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

IPR, Patent

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. (more…)

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

IPR, Patent

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.

Director Squires signature on manufacturing memorandum

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:

  1. 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;
  2. The extent to which competing products made, sold, or licensed by the patent owner are manufactured in the United States; and
  3. 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.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Two Rejections Per Allowance

IPR, Patent

by Dennis Crouch

Over the past several weeks, I published a trilogy of posts examining USPTO allowance rates from three different temporal vantage points: filing cohort dates, applicant disposal dates, and examiner action dates.

Each approach answers a slightly different question about when and how examination policy produces outcomes. This post adds a complementary dataset: instead of looking at final outcomes (allowance or abandonment), it looks at the office actions themselves.

Three charts below are all built from a dataset of published utility patent applications and plotted as three-month moving averages that smooths the data a bit.

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.

Five Petitions, Five Denials: The Federal Circuit’s Mandamus Wall Grows Higher

CAFC, IPR, Patent

by Dennis Crouch

Five more mandamus petitions challenging IPR institution denials. Five more denials. In a series of nonprecedential orders issued between February 24 and 27, 2026, the Federal Circuit rejected every theory that petitioners offered for why the USPTO's discretionary denial of inter partes review should be subject to judicial oversight. The petitioners included major technology companies (Intel, Tesla), a Chinese communications firm (Kangxi Communication Technologies), an education technology company (Kahoot!), and a startup founded by the very inventors of the patents it sought to challenge (Tessell). Each presented a different factual scenario and a different legal theory. None succeeded. In re Kangxi Communication Technologies (Shanghai) Co., Ltd., No. 2026-115 (Fed. Cir. Feb. 24, 2026); In re Intel Corp., No. 2026-113 (Fed. Cir. Feb. 24, 2026); In re Tessell, Inc., No. 2026-117 (Fed. Cir. Feb. 24, 2026); In re Kahoot! AS, No. 2026-119 (Fed. Cir. Feb. 25, 2026); In re Tesla, Inc., No. 2026-116 (Fed. Cir. Feb. 27, 2026).

To continue reading, become a Patently-O member. Already a member? Simply log in to access the full post.