IP WATCHDOG
January 1, 2026, 12:15 PM
“Simply put, the pendulum that has swung so significantly away from patent owners over the past dozen years will begin to swing back.” – Wendy Verlander, Verlander LLP
On day one of 2026, we asked IP stakeholders to give their predictions for the year ahead on the IP front. From AI, copyright and fair use to patent reform and USPTO operations, here is what they had to say about what to expect in the New Year.
Happy New Year from all of us at IPWatchdog!!
Charley F. Brown, Ballard Spahr
“Looking ahead to 2026, I expect the center of gravity in AI IP disputes to move from inputs to outputs. The early cases addressed training copies. The next wave will focus on when model outputs become infringing, what substantial similarity means for synthetic text and images, and how plaintiffs can actually prove market substitution or dilution.
On fair use, I do not expect a quick Supreme Court answer. Instead, we will probably see more detailed district court opinions and, eventually, the first circuit level decisions that start to sketch a workable standard for AI training. Those decisions will reward parties who invest in real evidence about how users interact with models and how those uses affect traditional and emerging markets.
In parallel, I would expect a shift in business practice. Clean data, licensing, and provenance will become selling points and not just risk control. Boards and investors will ask harder questions about where training data came from, how long it is kept, and how well a company can document its story.
On the patent side, eligibility, AI inventorship, and enablement for broad AI claims will remain constant pressure points. Policy debates around PERA will continue in some form. Congress and the USPTO have clearly kept § 101 in the conversation as evidenced by the recent 2025 Senate Judiciary Committee hearing on the Patent Eligibility Restoration Act (PERA) and ongoing USPTO materials on subject matter eligibility.”
Joshua Budwin, McKool Smith
“2026 will be the year (before the midterm elections, I hope!) that we get some patent reform legislation passed. While it would be great to have meaningful injunctive remedies restored, the bipartisan Patent Eligibility Restoration Act (PERA) has the best potential chance of passage. Hopefully, everyone can agree that the state of the Section 101 jurisprudence is a mess and needs to be fixed! If we’re drinking the Kool-Aid we can hope there’s a chance for the STRONGER Patents Act as well, which would legislate some (but not all) of the reforms the current leadership of the Patent Office has instituted with respect to post-grant proceedings (like Inter Partes Review).
2025 was the year that the pendulum started to swing back in favor of innovators. I predict 2026 will see the pendulum swing a bit further in favor of innovators, especially if some legislation is passed. The reforms at the Patent Office made it more difficult for the big tech companies to have second and third bites at the Apple in parallel proceedings (e.g. before the Patent Office and district court). We’re nowhere close to equilibrium, and big tech still “throws its weight around,” but I’m bullish on the future!”
Gregory Cordrey and Jessica Bromall Sparkman, Jeffer Mangels Butler & Mitchell
“Heading into 2026, several unresolved and emerging issues will shape the IP landscape. At the Supreme Court level, practitioners are still awaiting final clarity on copyright laches and statute of limitations, issues that directly affect enforcement timing and long-term rights preservation.
Patent law will continue to evolve around artificial intelligence, particularly with respect to patent eligibility and inventorship. Courts and the USPTO are likely to confront whether AI-assisted inventions can support human inventorship or partial inventorship, an issue with major implications for ownership and enforceability.
On the prosecution side, further refinement of USPTO subject matter eligibility practice is expected. Subject Matter Eligibility Declarations (SMEDs) may become a more meaningful pathway to reduce examiner subjectivity, especially under Step 1 of the Alice/Mayo framework, by grounding eligibility determinations in objective evidence of the state of the art rather than examiner intuition.
Litigation activity is also expected to rise, particularly from non-practicing entities, alongside increased use of post-grant tools such as ex parte reexaminations and PGRs.
Finally, the Supreme Court’s decision in Cox Communications v. Sony Music will be closely watched for its treatment of contributory copyright infringement. The ruling should clarify the scope of ISP liability, the level of knowledge required for willfulness, and how far service providers must go to police user infringement.”
Randy McCarthy, Hall Estill
“Besides a continued wave of copyright owners providing follow-on class-action lawsuits against Anthropic and other generative AI systems, and other collaboration deals between major movie studios and generative AI companies, I expect new cases to increasingly be filed against generative AI companies that include unfair competition and trademark claims, with arguments of economic damages being caused by the operation of those systems. I also expect, or hope, that some of the issues relating to the ability of a generative AI company to generate images that may constitute copyright or trademark infringement will be resolved via summary judgment in some of the other pending cases to provide further, much-needed clarity in the law.”
Jeff Morton, Ph.D, Haynes Boone
“A prediction on the IP front is that there will be continued USPTO policy clarification with respect to AI and subject matter eligibility. The USPTO recently (December 4-5, 2025) issued three memoranda that focused on subject matter eligibility under 35 U.S.C. § 101. These updates purport to reflect USPTO Director Squires’ desire to recognize and promote artificial intelligence (AI) innovation, to reign in overbroad Section 101 rejections, which have impacted America’s leadership in AI innovation. It is reasonable to presume that further guidance will come from the USPTO on these AI/ Section 101 issues.”
Amol Parikh, Partner, McDermott Will & Schulte
“One of the biggest shifts we’re seeing is the continued tightening of inter partes review standards at the PTAB. It’s becoming much harder for petitioners to knock out patents, which means defendants lose some of the leverage they’ve historically had in settlement discussions. The practical result is that more cases will go deeper into litigation, and that raises the stakes for everyone involved.
At the same time, trade secrets are taking center stage. Companies are relying heavily on algorithms, data sets, and proprietary processes, which either aren’t a great fit for patent protection or are better kept confidential. With increased employee mobility and competitive pressures, protecting that know-how is going to be critical for staying ahead.
By the end of 2026, I expect to see an uptick in patent litigation filings and a surge in trade secret disputes. Companies will be rethinking their IP strategies considering the stricter IPR standards and competitive pressures. Companies that fail to integrate trade secret protection into their broader IP portfolio are going to find themselves exposed, both in court and in the marketplace.”
Justin Pierce, Venable
“While there will be continuing focus on model training in several pending court actions, I predict that there will be a growing amount of focus on Agentic AI, and specifically on what agents do, for example, when they are coding, publishing, purchasing, negotiating and transacting on behalf of another entity or human. Agent outputs, tool use, and cross-agent workflows may drive new copyright, trade secret, data privacy, and unfair competition claims.”
John Rogitz, Rogitz & Associates
“Looking ahead to 2026, the most important developments in IP are likely to center on whether recent efforts to stabilize the patent system can be sustained – and whether they can be grounded in something more durable than agency guidance. Absent congressional action or meaningful Supreme Court clarification, the USPTO will remain under pressure to fill gaps in areas like patent eligibility and PTAB practice. How far the Office can go without overstepping its role will be a central question to watch.
Artificial intelligence will also continue to test foundational patent doctrines. In 2026, we should expect increased scrutiny of inventorship, novelty, and nonobviousness, where AI tools play a significant role in each inquiry. Ideally, this will coincide with growing calls for clearer, technology-neutral standards that reward human ingenuity without penalizing the use of advanced tools.
Finally, global patent strategy will matter more than ever. As foreign jurisdictions continue to provide clearer and more predictable patent rights, inventors and businesses alike may increasingly look abroad unless the U.S. can offer comparable certainty. Whether the United States can reassert itself as a reliable forum for protecting innovation should be a defining theme in the year ahead.”
Domingos Silva, Saul Ewing
“In 2026, we will likely observe some of the ripple effects of the government’s increased scrutiny and de-monetization of higher education institutions, especially research universities. Across-the-board reductions in Federal support for universities have dramatically reduced the overall university budgets, and such reductions may lead to research project terminations and headcount reductions.
The U.S. research ecosystem has benefited for decades from the IP created at universities and research institutions. University-level research has been largely supported by Federal funds, and many companies, ranging from start-ups to large companies, license cutting edge IP from universities and bring these emerging technologies to the public. Faced with reduced budgets, university technology transfer offices will likely have limited budgets for protecting the innovations generated by the university researchers, and companies will have access to a more limited selection of university-generated IP for licensing and commercialization. It remains to be seen if industry will step up and establish more vibrant industry-university collaborations to support basic and applied research at universities, which could help support IP generation that would otherwise fall victim to overall reduction in federal funding.”
Ian Soule, Sterne, Kessler, Goldstein & Fox
“The past year’s developments both at the PTAB and in the broader patent ecosystem have started to tilt back toward a favorable enforcement environment. As a result, competitor-to-competitor litigation may once again be an attractive option for companies looking to assert market dominance or capture market share. Third-party financing options will also be on the table for funding disputes involving operating companies with commercially meaningful IP—including creative opportunities for contingency arrangements on patent prosecution.
Beyond pure private sector competition, public partnerships as part of the recently announced Genesis Mission, provide new opportunities for domestic investment in patent strategy to compete in the global marketplace in several industries, including advanced energy solutions, supercomputing, and biological and agricultural challenges. The National Laboratories, ARPA-E, and other leading institutions will need to monitor development and should encourage domestic patent activity as part of these efforts to tackle scientific issues of the generation.”
William Stroever, Cole Schotz
“This year we are looking forward to potential new developments in the trademark space in the cannabis industry. Trademark owners have long tried to negotiate the tension between federal and state trademark law by registering trademarks for cannabis-adjacent goods and services. There has been uncertainty on the part of trademark owners as to how strongly they can enforce their trademark rights, and trademark infringers have often tried to skirt liability by relying on an illegality defense to argue that they cannot be sued because cannabis is federally illegal.
Two 2025 developments have created a stir that we could see new wrinkles in the cannabis industry in 2026. The first are renewed comments at the federal level that some form of cannabis may be federally legalized. These are not brand new, but any talk will always perk ears up. The second development is the District Court of Colorado’s decision in BBK Tobacco & Foods LLP v. J&C Corp., allowing a cannabis trademark plaintiff to sue in federal court for infringement of trademarks for cannabis-adjacent products. We are looking forward to seeing whether this decision opens the door to more regular enforcement litigation in the world of cannabis trademarks.”
Wendy Verlander, Verlander LLP
“It is highly likely the Patent Office will enact its proposed rules concerning IPR institution. Those include stipulations not to pursue invalidity challenges in other forums and the so-called “one and done” rules, significantly limiting institution based on adjudication in other forums. Those rules will have a cascading effect on the entire patent ecosystem. It will significantly reduce the number of IPRs filed and, of those, reduce the number instituted. It will also limit the number of patent challenges against a single patent and return the adjudication of patent validity mostly to the courts. All of which will result in the quieting of patent title that will, in turn, increase the value of patents. Increased patent value will foster more patent monetization, more case filings and more litigation funding.
Simply put, the pendulum that has swung so significantly away from patent owners over the past dozen years will begin to swing back. But, before inventors bring out the champagne, they should remember that, without legislative change, all of these changes can be easily reversed. And, of course, there will still be the 101 challenges.”
Ben Volk, Thompson Coburn
“I expect 2026 to provide interesting developments in 35 USC 101 doctrine for inventions that address artificial intelligence (AI) and machine learning (ML), particularly with respect to how the USPTO will examine patent applications focusing on AI/ML inventions.
In 2025, the courts appear to have adopted an AI-skeptical approach to patent-eligibility (see Recentive Analytics, Inc. v. Fox Corp. (Fed Cir. 2025)), whereas the USPTO has adopted an AI-optimistic approach to patent-eligibility (see Ex Parte Desjardins (PTAB 2025) and public statements by Director Squires). To address this potential rift, the USPTO will likely issue additional guidance on patent-eligibility for AI/ML inventions. The USPTO’s recent memorandum regarding the use of declarations by applicants to establish subject matter eligibility is a helpful start, and I foresee new guidance from the USPTO in 2026 on topics such as (1) where the burden of proof falls with respect to examiner allegations that a claimed AI/ML technique is merely an already “established method” for AI/ML as per Recentive Analytics (and thus an indicator of patent-ineligibility) and (2) the proper role for the specification when assessing whether a claimed AI/ML technique can be characterized as a “practical application” or “something more” for purposes of patent-eligibility.”