Specialist chapter: Top five US IP litigation developments for companies based in Asia heading into 2026

Specialist chapter: Top five US IP litigation developments for companies based in Asia heading into 2026

This is an Insight article, written by a selected contributor as part of IAM's co-published content. Read more on Insight

Companies based in Asia doing business in the United States face a shifting IP landscape that may impact their business interests and strategic thinking heading into 2026. The Federal Circuit’s Lashify decision makes the International Trade Commission (ITC), and its broad injunctive relief, more accessible by lowering the standard to satisfy the domestic industry requirement. The US Patent and Trademark Office’s (USPTO) evolving approach to inter partes review increases unpredictability, with ex parte reexamination offering a potential alternative. New USPTO eligibility guidance favours AI claims, but Federal Circuit doctrine remains unchanged, increasing uncertainty about the validity of AI-based patents issued under the new Patent Office guidance, and also in post-grant challenges of old patents for which the Patent Office will apply its new guidance. Recent Federal Circuit rulings may refine licensing strategy as it relates to calculating damages for patent infringement. And US trade secret litigation is on the rise, with larger verdicts and distinct ITC advantages.

The increased accessibility of the US ITC after the Federal Circuit’s Lashify decision.

The dichotomy between the USPTO’s new expansive approach to subject-matter eligibility and traditional Federal Circuit jurisprudence.

Lessons from recent Federal Circuit decisions on the use of patent licence agreements in litigation.

Companies based in Asia entering or operating in the US market face a changing IP litigation landscape, with developments in patent infringement and trade secret law creating new strategic considerations. Below are five recent developments that merit attention heading into 2026, each of which has practical implications for forum selection, licensing strategy and risk management for companies based in Asia.

International Trade Commission (ITC) complainants can seek exclusion orders to block infringing imports if they satisfy the “domestic industry” requirement. Traditionally, to satisfy this, complainants had to prove substantial investments in US activities that were more than those of a “mere importer”, which shut the ITC’s doors to many foreign manufacturers who conducted sales and marketing activities only in the Unted States.

Earlier this year, the Federal Circuit opened that door in Lashify v International Trade Commission (130 F 4th 948, 951 (Fed Cir 2025)), confirming that complainants may also rely on investments in US sales, marketing, warehousing, quality control or distribution activities (Id. at 963). This means that virtually any significant investment in the United States may satisfy the economic prong, making the ITC more accessible to companies based in Asia that manufacture their products outside the United States but that retain facilities in the United States for sales, marketing, distribution or warehousing.

This increased accessibility means that many more companies based in Asia – as well as their competitors – will now be able to access the ITC and its expansive injunctive remedies, adding a powerful arrow to their IP enforcement quivers. Accordingly, companies based in Asia with US operations should reassess their ability to enforce their IP rights at the ITC if they previously discounted it as a viable option.

Inter partes reviews (IPR) have been a staple in patent litigation since their inception in 2012. More recently, however, the US Patent and Trademark Office (USPTO) director’s use of discretionary denials has rendered IPRs less reliable. Earlier this year the USPTO director instituted a bifurcated process for IPR institution, separating discretionary denial from a merits determination (see 24 March USPTO Memorandum). Under this approach, the USPTO director evaluates a multitude of factors – including the status of any parallel litigation, whether the petition raises new invalidity arguments, and others – to determine whether to deny a petition without even reaching its merits (Id.).

One of the most significant factors used to support discretionary denial has been “settled expectations”, giving near-dispositive weight to the age of patents that issued six or more years earlier. For patentees, under this factor the passage of time creates “settled expectations” that the subject patent is valid. But, at the same time, the longer the patentee waits to assert, commercialise, mark or license the patent, the more likely a petitioner would have “settled expectations” that the patent would not be enforced and no IPR would be needed. That is often the case where the challenged patent issued six or more years before filing of an IPR petition because most IPRs are not filed until and in response to a patent litigation; yet the factor seemingly disregards this practical reality in favour of using settled expectations based on patent issuance date solely to support denial. In October, the USPTO director proposed new rules further restricting IPRs, including rules that would:

require patent challengers to forego any invalidity arguments in other venues; and

prohibit IPRs challenging patents that had already had their validity adjudicated on any ground.

As a result of these changes, companies based in Asia should consider, develop and file potential IPRs even more quickly.

Companies may also consider alternative USPTO challenges, such as ex parte reexamination (EPR). Although the challenger is no longer involved once an EPR is filed, a well-timed EPR can still eliminate or significantly narrow claims at issue in district court litigation and consequently drive settlement. Moreover, unlike IPR decisions, EPR decisions do not create estoppel in district court, giving companies more flexibility in their litigation strategy.