The Quiet Cases That Could
Shake Up Patent Law This Supreme Court Term

September 30, 2025

The Supreme Court’s new term begins on October 6, and most eyes are fixed on the blockbusters—the constitutional showdowns and political battles destined for front pages. But the most consequential cases for the innovation economy may never make the headlines. They sit quietly in the Court’s cert pool, petitions that will likely be denied but still reveal where the pressure points in intellectual property law have shifted. And if even one is granted, the consequences could be profound: reining in administrative power at the Patent Trial and Appeal Board (PTAB), reshaping how courts weigh obviousness and damages, redrawing the boundary between patent and advertising law, or rebalancing the incentives that underpin pharmaceutical innovation. This Term, the future of IP law may be written not in the cases the Court hears—but in the ones it chooses not to.

The petitions now pending before the justices cut across nearly every corner of the IP landscape—from the structure of PTAB review and the role of administrative agencies to the heart of patent validity, infringement remedies, and the delicate balance between patent law and other legal regimes. Taken together, they offer a revealing snapshot of where the Court may next intervene—and where it might continue to leave the Federal Circuit’s handiwork undisturbed.

Administrative Power and the Boundaries of Judicial Authority

Agency Consistency and the PTAB’s Shifting Rulings: United Services Automobile Association v. PNC Bank

At the heart of USAA v. PNC Bank is a question that transcends patent law: can an agency issue contradictory decisions on materially identical issues without explanation? USAA secured a $218 million infringement verdict against PNC, only to see the PTAB invalidate the same patents—despite having upheld them previously. The Federal Circuit affirmed, finding no “contradiction” because the prior art and arguments differed.

USAA argues that this violates foundational administrative-law principles requiring agencies to treat like cases alike or justify departures. The tension echoes a broader divide between the D.C. Circuit—which has policed unexplained inconsistencies as “arbitrary and capricious” under the Administrative Procedure Act—and the Federal Circuit, which has shown more deference when the record changes. How the Court views this tension could have significant implications for PTAB practice and administrative adjudication writ large.

The stakes go beyond USAA’s patents. PTAB proceedings often unfold in parallel and can involve overlapping art, arguments, and parties. A ruling that agencies must more fully explain inconsistent outcomes could alter how the Board conducts reviews and how challengers frame their petitions.

Article III Limits and PTAB Authority: Gesture Technology Partners v. Unified Patents

Other petitions take aim directly at the PTAB’s authority. Gesture Technology Partners v. Unified Patents challenges whether the PTAB may adjudicate the validity of expired patents—property that, the petitioner argues, no longer falls within the agency’s purview. If the Court grants review, the decision could redraw the boundary between administrative adjudication and Article III judicial power.

This case tests how far agencies and courts can go in shaping patent rights after issuance—and whether Congress or Article III courts should define the contours of those rights.

Jurisdiction and Judicial Overreach: Clifford A. Lowe v. ShieldMark Inc.

Lowe v. ShieldMark frames a more classic Article III question. After determining that Lowe lacked standing due to a patent assignment, the district court nonetheless invalidated the patent. Lowe argues that once jurisdiction is found lacking, a court cannot opine on the merits—a principle as old as Steel Co. v. Citizens for a Better Environment. The Federal Circuit affirmed, but the petition contends that the court’s approach undermines constitutional limits on judicial power.

While the question is straightforward, the Court may view it as already settled. Still, if granted, Lowe could reinforce jurisdictional boundaries and clarify how courts should handle substantive questions once jurisdiction is lost.

Substantive Patent Doctrine: Obviousness, Damages, and Eligibility

Revisiting Secondary Considerations in Obviousness: Purdue Pharma LP v. Accord Healthcare Inc.

Few doctrines generate more litigation—or uncertainty—than obviousness. In Purdue v. Accord, the bankrupt drugmaker argues that the Federal Circuit applied an unduly rigid “nexus” requirement when discounting secondary considerations like commercial success and long-felt need in upholding the invalidation of its abuse-deterrent OxyContin patents. Purdue claims that approach conflicts with Graham and KSR, which caution against hindsight bias and emphasize the importance of objective indicia.

The stakes here are significant, especially for pharmaceutical and life-sciences innovators. A decision recalibrating the role of secondary considerations could reshape how patent prosecutors build records, how litigators structure invalidity defenses, and how courts balance real-world evidence against prior art.

Apportionment and the Scope of Patent Damages: R.J. Reynolds Vapor Co. v. Altria Client Services LLC

Reynolds v. Altria asks the Court to address another recurring problem: whether damages must be limited to the value of the claimed invention. Reynolds argues that a $95 million verdict improperly captured value from non-infringing features, contrary to Supreme Court precedent requiring damages to reflect only what was actually invented.

The petition highlights a persistent tension between expansive jury verdicts and doctrinal limits on recovery. A grant could signal a renewed emphasis on apportionment—a shift that would reverberate through damages modeling, expert testimony, and settlement strategy.

Patent Law at the Edges: Advertising, Labeling, and Overlapping Regimes

False Advertising and Patent Marking: Crocs Inc. v. Double Diamond Distribution Ltd.

Crocs sits squarely at the intersection of patent law and the Lanham Act. The Federal Circuit held that Crocs could face false-advertising liability for touting its shoes as “patented, proprietary, and exclusive.” Crocs warns that this opens the door to using the Lanham Act as a back-door enforcement mechanism, circumventing patent-specific doctrines like marking and notice.

Double Diamond responds that the case is about tangible misrepresentations, not patent rights. The dispute raises a larger question about the line between patent enforcement and consumer-protection law—and whether overlapping regimes risk undermining the coherence of the patent system.

Induced Infringement and “Skinny Labels”: Hikma Pharmaceuticals USA Inc. v. Amarin Pharma

The Court’s invitation for the Solicitor General’s views in Hikma v. Amarin signals real interest in the petition. The case asks whether a generic manufacturer can face induced-infringement liability based on public statements about a patented use—even when its FDA-approved label omits that use under a “skinny label.”

The issue strikes at the heart of the Hatch-Waxman balance. A decision expanding inducement liability could chill generic speech and complicate labeling strategies. A ruling narrowing it could make it harder for brand-name companies to enforce use patents. Either way, the case could significantly alter litigation risk and regulatory strategy in the pharmaceutical industry.

Procedure, Due Process, and Judicial Practice

Due Process and Trial Management: D.R. Burton Healthcare LLC v. Trudell Medical International Inc.

D.R. Burton asks the Court to clarify how far trial judges can go in managing their dockets before due process concerns arise. Burton argues that a North Carolina judge rushed the case to trial by cutting discovery short, depriving it of a fair opportunity to litigate. Although the Federal Circuit ordered a new trial, Burton contends the appellate court ignored prejudice to the defense.

While the Court rarely polices case-management decisions, the petition reflects broader concerns about procedural fairness and judicial discretion—issues that resonate beyond patent litigation.

Agency Discipline and Procedural Fairness: Shahriar Behnamian v. Coke Morgan Stewart

Behnamian’s petition, while less likely to succeed, raises issues of procedural fairness and agency discretion. A former USPTO examiner, he alleges that discriminatory leave practices led to his suspension and subsequent denial of registration to practice. He also disputes the Federal Circuit’s dismissal over technical service defects. While highly fact-specific, the case highlights tensions in administrative discipline and procedural rigor within the PTO.

Strategic Implications for Innovators, Litigators, and In-House Counsel

Even if the Supreme Court ultimately grants review in only one or two of these petitions, the questions they raise are already shaping how companies protect, enforce, and monetize their intellectual property. For general counsel, IP strategists, and litigators, several clear themes emerge.

1. Expect Heightened Scrutiny of PTAB Consistency and Authority

The USAA and Gesture Technology petitions target the PTAB’s decision-making practices. If the Court intervenes, it could impose stricter standards for explaining inconsistent outcomes, limit the Board’s reach over expired patents, or narrow the doctrines that allow post-grant invalidation. Companies should anticipate potential changes to PTAB procedure and consider how parallel proceedings may interact with district-court litigation.

2. Reevaluate Damages Strategies and Apportionment

Petitions like Reynolds and Power Integrations signal renewed scrutiny of patent damages. A decision emphasizing apportionment could significantly alter how plaintiffs build damages models and how defendants challenge them. Companies with high-value product ecosystems — particularly in electronics, telecom, and consumer tech — should audit damages strategies now.

3. Strengthen Secondary Considerations in Prosecution and Litigation

If Purdue is granted, it could reinvigorate the role of secondary considerations in obviousness determinations. Innovators—especially in life sciences—should bolster prosecution records with robust evidence linking commercial success and long-felt need to claimed inventions. Litigators should be prepared to develop more comprehensive evidentiary records around objective indicia.

4. Prepare for Shifts in Overlapping IP Regimes

Cases like Crocs and Dewberry highlight the potential for advertising and trademark law to shape patent enforcement. Companies should review marketing materials and labeling strategies with an eye toward Lanham Act exposure—especially when referencing patents or proprietary technologies.

The Hikma petition, meanwhile, could redefine inducement risk in the pharmaceutical space. Regulatory and litigation teams should coordinate closely on public statements, product labeling, and communications strategies.

Likely Outcomes: Best Bets, Dark Horses, and Long Shots

The Supreme Court is unlikely to grant certiorari in more than a handful of IP cases this Term—and often, none at all. Predicting which petitions will clear that high bar requires weighing not only the legal merits but also vehicle quality, doctrinal significance, and whether the Court perceives a need to intervene.

Best Bets: Realistic Candidates for Supreme Court Review

• United Services Automobile Association v. PNC Bank–APA consistency and agency accountability.

• Purdue Pharma v. Accord Healthcare–Secondary considerations and obviousness.

• Hikma Pharmaceuticals v. Amarin Pharma–Induced infringement and “skinny labels.”

Dark Horses: Plausible but Less Likely

• Gesture Technology Partners v. Unified Patents–PTAB authority over expired patents.

• Crocs Inc. v. Double Diamond Distribution–Lanham Act–patent boundary.

• Cellect LLC v. USPTO–Judicial doctrines vs. statutory rights.

• R.J. Reynolds v. Altria Client Services–Damages apportionment.

Long Shots: Unlikely This Term but Worth Watching

• Power Integrations v. Fairchild Semiconductor–Extraterritorial damages.

• Clifford A. Lowe v. ShieldMark–Jurisdictional boundaries.

• D.R. Burton Healthcare v. Trudell Medical–Trial management and due process.

• Shahriar Behnamian v. Stewart–Agency discipline.

Signals from the Cert Pool

The Supreme Court’s intellectual property docket is defined as much by its silence as by its decisions. Most petitions never see a merits brief, and the Court has often declined to revisit foundational issues like § 101 eligibility despite years of calls for clarity. Yet the petitions now pending for the 2025–26 Term suggest that change may be coming—if not in volume, then in substance.

The strongest contenders—USAA v. PNC, Purdue v. Accord, and Hikma v. Amarin—reach beyond narrow patent disputes to implicate administrative law, core validity standards, and the balance of innovation policy under Hatch-Waxman. Even if none are granted, the questions they raise are already shaping litigation strategy, prosecution approaches, and enforcement decisions across industries.

The dark horses and long shots matter too. They reveal where litigants are pushing doctrine—in PTAB authority, damages, extraterritorial reach, and procedural transparency—and where future petitions may emerge in sharper form. And the Court’s engagement with trademark and copyright disputes reminds us that the IP landscape is broader than any single statute.

For innovators, investors, and litigators, the lesson is clear: the ground beneath key areas of IP law is shifting. Agencies may face new limits on their discretion. Courts may recalibrate how they assess obviousness and damages. And the boundaries between patent law and neighboring regimes may change. Paying close attention to these petitions now—and planning proactively for the doctrinal shifts they signal—is the best way to stay ahead of the curve in a term that could quietly reshape the intellectual property landscape.