CAFC Greenlights Immediate Appeals of Anti-SLAPP Denials, Confirms Patent Filing is ‘Protected Activity’
In an interesting ruling for intellectual property litigators operating under California law, the U.S. Court of Appeals for the Federal Circuit has clarified two critical procedural points at the intersection of patent law and state-level strategic litigation defenses. In a matter of first impression, the court held that a district court’s denial of a motion to strike under California’s anti-SLAPP statute is immediately appealable under the collateral order doctrine (Slip Op., p. 10).
The CAFC also provided guidance that the act of filing a patent application constitutes “protected activity” under the first step of the anti-SLAPP analysis, instructing lower courts not to conflate this threshold inquiry with the merits of an underlying trade secret misappropriation claim (p. 13).
The decision, in IQE PLC v. Newport Fab, LLC, No. 24-1124 (Fed. Cir. Oct. 15, 2025), provides a new tool for defendants facing claims that their patent filings amount to trade secret theft or tortious interference. The opinion, penned by Judge Hughes and joined by Judge Stark and District Judge Wang (sitting by designation), solidifies an early-exit strategy and provides an immediate appellate path if that exit is denied.
Background of the Dispute
The case arose from a soured business negotiation between IQE PLC, a developer of advanced “wafer” products for semiconductors, and Tower Semiconductor Ltd. (collectively “Tower”), a manufacturer of integrated circuits (Slip Op., p. 2).
In 2018, the two companies, operating under a 2015 non-disclosure agreement, began discussions for a potential collaboration involving IQE’s proprietary “porous silicon technology.” During these talks, IQE alleges it disclosed key trade secrets to Tower (p. 3).
Negotiations ended without a deal in February 2020. However, between October 2019 and August 2021, Tower filed four patent applications—three of which issued as U.S. patents—that IQE claimed were derived from its confidential porous silicon technology.
In April 2022, IQE sued Tower in the Central District of California, asserting federal claims for violation of the Defend Trade Secrets Act and correction of inventorship under 35 U.S.C. § 256, alongside several California state-law claims, including trade secret misappropriation and interference with prospective economic advantage (pp. 3-4).
In response, Tower filed a special motion to strike IQE’s state-law claims under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. This statute is designed to stop lawsuits that chill free speech and petitioning rights, such as filing official documents with a government agency. For instance, if a real estate developer sues a citizens’ group for protesting a new construction project, the citizens’ group could file an anti-SLAPP motion to have the case dismissed quickly, arguing the lawsuit is meant to silence their protected speech.
The district court denied Tower’s motion, concluding that IQE’s injury resulted not from the “mere filing of a patent application” but from the alleged “trade secret theft and alleged misrepresentations to the United States Patent and Trademark Office” (p. 10). Tower appealed this denial.
The Court’s Analysis: Jurisdiction and the Anti-SLAPP Framework
The Federal Circuit addressed two primary questions: first, whether it had jurisdiction to hear an appeal of an interlocutory order denying an anti-SLAPP motion, and second, whether the district court correctly applied California’s anti-SLAPP framework.
A Jurisdictional Question of First Impression
As a threshold matter, the court had to determine if it could hear the appeal before a final judgment was rendered. The court established that this was a question of Federal Circuit law, not regional circuit law (p. 6). Typically limited to final decisions, the court’s appellate jurisdiction can be extended under the “narrow exception” of the collateral order doctrine.
To qualify, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits, and (3) be effectively unreviewable on appeal from a final judgment (p. 7).
The Federal Circuit found that the denial of a California anti-SLAPP motion met all three criteria. The denial conclusively determines that the statute’s protections against litigation burdens do not apply. It resolves an important and separate issue—the constitutionally protected right to petition the government without fear of facing a meritless, retaliatory lawsuit.
Most critically, the court found the order would be effectively unreviewable after a final judgment. The entire purpose of the statute is to provide immunity from the trial process itself. As the court noted by quoting California precedent:
“[T]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights” (p. 8).
Forcing a defendant to litigate a case to completion before appealing the denial of an anti-SLAPP motion would render the statute’s protection meaningless.
Accordingly, the court held that “denial of an anti-SLAPP motion to strike under California law is immediately appealable under the collateral order doctrine as a matter of Federal Circuit law” (p. 10).
Correcting the Two-Step Anti-SLAPP Analysis
Turning to the merits, the court found that the district court had erred by improperly collapsing the statute’s required two-step analysis (p. 13). Under this framework, a defendant must first show that the challenged claim “arises from” protected petitioning or free speech activity. Only if that burden is met does the analysis proceed to step two, where the plaintiff must demonstrate a probability of prevailing on the merits of its claim (p. 12).
The district court concluded at step one that IQE’s claims arose from “trade secret theft,” not the “filing of a patent application.” The Federal Circuit held this was a fundamental error.
The proper inquiry at step one is to identify the defendant’s activity that gives rise to the asserted liability, not to evaluate its lawfulness. The court explained:
“The question for the district court at step one should have been only whether the suit was based on protected activity. Here, that basis clearly was: the filing of the patent application. Whether IQE’s trade secret claims are meritorious is assessed at step two” (p. 13).
Citing Ninth Circuit precedent, the court reasoned that filing a patent application, like filing a trademark application, “is an attempt to establish a property right under a comprehensive federal statutory scheme” and therefore qualifies as protected petitioning activity (p. 14).
Because IQE’s complaint explicitly alleged misappropriation through the “disclosure and use of IQE’s trade secrets” in its patent applications, the claims plainly arose from Tower’s protected activity (p. 14).
The question of whether that activity was wrongful due to trade secret theft is precisely what step two is designed to address. The court vacated the district court’s decision and remanded for a proper analysis (p. 16).
Key Takeaways and Practical Implications
This ruling has several important consequences for IP owners and practitioners:
A Strengthened Defense Tool: For defendants in the Federal Circuit’s jurisdiction, the anti-SLAPP motion is now a more potent defensive weapon in cases involving patent filings. The confirmation of immediate appealability provides significant leverage, allowing a defendant to halt district court proceedings and potentially end the case early if the motion is wrongly denied.
Plaintiffs Must Be Prepared: Trade secret owners who believe their confidential information was used in a patent application must be prepared to litigate the merits of their claim at a very early stage. To survive an anti-SLAPP motion, a plaintiff cannot merely allege wrongful conduct; it must come forward with evidence sufficient to “establish a probability that the plaintiff will prevail on the claim.” This raises the evidentiary bar at the pleading stage considerably.
Careful Pleading is Paramount: The court’s focus on IQE’s pleadings demonstrates the importance of how a claim is framed. If a trade secret misappropriation claim can be based on conduct other than the filing of a patent application (e.g., internal use of the secret or disclosure to another party), those facts should be pleaded distinctly to avoid triggering the anti-SLAPP statute.
The Patent/Trade Secret Tension: The case underscores the inherent friction between seeking patent protection (which requires public disclosure) and maintaining a trade secret. Companies engaged in collaborations must exercise extreme caution. Meticulous documentation of what information is shared, clear contractual terms regarding IP ownership, and a proactive strategy for protecting core secrets are essential to avoid disputes like this one.
Conclusion
The Federal Circuit’s decision is a foundational one. By establishing a jurisdictional rule for anti-SLAPP appeals and clarifying the substantive legal analysis, the court has brought more predictability to a contentious area of IP litigation. The ruling empowers defendants to challenge suits aimed at their petitioning activities while requiring plaintiffs to substantiate their claims early. As intellectual property disputes continue to grow in complexity, this decision provides a clear procedural roadmap for balancing the right to petition with the right to protect valuable trade secrets.
Disclaimer: This is provided for informational purposes only and does not constitute legal or financial advice. To the extent there are any opinions in this article, they are the author’s alone and do not represent the beliefs of his firm or clients. The strategies expressed are purely speculation based on publicly available information. The information expressed is subject to change at any time and should be checked for completeness, accuracy and current applicability. For advice, consult a suitably licensed attorney and/or patent professional.