Intellectual property law: patents, FRAND, and USPTO disputes
Other Barks & Bites for Friday, June 26: EPO Study Shows Courts Moving from Defining to Applying FRAND; FTC Files Amicus in J&J Stelara Antitrust Case; and EUIPO Working Group Endorses IP-Backed Finance Roadmap (Ipwatchdog)
Summary: The European Patent Office’s study of 65 FRAND rate cases from 2013-2025 finds a significant shift: courts have converged on a shared conceptual framework and are now focused on applying it, primarily using comparable licenses and top-down methodologies. This judicial maturation moves the SEP licensing battleground from defining the rules to calculating the bill. Concurrently, the FTC’s amicus brief in the J&J Stelara case argues that proving monopolization under the Sherman Act requires only general intent to perform acts that maintain monopoly power, not specific anticompetitive intent, potentially lowering the evidentiary bar for plaintiffs in pharmaceutical patent thicket cases. Meanwhile, structural efforts to unlock capital for SMEs via IP-backed finance gained formal EU endorsement.
Why it matters: The EPO study signals a more predictable, albeit still contentious, global litigation environment for SEP holders and implementers, while the FTC’s stance could reshape enforcement against patent-driven monopolies.
Context: FRAND rate-setting has been a global legal frontier for over a decade; the FTC has been actively challenging what it views as anticompetitive patent strategies in the pharmaceutical sector.
"Among the study’s key findings include that courts across jurisdictions have converged on a shared conceptual framework for FRAND obligations with the focus for most jurists shifting from defining FRAND obligations to applying the FRAND framework, with comparable licenses and the top-down approach emerging as the two dominant methodologies for determining FRAND rates." — IPWATCHDOG
Commentary: The EPO’s finding of convergence suggests a maturing, if not settled, global jurisprudence where the outcome uncertainty for litigants is reduced, potentially encouraging settlements but also hardening the positions of parties around these two dominant valuation models. The FTC’s argument against a specific intent requirement, if adopted by the Fourth Circuit, would significantly lower the burden for plaintiffs in similar cases, making defensive patent acquisitions by incumbents far more legally perilous. Together, these developments point toward a regulatory and judicial landscape increasingly willing to intervene in the operational mechanics of patent valuation and deployment.
Date: June 26, 2026 03:12 PM ET
URL: https://ipwatchdog.com/2026/06/26/bites-barks-ftc-files-amicus-in-jj-euipo-working-group-endorses-ip-backed-finan/
AI Sentiment Score: Negative (71%)
AI Credibility Score: 10.0/10 — High
Scores and text generated by AI analysis of the source article indicated.CAFC Affirms Dismissal of Pro Se Inventor’s Suit Against USPTO For Rejected Wearable Thermal Device Application (Ipwatchdog)
Summary: The U.S. Court of Appeals for the Federal Circuit has affirmed the dismissal of a pro se inventor’s lawsuit against the USPTO, which challenged the rejection of his patent application for a wearable thermal device. The court rejected arguments regarding procedural timeliness and held that, while pro se filings are construed liberally, courts are not required to exhaustively discern unexpressed intent or invent claims not apparent from the pleadings. It found the inventor’s allegations—including claims of examiner conspiracy, constitutional violations, and ultra vires actions—to be legally meritless under any interpretation.
Why it matters: This ruling reinforces the high procedural and substantive barriers for pro se litigants challenging USPTO decisions, clarifying the limits of judicial leniency in construing complaints.
Context: The case exemplifies a recurring pattern where individual inventors, after exhausting administrative appeals, file expansive lawsuits alleging systemic misconduct, often encountering dismissal on sovereign immunity and failure-to-state-a-claim grounds.
"The court emphasized that this does not mean, however, that courts are required to attempt to discern the unexpressed intent of the plaintiff nor explore exhaustively all potential claims of a pro se plaintiff that are not readily apparent from the allegations." — IPWATCHDOG
Commentary: The CAFC’s decision signals a tightening boundary for pro se litigation, moving beyond mere liberal construction to require pleadings that are facially coherent under applicable law. For the USPTO, this affirms insulation from broad conspiracy and constitutional challenges grounded in dissatisfaction with examiners’ prior art findings. It underscores that the primary path for challenging rejections remains within the agency’s administrative process, not the federal courts via creative pleading.
Date: June 24, 2026 12:15 PM ET
URL: https://ipwatchdog.com/2026/06/24/cafc-affirms-dismissal-of-pro-se-inventors-suit-against-uspto-for-rejected-wearable-thermal-device-application/
AI Sentiment Score: Negative (50%)
AI Credibility Score: 10.0/10 — High
Scores and text generated by AI analysis of the source article indicated.SCOTUS Must End Prosecution Laches Before It Becomes a Patent Killing Machine (Ipwatchdog)
Summary: The Supreme Court is considering a petition in Hyatt v. Squires to review and potentially eliminate the doctrine of prosecution laches in patent law. This equitable doctrine allows courts to invalidate patents for ‘unreasonable delay’ during prosecution, even if the applicant complied with all statutory deadlines. The article argues the doctrine has metastasized from a tool against ‘submarine patents’ into a routine litigation weapon, citing its recent use against post-1995 patents in high-stakes cases like the GSK vaccine litigation against Pfizer/BioNTech and Moderna. Data presented shows the defense has been asserted in hundreds of cases involving thousands of post-1995 patents, contradicting arguments that its importance is diminishing.
Why it matters: For patent owners and litigators, the survival of prosecution laches injects profound uncertainty into patent assets, turning compliant prosecution histories into litigation liabilities and shifting bargaining power to accused infringers.
Context: Prosecution laches was historically justified as a check on pre-GATT ‘submarine patents,’ where patent term ran from issuance. Since the 1995 shift to a term running from filing date, that rationale is obsolete, yet the Federal Circuit has expanded the doctrine, creating a six-year presumption of unreasonable delay.
"Katznelson’s data also shows why the Federal Circuit’s six-year presumption is reckless. According to his analysis, 30% of U.S. utility patents issued more than six years after earliest priority, and 36% of utility patents asserted at the ITC issued more than six years after earliest priority." — IPWATCHDOG
Commentary: The Federal Circuit’s doctrinal expansion has operationalized prosecution laches as a low-cost, high-leverage defense, forcing patent owners into costly discovery and settlement under a cloud of invalidity. This judicial overreach directly contradicts the statutory presumption of validity and undermines the predictability essential for R&D investment. If the Supreme Court does not intervene, the doctrine threatens to destabilize patent portfolios across complex technology sectors where multi-year prosecution is the norm, not an aberration.
Date: June 23, 2026 04:15 PM ET
URL: https://ipwatchdog.com/2026/06/23/scotus-must-end-prosecution-laches-before-becomes-patent-killing-machine/
AI Sentiment Score: Negative (50%)
AI Credibility Score: 10.0/10 — High
Scores and text generated by AI analysis of the source article indicated.Post ID: a8a5551c