Overview
As we wrap up the first month of 2026, we wanted to identify some trends, developments, and cases we are watching in 2026:
Patents:
We are keeping a close eye on the discretionary denial process at the PTAB and any related trends that develop as a result of changes to that process. In 2025, the discretionary denial process changed in several significant ways, with the net effect being an uptick in IPR petitions being denied. In particular, the USPTO's decision to rescind the June 21, 2022 Memorandum ("Interim Procedure for Discretionary Denials…with Parallel District Court Litigation") means the carveouts and safe harbors to side-step some of the Fintiv factors are no longer in play.
Also, the recent changes at the PTAB have centralized decision-making with respect to whether to institute post-grant proceedings. While centralization may result in more uniform decisions, the process is still new and not all decisions have opinions issued with them, causing some uncertainty among petitioners regarding why petitions were/were not instituted. As a result, strategies for determining which post-grant proceeding to pursue are now more fluid and trends are indicating that there will be increase in patent challengers opting to pursue ex parte reexamination proceedings as a result.
At the same time, the trends continue to indicate that it is a good time to be a patent owner, and we are watching to see if there will be an uptick in patent litigation as patent owners are less likely to face post-grant challenges in front of the PTAB.
We are also watching patent issues that are developing before the Supreme Court. For example, in Lynk Labs, Inc. v. Samsung Electronics Co., Ltd., et al. (No. 25-0308) Lynk Labs, Inc. petitioned the Supreme Court to review a Federal Circuit decision affirming a PTAB decision invalidating Lynk Lab's patent based on a patent application that filed before the patent's critical date but that was not publicly accessible until after that date. The specific question presented in its petition for certiorari was: "[w]hether patent applications that became publicly accessible only after the challenged patent's critical date are "prior art … printed publications" within the meaning of 35 U.S.C. § 311(b)."
If Lynk Lab's petition is denied and the Federal Circuit's decision stands, wide-ranging effects for both patent holders and patent practitioners could potentially follow. From the patent holder's perspective, the scope of potential prior art that could be used to invalidate its patents would expand to include patent applications that became publicly accessible after the patent's critical date, which will increase the scope of available prior art that can be raised in invalidity challenges.
At the ITC, we are also looking to see if the uptick of Section 337 complaints filed in the wake of the Fed. Cir.'s Lashify decision will continue in 2026. In Lashify, Inc. v. Int'l Trade Comm'n, 130 F.4th 948 (Fed. Cir. 2025), the Fed. Cir. ruled that the terms "significant employment of labor or capital" in 19 U.S.C. § 1337(a)(3)(B) does not exclude spending on sales, marketing, warehousing, quality control, or distribution to establish the economic prong of domestic industry. In practice, this means that more companies could meet Section 337's requirements which would result in the ITC becoming a more attractive venue for litigants.
We are also continuing to watch how the Federal Circuit's decision in EcoFactor v. Google affects the calculation, and scrutiny of, damages in patent cases.
Copyrights:
We are following the key developments at the intersection of copyright, AI, and fair use. AI models are steadily improving as a result of being trained on massive volumes of data. In 2025, some trial courts began taking on the question of what constitutes fair use when training generative AI models with copyrighted material. In Bartz v. Anthropic (N.D. Cal.) and Kadrey v. Meta (N.D. Cal.), the Northern District of California found using legally obtained copyrighted books to train AI models constituted fair use. But the decisions also highlighted particular limitations of the fair use defense, such as using pirated material. These rulings are likely to spur a new wave of litigation in 2026, as rights holders and technology companies test the boundaries of fair use in increasingly varied AI applications.
Trade Secrets:
We are watching to see if trade secrets continue to take on a more prominent position in companies' IP strategy in relation to other IP regimes. With the modern workplace becoming more fluid, AI playing a major role in business' day-to-day operations, and patent eligibility uncertainty, we expect companies to continue to protect valuable competitive information through trade secrets and enforce these rights in court.
We are specifically watching the appeal at the Federal Circuit in Insulet Corp. v. EOFlow, Co. Ltd., No. 2025-1807 because of the potential implications on the statute of limitations analysis for trade secrets claims brought under the Defendant Trade Secrets Act ("DTSA"). EOFlow is appealing, among other issues, the U.S. District Court of Massachusetts' decision to deviate from the consistently applied "inquiry notice" standard for statute of limitations. EOFlow specifically argued that "[b]efore this case, every court to address the issue applied ‘inquiry notice' to the DTSA statute of limitations."
Under the "inquiry notice" standard, DTSA's 3-year statute of limitations begins to run "when the first event occurs that would prompt a reasonable person to inquire into a possible injury at the hands of the defendant." Epstein v. C.R. Bard, Inc., 460 F.3d 183, 187-88 (1st Cir. 2006). However, in the proceedings below between Insulet and EOFlow, the district court applied a "reasonable diligence" standard where the statute of limitations begins to run when either: (1) actually discovered or (2) "by the exercise of reasonable diligence should have been discovered." The district court relied on Supreme Court precedent in Merck & Co. v. Reynolds, 559 U.S. 633 (2010) which interpreted a securities fraud statute in arriving at its decision. In doing so, the district court even noted "[i]t of course gives this Court considerable pause to adopt a standard that is at odds with every other reported decision on the issue."
If the Federal Circuit affirms the district court's decision, trade secret litigants now have two standards to argue statute of limitations issues which could inject uncertainty into the analysis and potentially create circuit splits. Oral argument in this appeal was held in early January 2026, so we expect the Federal Circuit to issue its opinion sometime in late 2026.
Trademarks:
We are monitoring how "dupe culture" is reshaping trademark law in 2026 as companies aim to protect their brands and goodwill from lookalikes that thrive on social media hype. In a closely-watched litigation currently unfolding, Lululemon has sued Costco alleging Costco's Kirkland brand is selling "dupes" that infringe the trademarks, trade dress, and design patents of its popular Scuba hoodies, Define jackets, and ABC pants. Not only is Lululemon enforcing its IP in the courts, it has registered the wordmark "LULULEMON DUPE" in its efforts to control its branding and combat advertising of "dupes" across the internet. We are following other creative ways brands try to protect its IP.
The "dupe culture" debate is not limited to fashion. It's also extending to food product design and packaging. J.M. Smucker has sued Trader Joe's over its crustless peanut butter and jelly sandwiches claiming the products infringe its Uncrustables round shape with crimped edges design and packaging. Another high-profile food-sector case currently being litigated involves Mondelēz International filing suit against Aldi over its Oreo dupes, Chips Ahoy, and more. As consumers continue to look for low-cost alternatives on social media of their favorite brands, companies are working towards enforcing its IP in and out of the courts. Look out for how courts draw the line on infringement for these alleged "dupes" in 2026.
