U.S. businesses are recalibrating their approach to intellectual property (IP) as policy shifts at the U.S. Patent & Trademark Office alter corporate litigation strategy and rapid advances in artificial intelligence (AI) create new risks and opportunities, according to a new survey from Miller Johnson.
The Changing Intellectual Property Litigation Playbook draws on a survey of 150 U.S. legal and private equity (PE) leaders about how they assess IP risk, manage disputes, and pursue enforcement. The majority of respondents include corporate counsel at middle- and upper-market companies across automotive, technology, healthcare, consumer products, and manufacturing, along with a select group of PE professionals investing in those and other industries.
Among the key findings:
• 8 in 10 corporate counsel have adjusted their IP litigation strategy in response to recent Patent Trial and Appeal Board (PTAB) and Inter Partes Review (IPR) developments.
• Patent disputes are the leading area where corporate counsel expect increased involvement in the next 12 months; trademark disputes rank first among PE respondents.
• Nearly half (49%) of corporate counsel say AI is increasing their organization’s IP litigation risk, while 40% say AI is creating new opportunities to enforce their intellectual property.
• Corporate counsel and private equity leaders identify several emerging IP litigation risks: AI-related disputes, patent assertions by non-practicing entities (NPEs), trade secret exposure, and trademark, counterfeiting and online brand threats.
The survey offers practical benchmarks to help executive teams protect innovation, allocate resources, and make informed decisions in a rapidly changing environment. The report follows Miller Johnson’s completed integration with Chicago-based Irwin IP, which expanded the firm’s ability to help clients navigate these high-stakes decisions, deepening its intellectual property litigation capabilities and bringing additional trial and patent litigation experience.
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Patent litigation strategies shift with PTAB and IPR changes
Recent policy changes are altering where and how companies can challenge patents outside of federal court. Respondents say increased discretionary denials at the PTAB are prompting organizations to become more selective with IPR filings, invest more in upfront validity analysis, and rely more heavily on district court litigation. The shifts are driving earlier, more strategic decisions about patent disputes while potentially increasing the time and cost required to resolve them.
“Companies are having to make increasingly strategic decisions about when and how to protect their revenue streams from weak intellectual property claims,” said Barry F. Irwin, Chair of Miller Johnson’s Intellectual Property Litigation Practice Group. “The changes we’re seeing at the PTAB and around IPRs can materially affect the options available in a patent dispute. For technology-based businesses where IP claims are common, that makes it even more important to assess the strength of claims, strategic options, and available forums early.”
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AI changes the risk-and-reward equation for IP litigation
The survey also points to a complicated role for AI. While some organizations see opportunities to use it to identify potential infringement and strengthen IP enforcement, nearly half of corporate counsel say AI is increasing their organization’s IP litigation exposure. Among that group, 50% cite the use of proprietary or copyrighted data to train AI systems as a top risk, while 40% point to infringement involving AI-enabled products or tools.
“AI cuts both ways for companies with valuable intellectual property,” said Jason J. Keener, Vice Chair of Miller Johnson’s Intellectual Property Litigation Practice Group. “It creates new risks for infringement and exposure while also giving rights holders more sophisticated ways to identify potential violations. Companies need to be thinking about both sides of that equation—not just how AI could put their product lines at risk, but how it could change the way they protect and enforce it.”
The report’s findings also underscore the business considerations driving IP litigation decisions. Corporate counsel are most likely to litigate when they see a strong likelihood of success or the technology is central to their competitive position, while PE leaders place particular weight on whether the opposing party is a direct competitor. Across both groups, the high cost of litigation remains the leading challenge.
The Changing Intellectual Property Litigation Playbook draws on a survey of 150 U.S. legal and private equity (PE) leaders about how they assess IP risk, manage disputes, and pursue enforcement. The majority of respondents include corporate counsel at middle- and upper-market companies across automotive, technology, healthcare, consumer products, and manufacturing, along with a select group of PE professionals investing in those and other industries.
Among the key findings:
• 8 in 10 corporate counsel have adjusted their IP litigation strategy in response to recent Patent Trial and Appeal Board (PTAB) and Inter Partes Review (IPR) developments.
• Patent disputes are the leading area where corporate counsel expect increased involvement in the next 12 months; trademark disputes rank first among PE respondents.
• Nearly half (49%) of corporate counsel say AI is increasing their organization’s IP litigation risk, while 40% say AI is creating new opportunities to enforce their intellectual property.
• Corporate counsel and private equity leaders identify several emerging IP litigation risks: AI-related disputes, patent assertions by non-practicing entities (NPEs), trade secret exposure, and trademark, counterfeiting and online brand threats.
The survey offers practical benchmarks to help executive teams protect innovation, allocate resources, and make informed decisions in a rapidly changing environment. The report follows Miller Johnson’s completed integration with Chicago-based Irwin IP, which expanded the firm’s ability to help clients navigate these high-stakes decisions, deepening its intellectual property litigation capabilities and bringing additional trial and patent litigation experience.
—————
Patent litigation strategies shift with PTAB and IPR changes
Recent policy changes are altering where and how companies can challenge patents outside of federal court. Respondents say increased discretionary denials at the PTAB are prompting organizations to become more selective with IPR filings, invest more in upfront validity analysis, and rely more heavily on district court litigation. The shifts are driving earlier, more strategic decisions about patent disputes while potentially increasing the time and cost required to resolve them.
“Companies are having to make increasingly strategic decisions about when and how to protect their revenue streams from weak intellectual property claims,” said Barry F. Irwin, Chair of Miller Johnson’s Intellectual Property Litigation Practice Group. “The changes we’re seeing at the PTAB and around IPRs can materially affect the options available in a patent dispute. For technology-based businesses where IP claims are common, that makes it even more important to assess the strength of claims, strategic options, and available forums early.”
—————
AI changes the risk-and-reward equation for IP litigation
The survey also points to a complicated role for AI. While some organizations see opportunities to use it to identify potential infringement and strengthen IP enforcement, nearly half of corporate counsel say AI is increasing their organization’s IP litigation exposure. Among that group, 50% cite the use of proprietary or copyrighted data to train AI systems as a top risk, while 40% point to infringement involving AI-enabled products or tools.
“AI cuts both ways for companies with valuable intellectual property,” said Jason J. Keener, Vice Chair of Miller Johnson’s Intellectual Property Litigation Practice Group. “It creates new risks for infringement and exposure while also giving rights holders more sophisticated ways to identify potential violations. Companies need to be thinking about both sides of that equation—not just how AI could put their product lines at risk, but how it could change the way they protect and enforce it.”
The report’s findings also underscore the business considerations driving IP litigation decisions. Corporate counsel are most likely to litigate when they see a strong likelihood of success or the technology is central to their competitive position, while PE leaders place particular weight on whether the opposing party is a direct competitor. Across both groups, the high cost of litigation remains the leading challenge.
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