C & T Newsletters
July 2026
Supreme Court Declines Review of Four Significant Patent Law Cases
Takeaway: The Supreme Court’s refusal to hear these appeals leaves the Federal Circuit’s recent rulings on prosecution laches, patent eligibility, jury verdicts, and patent marking as the governing law for patent disputes.
The U.S. Supreme Court declined to hear four patent-related appeals, leaving in place Federal Circuit decisions addressing prosecution laches, jury verdicts, patent eligibility, and patent marking requirements. Among the petitions denied was inventor Gilbert Hyatt’s challenge to the prosecution laches doctrine, which allows patents to be deemed unenforceable when applicants unreasonably delay prosecution. The Court also refused to revive a $181 million patent infringement verdict in favor of Finesse Wireless, declined to review the invalidation of a heart-monitoring patent under the patent eligibility framework established in Alice v. CLS Bank, and left intact a ruling awarding attorney fees against a patent owner whose infringement claims were dismissed for failing to satisfy patent marking requirements.
By denying review, the Court leaves existing Federal Circuit precedent intact, allowing these important patent law doctrines to continue guiding future litigation and USPTO practice.
Supreme Court to Decide Whether Judges or Juries Determine Trademark Strength
Takeaway: The Supreme Court’s upcoming decision could reshape trademark litigation by clarifying whether a trademark’s inherent strength is a factual issue for juries or a legal question for judges.
The U.S. Supreme Court has agreed to hear a trademark dispute between Rise Brewing and PepsiCo that could clarify who decides whether a trademark is inherently strong or weak when evaluating the likelihood of consumer confusion. The case stems from Rise Brewing’s claim that PepsiCo’s “Mtn Dew Rise Energy” infringed its “Rise” trademarks for nitro cold-brew coffee. The Second Circuit ruled that the “Rise” mark was inherently weak because of its association with waking up and energy, affirming summary judgment in PepsiCo’s favor without allowing a jury to resolve the issue.
Although the U.S. Solicitor General agreed that the Second Circuit improperly treated trademark strength as a legal question rather than a factual one, the government argued the error likely did not affect the outcome. The Supreme Court’s decision could significantly impact trademark litigation by defining whether questions concerning a mark’s inherent strength and ultimately likelihood of confusion are decided by judges or juries.
Copyright Office Scales Back Some Proposed Fee Hikes After Public Feedback
Takeaway: Public feedback softened several proposed copyright fee increases, but most registration and filing fees are still expected to rise later this year.
The U.S. Copyright Office has revised its proposed fee increases after receiving public comments, preserving the lower-cost single application registration option by raising its fee to $55 instead of eliminating it. The agency also reduced several planned increases for music, news websites, and termination notice filings, while keeping most other fee hikes intact to support modernization efforts and recover rising operational costs. The proposal reflects concerns raised by individual creators and small businesses about inflation and the increasing cost of protecting their intellectual property. If Congress does not reject the plan within 120 days, the updated fee schedule is expected to take effect this fall and is projected to improve the Office’s cost recovery while avoiding fee levels that could discourage copyright registration.
Ninth Circuit Overturns $40 Million Trade Secret Verdict, Orders New Trial
Takeaway: The Ninth Circuit reinforced that DTSA plaintiffs, not defendants, must prove their alleged trade secrets were not readily ascertainable, and incorrect jury instructions on that issue can require an entirely new trial.
A split Ninth Circuit panel overturned a $40 million trade secret verdict in favor of Comet Technologies USA against XP Power, ruling that the jury received incorrect instructions regarding which party bore the burden of proving whether the alleged trade secrets were readily ascertainable through lawful means. The court found the error was significant because the parties disputed whether portions of the technical information could have been reverse-engineered or publicly obtained, requiring a new trial on liability and damages. The decision also vacated the permanent injunction and more than $17 million in attorney fees awarded to Comet. The ruling highlights the importance of correctly allocating the burden of proof under the federal Defend Trade Secrets Act (DTSA), particularly after state-law claims are dismissed during litigation.
Foreign-Domiciled Patent Filings Face New USPTO Counsel Requirement Beginning July 20
Takeaway: Foreign-domiciled patent applicants and owners must have registered U.S. patent counsel for virtually all USPTO filings beginning July 20, 2026, making early compliance essential to avoid filing delays or rejections.
Beginning July 20, 2026, the U.S. Patent and Trademark Office (USPTO) will require all foreign-domiciled patent applicants and patent owners to be represented by a registered U.S. patent practitioner in nearly all patent-related filings. The new rule applies not only to new applications but also to existing patent matters for any submissions made on or after the effective date, regardless of when the application was originally filed. The USPTO adopted the rule to align U.S. patent practice with international standards and to strengthen oversight by ensuring foreign applicants are represented by practitioners subject to the Office’s disciplinary authority. The requirement also extends to foreign patent owners involved in post-grant matters, making it important for multinational companies and foreign entities with U.S. patent portfolios to confirm compliance before filing after July 20.
USPTO Expands TTAB Center with Additional Filing Capabilities
Takeaway: The latest TTAB Center enhancements provide practitioners with a more comprehensive, centralized platform for managing Trademark Trial and Appeal Board filings electronically.
The U.S. Patent and Trademark Office has expanded the functionality of the TTAB Center by adding several new filing options for parties practicing before the Trademark Trial and Appeal Board (TTAB). Users can now respond to motions, file replies in support of motions, and respond to Board’s orders directly through the platform. These enhancements build on the April 2026 update, which introduced the ability to submit motions, update correspondence addresses, and modify attorney information. The continued expansion of the TTAB Center reflects the USPTO’s efforts to streamline TTAB proceedings and improve the efficiency of electronic filings.
USPTO Lowers Threshold for Additional Scrutiny of Unintentional Delay Petition
Takeaway: Beginning August 13, 2026, patent applicants and owners facing delays of more than one year will encounter heightened USPTO scrutiny and additional petition requirements before relief will be granted.
Effective August 13, 2026, the U.S. Patent and Trademark Office (USPTO) will require applicants and patentees to provide additional information, and pay an additional fee, for certain petitions based on unintentional delays that exceed one year, replacing the current two-year threshold. The updated requirement applies to petitions to revive abandoned applications, accept delayed maintenance fee payments, accept delayed priority or benefit claims, and excuse failures to act in connection with international design applications. According to the USPTO, delays extending beyond one year merit closer examination to determine whether the entire period of delay was truly unintentional. Applicants seeking relief after lengthy delays should be prepared to provide a more detailed explanation supporting their petitions.
USPTO Transitions International Trademark Filings to Madrid e-Filing
Takeaway: Businesses seeking international trademark protection should prepare now by creating a WIPO account and familiarizing themselves with Madrid e-Filing before it becomes the mandatory filing platform on October 1, 2026.
The U.S. Patent and Trademark Office has announced that it will transition all outbound international trademark filings under the Madrid Protocol from the Trademark Electronic Application System (TEAS) to WIPO’s Madrid e-Filing platform. Already used by intellectual property offices in more than 40 countries, Madrid e-Filing is designed specifically for international trademark applications and offers a more streamlined, secure filing experience.
The new platform is expected to reduce filing errors, facilitate faster communication during the certification process, and minimize certification denials and related petitions. Applicants may use either TEAS or Madrid e-Filing through September 30, 2026. Beginning October 1, 2026, Madrid e-Filing will become the exclusive platform for submitting initial international trademark applications based on U.S. applications and registrations. Applicants should create a WIPO account in advance to ensure a smooth transition.
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