Older Patents Stay Hard to Challenge at the USPTO, Leaving AI Companies to Fight Validity in Court On October 19, the Supreme Court denied review in 𝘎𝘰𝘰𝘨𝘭𝘦 𝘓𝘓𝘊 𝘷.

On October 19, the Supreme Court denied review in Google LLC v. VirtaMove, leaving in place the USPTO's "settled expectations" policy. Under the policy, the Office weighs how long a patent has been in force when deciding whether to hear an inter partes review (IPR), the Patent Trial and Appeal Board proceeding accused infringers often use to challenge validity. As Blake Brittain reported for Reuters, Google argued the policy shields older patents from post-issuance review and has helped fuel a surge in patent litigation.

The Office denied Google's IPR petitions against two VirtaMove server-software patents in force more than 14 years, citing "strong settled expectations," even though no trial date had been set in the parallel lawsuit. USPTO statistics show the broader downward trend. The Office instituted review on 41% of petitions decided in fiscal year 2026 (the USPTO reports IPR and post-grant review together; IPR made up 90% of filings), down from 68% in fiscal year 2024, and on 36% of petitions against electrical and computer patents, a category including AI technologies.

Mixed Litigation Data Surrounding the Surge Claim

The litigation data on Google's surge claim is mixed. Lex Machina counted 4,547 district court patent cases in 2025, a record. But filings had already climbed from 3,111 in 2023 to 3,803 in 2024, before settled expectations appeared in a March 2025 USPTO memo. Unified Patents reports first-half 2026 filings down 18.4% from the first half of 2025, then a third quarter of 1,166 cases, the most since the second quarter of 2025, with non-practicing entities (NPEs) filing about 56%. The counts show when filings rose, but do not confirm why.

Key Takeaways for AI Companies and Patent Counsel

  • A product launched in 2024 can face a patent filed a decade or more earlier, and the older the patent, the less likely Board review becomes.
  • When review is denied, most of the validity fight moves to district court, where defense through trial can cost millions of dollars.
  • In VirtaMove, the Office denied review because the patents were in force more than 14 years and Google did not persuade the Office that review was an appropriate use of Board resources. A petition against an older patent may need to show a particularly strong unpatentability challenge or a compelling economic, public health, or national security interest.
  • Freedom-to-operate and acquisition diligence should highlight older third-party patents as risks to design around or license, rather than assume IPR can remove them.

Year-end filing counts will test whether the third-quarter rise reflects the litigation increase Google described, or merely a fluctuation with this year running below 2025 through midyear.

Sources

  1. 𝘎𝘰𝘰𝘨𝘭𝘦 𝘓𝘓𝘊 𝘷. 𝘝𝘪𝘳𝘵𝘢𝘔𝘰𝘷𝘦 𝘊𝘰𝘳𝘱., No. 25-1230 (U.S. cert. denied Oct. 19, 2026): https://www.supremecourt.gov/docket/docketfiles/html/public/25-1230.html
  2. IPR2025-00487, Paper 11 (July 11, 2025), in the petition appendix: https://www.supremecourt.gov/DocketPDF/25/25-1230/405355/20260427110343350_Google%20v.%20Virtamove%20Pet.%20Appendix.pdf
  3. USPTO, Interim Processes for PTAB Workload Management (Mar. 26, 2025): https://www.uspto.gov/sites/default/files/documents/InterimProcesses-PTABWorkloadMgmt-20250326.pdf
  4. USPTO, PTAB Trial Statistics (Sept. 2026): https://www.uspto.gov/sites/default/files/documents/trial_stats_september2026.pdf
  5. Lex Machina, Patent Litigation Trends (Aug. 2026): https://www.lexisnexis.com/community/insights/legal/lex-machina/b/lex-machina/posts/patent-litigation-trends
  6. Unified Patents, Patent Dispute Reports: https://www.unifiedpatents.com/insights/tag/Patent+Dispute+Report
  7. IPWatchdog, The True Cost of Patent Infringement Litigation: Enforcement and Defense in a Complex Market (Oct. 1, 2026) (discussing AIPLA 2025 Report): https://ipwatchdog.com/2026/10/01/the-true-cost-of-patent-infringement-litigation-enforcement-and-defense-in-a-complex-market/