Log in or register
Share on LinkedInShare on LinkedIn

ARTICLE · 03 NOVEMBER 2026

USPTO Issues Precedential Decision Expanding Obviousness-Type Double Patenting

Crowell & Moring LLP
Crowell & Moring LLP
Contributor
Crowell & Moring LLP

Crowell & Moring LLP

Crowell & Moring’s Doha office is a full service legal practice that serves as the firm’s regional...

View firm profile
Explore more from Crowell & Moring LLP

The USPTO's Administrative Review Panel has issued a precedential decision addressing when obviousness-type double patenting rejections apply, particularly when a pending application expires before its reference patent. The decision examines two competing rationales—preventing patent term extension and preventing harassment through multiple infringement suits—and proposes a framework based on patent term filing dates while acknowledging tension with Federal Circuit precedent.

United StatesIntellectual Property
Jeffrey D. Sanok
Jeffrey D. Sanok
Agnes N. Xu
Agnes N. Xu

What You Need to Know

  • Key takeaway #1

    The USPTO’s Appeals Review Panel (ARP) recently reversed a Patent Trial and Appeal Board (PTAB) decision, holding that the anti-harassment rationale (which prevents multiple infringement suits by different assignees asserting patents on obvious variants) independently supports an obviousness-type double patenting (OTDP) rejection, while inviting the Federal Circuit to clarify whether that rationale should do so.

  • Key takeaway #2

    Shortly after the ARP decision, the USPTO Director filed a brief in Inre: Ablynx N.V. in a separate case on the same issue at the Federal Circuit defending the anti-harassment rationale as grounded in precedent and urging that it be upheld. The resulting differences in view between the two agency positions have generated doctrinal uncertainty.

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

View source

Related Articles

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

See more popular content from

Article

UMG v. DistroKid: When AI Becomes A Consumer Protection Issue

Universal Music Group's lawsuit against DistroKid raises a critical question about AI disclosure in consumer markets: when does the use of artificial intelligence become material information that must be disclosed to consumers? The case centers on allegations that DistroKid distributed mass-generated AI music while creating the impression it was created by legitimate human artists, potentially violating existing consumer protection laws even without specific AI disclosure requirements.
United StatesIntellectual Property
Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
Article

PTAB/USPTO Update - October 2026

The USPTO has released new templates and guidance for AIA trial proceedings, announced key appointments including a Chief AI Officer, and published updated procedures for patent applications and subject matter eligibility declarations. Director Squires delivered multiple addresses emphasizing the constitutional importance of intellectual property rights while the agency expanded its community engagement efforts and international collaboration through WIPO's Global IP Assignment Platform pilot program.
United StatesIntellectual Property
WilmerHale
WilmerHale
Article

The Trademark Scam Field Guide: Look-Alike Filing Sites, Fake USPTO Notices, And How To Get Out If You’ve Been Caught

A business decides to file a trademark. Someone on the team searches for a familiar online legal-services brand, clicks the first result, and lands on a site with a similar-sounding name, a polished design, five-star reviews, and a low flat fee. The application gets filed. Months later the business learns the “service” was not who they thought it was, the filing was signed by someone with no authority to sign it, and the USPTO has suspended the application along with hundreds or thousands of others from the same shop.
United StatesIntellectual Property
Harness IP
Harness IP
Article

Is This Real? Navigating AI Impersonation Under New And Existing Laws

Is this AI-generated, or is it real? As generative AI tools have become increasingly capable of creating realistic images, videos, and audio, they have also made it easier to impersonate real people without their consent. In response, states are increasingly adopting laws that impose civil and criminal liability for certain AI-generated content that replicates an individual’s identity, likeness, voice, or other personal attributes.
United StatesIntellectual Property
Wiley Rein
Wiley Rein
Article

SBA Extends Deadline For Comments On Historic Overhaul Of Size Standards

The Small Business Administration has extended the comment period for two proposed rules that could dramatically reshape federal government contracting by significantly expanding the pool of entities eligible for small business set-aside procurements. With some size standard thresholds proposed to increase as much as tenfold, these changes would fundamentally alter the makeup of the small business contractor base.
United StatesGovernment, Public Sector
Crowell & Moring LLP
Crowell & Moring LLP
Article

The Lindsey Graham Sanctions Act: What Businesses Need To Know About The New Tariffs

President Trump signed the Lindsey O. Graham Sanctioning Russia and Iran Act into law on September 18, 2026, establishing mandatory tariffs of up to 500% on Russian goods and up to 100% on goods from countries that continue to buy Russian energy. The Act targets major importers like China, India, and Turkey, with limited relief mechanisms including natural gas exceptions, presidential waivers, and a 270-day winddown period for entities divesting from Russian operations.
GlobalInternational Law
Crowell & Moring LLP
Crowell & Moring LLP
Article

U.S.-China Trade Truce Extended Two Months: BIS Affiliates Rule Suspension Follows

The U.S.-China trade truce has been extended through January 10, 2027, pushing back the effective date of the Bureau of Industry and Security's Affiliates Rule. While the suspension delays immediate compliance obligations, the rule remains in place and companies should use this additional time to prepare their compliance programs before the suspension potentially expires.
GlobalInternational Law
Crowell & Moring LLP
Crowell & Moring LLP
Article

DOT Final Rule Narrows Airline Delay And Cancellation Reporting Obligation Under FAA Reauthorization Act Of 2024

The U.S. Department of Transportation has issued a final rule fundamentally restructuring how airlines report flight delays and cancellations, creating a new reporting category that removes ten specific events from the traditional "Air Carrier" category. This regulatory change, mandated by the FAA Reauthorization Act of 2024 and effective October 2026, will significantly impact how airline performance is measured and perceived by consumers, while reducing carriers' customer service obligations for certain
United StatesTransport
Crowell & Moring LLP
Crowell & Moring LLP
Article

White House Announces AI Responsibility Accord, Executive Orders, And Super Intelligence Task Force

The Trump Administration has introduced a voluntary regulatory framework for artificial intelligence through the White House Accord on Super Intelligence, signed by six leading tech companies. This new approach emphasizes corporate self-policing with safety audits and board oversight, while simultaneously rebranding government AI terminology and establishing a new interagency coordination force. How will this light-touch regulatory strategy balance innovation with mounting safety concerns as AI capabilities
United StatesStrategy
Crowell & Moring LLP
Crowell & Moring LLP
Article

California’s “No Robo Bosses Act” Is Now Law: Human Oversight Required For AI-Driven Discipline And Termination

California's new "No Robo Bosses Act" (SB 947) prohibits employers from relying solely on artificial intelligence or automated decision systems when disciplining or terminating employees, requiring meaningful human review and written notice to affected workers. The law, effective July 1, 2027, establishes strict compliance requirements including corroboration protocols, employee data access rights, and anti-retaliation protections that will fundamentally reshape how California employers deploy AI-driven wor
United StatesEmployment and HR
Crowell & Moring LLP
Crowell & Moring LLP
Article

EU Steel Overcapacity Regulation: New Permanent Measure In Force From 1 July 2026

The European Union has replaced its expiring steel safeguard measures with a permanent Steel Overcapacity Regulation, cutting duty-free steel imports by an average of 47% and raising the out-of-quota tariff from 25% to 50%. The new framework introduces a complex tariff-rate quota system distributed across 26 product categories, with country-specific allocations based on historical import shares and special treatment for FTA partners. A groundbreaking "melt and pour" traceability requirement will gradually s
European UnionInternational Law
Crowell & Moring LLP
Crowell & Moring LLP
Article

State AG News: Consumer Fraud And Deceptive Practices (October 1-7, 2026)

State attorneys general across the nation are taking decisive legal action on multiple fronts, from challenging federal fuel economy rollbacks to pursuing pharmaceutical companies over misleading drug claims. This week's enforcement activities reveal coordinated multistate efforts alongside individual state actions targeting consumer protection, national security concerns, and social media platform accountability.
United StatesGovernment, Public Sector
Crowell & Moring LLP
Crowell & Moring LLP