The USPTO Leans Into “America First”

With a new presidential administration, as of early 2026, the United States Patent and Trademark Office (USPTO) has significantly shifted its posture under a more protectionist “America First” framework. This shift is characterized by strengthening the rights of existing patent owners, curbing “abusive” patent challenges, and implementing aggressive fraud prevention for trademarks.

Here is a breakdown of the key changes affecting patent and trademark prosecution.

1. Patent Prosecution: “Stronger Patent” Initiatives

The current administration’s philosophy treats patents as a pillar of national security, particularly in emerging technologies like AI.

• Favoring Eligibility (§ 101): New guidance, exemplified by the Ex Parte Desjardins decision, directs examiners to focus on prior art (novelty and non-obviousness) rather than rejecting inventions as “abstract ideas.” Specifically, machine learning and AI are now viewed as inherently improving machines, making them more resilient to § 101 rejections.
• “Settled Expectations” Doctrine: The USPTO now considers how long a patent has been in force when deciding whether to allow it to be challenged.¹ The longer a patent has existed (roughly six or more years in force), the more “settled” the owner’s expectations are, making the Office more likely to deny new challenges to protect the owner’s investment.
• National Security Reclassification: In a major move in late 2025, the Patents business unit was designated as performing “national security work.” This led to the elimination of union representation (POPA) for patent examiners to give leadership more control over performance standards and production goals.

2. PTAB & Post-Grant Proceedings

The Patent Trial and Appeal Board (PTAB) has transformed from a “patent death squad” to a more protective venue for patent owners.

• Centralized Director Review: Director John Squires now personally reviews all Inter Partes Review (IPR) institution decisions. This has caused institution rates to fluctuate wildly, dropping to historic lows (near 15% in late 2025) before stabilizing around 35–55% as of early 2026.
• Mandatory Stipulations: To get an IPR instituted, petitioners must often file a “Sotera-plus” stipulation, agreeing not to pursue any invalidity challenges (including those they couldn’t have raised in the IPR) in other forums like District Court.
• Discretionary Denials: The USPTO has formalized rules to deny challenges if:
  1. The patent’s validity was already adjudicated in another forum.
  2. Parallel litigation is likely to reach a decision before the PTAB can.
  3. The petition is a “serial challenge” on a patent that has already survived review.

3. Trademark Prosecution: Fraud and Domicile

The trademark landscape has seen a “crackle down” on foreign filings and fraudulent specimens to clean up the U.S. Trademark Register.

• Stricter Domicile Rules: Effective late 2025, the USPTO tightened what qualifies as a “domicile” address. Virtual offices, mail forwarding, and shared workspaces are no longer necessarily sufficient to qualify as domicile addresses. Applicants must prove a genuine “principal place of business” for juristic entities or “residence” for individuals.
• Aggressive Specimen Audits: Examiners are now trained to identify AI-generated or “mock-up” specimens. If a specimen looks digitally altered, the USPTO may issue a refusal and flag the application for a fraud audit.
• New Fee Structure (January 2025): new fee type for new trademark applications increased to $350 per class. There are further fees for lengthy identifications of goods and services, or missing information. These are meant to reduce pendency rates and allowance and approval rates of new marks.

4. Operational Impacts

• Hiring Freeze & RTO: Executive orders in early 2025 mandated a return to in-person work (RTO) for many federal employees and a hiring freeze. This has increased the backlog, with patent pendency now averaging over 26 months. (However, the USPTO began advertising for new patent examiners and trademark examining attorneys in June 2025.)
• End of AFCP 2.0: The After Final Consideration Pilot 2.0 has ended, meaning applicants have fewer opportunities to amend claims after a Final Rejection without filing a Request for Continued Examination (RCE).

These are just a few changes to the USPTO’s operations, policies, and rules. We will continue monitor the progress of USPTO’s new initiatives. If you have any questions, please feel free to contact Yonaxis I.P. Law Group.

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Footnotes

1. See Dabico Airport Solutions, Inc. v. AXA Power ApS, IPR2025-00408 (9,771,169) (Appeals Review Panel (ARP), Paper 21, June 18, 2025 (designated January 9, 2026) (discretionarily denying institution based on Patent Owner’s settled expectations and Petitioner’s failure to provide any persuasive reasoning why an inter partes review is an appropriate use of Office resources). ↩