Professional Growth
USPTO Policy Shifts, Federal Circuit Cases in 2025 Signal New Era for Patent Law
January 14, 2026
The year 2025 was eventful for patent attorneys, even though the U.S. Supreme Court issued zero patent law 
decisions. Instead, developments revolved around case law focused on AI and machine learning applications, as well as a shake-up at the United States Patent and Trademark Office (USPTO), according to Matthew P. Becker and Scott M. Kelly, who co-led the D.C. Bar CLE Program’s “Patent Law a Year in Review 2025” on December 18.
Becker and Kelly, both of Banner Witcoff, Ltd., also highlighted 2025 cases involving a new determination on estoppel finalization of a patent contest, damages, and jury instructions in patent litigation. Speaking with the D.C. Bar after the webinar, Kelly and Becker said they had intended to cover how the cases bear on different aspects of patent law, such as acquiring and maintaining patents and litigation challenges to patents’ validity. “This yearly review of federal circuit cases is really about keeping practitioners advised about the current state of the law and where it is potentially going, so they can help advise their clients in the best manner,” Becker said.
A major decision in 2025 was Recentive Analytics, Inc. v. Fox Corp., wherein Recentive retained four patents involving machine learning to optimize scheduling of live events and television programming. The company sued Fox for patent infringement, and both the lower district court and the U.S. Court of Appeals for the Federal Circuit ruled in favor of Fox, finding inadequate innovation for a legitimate patent claim. The court determined that using generic machine learning models — even if faster or more efficient — constitutes an abstract idea, which is not patent-eligible subject matter under 35 U.S.C. § 101.
Kelly said the court’s perception that Recentive was utilizing known machine learning techniques to do what they are intended to do, without meaningful changes in machine learning, was the rationale for the ruling.
Notwithstanding significant cases, Kelly said the biggest story in the patent law field involved changes at USPTO, one of many government offices targeted by the Department of Government Efficiency in the past year. In the post-webinar interview, Kelly explained that while the rank-and-file patent examiners were generally able to remain in their positions, in large part due to a recent collective bargaining agreement, USPTO still contended with significant cuts in management and examiner and Patent Trial and Appeal Board (PTAB) judge departures, as well as the firing of all probationary employees. These changes “really impacted the business of prosecution this year as well as the business of patent invalidity,” said Kelly, who advises clients in the technology sector on acquiring and maintaining patents and developing IP rights portfolios.
Additionally, current USPTO Director John Squires initiated major policy changes that favor the expanded granting and upholding of patents for technologies, such as AI and cryptocurrency.
In Ex parte Desjardins, PTAB Appeal 2024-000567, Squires himself led the Appeals Review Panel. The case involved a software company that set up machine learning sequencing with already known functions. The panel overturned a substantive part of PTAB’s decision that rejected patentability, stating that “[c]ategorically excluding AI innovations from patent protection in the United States jeopardizes America’s leadership in this critical emerging technology.”
Kelly also reviewed Ingenico Inc. v. IOENGINE, LLC, wherein the Federal Circuit shifted the jurisprudence on estoppel in the patent context. Within USPTO, PTAB conducts inter partes reviews (IPR) for assessing the validity of a patent pursuant to a challenge. PTAB’s final decision on clear grounds for the IPR settles the matter, but the Federal Circuit emphasized that not all aspects of the grounds were deliberated and thus allowed for federal court review even after an IPR decision.
Kelly explained that Ingenico was very significant for its statement on IPR estoppel. It was previously understood that you had to pick either ‘I am going to fight your patent in IPR’ or ‘I am going to fight your patent in the district court,’ and now the Federal Circuit has opened the door for double dipping,” he said.
In the webinar’s second hour, Becker discussed Duke University v. Sandoz Inc. and Seagen Inc v. Daiichi Sankyo Company, Ltd., both involving the patent law requirement of a written description under Section 112 of the Patent Law Act. In each case, the jury found that the patentee offered sufficient written description to direct a person skilled in the art to create the claimed invention and awarded approximately $40 million in damages. In both instances, however, the Federal Circuit reversed and found the patents invalid for written descriptions.
“What is interesting about the Duke and Seagen cases is that typically when you have a jury finding on a factual issue — which is what the written description is — it is a very difficult burden to get an appeals court to overturn it,” Becker said. “In both instances, the Federal Circuit set aside the jury verdict, which is showing that [it] is not reluctant to invade what was traditionally considered a jury’s fact-finding mission and superimposing their belief for what is adequate written description.”
Another significant case was EcoFactor, Inc. v. Google LLC, which involved expert testimony on damages in patent cases. The lower court determined that Google infringed on EcoFactor’s thermostat technology patent, awarding EcoFactor $20 million in damages. Google appealed on the damages issue, claiming that the expert witness testimony on royalties licensing was speculative and unreliable. Hearing the case en banc, the Federal Circuit determined that the district court erred in adhering to federal evidence law for expert testimony pertaining to royalties, reversing and remanding for damages.
“EcoFactor and a few other Federal Circuit cases this year serve as a reminder that the Federal Circuit is increasing its scrutiny over the reliability evidence relied on by expert witnesses testifying on damages issues,” according to Becker, who litigates patent cases that often involve challenges to a patent’s validity. “This is a reminder that you really need to vet your damages and model your damages theories and make sure they are supported by the evidence.”
Becker also highlighted Optis Cellular Technology, LLC v. Apple Inc., involving claims that Apple infringed on five Optis patents covering technology essential to the LTE wireless standard. In the lower court, Optis was awarded $300 million for what would have been reasonable royalties.
The contest involved the jury verdict form given by the judge to the jury. It asked, “Did Optis prove by a preponderance of evidence that Apple infringed ANY of the asserted claims?” Both litigants objected to the judge’s instruction, and the jury found for Optis. Apple appealed, arguing that its Seventh Amendment right to a jury trial was violated because the jury instructions allowed all five patents to be decided with a single collective vote, rather than requiring a unanimous vote for each individual patent.
Unable to determine a unanimous jury verdict for any of the patents, the Federal Circuit ruled in favor of Apple and vacated for a new trial on infringement.
That a Seventh Amendment constitutional issue made its way to the Federal Circuit was fascinating, Becker said. “It was really the result of the district court judge’s decision on how to draft the jury verdict form,” he added.
Looking ahead, the changes in policy at USPTO will be more concretely expressed in individual patent determinations, according to Kelly. Additionally, courts’ handling of AI and emergent technology disputes involving patent law cases will also continue, with Kelly predicting that the courts (and maybe even the Supreme Court) will need to look at AI-generated prior art as well as revisit AI-assisted inventing.
