Patent Analysis Trends

The data from the Mitsui & Co. Global Strategic Studies Institute presents a subtle but decisive shift in how #semiconductor leadership is being secured—not just through manufacturing scale, but through where knowledge is legally anchored. At a surface level, the numbers are straightforward: Most global leaders—Tokyo Electron, Samsung Electronics, Applied Materials, TSMC, and ASML—file a significant share of patents in the United States, often exceeding 70–90%. In contrast, Chinese entities like Chinese Academy of Sciences and NAURA Technology Group file almost entirely within China (~98%). But the strategic signal sits beneath this distribution. First insight: The US remains the global enforcement ground for IP. Filing in the US is not just about market access—it is about legal strength. The US patent system still acts as the most credible arena for defending high-value semiconductor innovations. This explains why even non-US companies anchor their IP there. Control in semiconductors is as much about litigation readiness as it is about fabrication capacity. Second insight: China is building a self-contained innovation loop. The near-total domestic filing by Chinese institutions signals a deliberate inward strategy. This is not a lag—it is a design choice. By concentrating patents locally, China is strengthening internal supply chains, reducing external dependency, and creating a protected innovation environment aligned with national priorities. Third insight: Two parallel IP ecosystems are forming. One is globally integrated, anchored around the US system. The other is domestically reinforced within China. Over time, this divergence could lead to limited interoperability—not just in technology standards, but in legal enforceability of innovation. Fourth insight: Patents are becoming strategic assets, not just legal instruments. In semiconductors, patents define control over process nodes, materials, lithography techniques, and equipment precision. Owning patents in the right jurisdiction determines who captures long-term economic value, who sets pricing power, and who controls ecosystem dependencies. This is where the conversation shifts from “innovation” to “ownership of innovation outcomes.” manufacturing builds the factory, but patents own the blueprint of the factory. One scales output, the other governs who is allowed to scale. For leadership teams, this has clear implications: R&D without a jurisdiction strategy is incomplete Market expansion must align with IP protection zones Partnerships need to account for where knowledge will be legally held National policy and corporate strategy are now tightly interlinked in deep tech sectors The semiconductor race is no longer only about nanometers. It is about where ideas are registered, defended, and monetized. Those who understand this will not just build technology—they will control its future value. DC* Dinwins

Why some patents look strong on paper but are unenforceable in practice I see this issue from time to time when reviewing medical device portfolios. The problem is often claim type. The claims read well, the technology is gaining traction in the marketplace, and the patent issued. But when determining who would actually infringe the patent, the answer is not straightforward. Many medical device patents lean heavily on method claims because they are easier to draft around clinical workflows and sometimes easier to get allowed. That creates two enforcement problems. First, divided infringement. If no single party performs every step of the method, enforcement becomes difficult. In medical devices, steps are often split between the device, the surgeon, and hospital staff. Second, enforcement targets. Method claims are typically practiced by surgeons or hospitals, not the manufacturer. Even when inducement theories are available, most companies do not want their enforcement strategy to involve healthcare providers. This is why some patents that look strong on paper lose leverage in the real world. Device claims tell a different story. If a manufacturer makes and sells a device with the claimed structure, infringement analysis is usually more direct. These claims can be harder and more expensive to prosecute, but they often provide clearer enforcement paths against competitor manufacturers. The strongest medical device portfolios rarely choose one or the other. Instead, they combine: Device claims that read directly on the hardware being sold; and Method claims that capture clinically meaningful workflows and support licensing strategy. Claim strategy is not about what is easiest to get allowed. It is about who you may need to enforce against three to five years down the road. #PatentEnforcement #IPStrategy #MedTech #LifeSciences #StartupIP

In too many patent cases, the first move against a funded plaintiff is not a defense on the merits — it is a demand to produce the funding agreement. That gets the law backward. Where the accused infringer controls the key evidence and can outspend a smaller patent owner for years, third-party funding is often what makes the Patent Act's promise of a civil remedy real. It is enforcement capital, not a litigation defect. The real question is what an opponent may actually discover about it, and my new article works through that from first principles. Rule 26 and the work-product doctrine draw a sharp line between what a court may legitimately learn — funder identity, financial interest, and who controls the litigation or settlement — and what stays protected: the agreement's economics, diligence, valuations, settlement ranges, and counsel's mental impressions. I map the leading regimes (New Jersey, Delaware, the Northern District of California, and the Eastern and Western Districts of Texas), reconcile the split case law, and address the 2026 developments raising the stakes — H.R. 7015, S. 3826, the ITC's proposed Section 337 rule, and the Federal Circuit's standing decision in A.L.M. Holding Co. v. Zydex Industries. The result is a practitioner's playbook for keeping a case decided on infringement, validity, and damages — not on whether the patent owner needed capital to enforce a federal right. #PatentLitigation #LitigationFunding #IntellectualProperty #PatentLaw #ThirdPartyFunding #WorkProduct #AccessToJustice #IPStrategy #Patents #LegalFinance

𝗧𝗵𝗲 𝗔𝗹𝗶𝗰𝗲 𝗔𝗱𝘃𝗮𝗻𝘁𝗮𝗴𝗲: 𝗜𝗻𝘃𝗮𝗹𝗶𝗱𝗮𝘁𝗶𝗻𝗴 𝗦𝗼𝗳𝘁𝘄𝗮𝗿𝗲 𝗣𝗮𝘁𝗲𝗻𝘁𝘀 The U.S. Supreme Court's 2014 decision in 𝘈𝘭𝘪𝘤𝘦 𝘷. 𝘊𝘓𝘚 𝘉𝘢𝘯𝘬 fundamentally changed the landscape for software patents. Although this change has made it more challenging to obtain and enforce software patents, it has created significant opportunities for companies accused of infringement. The 𝘈𝘭𝘪𝘤𝘦 decision's impact is particularly strong for: • 𝗣𝗿𝗲-𝟮𝟬𝟭𝟰 𝗦𝗼𝗳𝘁𝘄𝗮𝗿𝗲 𝗣𝗮𝘁𝗲𝗻𝘁𝘀. Many software patents granted before 𝘈𝘭𝘪𝘤𝘦 are vulnerable to invalidation because they were examined under more lenient standards. • 𝗣𝗮𝘁𝗲𝗻𝘁𝘀 𝗖𝗹𝗮𝗶𝗺𝗶𝗻𝗴 𝗔𝗯𝘀𝘁𝗿𝗮𝗰𝘁 𝗜𝗱𝗲𝗮𝘀. Patents that claim business methods or data processing without sufficient technical implementation details are particularly at risk. • 𝗣𝗮𝘁𝗲𝗻𝘁𝘀 𝗟𝗮𝗰𝗸𝗶𝗻𝗴 𝗧𝗲𝗰𝗵𝗻𝗶𝗰𝗮𝗹 𝗗𝗲𝘁𝗮𝗶𝗹𝘀. Patents that describe their inventions primarily in functional terms, without explaining how the claimed functions are achieved technically, are vulnerable. As someone who both defends against software patents and helps clients obtain them, I see both sides of the 𝘈𝘭𝘪𝘤𝘦 equation. When writing new software patents, I carefully craft them to withstand 𝘈𝘭𝘪𝘤𝘦 challenges. However, many existing software patents, particularly those granted before 2014, weren't drafted with these requirements in mind. This creates significant opportunities for defendants. In my experience defending against software patent assertions: • Many software patents can be invalidated quickly and cost-effectively using 𝘈𝘭𝘪𝘤𝘦-based arguments • Even the threat of an 𝘈𝘭𝘪𝘤𝘦 challenge often motivates patent owners to settle on favorable terms • Courts are receptive to 𝘈𝘭𝘪𝘤𝘦-based challenges early in litigation However, crafting successful 𝘈𝘭𝘪𝘤𝘦-based invalidity arguments requires deep understanding of both the evolving law of patent eligibility and the technical aspects of software patents. As with the other defensive strategies I've discussed in this series, it's critical to work with qualified patent counsel who has specific expertise in software patents. In my next post, I'll explain how attorney-client privilege affects your patent defense strategy and why it's so important to preserve. #patents #intellectualproperty #softwarepatents

US brands are getting hit from every angle right now — and one of the biggest threats is industrial-scale IP theft coming from ultra-fast-fashion marketplaces like Shein and Temu. These platforms move at a speed traditional retail can’t match. Their sellers (often thousands of third-party vendors) can spot a trending U.S. product, copy it, and ship look-alikes worldwide in days. U.S. lawmakers and state attorneys general have recently called for investigations into alleged IP theft and counterfeiting on both platforms, citing the damage to American designers and brands. The fallout isn’t just lost sales. It’s eroded brand trust, damaged reputations when knockoffs break or fit poorly, and a chilling effect on creativity. Why innovate if a copy will be live before your next production run? What we do to stop it: We don’t shrug and accept it. We fight it — aggressively and systematically. 1. Lock down the IP early. We prioritize trademarks, copyrights, and (when applicable) design patents so enforcement has teeth. Registration turns “they copied us” into a clear legal claim. 2. 24/7 marketplace monitoring. We scan Shein/Temu (and the wider gray market) for 1:1 clones, confusingly similar listings, and stolen photos. Speed matters — takedowns are most effective in the first days of a listing. 3. Rapid takedown + escalation. We file platform complaints immediately, track repeat offenders, and escalate patterns to the platforms’ legal counsel. One takedown helps; repeat-offender suppression helps more. 4. Customs and border protection support. When brands qualify, we help record trademarks with U.S. Customs so intercepted counterfeits can be seized before reaching customers. 5. Evidence building for litigation. The brands winning in court are the ones showing a pattern — screenshots, timestamps, purchase tests, fulfillment trails. We preserve that record from day one and file lawsuits. 6. Consumer education. We make it easy for customers to spot fakes: • verified buying channels • authenticity markers • clear messaging about warranty/quality risks A well-informed community is a protection layer no platform can override. The bigger point Ultra-fast fashion isn’t just competing on price — it’s often competing by stripping value from original American creativity. And if we want a future where U.S. brands can keep inventing, designing, and building, we have to defend the work behind the product. We’re in that fight every day — for our designs, our partners, and the idea that originality still matters. #ESCALegal #BrandProtection #IPLawyers

I've worked to report today's IAM Long Read article all year, about the way US patent #policy has impacted the value of patents since October 2025. For much of the past decade, patent value in the United States was constrained less by technical merit than by procedural vulnerability. The rise of inter partes review #IPR and post‑grant review #PRG proceedings at the #PTAB reshaped the market after 2013, injecting uncertainty into patent ownership and driving down confidence in enforcement. Operating companies grew accustomed to using the threat of PTAB challenges as leverage in licensing talks, while many patent owners recalibrated expectations about what their assets were worth – or whether monetisation was feasible at all. That equilibrium is now shifting. Policy changes under USPTO director John A. Squires have led to a sharp decline in PTAB institutions, while Europe’s Unified Patent Court #UPC is raising the stakes for enforcement across major markets. Together, these developments are altering how companies evaluate patent risk, when they engage in negotiations and how much they are prepared to pay to resolve disputes or acquire assets defensively. Across the patent ecosystem – from #brokers and #dealmakers to #monetisation firms and litigation funders – market participants say sentiment has turned decisively more constructive. #Licensing discussions are starting earlier. #Transaction volume is picking up. Budgets once allocated to procedural challenges are being redirected toward acquisitions and licences. Thanks to those I interviewed: Russell Binns, David Pridham, Mark McMillan, Erich Spangenberg, Katharine Wolanyk and Kent Richardson. Please repost! Subscribers can read the full analysis here:

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?

For years, patent owners relied on a simple PTAB rule: older patents were harder to challenge. If a patent was six years old or more, PTAB often treated that age as creating “settled expectations,” particularly where there was parallel district court litigation. That framework just shifted. My partners Juanita DeLoach, PhD, JD and Steven D. Shipe break this down well in their recent article on Home Depot v. H2 Intellect, now designated informative by the USPTO Director. Despite the patent being 12 years old, PTAB allowed the IPR to proceed because the patent had never been commercialized or enforced in the accused industry. What has changed: • Patent age alone is no longer enough • Settled expectations are evaluated industry by industry • Enforcement in one technology space may not protect another What patent owners should consider now: • Do not rely on age alone • Build an industry-specific commercialization and licensing record • Expect higher IPR risk when enforcement expands into new markets Clear, practical analysis from Juanita and Steven. #Patents #PTAB #IPStrategy #IPLitigation #InterPartesReview