Patent Analysis Trends

The USPTO just made it significantly harder to challenge patents owned by US manufacturers and small businesses. That is not a small shift. That is a decade-defining policy change. Here is what happened: the USPTO adopted new discretionary factors for PTAB inter partes review proceedings. Going forward, challengers must now weigh whether the patent owner is a US manufacturer or a small business before filing. Those cases face a higher bar to even reach trial. For years, large tech companies used PTAB as a fast, cheap way to invalidate competitor patents. File an IPR, drag out the owner, drain their resources. It worked. Many legitimate patents died in the process. This new policy signals something different. USPTO is explicitly choosing to protect domestic manufacturing and small innovators from institutional harassment campaigns. If you own patents and manufacture in the US, or if you are a startup building an IP moat, this changes your calculus. Prosecution is now worth more. Your portfolio just got more defensible. What is your read on this shift? Game changer, or political theater? Link in comments for our IP Strategy Playbook. #Patents #IPStrategy #USPTO #Innovation #Manufacturing

Is the UPC already the new ‘must‑win’ forum for European patent disputes?   Here are the key trends and what I think comes next... 🔮 1️⃣ UPC as the go‑to enforcement venue   Rights holders are increasingly choosing the UPC for infringement actions and urgent relief, attracted by speed and EU‑wide impact. I expect forum shopping towards the UPC to intensify, especially for high‑value, multi‑country disputes. 2️⃣ Validity as a supporting act   Standalone revocation actions still play a secondary role, while enforcement drives most activity. 3️⃣ Portfolio strategy: opt‑outs as a weapon, not a formality   The coexistence of national courts and the UPC turns opt‑outs and opt‑ins into strategic levers. Opt-out all patents and opt-in them again, once you have decided to initiate litigation, so your counterparts do not know what you will do. 4️⃣ Early case law: signals to patentees and implementers   The court’s tight timelines, readiness to grant injunctions and cautious approach to stays are sending a clear message. This will likely attract more “bet‑the‑company” cases to the UPC – but also drive earlier settlements once the first procedural signals are on the table. 5️⃣ SEP/FRAND: Europe’s new heavyweight forum   The UPC is positioning itself as a key stage for global tech and telecom disputes, including SEPs and FRAND issues. There will likely be no worldwide strategies ouside the UPC anymore. 👩⚖️ How we are positioning our firm KATHER AUGENSTEIN Our firm is already aligning its litigation and advisory practice with this new UPC reality:  - We are building dedicated UPC teams that combine procedural expertise with deep sector knowledge (incl. tech, life sciences and telecoms).  - We are actively coordinating cross‑border strategies with international partner firms to ensure that UPC proceedings, UK and US litigation, and key Asian actions are fully integrated rather than managed in silos.  🔮 My prediction... The UPC is on track to become the default forum for complex, cross‑border European patent disputes – with national courts maybe used as flanking tools rather than the main battlefield. If you are managing a European patent portfolio and think about litigation, now is the moment to:  - Revisit your opt‑out / opt‑in strategy   - Build the UPC explicitly into your global litigation playbook  📍 Happy to exchange views on how to future‑proof patent litigation under the UPC.

What early shifts in European patent enforcement at the UPC might you be missing out on? Six Months into the Unified Patent Court (UPC): Since its doors opened on June 1, 2023, the UPC has received over 600 actions. This initial wave—a mix of infringement claims, preliminary injunctions, revocation requests, and declarations of non-infringement—marks a new era in European patent litigation. Although the overall volume is still modest, the steady stream of filings is already hinting at long-term trends. Geography & Procedural Choices: The bulk of cases have clustered around the local German divisions, signifying their early dominance as a go-to jurisdiction. Yet other divisions are gradually attracting more attention, indicating that litigants are actively feeling out the system’s contours. Parties appear to be weighing factors like speed, judges’ expertise, and procedural nuances to shape their filing strategies. Substantive Law & Emerging Case Law: Claim Construction: Early UPC judgments suggest a balanced, harmonized approach, where the court leans on established European Patent Office (EPO) standards but also looks to national precedents. Though no radical departures have emerged yet, patentees and accused infringers are learning that the UPC’s interpretive framework may reduce jurisdictional inconsistencies found under the old national models. Doctrine of Equivalents: The UPC has begun to signal how it will handle the ever-contentious scope of patent protection. Though still in early days, initial decisions show cautious consideration of established European norms. This gives patentees more predictability but also sets a clearer boundary on how far they can stretch their claims beyond literal wordings. Injunctive Relief & Preliminary Measures: Preliminary injunctions are being granted sparingly, with the UPC balancing the urgent interests of the patentee against the significant commercial impact on defendants. Preliminary decisions confirm that while swift relief is possible, it comes with a high threshold of proof. This early stance nudges parties to bring well-prepared, thoroughly substantiated requests. Revocation Actions & Challenges to Validity: The UPC’s responses to revocation claims reveal a willingness to engage deeply with technical complexities, echoing EPO standards. The emerging case law indicates that the UPC may gradually refine a more uniform, rigorous validity test, reducing the patchwork effect of differing national approaches and thereby enhancing legal certainty. What’s Next? Although it’s too soon for definitive patterns, the UPC’s first half-year provides valuable signals. As claim construction, equivalency standards, and procedural avenues become clearer, litigants will adapt, strategies will evolve, and a more cohesive European patent jurisprudence will emerge.

Permanent injunctions in patent cases may be moving back into focus. And if they do, the leverage equation changes materially. For nearly two decades after eBay v. MercExchange, most operating companies treated patent infringement as a damages issue, not an existential business risk. The prevailing assumption was straightforward: keep shipping, litigate later, and pay if necessary. That assumption may be starting to erode. Over the past year, the DOJ and USPTO have taken increasingly public positions supporting injunctive relief for proven patent infringement, including in cases involving licensors and smaller innovators. The broader message is clear: courts should take a fresh look at irreparable harm, particularly where infringement is knowing and ongoing. We are now seeing cases that bring those issues squarely back into focus. In April, a jury in the Eastern District of Texas found SAP liable for willful infringement of two software patents asserted by Cyandia, a smaller platform company. The jury awarded approximately $17 million in past damages, rejected SAP’s invalidity defenses, and potentially cleared the path for both enhanced damages and a permanent injunction against continued use of the accused functionality. That matters because injunctions fundamentally change the commercial dynamic. Without a credible threat of injunctive relief, infringement can become a spreadsheet exercise. With that threat, patent disputes become operational and product risks that executives and boards cannot ignore. And if injunctions become even moderately easier to obtain, the balance of power shifts: • From implementers to patent holders • From “efficient infringement” to earlier deal-making • From damages modeling to product and roadmap risk The strategic implications are significant, particularly for scaling companies: • Patent clearance is no longer optional hygiene. It needs to happen early and be documented well. • Willfulness exposure becomes more dangerous. Internal awareness of patents can materially weaken negotiating leverage. • Licensing strategies regain force. The ability to credibly say “stop shipping” changes outcomes. • Smaller IP holders gain leverage. Injunction risk can level the playing field against much larger companies. We are not returning to the pre-eBay era. But the direction of travel is becoming harder to ignore. If a credible injunction risk were back on the table, how differently would your company evaluate patent exposure today?