Are Your Conversations with Claude Discoverable?
Kira Gill
Artificial intelligence (“AI”) has become part of the modern patent litigation workflow for many attorneys.  It can be used to assist with various tasks such as summarizing technical documents, organizing discovery, identifying prior art, analyzing claim language, assisting in drafting expert reports, finding case law for briefs, and filtering through massive document productions for relevant information and/or document review projects. Many users have chosen their preferred AI platform, becoming familiar with its capabilities, limitations, and how to tailor their prompts to obtain the most useful results. Some of the heavy hitter AI models include “Harvey,” Anthropic’s “Claude,” Google’s “Gemini,” and of course, OpenAI’s “ChatGPT.”  Many law firms have also partnered with AI providers to develop enterprise platforms that incorporate enhanced security measures, including encryption, contractual confidentiality protections, and restrictions on the use of client data to train AI models, allowing attorneys to use these tools with sensitive or confidential information while reducing the risks associated with public-facing AI platforms.  
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Estoppel Considerations in Post-Grant Proceedings and the Potential Impact of Proposed USPTO Rule Changes to Anonymous EPR Filings
Matthew Engel
Post-grant proceedings at the Patent Trial and Appeal Board (PTAB) have experienced a seismic shift since March 2025 when United States Patent and Trademark Office (USPTO) Acting Director Coke Morgan Stewart published a memorandum fundamentally changing how institution decisions for inter partes review (IPR) and post-grant review (PGR) are made. The memorandum established a bifurcated process including a formal track for the Director to first determine, in consultation with at least three PTAB judges, whether or not the Director should exercise their discretion and deny institution for each IPR and PGR.  Only if the Director decides not to discretionarily deny the petition, does the case proceed to the PTAB for consideration of the merits. Prior to this policy change, standard practice delegated institution authority to the PTAB’s three-judge panel of Administrative Patent Judges (APJs). 
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Real Ads, Synthetic Faces: California Joins New York in Regulating AI Performers in Advertising
Suzanne Hengl, Abigail Moore (Law Clerk)
As generative artificial intelligence (“AI”) makes synthetic human performances increasingly realistic, New York and California have enacted disclosure requirements to help consumers tell synthetic performers from human ones in commercial advertising. New York’s law governing synthetic performers in advertisements, NYGBL sec. 396-B, took effect on June 9, 2026. California followed with a similar statute, SB 1050, taking effect January 1, 2027, which seeks to balance advertisers’ commercial speech interests against the risk of misleading consumers. The two laws share a common goal, but they differ in several important respects—and those differences matter for any advertiser running campaigns in both states.
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Wireless Patent Suits Offer Lesson for Data Center Industry
Doug Kubehl, Megan White, Matt Simmons (Law Clerk)
Data center patent litigation has been driven by the convergence of cloud computing, power generation, cooling, data storage, distributed computing and other technologies under one roof.

That wave is beginning to crest, and data center operators and equipment suppliers have a narrow window to focus on their supply agreements and indemnification provisions, which will become increasingly significant as the litigation multiplies. The pattern is one we have seen before from the wireless industry, where multisupplier patent campaigns produced the same indemnification and coordination challenges now emerging in the data center space.
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Our Take on AI: November 2026
Courts Address AI in Litigation: Courts are still working out how to handle experts’ use of AI in litigation. The few that have addressed whether an expert’s AI prompts and AI-related work product can enter the record have relied on existing procedural and evidentiary rules, as has Texas Professional Ethics Committee Opinion 705 (February 2025), which applies existing conduct rules to generative AI use by attorneys and, by extension, experts.

Changes may be coming. On October 15, the federal Advisory Committee on Evidence Rules held panels on a revised proposal for a new Rule 707, which would subject AI-generated conclusions offered without an expert to expert-testimony reliability standards, and on a proposed Rule 901(c) addressing deepfakes. On Rule 707, panelists struggled to distinguish “AI-generated” output from ordinary software use. The committee appears split on the deepfake rule, possibly because only 15 of 931 judges responding to a Federal Judicial Center survey earlier this year reported a deepfake challenge. On October 21, the Advisory Committee on Civil Rules will consider a suggestion to amend Rule 11 to address AI, though its agenda materials recommend dropping it because the current rule already gives courts the tools they need. Steve Maule writes more about these developments here: “Existing Rules, Emerging Changes: How Courts Are Dealing with Experts’ AI Use.”

October 2026 Intellectual Property Report Recap
In case you missed it, here is a link to our October 2026 Intellectual Property Report.

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