiretapping law to encompass website chatbot communications that are managed by third parties.

Acting USPTO Director Coke Morgan Stewart recently issued a Director Review decision on May 19, 2025, in Ecto World, LLC v. RAI Strategic Holdings, Inc, IPR2024-01280, Paper 13 (PTAB May 19, 2025), that was subsequently designated as precedential by the Patent Trial and Appeal Board (PTAB). The decision seeks to eliminate inconsistencies amongst PTAB panels in using its discretion to deny institution under 35 U.S.C. § 325(d). 

On Friday, May 9, 2025, the U.S. Copyright Office released the third (pre-publication) installment in a series of reports regarding the intersection of artificial intelligence (AI) and copyright law.[1]  This report addresses the legal implications of training generative AI models using copyrighted materials.[2] 

As part of the 2012 America Invents Act, statutory estoppel was included to balance the interests of patent owners and patent challengers following an inter partes review (“IPR”).  Estoppel prevents an IPR petitioner from later asserting in court that a claim “is invalid on any ground that the petitioner raised or reasonably could have raised” during the IPR.  35 U.S.C. § 315(e)(2).  As applied, estoppel prevents petitioners from later relying in district court or in ITC proceedings on most patents or printed publications – the limited bases upon which petitioner can rely in an IPR.  But a question remained, and contradictory district court decisions arose, as to whether petitioners would be estopped from relying on a prior art commercial product (known as “device art,” which could not itself have been raised in the IPR) even if a printed publication describing the product (i.e. a patent or technical manual) was available and presumably could have been raised. 

On May 23, 2025, the U.S. Departments of State (“State”) and the Treasury (“Treasury”) took actions that resulted in immediate sanctions relief for Syria. Specifically, Treasury’s Office of Foreign Assets Control (“OFAC”) issued General License 25 (“GL 25”) pursuant to the Syrian Sanctions Regulations (“SySR”), the Weapons of Mass Destruction Proliferators Sanctions Regulations (“NPWMD”), the Iranian Financial Sanctions Regulations (“IFSR”), the Global Terrorism Sanctions Regulations (“GTSR”), and the Foreign Terrorist Organization Sanctions Regulations (“FTOSR”). In parallel, Treasury’s Financial Crimes Enforcement Network (“FinCEN”) and State took supporting actions outlined below.

In a bipartisan show of support for American inventors and technological leadership, Senators Chris Coons (D-DE), Thom Tillis (R-NC), and Mazie Hirono (D-HI) and Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA) held a press conference on Wednesday, May 1, 2025, to highlight growing momentum behind the Promoting and Respecting Economically Vital American Innovation Leadership Act (known as the PREVAIL Act) and the Patent Eligibility Restoration Act (known as the PERA Act).  

The USPTO has made a series of recent announcements in April that should not go unnoticed as they serve as important reminders for best practices in patent prosecution. In particular, the USPTO’s announcements address continuation applications, a new working group to mitigate fraud, and the elimination of expedited examinations for design applications.

The Federal Circuit recently addressed a case of first impression involving AI patented technology under 35 U.S.C. § 101 to hold that “claims that do no more than apply established methods of machine learning to a new data environment” are not patent eligible. This case provides helpful guidance for patent prosecutors on how to draft claims directed to AI technology to be patent-eligible and for litigators on how to attack or defend AI patents.

Will the Supreme Court review the Ninth Circuit’s unique Server Test for online copyright infringement? After the Ninth Circuit recently affirmed the Server Test, a photographer and copyright owner has requested certiorari. Petitioner-Plaintiff, Elliot McGucken, is a landscape photographer. Respondent-Defendant, Valnet, Inc., is the owner of a travel website located at “www.thetravel.com.” McGucken sued Valnet for copyright infringement when Valnet embedded on its site a number of links to McGucken’s Instagram posts. The district court, bound by the Ninth Circuit’s en banc decision in Perfect 10, granted Defendant’s motion to dismiss, finding that the Server Test foreclosed McGucken’s direct infringement claim as a matter of law, because Valnet linked to the images and did not store them on its own servers. The Ninth Circuit affirmed in a panel decision. McGucken now requests the Supreme Court to review the validity of the Server Test, which is unique to the Ninth Circuit.

In Amarin Pharma, Inc. v. Hikma Pharms. USA Inc., C.A. No. 20-1630 (D. Del.), brand manufacturer Amarin brought an induced infringement claim against Hikma’s generic icosapent ethyl product, which lists Amarin’s Vascepa® as the reference listed drug. Vascepa was originally approved by the U.S. Food and Drug Administration (“FDA”) to treat severe hypertriglyceridemia, and later, Amarin obtained patents and approval for Vascepa as a treatment to reduce cardiovascular risk in certain patient populations. Hikma’s Abbreviated New Drug Application (“ANDA”) for generic icosapent ethyl included a Section viii statement that Hikma was not seeking approval for the patented cardiovascular indication along with a “skinny label” that included only the indication for severe hypertriglyceridemia.

In a unanimous opinion issued by the D.C. Circuit on March 18, 2025, the Court of Appeals affirmed denial of Dr. Stephen Thaler’s application to register a copyright protection for a work created by his generative artificial intelligence system, holding that the Copyright Act requires human authorship.

Senators John Cornyn(R-Texas), Chuck Grassley (R-Iowa), Richard Blumenthal (D-Conn.), and Dick Durbin (D.-Ill.) recently sponsored two bills, introduced on March 14th, that would affect patents in the pharmaceutical industry.

On Wednesday, March 5, 2025, the United States Patent Trial and Appeal Board (“PTAB”) handed down the latest decision in the COVID vaccine proceedings between Pfizer Inc. (“Pfizer”) and BioNTech SE (“BioNTech”) and ModernaTX, Inc. (“Moderna”). The PTAB found all challenged claims unpatentable in two patents held by Moderna related to Moderna’s COVID-19 vaccine technology: U.S. Patent Nos. 10,702,600 (the “’600 patent”) and 10,933,127 (the “’127 patent”), both entitled “Betacoronavirus mRNA Vaccine.”

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.

Significant shifts in U.S. technology policy are taking shape at the start of the new administration. This is especially true in the field of artificial intelligence (AI), where President Trump revoked President Biden’s Executive Order 14110, titled “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” as part of his flurry of Day One executive actions. The administration is now moving quickly to put its own stamp on this area in an effort to strengthen U.S. AI leadership and competitiveness and outpace other nations, particularly the People’s Republic of China.

The Federal Circuit recently issued a decision in Kroy IP Holdings, LLC v. Groupon, Inc., No. 23-1359 (Fed. Cir. Feb. 10, 2025), holding that collateral estoppel does not preclude a patentee from asserting any unadjudicated claims of a patent where other claims of the same patent were held unpatentable in an inter partes review (“IPR”) by the Patent Trial and Appeals board (“PTAB”).

Senator Joni Ernst (R-IA) has issued a mandate to the Biden Administration: stop the spending spree with the remaining dollars in the CHIPs for America Program.  Senator Ernst’s missive is a direct response to Commerce Secretary Gina Raimondo’s push to have every employee in the Department of Commerce work overtime to spend billions of dollars in CHIPs funding before President Biden leaves office—a push that has already resulted in almost as much spending since the November 5thelection as was spent in the preceding two years since the CHIPs Act was passed.  Senator Ernst warned, the success of the CHIPs initiative “requires thoughtful planning and strategic spending, not binge buying shopping sprees by bureaucrats shoveling billions out the door before” Biden’s term expires.