The Meter Is the Problem: What AI Changed in Patent Litigation, and What We’re Doing About It
November 6, 2026 | Firm NewsWhat AI actually does in my practice
I want to be specific, because the claims made for AI in law are usually too vague to check. A competitor case generates volume on a scale that used to consume associate teams for months. Document productions run to hundreds of thousands of pages. Source code and technical documents have to be found, organized, and understood before anyone can take a position. The prior art has to be swept, and swept again, before claim construction. Expert reports have to be tested against the underlying record. In my practice today, AI tools do the first pass through that volume — sorting, clustering, and flagging the documents and code a lawyer then reads closely. They do the first sweep of prior-art and legal research, which a lawyer then verifies and builds on. They support the analysis behind claim charts and infringement and invalidity positions, so the lawyers’ time goes to the positions themselves rather than to assembling the raw material underneath them. None of this makes a patent case small. It makes the preparation proportionate: the weeks of first-pass billable work that used to be the unavoidable floor under every case are no longer unavoidable.What AI does not do
It does not exercise judgment, and in a competitor case judgment is nearly everything. It does not decide which claim construction position will persuade the judge at Markman — the hearing on which these cases so often turn. It does not judge whether an expert will hold up, or what the other side’s best argument really is, or what a case is worth, or when to settle and when to push toward trial. It does not negotiate. It does not stand up in court. I have argued before the U.S. Supreme Court and served as a special master, and I can tell you the part of this work that decides cases has not changed. Every filing that leaves this firm is reviewed and signed by a lawyer here. AI has made the preparation cheaper. The judgment is the same judgment it always was — it is just no longer buried under months of first-pass work.So where should the savings go?
If the first pass through a case now costs a fraction of what it did, hourly billing has no way to show the client the saving. The meter looks exactly the same whether the first pass took a week or an afternoon, and nothing on the invoice tells the client which one it was. The alternative is to hand the efficiency to the client in the only form that matters to a board: a price, stated in advance, that does not move. None of this requires hourly firms to be acting in bad faith. An honest firm’s hourly charge for the same matter should already be going down — and I would argue it has for my clients; I am happy to offer references who will say so. But the gap that remains is informational. Nobody can predict in advance by how much they will save. And the meter introduces disputes and questions of its own — line items challenged, judgment calls re-argued on an invoice, long after the work was done and for reasons that have nothing to do with its quality. We would rather eliminate those disputes than win them. A stated price does: the saving is agreed before the work begins, and there is nothing left to dispute. We are choosing the second one.The offer
On suitable cases — and only with the approval of the firm and the lawyer who originates the matter — we now offer phased fixed fees for IP litigation, including patent litigation. The case is divided into its natural phases: the response to the complaint, claim construction, discovery, expert work, dispositive motions, trial preparation, trial. Each phase carries one stated price, agreed before the phase begins. A client can budget phase by phase, and a board can approve a number instead of authorizing a process. Complexity is real, and pretending otherwise would just rebuild the hourly meter under a new name. So each case is scored against a rubric we will publish — a weighting from 1 to 5 that accounts for the number of rights in suit, the parties, the accused products, the technical complexity, parallel proceedings such as a PTAB case running beside the district court action, the pace of the schedule, and the exposure. The score is re-examined every six months, and it can move down as well as up as a case narrows. A fixed fee means the firm carries the variance inside a phase; that certainty is worth something, and it is priced in — openly, in the number itself. The selectivity is deliberate, and for cases of this size it is a feature. A firm that will fix a price on any case, sight unseen, is not pricing the case — it is pricing its own optimism. We offer this where the phases can be defined honestly, and we say so where they cannot. We are not inventing the idea that litigation can be bought this way. Johnson & Johnson’s legal department has for years priced litigation in component units, calibrated by the complexity of the matter. England’s courts now assign civil cases to complexity bands, each with stage-by-stage fixed costs. Sophisticated corporate buyers and at least one major court system have already concluded that a case’s price can be stated by phase and complexity. We think a company defending — or bringing — a competitor case should be able to buy its counsel the same way. I am a registered patent attorney, and this firm tries patent cases; Chambers USA ranks me Band 3 for intellectual property patent litigation in Washington. The point of this article is not the résumé. It is that the economics of the work have changed, and the pricing should say so. The full fee schedule follows this article and is available on request. If you have a case you would like us to score, we will tell you the weighting and the phase prices before you owe us anything beyond the conversation.Losing a § 101 Fight Is Not “Exceptional”: Federal Circuit Reverses $9.15 Million Fee Award in ChromaDex v. Elysium Health
November 3, 2026 | Firm NewsOn October 30, 2026, the Federal Circuit reversed a $9,151,133 attorneys' fee award under 35 U.S.C. § 285, holding that the district court abused its discretion when it treated the Supreme Court's Myriad decision as having foreclosed the patentee's eligibility position from the start. ChromaDex, Inc. v. Elysium Health, Inc., No. 2025-1227 (Fed. Cir. Oct. 30, 2026) (nonprecedential).
Background
ChromaDex and the Trustees of Dartmouth College own U.S. Patent Nos. 8,197,807 and 8,383,086, directed to dietary supplement compositions containing isolated nicotinamide riboside (NR), a form of vitamin B3. NR occurs naturally in cow's milk, but only in trace amounts, bound to whey protein and not bioavailable. In 2023, the Federal Circuit affirmed summary judgment that the asserted claims are patent-ineligible under § 101 as directed to a product of nature. ChromaDex, Inc. v. Elysium Health, Inc., 59 F.4th 1280 (Fed. Cir. 2023).
Elysium then moved for fees under § 285. The district court (Chief Judge Connolly, D. Del.) found the case exceptional: in its view, Myriad "addressed the specific issue presented," ChromaDex's summary judgment briefing "mentioned Myriad just once" and made no attempt to distinguish it, and ChromaDex's position "stood out" from the dozens of other § 101 challenges the court had seen. It awarded Elysium $9,151,133, including roughly $3.9 million in fees incurred before the Markman hearing.
The Reversal
The Federal Circuit (Prost, Chen, and Stoll, Circuit Judges; opinion by Judge Chen) held that it was "legal error to treat Myriad as the beginning and the end of the patent-eligibility analysis." Myriad answered one question — that merely isolating a naturally occurring molecule, without more, does not confer eligibility. But ChromaDex's principal argument went further: under Diamond v. Chakrabarty and Natural Alternatives International, Inc. v. Creative Compounds, LLC, 918 F.3d 1338 (Fed. Cir. 2019), it contended that its compositions had markedly different characteristics and significant utility over milk, because isolated NR can increase NAD+ biosynthesis in a way naturally occurring NR cannot — an argument backed by expert testimony. Evaluating that position required several considerations beyond Myriad, and the Federal Circuit's own 2023 decision had worked through them at length before rejecting the argument.
Under Octane Fitness, a case is exceptional when it "stands out from others with respect to the substantive strength of a party's litigating position," and a position need not be correct to be reasonable — it must be "exceptionally meritless" to support a fee award. Because ChromaDex's position rested on a genuine, precedent-based argument, it was not exceptionally meritless, and the district court's contrary legal premise was an abuse of discretion. The court also refused Elysium's request for a remand: neither the district court's analysis nor the record could support an exceptionality finding, and fee disputes should not become "a second major litigation."
What It Means
- Losing is not standing out. A patentee who loses a hard-fought § 101 motion does not face fee exposure merely because a prominent precedent pointed the other way. The court must assess the position actually advanced.
- Anchoring matters. ChromaDex's argument survived fee review because it was built on on-point Federal Circuit precedent (Natural Alternatives) and expert support — not on ignoring Myriad.
- Fee motions get one fair shot. By reversing outright rather than remanding, the court signaled that exceptionality cannot be rebuilt on a second record — a meaningful check on fee-driven satellite litigation.
The full opinion is available from the Federal Circuit: https://www.cafc.uscourts.gov/opinions-orders/25-1227.OPINION.10-30-2026_2779593.pdf
Court Dismisses DentalEZ Claims Against Professional Sales Associates
October 27, 2026 | Firm NewsThe U.S. District Court for the Western District of Washington has dismissed Professional Sales Associates, Inc. ("PSA") from DentalEZ, Inc. v. Firstar Dental Company, No. C25-1368JLR. In an order dated October 20, 2026, Judge James L. Robart granted PSA's motion to dismiss and dismissed DentalEZ's two Lanham Act claims against PSA — false advertising and false designation of origin — with prejudice and without leave to amend. The order also dismissed DentalEZ's Washington Consumer Protection Act claim and its request for punitive damages, which were asserted against Firstar.
DentalEZ, a manufacturer and wholesaler of dental equipment, alleged that PSA and Firstar used a presentation to pitch Firstar's competing products to national dental dealers. The court held the presentation was not commercial advertising to the relevant purchasing public and that DentalEZ had not identified an actionable false statement or source identifier under the Lanham Act.
Lowe Graham Jones represented PSA. Only DentalEZ's tortious-interference claim against Firstar survives.
Read the order (PDF).
Lawrence Graham Appointed Technical Advisor in Eastern District of Texas Patent Case
October 27, 2026 | Firm NewsLGJ Ranked in Chambers USA 2026
October 27, 2026 | Firm NewsLGJ Attorneys Selected for 2026 Washington Super Lawyers List
October 27, 2026 | Firm NewsDamages Experts Face a Harder Gate — EcoFactor, Inc. v. Google LLC
October 27, 2026 | Intellectual Property News, Legal NewsDecision: EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc) — U.S. Court of Appeals for the Federal Circuit, decided May 21, 2025.
The holding. In a rare en banc decision — the court's first in a utility-patent case since 2018 — the Federal Circuit vacated a jury's award of more than $20 million against Google and ordered a new trial on damages. EcoFactor's damages expert had testified that prior licensees had agreed to a per-unit royalty, and built his reasonable-royalty opinion on that rate. The problem was in the documents themselves: the three licenses he relied on were lump-sum agreements, and two of them expressly stated that the lump sum was not based on sales or indicative of a per-unit rate. The rate appeared only in one-sided recitals stating EcoFactor's own belief. The court held that where the evidence contradicts a critical fact the expert relied on, the trial court fails its gatekeeping duty under Federal Rule of Evidence 702 by letting the expert testify. Reliability of the expert's basis is a question of admissibility, not merely of weight for the jury.
What it means. EcoFactor raises the bar for damages proof in patent cases, and it cuts both ways. Patent owners can no longer count on getting a royalty opinion to the jury simply because an expert is willing to state it; the opinion must be anchored in facts the record actually supports, and the other side will read the underlying licenses closely. Accused infringers, meanwhile, have a stronger Daubert weapon — and a real prospect of a new trial, rather than just a remittitur, when an expert's foundation collapses. The decision also matters at the front end of a case: damages experts should be retained early, their royalty theories should be tested against the actual license language before the report is written, and settlement licenses should be drafted with an eye to how their terms will read in a future damages fight.
Sources:
- Opinion: EcoFactor, Inc. v. Google LLC, 137 F.4th 1333 (Fed. Cir. 2025) (en banc)
- Also consulted: Venable LLP, "Federal Circuit Issues Rare En Banc Decision on Patent Damages" (May 27, 2025); Fish & Richardson, "The Federal Circuit Continues to Evolve Its Daubert Gatekeeping Framework: Willis and Exafer" (2026)
You Still Need Permission to Trademark Someone Else’s Name — Vidal v. Elster
October 27, 2026 | Intellectual Property News, Legal NewsDecision: Vidal v. Elster, 602 U.S. 286 (2024) — U.S. Supreme Court, decided June 13, 2024 (unanimous in result).
The holding. The Lanham Act's "names clause" — which bars registration of a trademark that identifies a living person without that person's written consent — does not violate the First Amendment. Steve Elster sought to register "TRUMP TOO SMALL" for T-shirts, as political commentary. The Patent and Trademark Office refused; the Federal Circuit sided with Elster, reading the Court's earlier decisions striking down the bars on disparaging and scandalous marks as settling the issue. The Supreme Court reversed. Trademark law has always been content-based — it has to be, since registration turns on what the mark says — and the names clause is viewpoint-neutral: it applies whether the use of the name is flattering or mocking. The Court rested on history and tradition, noting that restrictions on registering other people's names have coexisted with the First Amendment since the beginning of trademark law.
What it means. The decision draws a line the Court had left open in its earlier trademark cases: not every content-based registration rule is unconstitutional. The bars on disparaging and scandalous marks fell because they discriminated by viewpoint; the names clause survives because it does not. For brand owners and public figures, the practical point is simple — the names clause remains a working tool to stop others from registering your name as a brand. For applicants, political commentary is still protected speech, and Elster remains free to sell his T-shirts; what he cannot do is claim the exclusive federal benefits of registration for a mark built on someone else's name without their consent.
Sources:
- Opinion: Vidal v. Elster, 602 U.S. 286 (2024)
- Also consulted: Mayer Brown, "US Supreme Court Decision Alert: Vidal v. Elster, No. 22-704" (June 2024); Brown Rudnick, "Supreme Court: Ban on Registering Someone Else's Name as a Trademark Withstands the First Amendment" (June 2024)
Design Patents Just Got Easier to Challenge — LKQ Corp. v. GM Global Technology Operations LLC
October 27, 2026 | Intellectual Property News, Legal NewsDecision: LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc) — U.S. Court of Appeals for the Federal Circuit, decided May 21, 2024.
The holding. Sitting en banc for the first time in a patent case since 2018, the Federal Circuit threw out the Rosen-Durling test that had governed design-patent obviousness for more than forty years. Under that test, a challenger first had to find a single prior-art design that was "basically the same" as the claimed design; if none existed, the obviousness inquiry stopped there. The court held that test was improperly rigid and inconsistent with the Supreme Court's flexible approach to obviousness in KSR. Design patents must now be judged under the same flexible obviousness framework as utility patents: a design can be obvious based on a combination of prior-art references, judged from the perspective of an ordinary designer, without first clearing the single-reference hurdle.
What it means. This is the most consequential design-patent decision in a generation. Design patents — on car fenders, phone shapes, furniture, packaging — were historically hard to invalidate on obviousness grounds, and that durability was part of their value. LKQ changes the calculus on both sides. Patent owners should expect more obviousness challenges, including at the PTAB, and should build their portfolios and their prosecution records with that in mind: document the design choices, the problems solved, and the commercial success tied to the look of the product. Accused infringers and aftermarket competitors, meanwhile, have a genuinely new invalidity tool — combinations of prior designs that would previously have been barred at the threshold are now fair game. The decision also leaves open how the flexible test will be applied in practice, so the next few years of cases will matter as much as this one.
Sources:
- Opinion: LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc)
- Also consulted: Morrison Foerster, "Federal Circuit Overrules Obviousness Test for Design Patents" (May 23, 2024); Ballard Spahr, "Full Federal Circuit Eliminates 'Improperly Rigid' Tests for Design Patent Obviousness" (May 2024)
U.S. Trademark Law Stops at the Water’s Edge — Abitron Austria GmbH v. Hetronic International, Inc.
October 27, 2026 | Intellectual Property News, Legal NewsDecision: Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023) — U.S. Supreme Court, decided June 29, 2023.
The holding. The Lanham Act, the federal trademark statute, does not reach infringing conduct that happens entirely abroad. Hetronic, a U.S. company, sued a former European distributor that was selling look-alike remote controls for heavy machinery in Europe. A jury had awarded Hetronic roughly $96 million, nearly all of it for foreign sales. The Supreme Court vacated that award, holding that the Act's infringement provisions apply only to conduct where the use of the mark in commerce is domestic — in practice, where the infringing use itself occurs in the United States. Foreign sales, even of goods that copy a U.S. brand, are outside the statute's reach unless the infringing use itself is domestic.
What it means. For U.S. brand owners, the decision is a blunt reminder that a U.S. trademark registration is not a worldwide injunction. If the counterfeiting or copying is happening overseas, the remedy has to be found overseas — through foreign trademark registrations, foreign courts, customs enforcement, or contractual controls on distributors. For defendants, the case limits exposure in U.S. litigation: damages must be tied to domestic infringing use, not to a global sales figure. And for companies negotiating distribution agreements, it raises the stakes on the contract itself — territory, trademark use, and post-termination obligations — because once a distributor goes rogue abroad, U.S. trademark law may no longer be the tool that stops it.
Sources:
- Opinion: Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023)
- Also consulted: Akerman LLP, "The Supreme Court Limits the Extraterritorial Application of the Lanham Act" (July 10, 2023)