Dennis Crouch - Patently-O
Law Prof @MizzouLaw | Founder of Patently-O | #artificialintelligence #patents #SCOTUS | Teaching legal ethics | #coldplunge enthusiast & proud girl dad x2 🧊📚⚖️
- New on Patently-O: Prof. Camilla Hrdy @law.rutgers.edu explores the legal battle over AI reverse engineering in OpenEvidence v. Pathway. Can extracting data from a generative AI be legal reverse engineering, or is it trade secret misappropriation? patentlyo.com/patent/2025/...
- OpenEvidence alleges Pathway Medical used a prompt injection attack to extract AI system prompt code, violating the Defend Trade Secrets Act & other laws. Key Qs: Are AI models’ internal mechanics protectable secrets? Is strategic querying improper? www.pacermonitor.com/public/case/...
- After 18 years & 5 trips to the Federal Circuit (plus 1 SCOTUS detour), Halo v. Pulse continues its saga. The latest Feb 2025 decision effectively nullifies a jury's willful infringement finding by allowing judges to second-guess without clear standards. #PatentLaw patentlyo.com/patent/2025/...
- The jury found willfulness under a "clear & convincing" standard after considering Pulse's invalidity defense. Yet the district court refused enhanced damages based on...the same evidence.
- Most concerning: In Affirming, the Federal Circuit speculates that the district court viewed the adjudged reckless disregard as a "close question"—something nowhere in the court's actual opinion. This judicial mind-reading violates FRCP 52 and 7th Amend, IMO.
- Lots of folks have written about Halo and Willfulness; including @tnarecha.bsky.social & @marklemley.bsky.social here on BSKY.
- Thank you to @meeradeo.bsky.social for joining us in Columbia Mo (Mizzou Law) to talk about law school and belonging: Looking to nurture and support a sense of community in the law school through mentorship, open dialogue, and spaces where everyone feels valued. Grateful for the insights!
- When Shakespeare's villain says "First, let's kill all the lawyers," it's not a joke - it's because lawyers are society's key defense against tyranny. (Henry VI, Part 2).
- @zvirosen.bsky.social has a great new article looking at AI copyright from a historical perspective - including a list of "six lessons we can take from this history and apply to copyright law today." papers.ssrn.com/sol3/papers....
- For this chart I looked at US patent applications that received a "final rejection" in January 2024 and there status 1-year later in January 2025. About half have issued as patents. In negotiation frame: There is usually another offer after the final offer. patentlyo.com/patent/2025/...
- Fed Cir reverses ITC in US Synthetic, holding composition claims can't be "abstract ideas" merely because they're defined by properties. Major win for chemical/pharma patents, creating clear pathway for claiming compositions of matter. patentlyo.com/patent/2025/...
- Prof Lefstin had argued the ITC's abstract idea rejection of PDC claims echoed the CCPA's long-abandoned "functional claiming" doctrine. His warning: American Axle risks unraveling decades of settled law allowing properties to define compositions. @uclawsf.bsky.social patentlyo.com/patent/2023/...
- Key insight from the Decision: Material properties (such as conductivity) are "integrally intertwined" with physical structure; but no perfect correlation is needed from functional claims to structure - just enough to "inform skilled artisan what the PDC is."
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View full threadTakeaway for practitioners: When claiming compositions by properties, specification should explain property-structure relationships. USS's detailed correlation between magnetic properties and diamond structure proved important for the case.
- Reposted by Dennis Crouch - Patently-OMacDonald v. Minnesota, 24-862 Is an election law requiring proof that judicial candidates have state law licenses in order to qualify as 'learned in the law' unconstitutional under Marbury v. Madison?
- I read a remarkably bold petition for certiorari filed this month in Shen Zhen v. US, 24-855. A Chinese real estate developer (Huang Wei) is asking the US Supreme Court to effectively rewrite decades of federal bribery law -- in favor of allowing more bribery. www.linkedin.com/feed/update/...
- The case involved lavish gifts totaling more than $1 million - including gambling chips, private jets, and prostitutes - provided to then-Los Angeles City Councilman Jose Huizar while Billionaire Huang sought approval to build what would have been the tallest skyscraper west of the Mississippi.
- Petitioner was convicted under several federal laws. Now argues that lavish gifts to officials as a way of currying favor should not be considered bribery. The contention is that bribery requires proof of an explicit quid pro quo exchange - a specific agreement to trade gifts for official acts.
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View full threadThe 9th Cir already petitioner's arguments: concluding that express quid pro quo agreement is not required for bribery convictions, particularly when prosecuting the bribe-giver. Requiring express agreement would make it too easy for corrupt actors to evade prosecution.
- I'm surprised by the district court's rejection of fair use defense in Thompson Reuters v. Westlaw - focusing on Ross's use of Westlaw headnotes as inputs into its AI system. patentlyo.com/media/2025/0...
- Thompson Reuters v. ROSS
- @design-law.bsky.social might like this case: Lu v. Hyper Bike - Federal Circuit just affirmed dismissal in R.36 judgment. But the district court’s opinion of non-infringement is notable for a lack of analysis of non-infringement.
- The case appears straightforward and the record shows that Hyper’s own officer admitted in deposition testimony their designs were “based upon the drawing[s]” in Lu’s design patents – an admission that should have created, at minimum, a genuine issue of material fact regarding infringement.
- The non-infringement Summary Judgment focused on on Lu’s failure to conduct extensive discovery or retain expert witnesses.
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View full threadOK - And I also agree that these are poorly done design patents because they are requiring too many design features.
- The Federal Circuit continues relying heavily on Rule 36 summary affirmances in 2025, disposing of complex patent cases without written opinions. This practice raises serious concerns about judicial transparency and development of patent law. patentlyo.com/patent/2025/...
- Looking at recent Rule 36 cases like In re Google and Wilson v. Corning - these aren't simple cases. They involve sophisticated legal issues and millions in dispute. The court is dodging its fundamental duty to explain and develop patent law. scholarship.law.missouri.edu/facpubs/715/
- Lu v. Hyper Bicycles - a design patent case where defendant's CEO admitted designs were "based upon the drawings" in Lu's patents. Perfect opportunity to clarify evidence needed for summary judgment in design patent cases. Instead: silence from the Federal Circuit.
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View full threadI've argued before that 35 USC 144's "shall issue" language requires opinions in USPTO appeals. But even beyond statutory requirements, the court has a duty to explain its decisions and develop patent law.
- #USPTO has emailed examiners with a memo suggesting that, for now, they are largely shielded from return-to-office mandate through union protections. The POPA collective bargaining agreement is the crucial buffer as the agency implements the new White House directive. patentlyo.com/patent/2025/...
- Key impact falls on Supervisory Patent Examiners (SPEs) and PTAB judges - management positions outside union protection. All of those folks will be returning to the Office - as soon as this week. Space constraints though will mean a phased return.
- One question is whether experienced SPEs will choose to step back to primary examiner roles to maintain remote work? This could preserve examination expertise but create leadership vacuum in art unit management. As disruption hits SPEs we have a concern about examiner training and AU consistency.
- Most concerning: White House position that these collective bargaining agreements may not be enforceable, suggesting this reprieve is only temporary.
- Reposted by Dennis Crouch - Patently-OFor right now, yes. Anyone in management, such as SPEs, just got screwed though. Training is gonna take a huge hit and SPEs are like 90% of our support in the examining core. Further, OPM has just asserted that the CBA is illegal, so we'll have to see if the average examiner is actually protected.
