Patently-O

Are Rising Maintenance Fees Shortening the Effective Patent Term?

Dennis Crouch — Sun, 15 Mar 2026 14:00:40 +0000

by Dennis Crouch

Congress set the patent term at 20 years from filing. But the effective term for most U.S. patents is considerably shorter - but these are self-selected patents. USPTO's maintenance fee records shows that roughly 60% of all patentees now abandon their patents before the full term expires, choosing not to pay the escalating series of post-issuance maintenance fees required to keep a patent in force. The rate of full-term patent maintenance has fallen to approximately 40%, approaching the lowest levels recorded in the past two decades, and the trajectory suggests further decline.

Under 35 U.S.C. § 41(b), patent holders must pay maintenance fees at three intervals after issuance: 3.5 years, 7.5 years, and 11.5 years. Failure to pay (including during a six-month grace period with surcharge) results in expiration of the patent. The chart below tracks the percentage of patentees who paid all three maintenance fees, grouped by the month their final (11.5-year) fee came due. The data reveals a striking arc: a steady rise from about 41% in 2002 to a peak of roughly 52% around 2012-2013, followed by a sustained decline back to approximately 40% today. The 11.5-year maintenance fee for large entities has nearly tripled during this period, from $3,100 in 2001 to $8,280 as of January 2025, well above the rate of inflation for this period. The question is whether this fee escalation is the primary driver of the decline, or whether other forces are at work.

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Judge Newman Asks the Supreme Court to Intervene: Framing Judicial Independence as a Constitutional Imperative

Dennis Crouch — Fri, 13 Mar 2026 17:16:41 +0000

by Dennis Crouch

I recently spoke by phone with Judge Pauline Newman. At 98 years old, she seemed sharp, engaged, and fully conversant -- particularly regarding the legal questions swirling around her case (and its impact on the patent system). She turns 99 in June.

Judge Newman has been barred from exercising any function of her judicial office since late 2023, when she issued her last opinion. She remains, in name, an active-service judge on the United States Court of Appeals for the Federal Circuit. But, in every practical respect, she has been removed from the bench by her colleagues, without impeachment, without an actual finding of disability, and without any court ever reaching the merits of her constitutional claims. This week, her attorneys filed a petition for certiorari asking the Supreme Court to consider her case.

Newman v. Moore, No. 25-___ (U.S. Mar. 12, 2026), presents two questions about the Judicial Conduct and Disability Act of 1980 (28 U.S.C. § 357(c)) that bars judicial review of judicial council "orders and determinations."

Whether that bar extends to ultra vires acts that exceed the council's statutory and constitutional authority.
Whether the bar forecloses claims seeking prospective injunctive relief against future unlawful orders.

Both questions arise against a factual backdrop that the D.C. Circuit itself described as raising "important and serious questions" about due process and judicial independence, while holding that its hands were tied by 25-year-old circuit precedent.

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Guest Post: Protectionist PTO Memo is on a Collision Course with TRIPS

Dennis Crouch — Fri, 13 Mar 2026 16:15:40 +0000

Guest post by Sapna Kumar. Prof. Kumar is the Henry J. Fletcher Professor of Law at the University of Minnesota Law School.

USPTO Director John Squires recently issued a memorandum regarding a new policy for instituting IPR and PGR proceedings. The memo argues that manufacturing moving overseas is causing “significant economic and national security damage” and claims that [t]hese developments bear directly” on the Director’s “statutory obligation to consider the effect of institution standards on the economy and the integrity of the patent system.” It further notes that large companies lacking “significant” U.S. manufacturing are the “most frequent users of IPR and PGR proceedings.” Based on these findings, the memo states that in determining whether to institute IPR and PGR proceedings, the Director will consider to what extent accused infringing products at issue in a parallel proceeding are U.S. manufactured or relate to U.S. manufacturing operations and to what extent the patent owner’s competing products are U.S. manufactured.

The United States is a member of the World Trade Organization (WTO) and a signatory to the WTO-administered Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). The USPTO has acknowledged that “TRIPS applies basic international trade principles to member states regarding intellectual property including national treatment.” As Article 3 states, “[e]ach Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals” for IP protection. With regard to nondiscriminatory practices, Article 27 further specifies that “patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

Based on memo’s language, the USPTO will be more likely to institute an IPR or a PGR against a patent holder whose competing products are not manufactured in the United States, and will be less likely to do so against a patent holder that domestically manufactures its competing products. This means that the strength of U.S. patent rights will now vary based on whether patented products are produced in the United States or abroad. This appears to violate Article 27, given it limits enjoyable patent rights based on where products are being produced.

The government will likely respond that any actions they take are justified under TRIPS’s national security exception under Article 73(b). But Article 73(b) is actually quite narrow. Although it states that nothing in TRIPS “shall be construed. . . to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests” relating an “emergency in international relations,” a WTO panel in Russia—Measures Concerning Traffic in Transit (2019) held that this excludes “political or economic conflicts. . .unless they give rise to defense and military interests, or maintenance of law and public order interests.” Moreover, the fact that the memo’s measures apply to all classes of invention and to companies from any country undermines any argument that Article 73 applies.

It is worth noting that the USPTO could use its new policy to target patents held by Chinese companies. Both Republican and Democratic administrations have been frustrated by China’s support of IP theft. The USPTO could use its new policy to violate national treatment under Article 3 by specifically targeting Chinese companies that manufacture their products abroad. Given the Federal Circuit’s position in In re Motorola Solutions, Inc. that Congress committed decisions regarding IPR and PGR institutions to the Director’s discretion and insulated them from judicial review outside “colorable constitutional claims,” a company facing this situation would have no recourse.

Some attorneys and scholars may argue that discriminating against patent holders based on where they manufacture their patented products is no different than what occurs in ITC in Section 337 proceedings. Under 19 U.S.C. § 1337, a patent holder can use the ITC to get an exclusion order to block importation of infringing goods only if the patent holder can show that such importation could “destroy or substantially injure” a U.S. industry, “prevent the establishment of such an industry,” or “restrain or monopolize trade and commerce in the United States.” This created a parallel system of patent litigation that only companies with domestic industries can utilize. However, the ITC only considers domestic industry with regard to whether the remedy of an exclusion order is available; unlike IPRs and PGRs, ITC decisions regarding patent validity do not bind federal courts. By contrast, the memo creates a system in which patent holders using domestic manufacturing are less likely to have their patents invalidated than those that use foreign manufacturing.

Finally, it is important to highlight that unlike Section 337, which was passed by Congress, the PTO issued the memo without notice or an opportunity for impacted companies to comment. From an administrative law standpoint, this is deeply troubling, given the broad implications this new policy could have. The PTO’s actions are furthermore in tension with the major questions doctrine, given that the PTO is using vague language under 35 U.S.C. §§ 316(b) and 326(b) to justify a policy that could have a substantial economic impact on manufacturing and political significance by violating TRIPS.

In conclusion, the PTO’s memo is highly problematic. It undermines the United States’s commitments under TRIPS by conferring greater rights to patent holders that manufacture patented goods domestically. It furthermore raises concerns regarding the massive amount of power the Director claims to possess without any judicial oversight.

Untethered: USPTO Loosens the Article of Manufacture Requirement for Digital Designs

Dennis Crouch — Thu, 12 Mar 2026 14:40:34 +0000

The USPTO today published new examination guidance that relaxes the rules for obtaining design patents on computer-generated interfaces and icons, completing a policy arc that began with a 2020 request for public comment on the meaning of "article of manufacture" in 35 U.S.C. § 171. Supplemental Guidance for Examination of Design Patent Applications Related to Computer-Generated Interfaces and Icons, Docket No. PTO-P-2026-0133 (Mar. 13, 2026). The guidance makes three practical changes that design patent prosecutors should take note of immediately.

First, it removes the longstanding requirement in MPEP § 1504.01(a) that drawings depict a display panel or portion thereof in solid or broken lines for applications directed to computer-generated interfaces or icons, so long as the title and claim properly identify an article of manufacture.
Second, it reverses the 2023 position on claim language, now holding that titles and claims using the preposition "for" (such as "icon for display screen" or "projected interface for computer") adequately describe a design for an article of manufacture under § 171.
Third, it extends design patent eligibility to projected and holographic interfaces and to virtual and augmented reality designs for computers and computer systems.

Under the old practice, the claim put the article of manufacture first and described the GUI as being "with" or "on" it: "The ornamental design for a display screen or a portion thereof with a graphical user interface, as shown and described." And the drawings had to include a broken-line border showing the display panel. Under the new guidance, applicants now have the option to flip the grammar so the design element leads and the article follows the word "for": "The ornamental design for a graphical user interface for a display screen, as shown and described." Or broader still: "The ornamental design for a graphical user interface for a computer, as shown and described." The guidance also accepts "computer icon" standing alone as adequate claim language, since the word "computer" in that compound term is treated as identifying the article of manufacture.

GUI Design Patents Are Growing — But So Is Everything Else

U.S. design patents issued for graphical user interfaces, icons & display screens (2011–2025)

Source: USPTO Patent Public Search (calendar year grant dates)GUI patents classified in USPC D14/485–495

PATENTLY-O

27,660

Total GUI Patents2011–25

2,787

2025GUI Patents

3,111

Peak Year2016

2025GUI Share

This new guidance gives applicants (at least) two additional degrees of freedom.

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Made in America: Director Squires Ties IPR Institution to Domestic Manufacturing

Dennis Crouch — Thu, 12 Mar 2026 13:48:21 +0000

by Dennis Crouch

The International Trade Commission conditions patent relief on a showing that the patent holder maintains a "domestic industry" in the United States. 19 U.S.C. § 1337(a)(2)-(3). That statutory requirement is derived from ITC's trade-protection mission: the agency exists to guard American industry from unfair imports, not to serve as a general-purpose patent court. Until now, no other patent forum has imposed anything comparable.

USPTO Director John Squires issued a memorandum on March 11, 2026, announcing three new discretionary factors for IPR and PGR institution decisions, all organized around U.S. manufacturing and small business status. When deciding whether to institute review, the Director will now consider:

The extent to which products accused of infringement in parallel litigation are manufactured in the United States or relate to investments in American manufacturing operations;
The extent to which competing products made, sold, or licensed by the patent owner are manufactured in the United States; and
Whether the petitioner is a small business sued for infringement of the patent at issue.

The memo applies immediately to all pending IPRs and PGRs where the patent owner's discretionary brief deadline has not yet passed.

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From Graham to Gramm: A New Deere Case Arrives at the Federal Circuit

Dennis Crouch — Wed, 11 Mar 2026 21:02:00 +0000

by Dennis Crouch Patent attorneys will recognize the case name Graham v. John Deere Co., 383 U.S. 1 (1966), as the Supreme Court's foundational statement on obviousness under 35 U.S.C. § 103. Sixty years later, a new case with nearly the same name has arrived at the Federal Circuit, though this one is spelled with two m's. Gramm v. Deere & Company, No. 2024-1598 (Fed. Cir. Mar. 11, 2026), involves neither obviousness nor the Graham factors. Instead, it offers an illustration of means-plus-function claiming under § 112(f) and the doctrinal hazards. The Federal Circuit, in a unanimous opinion by Judge Reyna joined by Judges Lourie and Cunningham, reversed the district court's indefiniteness finding and remanded for further proceedings.

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The Razor Returns: AIPLA Tells the Supreme Court That Alice Step Two Has Revived the Pre-1952 ‘Invention’ Requirement

Dennis Crouch — Tue, 10 Mar 2026 21:13:00 +0000

by Dennis Crouch

The American Intellectual Property Law Association has filed an amicus brief urging the Supreme Court to grant certiorari in United Services Automobile Association v. PNC Bank N.A., No. 25-853 (U.S. filed Mar. 2, 2026). The AIPLA brief does not focus on the particular merits of USAA's mobile check deposit patents. Instead, it frames the case as an opportunity for the Court to correct what the brief calls a historical regression: the Federal Circuit's application of the Alice/Mayo eligibility framework has revived the same subjective "inventive concept" inquiry that the Patent Act of 1952 was specifically designed to eliminate. The brief, filed by Barbara Fiacco and Valerie Orellana of Foley Hoag on behalf of AIPLA, traces this argument through more than a century of patent law, from the commingled eligibility/obviousness/definiteness standards of the 19th century through the 1952 reforms and back to the present "confusion."

USAA's petition presents two questions:

Whether the Federal Circuit has wrongly extended the "abstract idea" prohibition to cover concrete technological processes; and
Whether it has improperly held that computer-implemented inventions are patent-eligible only if they improve the computer's own functionality.

In 2025, the Federal Circuit reversed a $218 million jury verdict for USAA, holding that its claims directed to mobile check deposit using a handheld device were ineligible. The Supreme Court has signaled some interest by issuing a "Response Requested" and PNC's response is now due April 8, 2026, following an extension. See Dennis Crouch, USAA Petitions SCOTUS: Is Mobile Check Deposit Just an "Abstract Idea"?, Patently-O (Jan. 19, 2026).

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PTA Keeps Score: Patent Term Adjustment as a Measure of the USPTO Backlog

Dennis Crouch — Tue, 10 Mar 2026 17:56:19 +0000

by Dennis Crouch

Patent Term Adjustment (PTA) offers one of the most revealing windows into the USPTO's examination backlog. Under 35 U.S.C. § 154(b), the USPTO guarantees certain examination timelines: a first action within 14 months of filing, responses to applicant submissions within four months, and total prosecution wrapped up within three years. When the Office misses these marks, the patent term is extended day-for-day. The result is that average PTA across newly issued patents serves as a rough measure of how well the agency is keeping up with its own workload.

The chart above tracks the average PTA for utility patents issued each week from 2015 into early 2026, smoothed with a six-week moving average. The pattern is striking. In 2015, the average PTA hovered around 320 days, reflecting the agency's long struggle with a massive examination backlog. Over the next six years, the Office steadily ground that number down, reaching a low of approximately 120 days in mid-2021 as part of the COVID slow-down in filing. That progress has now fully reversed. Average PTA climbed back to 296 days by December 2025, approaching the decade-earlier peak. The agency spent years working down the backlog and has now given back nearly all of that progress.

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Too Late to Invent an Inventor: Forfeiture and § 256 in IPR Proceedings

Dennis Crouch — Mon, 09 Mar 2026 16:26:33 +0000

by Dennis Crouch

Section 256 of the Patent Act is a remarkable statutory provision. It declares that a patent "shall not be invalidated" on the grounds of incorrect inventorship so long as the error "can be corrected." 35 U.S.C. § 256(a). Unlike its neighboring provisions for correcting other types of patent errors, Section 256 operates retroactively, reaching back to the patent's original filing date. And the statute imposes no express timing requirement: it does not say "if corrected within X days" or "if diligently pursued." The statute simply says "if it can be corrected." In Implicit, LLC v. Sonos, Inc., No. 2020-1173 (Fed. Cir. Mar. 9, 2026), however, the Federal Circuit held that the absence of a statutory deadline does not immunize a patentee from the consequences of delay. Forfeiture principles, the court ruled, can prevent a patent owner from relying on a Section 256 correction to mount a new argument in an inter partes review that it failed to raise during the original proceeding.

The case involved two patents owned by Implicit that originally named Edward Balassanian and Scott Bradley as co-inventors. Both were employees of BeComm Corporation, Implicit's predecessor. A third engineer, Guy Carpenter, had written the source code and authored the document that became the provisional application, but was not a named inventor.

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The Expanding Patent Document: Fewer Claims, More Words, and a Trend That Predates Alice

Dennis Crouch — Mon, 09 Mar 2026 12:31:44 +0000

by Dennis Crouch

When I set out to update my 2008 study on patent document size, I had a specific hypothesis in mind. The Supreme Court's 2014 decision in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), transformed how patent attorneys draft applications, particularly in the software and business method space. Practitioners responded to Alice's tightened eligibility standards by loading their specifications with technical detail, implementation examples, and hardware-integration language designed to demonstrate that an invention is more than an "abstract idea." If Alice changed drafting behavior, I expected to see a structural break in patent document metrics around 2014-2015. I found something different. Patent specifications have indeed gotten dramatically longer over the past twenty years, but the growth curve is smooth and monotonic. It was well underway before Alice was decided. Using the population of 7.6 million published patent applications from 2005 through early 2025, this study finds specifications nearly doubled, from about 7,600 words to over 13,000. But the growth in document length was not matched by growth in claims. Average claim count actually fell, reversing the upward trend I had documented back in 2008.

In 2008, I reported that patent documents were getting bigger in every dimension: longer specifications and more claims. Both trends moved in the same direction. The story was straightforward: patents were growing. The new data is a bit more complicated. Specifications continued their upward march, but claim counts peaked around 2005 and have been declining ever since.

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