Experts Forecast Key Intellectual Property Developments in 2026, Highlighting AI, Patent Reform, and Litigation Trends

On the first day of 2026, leading intellectual property stakeholders shared their forecasts for the year ahead, touching on artificial intelligence, copyright, patent reform, and USPTO operations.

Wendy Verlander of Verlander LLP observed, “Simply put, the pendulum that has swung so significantly away from patent owners over the past dozen years will begin to swing back.” She anticipates that AI IP disputes will shift focus from training data inputs to the outputs generated by AI models. Early cases addressed the use of training copies, but the next wave will examine when AI-generated content becomes infringing, the meaning of substantial similarity in synthetic text and images, and how plaintiffs can prove market substitution or dilution.

Verlander also expects a gradual development of fair use standards. Rather than a swift Supreme Court ruling, more detailed district court opinions and circuit-level decisions will emerge, outlining workable standards for AI training. These rulings will favor parties presenting concrete evidence about user interactions with AI models and their impact on traditional and emerging markets.

She further predicts a shift in business practices, with clean data, licensing, and provenance becoming competitive advantages rather than mere risk controls. Boards and investors will increasingly scrutinize the origins, retention, and documentation of training data.

On the patent front, Verlander highlighted ongoing pressure points including patent eligibility, AI inventorship, and enablement for broad AI claims. She noted that policy debates around the Patent Eligibility Restoration Act (PERA) will continue, as evidenced by the 2025 Senate Judiciary Committee hearing and ongoing USPTO materials addressing subject matter eligibility.

Another expert expressed optimism that 2026 could see the passage of patent reform legislation before the midterm elections. While meaningful injunctive remedies restoration remains a goal, the bipartisan PERA bill is viewed as the most viable candidate for enactment. The expert emphasized the need to fix the “mess” of Section 101 jurisprudence and suggested that the STRONGER Patents Act might also gain traction, codifying some reforms related to post-grant proceedings such as Inter Partes Review.

Reflecting on 2025, this commentator noted the beginning of a pendulum swing favoring innovators, with the Patent Office reforms making it more difficult for large tech companies to pursue parallel challenges against patents. Although equilibrium has not been reached and big tech continues to exert influence, the outlook for innovators is positive.

Looking at unresolved issues, another practitioner highlighted ongoing Supreme Court considerations regarding copyright laches and statute of limitations, which affect enforcement timing and rights preservation. Patent law will continue evolving around AI, particularly concerning patent eligibility and inventorship. Courts and the USPTO are expected to address whether AI-assisted inventions can support human or partial inventorship, a question with significant implications for ownership and enforceability.

On prosecution, further refinement of USPTO subject matter eligibility practice is anticipated. The use of Subject Matter Eligibility Declarations (SMEDs) may become a more effective tool to reduce examiner subjectivity under the Alice/Mayo framework by grounding eligibility determinations in objective evidence rather than intuition.

Litigation activity is projected to increase, especially from non-practicing entities, alongside greater use of post-grant tools such as ex parte reexaminations and post-grant reviews (PGRs).

The Supreme Court’s decision in Cox Communications v. Sony Music will be closely monitored for its impact on contributory copyright infringement. The ruling is expected to clarify the scope of internet service provider liability, the knowledge threshold for willfulness, and the extent of policing required to prevent user infringement.

Regarding generative AI, experts foresee a continued wave of copyright owners filing class-action lawsuits against companies like Anthropic. Additionally, collaborations between major movie studios and generative AI firms are expected to increase. New cases may also arise involving unfair competition and trademark claims, with allegations of economic damages caused by AI operations. Some pending cases may resolve via summary judgment, providing much-needed legal clarity on AI-generated images and potential copyright or trademark infringement.

On the USPTO front, recent policy clarifications regarding AI and subject matter eligibility are anticipated to continue. In December 2025, the USPTO issued three memoranda focusing on Section 101 eligibility, reflecting Director Kathi Vidal’s commitment to promoting AI innovation and curbing overbroad rejections that have hindered U.S. leadership in AI.

A notable trend is the tightening of inter partes review (IPR) standards at the Patent Trial and Appeal Board (PTAB), making it more difficult for petitioners to invalidate patents. This shift reduces defendants’ leverage in settlements, leading to more cases advancing deeper into litigation and raising stakes for all parties.

Simultaneously, trade secrets are gaining prominence as companies increasingly rely on algorithms, data sets, and proprietary processes that may not fit well within patent protection or are better kept confidential. With heightened employee mobility and competitive pressures, robust trade secret protection will be critical.

By the end of 2026, an uptick in patent litigation filings and trade secret disputes is expected. Companies will reassess their IP strategies in light of stricter IPR standards and market competition. Those neglecting trade secret safeguards risk exposure in both litigation and commercial arenas.