The intellectual property (IP) landscape continues to evolve rapidly, with significant developments impacting patent, trademark, copyright, and trade secret holders. From shifting patent eligibility standards to the growing impact of artificial intelligence (AI) on copyright and trademark law, staying informed is critical for navigating the year ahead.

Members of McDermott Will & Schulte’s Intellectual Property Group provided an in-depth discussion on recent trends and what to expect in 2026.

Top takeaways included:

1. The Section 101 and post-grant review landscape: Through new guidance and decisions such as Ex Parte Desjardins, the United States Patent and Trademark Office (USPTO) under Director Squires is signaling a move toward greater clarity and inclusivity in patent eligibility under Section 101, particularly for emerging technologies such as AI, medical diagnostics, and cryptocurrency. Under the second Trump administration, the USPTO also restored broad Patent Trial and Appeal Board discretion to deny institution of inter partes review, with recent decisions emphasizing factors such as parallel proceedings involving the patents at issue, prior proceedings that have resulted in validity determinations, and the protection of “settled expectations.” Director Squires has further centralized authority by personally deciding institution without detailed explanations, thereby heightening uncertainty and risk for petitioners even in cases presenting strong merits.
2. Safeguarding your competitive edge: Trade secret protection in 2026 and beyond: Trade secrets are under unprecedented pressure from employee mobility, cyberattacks, and global competition. Courts now require clear, documented safeguards, not just policies on paper, to preserve protection. The cost and business disruption of misappropriation outweighs the investment in robust controls. Effective trade secret programs integrate legal frameworks, operational discipline, and technical security measures, creating a layered defense that evolves with business and technology risks.
3. AI Developments in Trademark and Copyright: The rapidly evolving AI landscape continues to impact numerous aspects of intellectual property. Recent cases from 2025 highlight that fair use determinations remain highly fact-specific when evaluating the use of copyrighted works for generative AI training. Courts have drawn clear distinctions between the use of authorized versus pirated content, underscored the impact such use would have on the potential market for the protected works, and signaled that trademark claims under the Lanham Act may increasingly complement copyright infringement actions. Looking ahead, businesses should embrace a future-focused approach to IP initiatives — including tailored and strategic contractual provisions and robust enforcement mechanisms — to safeguard both their intellectual property assets and broader business interests.
4. The current IP life sciences landscape and potential implications of prosecution laches: Recent Federal Circuit decisions highlight that written description and enablement remain critical and highly litigated in life sciences patents, with cases like In re Entresto addressing them in the context of later-arising technology, and Duke v. Sandos, and Seagen v. Daiichi Sankyo illustrating pitfalls in overly broad disclosures, functional limitations, and enablement when there is too much unpredictability. Meanwhile, prosecution laches has been an evolving defense in patent litigation, as seen in Google v. Sonos, where the Federal Circuit emphasized the need for clear evidence of prejudice to sustain the defense.