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.