Litigation Update | March 2026

Why It Matters

These developments tighten claim construction standards, reshape USPTO review strategy, and signal a more pro‑patentee stance toward NPE enforcement, influencing how companies draft patents and plan litigation.

Key Takeaways

• Federal Circuit requires disclosed structure justification for means‑plus‑function claims
• USPTO adds US manufacturing and small‑business factors to IPR/PGR denials
• PTO backs permanent injunctions for non‑practicing entities
• Expert testimony clarity alone won’t guarantee admission
• Conflict of interest doesn’t automatically waive attorney‑client privilege

Pulse Analysis

Recent Federal Circuit opinions are redefining the boundaries of means‑plus‑function and software patent litigation. In a landmark decision, the court rejected a patentee’s summary judgment because the specification omitted critical structural details, emphasizing that any excluded elements must be expressly justified to satisfy the “same way” test. Simultaneously, a district court applied the Alice framework to a software patent, striking the claims at step one when the alleged technical improvements were not recited in the claim language. Practitioners are now compelled to align claim drafts tightly with disclosed structures and functional language to survive heightened scrutiny.

The United States Patent and Trademark Office is also reshaping its discretionary review process. Effective immediately, examiners will weigh whether the accused or asserted products are manufactured domestically and whether challengers qualify as small businesses when deciding to institute or deny inter‑partes reviews (IPR) and post‑grant reviews (PGR). This policy nudges companies toward U.S. production and encourages small‑entity identification, potentially altering the cost‑benefit calculus of filing AIA proceedings. In a parallel move, the USPTO filed a brief supporting permanent injunctions for non‑practicing entities, signaling a more assertive, pro‑patentee posture in enforcement disputes.

Beyond substantive patent law, procedural nuances are gaining attention. Courts reiterated that an expert’s testimony must be both clear and methodologically sound, but clarity alone does not guarantee admissibility, underscoring the importance of rigorous Daubert compliance. Likewise, a recent ruling clarified that a conflict of interest does not automatically extinguish attorney‑client privilege, preserving confidentiality unless a court finds an overriding reason to disclose. Together, these developments encourage litigators to adopt more disciplined discovery strategies, reinforce meticulous claim drafting, and reconsider litigation risk in light of evolving USPTO and judicial attitudes.