November 2026 – This month we announce the release of Steve Hansen’s book, Your Patent Sucks, and look at a recent Federal Circuit decision in which Google learned the power of using “secondary considerations” evidence to overcome an otherwise strong obviousness attack against a patent. We also discuss a new Government Accountability Office report finding that the Patent Office’s push to cut its backlog poses risks to examiner retention and examination quality.

Your Patent Sucks Is Now Available on Amazon

We are pleased to announce the release of Steve Hansen’s book, Your Patent Sucks, now available on Amazon in both Kindle and paperback formats. The book grew out of the “Your Patent Sucks” video series and years of defending patent infringement lawsuits and having clients come to us with patents that failed to provide any real value to them.

Many of the ways a patent can fail – it is easy to design around, it does not cover the patent owner’s own product, infringement cannot be detected, damages cannot be proven, or it is invalid over prior art nobody found – do not show up when the patent issues. They show up when you try to use it. The book walks through each of these problems and what can be done about them before a patent is filed, while it is being prosecuted, and after it issues. It is written for founders, engineers, business owners and in-house teams who are paying for patents and want ones that actually work.

“New inventors and budget-limited start-ups often can’t afford the type of focused patent advice they need when it matters most, during that critical period where they are building their business around a key innovation that needs to be protected. Even for those who can afford a patent attorney, discussions of what makes a patent strong or weak often happen on a random and piecemeal basis. So, I put what I know about the subject in one place and made it affordable,” said Mr. Hansen. If you have read the book, we would be grateful for an honest review on Amazon, and if you know someone who is about to file a patent application, please pass it along. The book can be found on Amazon here: https://www.amazon.com/dp/B0HLZ8QRPG .

Google Just Learned the Power of “Secondary Considerations of Non-Obviousness” Evidence the Hard Way

Many, if not most, obviousness fights are won or lost on the content of the prior art itself. The challenger finds two or three references that, taken together, show every element of a claim, explains why a person of ordinary skill in the art would have combined them, and the claim falls. A decision the Federal Circuit issued on November 5 is a useful reminder that this is not the end of the analysis – and that evidence a patent owner may not even realize it has can carry the day.

A Button You Press from Outside the Housing

In Google LLC v. DDC Technology, LLC, Nos. 2025-1315, -1316, -1330 (Fed. Cir. Nov. 5, 2026), Google challenged three smartphone-based, virtual reality (“VR”) viewer patents owned by DDC Technology in inter partes review (“IPR”) proceedings (U.S. Patent Nos. 9,420,075, 10,528,199 and 11,093,001). Early VR viewers of this type had a basic problem – once the phone was inside the housing, the user could not touch the screen. The patented viewer solved it with an input mechanism the user presses from outside the housing, which in turn contacts the phone’s touchscreen.

Google relied on a Japanese publication describing a viewer attachment with a “remote touch circuit” and a U.S. publication describing a button that actuates a phone’s touchscreen through a waterproof case. The Patent Trial and Appeal Board (“PTAB”) agreed with Google that the two references together disclosed every limitation of the main claims, and that a skilled artisan would have been motivated to combine them with a reasonable expectation of success. In most cases, that would have been the end of those claims. 

Copying and Praise Carried the Day

It wasn’t. DDC presented evidence of what the law calls “secondary considerations” (sometimes called “objective indicia”) of non-obviousness. The Board found that Google had copied DDC’s patented product and weighed that evidence “heavily.” It also found industry praise, to which it gave “moderate weight.” On balance, the Board concluded that the evidence of non-obviousness outweighed the evidence of obviousness, and the key claims survived. The Federal Circuit affirmed. The industry praise evidence was in the form of emails from Google’s own engineers. However, the Board found this evidence less compelling than the copying evidence. 

This case addressed an issue I found confusing as a new patent litigator many years ago. “Copying” is considered evidence of non-obviousness, but I thought that every infringer was necessarily “copying” because they infringed. However, infringing a patent and “copying” are not the same thing. This is where patent infringement is very different from copyright infringement.

Copying in the context of secondary considerations evidence refers to copying a product that has the patented features. Here, the Board compared Google’s viewer to DDC’s DODOcase VR 1.2 viewer and to the inventor’s prototype, side by side, and characterized the differences it found as “minor, non-material modifications.”

While the Google case involves a challenge to an issued patent, secondary considerations evidence can also be used during prosecution to overcome an obviousness rejection.

Practical Guidance for Patent Owners

In our experience, most patent owners do not think about secondary considerations until they are in the middle of a fight. By then, the best evidence may be hard to find. A few things are worth doing now:

Keep dated records of your product’s development. Prototypes, videos and the emails you send when you show the product to potential partners, customers and investors can all become evidence. In DDC’s case, an email exchange with a would-be business partner became key evidence. Although the Google case did not concern “unexpected results” evidence, this is also recognized secondary considerations evidence, so if you have any impressive test results that relate to the features you are patenting, make sure to keep them as well. 

Save the praise. Positive comments from customers, reviewers and especially competitors are evidence. Note who said it and in what context.

Make sure your patent covers your own product. Copying is shown by comparing the accused product to your product, but if the copied features are not covered by your patent claims, evidence of copying will not overcome an obviousness challenge. 

Build the story into the application. As we discuss in our book, Your Patent Sucks, hard evidence of secondary considerations is often not available while an application is pending, but a narrative of non-obviousness tethered to the claim language can still help during prosecution and later.

Obviousness is a hindsight-prone exercise. Evidence that a sophisticated company saw your invention, admired it and then built something very close to it is some of the most persuasive evidence there is that the invention was not obvious.

The GAO Says the Patent Office’s Backlog Push Comes at a Cost – What It Means for Your Application

Clients often ask us why it takes so long to get a patent. A report the Government Accountability Office (“GAO”) released on November 5, 2026 – U.S. Patent and Trademark Office: Patent Backlog Reduction Efforts Pose Risks to Examiner Retention and Examination Quality (GAO-27-108491) – offers part of the answer, along with some cautions about where things are headed. A copy of the report can be found here: https://www.gao.gov/products/gao-27-108491.

The Numbers

According to the GAO, the backlog of unexamined patent applications awaiting a first decision from the USPTO was about 838,000 in January 2025. In September 2025, the USPTO announced a goal of bringing the backlog under 599,000 – a level last seen in 2020 – without setting a time frame. To get there, the agency is requiring examiners to review more applications, has decreased examiner training and has expanded its use of artificial intelligence (“AI”) search tools.

There has been progress on the headline number. By August 2026, the backlog was down to about 756,000. However, the average wait for a final patentability decision had increased 11 percent since January 2025, and applicants have recently waited more than 20 months just for a first office action.

The bigger concern is people. Examiner attrition rose from 2.9 percent in fiscal year 2020 to 7.6 percent in fiscal year 2025, and it was still 7.6 percent as of August 2026. The GAO concluded that the USPTO is unlikely to reach its backlog goal before 2031 unless it brings attrition down. Stakeholders told the GAO that the current approach may not be sustainable, poses risks to examination quality and relies on AI search tools that are not yet reliable for patent searching. The GAO also noted that the USPTO paused a survey that measured stakeholder views on examination quality, and that the agency did not provide information the GAO requested. The report makes one recommendation: that the Director assess and address the risks the backlog effort poses to examiner retention and examination quality.

Why This Matters to Patent Owners

An examiner with less time, less training and less experience is more likely to miss relevant prior art. In the short term, that may look like good news for applicants – fewer rejections, faster allowances. In our experience, it is not. The goal of the examination process is not simply to get a patent, but to get a patent that will withstand validity challenges. A motivated infringer will find prior art that an examiner missed and will use it to invalidate the patent, whether in an ex parte reexamination, an inter partes review (“IPR”) or in litigation. A granted patent is presumed valid. It is not proven valid.

The longer waits matter too. You cannot enforce a pending patent application. Longer wait times provide competitors with more time to infringe without consequence. So, hopefully, the USPTO will develop a plan to reduce backlog without significantly sacrificing quality.