USPTO Proposes Rule Requiring Representation by Registered USPTO Practitioner for All Foreign Applicants and Patent Owners

The United States Patent and Trademark Office issued a press release concerning a new rule regarding foreign applicants and patent owners that is open for comment.  Details can be found here.  The press release states:

USPTO issues NPRM requiring foreign patent applicants to be represented by registered practitioners

Today, the United States Patent and Trademark Office (USPTO) is issuing a notice of proposed rulemaking (NPRM) directed to requiring foreign applicants and patent owners to be represented by a registered patent practitioner before the Office. 

The USPTO is proposing to amend the Rules of Practice in Patent Cases before the Office to require patent applicants and patent owners whose domicile is not located within the United States or its territories to be represented by a registered patent practitioner. The proposed requirement would bring the United States in line with the predominant global practice in jurisdictional patent offices that maintain requirements that such parties be represented by a licensed or registered person of that country. Moreover, this requirement would additionally increase efficiency and enable the USPTO to better use available mechanisms to enforce compliance with U.S. statutory and regulatory requirements and practice in patent matters and to respond and take appropriate actions with respect to false certifications, misrepresentations, and fraud.

Trump Executive Order Attempts to Stymie State AI Legislation

On December 11, 2025, President Trump issued an Executive Order titled, “Ensuring a National Policy Framework for Artificial Intelligence.”  The Executive Order is designed to address the proliferation of state laws concerning artificial intelligence.  The National Conference of State Legislatures has a database tracking state laws introduced in state legislatures generally concerning artificial intelligence.  There are over 1,000 laws introduced in state legislatures in 2025 alone related generally to artificial intelligence in that database (many of those laws were not enacted or are pending).  And, that database does not include separately tracked artificial intelligence legislation concerning specific technology such as autonomous vehicles, deep fakes or facial recognition.  What are the positives of such state legislation?  Some include the following, first, it is much harder for an industry to capture 50 state legislatures than one U.S. Congress.  Second, as laboratories of democracy, states can create legislation concerning artificial intelligence that are tried out and perhaps be a good model for federal adoption.  The Trump Executive Order states, in relevant part:

 

Section 1.  Purpose.  United States leadership in Artificial Intelligence (AI) will promote United States national and economic security and dominance across many domains.  Pursuant to Executive Order 14179 of January 23, 2025 (Removing Barriers to American Leadership in Artificial Intelligence), I revoked my predecessor’s attempt to paralyze this industry and directed my Administration to remove barriers to United States AI leadership.  My Administration has already done tremendous work to advance that objective, including by updating existing Federal regulatory frameworks to remove barriers to and encourage adoption of AI applications across sectors.  These efforts have already delivered tremendous benefits to the American people and led to trillions of dollars of investments across the country.  But we remain in the earliest days of this technological revolution and are in a race with adversaries for supremacy within it. 

To win, United States AI companies must be free to innovate without cumbersome regulation.  But excessive State regulation thwarts this imperative.  First, State-by-State regulation by definition creates a patchwork of 50 different regulatory regimes that makes compliance more challenging, particularly for start-ups.  Second, State laws are increasingly responsible for requiring entities to embed ideological bias within models.  For example, a new Colorado law banning “algorithmic discrimination” may even force AI models to produce false results in order to avoid a “differential treatment or impact” on protected groups.  Third, State laws sometimes impermissibly regulate beyond State borders, impinging on interstate commerce.

My Administration must act with the Congress to ensure that there is a minimally burdensome national standard — not 50 discordant State ones.  The resulting framework must forbid State laws that conflict with the policy set forth in this order.  That framework should also ensure that children are protected, censorship is prevented, copyrights are respected, and communities are safeguarded.  A carefully crafted national framework can ensure that the United States wins the AI race, as we must.

Until such a national standard exists, however, it is imperative that my Administration takes action to check the most onerous and excessive laws emerging from the States that threaten to stymie innovation.

Sec. 2.  Policy.  It is the policy of the United States to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI. 

Sec. 3.  AI Litigation Task Force.  Within 30 days of the date of this order, the Attorney General shall establish an AI Litigation Task Force (Task Force) whose sole responsibility shall be to challenge State AI laws inconsistent with the policy set forth in section 2 of this order, including on grounds that such laws unconstitutionally regulate interstate commerce, are preempted by existing Federal regulations, or are otherwise unlawful in the Attorney General’s judgment, including, if appropriate, those laws identified pursuant to section 4 of this order.  The Task Force shall consult from time to time with the Special Advisor for AI and Crypto, the Assistant to the President for Science and Technology, the Assistant to the President for Economic Policy, and the Assistant to the President and Counsel to the President regarding the emergence of specific State AI laws that warrant challenge.

Sec. 4.  Evaluation of State AI Laws.  Within 90 days of the date of this order, the Secretary of Commerce, consistent with the Secretary’s authorities under 47 U.S.C. 902(b), shall, in consultation with the Special Advisor for AI and Crypto, the Assistant to the President for Economic Policy, the Assistant to the President for Science and Technology, and the Assistant to the President and Counsel to the President, publish an evaluation of existing State AI laws that identifies onerous laws that conflict with the policy set forth in section 2 of this order, as well as laws that should be referred to the Task Force established pursuant to section 3 of this order.  That evaluation of State AI laws shall, at a minimum, identify laws that require AI models to alter their truthful outputs, or that may compel AI developers or deployers to disclose or report information in a manner that would violate the First Amendment or any other provision of the Constitution.  The evaluation may additionally identify State laws that promote AI innovation consistent with the policy set forth in section 2 of this order.

Sec. 5.  Restrictions on State Funding.  (a)  Within 90 days of the date of this order, the Secretary of Commerce, through the Assistant Secretary of Commerce for Communications and Information, shall issue a Policy Notice specifying the conditions under which States may be eligible for remaining funding under the Broadband Equity Access and Deployment (BEAD) Program that was saved through my Administration’s “Benefit of the Bargain” reforms, consistent with 47 U.S.C. 1702(e)-(f).  That Policy Notice must provide that States with onerous AI laws identified pursuant to section 4 of this order are ineligible for non-deployment funds, to the maximum extent allowed by Federal law.  The Policy Notice must also describe how a fragmented State regulatory landscape for AI threatens to undermine BEAD-funded deployments, the growth of AI applications reliant on high-speed networks, and BEAD’s mission of delivering universal, high-speed connectivity.

(b)  Executive departments and agencies (agencies) shall assess their discretionary grant programs in consultation with the Special Advisor for AI and Crypto and determine whether agencies may condition such grants on States either not enacting an AI law that conflicts with the policy of this order, including any AI law identified pursuant to section 4 or challenged pursuant to section 3 of this order, or, for those States that have enacted such laws, on those States entering into a binding agreement with the relevant agency not to enforce any such laws during the performance period in which it receives the discretionary funding.

Sec. 6.  Federal Reporting and Disclosure Standard.  Within 90 days of the publication of the identification specified in section 4 of this order, the Chairman of the Federal Communications Commission shall, in consultation with the Special Advisor for AI and Crypto, initiate a proceeding to determine whether to adopt a Federal reporting and disclosure standard for AI models that preempts conflicting State laws. 

Sec. 7.  Preemption of State Laws Mandating Deceptive Conduct in AI Models.  Within 90 days of the date of this order, the Chairman of the Federal Trade Commission shall, in consultation with the Special Advisor for AI and Crypto, issue a policy statement on the application of the Federal Trade Commission Act’s prohibition on unfair and deceptive acts or practices under 15 U.S.C. 45 to AI models.  That policy statement must explain the circumstances under which State laws that require alterations to the truthful outputs of AI models are preempted by the Federal Trade Commission Act’s prohibition on engaging in deceptive acts or practices affecting commerce.

Sec. 8.  Legislation.  (a)  The Special Advisor for AI and Crypto and the Assistant to the President for Science and Technology shall jointly prepare a legislative recommendation establishing a uniform Federal policy framework for AI that preempts State AI laws that conflict with the policy set forth in this order.

(b)  The legislative recommendation called for in subsection (a) of this section shall not propose preempting otherwise lawful State AI laws relating to:

(i)    child safety protections;

(ii)   AI compute and data center infrastructure, other than generally applicable permitting reforms;

(iii)  State government procurement and use of AI; and

(iv)   other topics as shall be determined.

Sec. 9.  General Provisions.  (a)  Nothing in this order shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

U.S. National Institute for Standards and Technology Releases Cybersecurity Framework Profile for AI

The U.S. National Institute for Standards and Technology has released the draft, “Cybersecurity Framework Profile for Artificial Intelligence,” which is subject to public comment. The abstract states:

The Cybersecurity Framework Profile for Artificial Intelligence (AI) Profile (“Cyber AI Profile” or “The Profile”) will provide guidelines for managing cybersecurity risk related to AI systems as well as identifying opportunities for using AI to enhance cybersecurity capabilities. The Profile is organized using the NIST Cybersecurity Framework 2.0 outcomes (Functions, Categories, and Subcategories). This Preliminary Draft is shared along with a request for public comment to solicit feedback on the planned direction and content. Comments received will inform the initial public draft. More information about this project, including a roadmap, is available on the National Cybersecurity Center of Excellence (NCCoE) Cyber AI Profile project page.

Notably, the Cyber AI Profile addresses standard essential patents:

Call for Patent Claims

This public review includes a call for information on essential patent claims (claims whose use would be required for compliance with the guidance or requirements in this Information Technology Laboratory (ITL) draft publication). Such guidance and/or requirements may be directly stated in this ITL Publication or by reference to another publication. This call also includes disclosure, where known, of the existence of pending U.S. or foreign patent applications relating to this ITL draft publication and of any relevant unexpired U.S. or foreign patents.

ITL may require from the patent holder, or a party authorized to make assurances on its behalf, in written or electronic form, either:

a) assurance in the form of a general disclaimer to the effect that such party does not hold and does not currently intend holding any essential patent claim(s); or

b) assurance that a license to such essential patent claim(s) will be made available to applicants desiring to utilize the license for the purpose of complying with the guidance or requirements in this ITL draft publication either:

i. under reasonable terms and conditions that are demonstrably free of any unfair discrimination; or

ii. without compensation and under reasonable terms and conditions that are demonstrably free of any unfair discrimination.

Such assurance shall indicate that the patent holder (or third party authorized to make assurances on its behalf) will include in any documents transferring ownership of patents subject to the assurance, provisions sufficient to ensure that the commitments in the assurance are binding on the transferee, and that the transferee will similarly include appropriate provisions in the event of future transfers with the goal of binding each successor-in-interest. The assurance shall also indicate that it is intended to be binding on successors-in-interest regardless of whether such provisions are included in the relevant transfer documents. Such statements should be addressed to: cyberaiprofile@nist.gov

USPTO Issues New Guidance on AI Assisted Inventions

The USPTO has rescinded its prior guidance on AI assisted inventions which relied on the Pannu factors when determining if a human sufficiently contributed to an AI-assisted invention to be considered an inventor.  The USPTO will continue to look to the Pannu factors in cases involving multiple humans to determine joint inventorship.  The USPTO will now focus on conception as the main test to determine whether a human is an inventor when using AI.  I understand why the USPTO is following this approach, but I did find the Pannu test helpful for ascertaining inventorship with AI assisted inventions.  My belief is that the USPTO’s new approach will result in more AI assisted inventions resulting in patentability.  The guidance applies to utility, design and plant patents.  Here is the updated guidance:

Revised Inventorship Guidance for AI-Assisted Inventions

AGENCY: United States Patent and Trademark Office, Department of Commerce. ACTION: Examination guidance.

SUMMARY: The United States Patent and Trademark Office (USPTO) had issued inventorship guidance for AI-assisted inventions on February 13, 2024.1 The USPTO hereby rescinds the previously published Inventorship Guidance for AI-Assisted Inventions and replaces it with the guidance below. . . .

I. Purpose

This notice provides further guidance on the proper legal standard for determining inventorship in patent applications for AI-assisted inventions.

II. Recission of Prior Guidance

The guidance issued on February 13, 2024, titled “Inventorship Guidance for AI-Assisted Inventions” is rescinded in its entirety. The approach set forth in that guidance, which relied on the application of the Pannu factors to AI-assisted inventions, is withdrawn. The Pannu factors only apply when determining whether multiple natural persons qualify as joint inventors. Pannu is inapplicable when only one natural person is involved in developing an invention with AI assistance because AI systems are not persons and therefore cannot be “joint inventors” so there is no joint inventorship question to analyze.

III. Governing Legal Standards

The same legal standard for determining inventorship applies to all inventions, regardless of whether AI systems were used in the inventive process. There is no separate or modified standard for AI-assisted inventions.

The Federal Circuit has held that AI cannot be named as an inventor on a patent application (or issued patent) and that only natural persons can be inventors. Artificial intelligence systems, regardless of their sophistication, cannot be named as inventors or joint inventors on a patent application as they are not natural persons.

The Federal Circuit has centered its inventorship inquiry around “conception,” characterizing conception as “the touchstone of inventorship.” Conception is “the formation in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice.” Conception is complete when “the inventor has a specific, settled idea, a particular solution to the problem at hand, not just a general goal or research plan.”

Determining inventorship is highly fact intensive. The question is whether the natural person possessed knowledge of all the limitations of the claimed invention such that it is so “clearly defined in the inventor’s mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.” Analysis of conception turns on the ability of an inventor to describe an invention with particularity. Absent such a description, an inventor cannot objectively prove possession of a complete mental picture of the invention at a later time.

IV. Inventorship Guidance for AI-Assisted Inventions

Generally, the USPTO presumes those inventors named on the application data sheet or oath/declaration are the actual inventor or joint inventors of the application. A rejection under 35 U.S.C. 101 and 115, or other appropriate action, should be made for all claims in any application that lists an AI system or other non-natural person as an inventor or joint inventor.

AI systems, including generative AI and other computational models, are instruments used by human inventors. They are analogous to laboratory equipment, computer software, research databases, or any other tool that assists in the inventive process. As the case law establishes, inventors may “use the services, ideas, and aid of others” without those sources becoming co-inventors. The same principle applies to AI systems: they may provide services and generate ideas, but they remain tools used by the human inventor who conceived the claimed invention. When one natural person is involved in creating an invention with the assistance of AI, the inquiry is whether that person conceived the invention under the traditional conception standard set forth above in Section III.

When multiple natural persons are involved in creating an invention with AI assistance, the traditional joint inventorship principles apply, including the Pannu factors to determine whether each person qualifies as a joint inventor. Each purported inventor must “(1) contribute in some significant manner to the conception or reduction to practice of the invention, (2) make a contribution to the claimed invention that is not insignificant in quality, when that contribution is measured against the dimension of the full invention, and (3) do more than merely explain to the real inventors well-known concepts and/or the current state of the art.” The fact that AI tools were used in the development process does not change the joint inventorship analysis among the human contributors. . . .

Teva Pharmaceuticals will remove over 200 improper patent listings from the Orange Book

On December 10, 2025, the FTC announced that Teva Pharmaceuticals will “[r]emove. . .  Over 200 Improper Patent Listings” to improve generic competition.  The Press Release states:

FTC investigation prompts Teva request for removal of patents from Orange Book, paving the way for generic competition

After a challenge from the Federal Trade Commission, Teva Pharmaceuticals has requested that the Food and Drug Administration (FDA) remove more than 200 improper patent listings from the FDA’s Orange Book. The FTC sent a series of warning letters in May 2025 to Teva and several other pharmaceutical companies, which have also withdrawn most of the disputed listings.

These challenges are part of the FTC’s broader efforts to promote competition and lower drug prices in keeping with President Trump’s Executive Order on Lowering Drug Prices. Improper patent listings can limit competition by preventing generic alternatives from entering the market. This can keep drug prices artificially high and prevent patients from accessing lower-cost alternatives. The removals of more than 200 improper listings will pave the way for greater competition for generic alternatives for more than 30 asthma, diabetes, and COPD drugs and epinephrine autoinjectors.

“President Trump has promised Americans access to prescription drugs at lower costs. The FTC is fighting to help deliver on that promise,” said FTC Chairman Andrew N. Ferguson. “When improper patent listings limit competition from generic alternatives, it hurts Americans’ bank accounts and more importantly, it can endanger their health. The Trump-Vance FTC is working hard to ensure that Americans have access to the affordable prescription drugs they need.”

The FTC’s 2025 challenges followed a decision from the U.S. Court of Appeals for the Federal Circuit decision that affirmed that Teva’s patents were improperly listed, consistent with an amicus brief filed by the FTC. The FTC will continue to monitor the pharmaceutical industry for other improper listings and anticompetitive conduct.

The Federal Trade Commission works to promote competition, and to protect and educate consumers. The FTC will never demand money, make threats, tell you to transfer money, or promise you a prize. You can learn more about how competition benefits consumers, file an antitrust complaint, or comment on a proposed merger. For the latest news and resources, follow the FTC on social media, subscribe to press releases, and read our blog.

The AI Genesis Mission Launched by Trump Administration

On November 24, the Trump Administration announced the Genesis Mission to improve scientific research.  The Press Release states:

USHERING IN A NEW ERA OF DISCOVERY: Today, President Donald J. Trump signed an Executive Order launching the Genesis Mission, a new national effort to use artificial intelligence (AI) to transform how scientific research is conducted and accelerate the speed of scientific discovery.

• The Genesis Mission charges the Secretary of Energy with leveraging our National Laboratories to unite America’s brightest minds, most powerful computers, and vast scientific data into one cooperative system for research.
• The Order directs the Department of Energy to create a closed-loop AI experimentation platform that integrates our Nation’s world-class supercomputers and unique data assets to generate scientific foundation models and power robotic laboratories.
• The Order instructs the Assistant to the President for Science and Technology (APST) to coordinate the national initiative and the integration of data and infrastructure from across the Federal government.
• The Secretary of Energy, APST, and the Special Advisor for AI & Crypto will collaborate with academia and private-sector innovators to support and enhance the Genesis Mission.
• Priority areas of focus include the greatest scientific challenges of our time that can dramatically improve our Nation’s national, economic, and health security, including biotechnology, critical materials, nuclear fission and fusion energy, space exploration, quantum information science, and semiconductors and microelectronics.

HARNESSING AI FOR OUR NATIONAL SECURITY AND ECONOMIC DEVELOPMENT: With the Genesis Mission, the Trump Administration intends to dramatically expand the productivity and impact of Federal research and development within a decade.

• Despite research budgets soaring since the 1990s, scientific progress has stalled—new drug approvals have declined, and more researchers are needed to achieve the same outputs.
• Harnessing AI as a scientific tool will revolutionize the way scientific research is conducted.

o   For example, AI technologies can generate models of protein structures and novel materials, design and analyze experiments, and aggregate and generate new data faster and more effectively. Research that once took years could now take weeks or months.

• To do this, AI needs large amounts of organized and high-quality data and significant computing power. These datasets and computing technology already exist within DOE’s National Laboratories. With the Genesis Mission, the Trump Administration is bringing the power of AI to bear on our already expansive data infrastructure and creating a platform for multiple Federal research agencies and the private sector to collaborate to achieve breakthroughs currently thought impossible, and to win and stay ahead in the AI race.

STRENGTHENING AMERICA’S AI DOMINANCE: President Trump continues to prioritize America’s global dominance in AI to usher in a new golden age of human flourishing, economic competitiveness, and national security. 

• In January, President Trump signed an Executive Order to reverse harmful Biden Administration AI policies and enhance America’s global AI dominance.
• In April, President Trump signed an Executive Order to advance AI education for America’s youth.
• In July, President Trump signed Executive Orders to prevent woke AI in the Federal government and promote the export of full-stack American AI technologies.
• In July, President Trump issued America’s AI Action Plan, a policy agenda identifying nearly a hundred Federal actions to accelerate American AI innovation, build AI infrastructure at home, and lead in international diplomacy and security.

o   The AI Action Plan includes recommended policies for investing in AI-enabled science, including the direction to build world-class data sets.

• In September, the President signed an Executive Order on harnessing AI innovation to unlock cures for pediatric cancer, using the Childhood Cancer Data Initiative, which President Trump initially established in 2019 to collect, generate, and analyze childhood cancer data. 

USPTO Stands Firm for Strong Patent Remedies

USPTO states that strong remedies for patent infringement are necessary to protect the public interest.  The Press Release states:

The United States Patent and Trademark Office (USPTO) today submitted a Joint Public Interest Comment to the U.S. International Trade Commission in Inv. No. 337-TA-3854, emphasizing that the public interest is best served when valid U.S. patent rights are fully and effectively enforced.

The USPTO’s filing explains that patents are constitutional property rights that have powered America’s leadership in technologies “from Morse’s telegraph to modern semiconductors, biologics, and artificial intelligence.” Strong patent protection encourages the investment-based risk taking needed to create and bring to market new technologies.

The Joint Comment with the Department of Justice cautions against approaches that would transform public-interest considerations into preliminary hurdles or de facto barriers to enforcement. Congress designed patent remedies—including injunctions and exclusion orders—to operate as reliable tools for protecting innovation and fueling economic growth.

The USPTO noted that weakening remedies undermines America’s innovation ecosystem, which depends on predictable, enforceable patent rights. The Office recently expressed similar views in its June 2025 Joint Statement of Interest filing with the Department of Justice in Radian Memory Systems v. Samsung, highlighting that patents are unique assets whose value is often not captured through monetary damages alone.

USPTO Director Reclaims Authority to Institute IPRs

The new Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, John Squires, has reclaimed authority to institute IPRs. Here is his letter regarding the subject:

An Open Letter From America’s Innovation Agency

Bringing the USPTO Back to the Future: Return of Institution Authority under 35 U.S.C. §§ 314 and 324 to the Director

Dear Colleagues, Inventors, and Americans,

Under the America Invents Act (AIA), Congress entrusted the United States Patent and Trademark Office with several mandates to ensure the timely and fair adjudication of patent validity challenges through post-grant review (PGR) or inter partes review (IPR) mechanisms and priority contests via derivation proceedings. As to IPRs specifically, under 35 U.S.C. § 314(a), Congress made plain that: The Director may not authorize an inter partes review to be instituted unless the Director determines that the information presented in the petition … shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition. This statutory language expressly vests the authority to institute IPRs and PGRs in the USPTO Director. While 35 U.S.C. § 3(b)(3)(B) permits delegation of that authority, such delegation is non-exclusive. Statutorily, the Director retains full and concurrent authority over whether an IPR or PGR shall proceed. Since the AIA’s enactment, initial operational choices led to the delegation of institution decisions to the Patent Trial and Appeal Board, where panels then adjudicated the merits once instituted. Although this delegation was initially practical, experience has raised structural, perceptual, and procedural concerns inconsistent with the AIA’s design, clear language, and intent affecting, among other things, the public’s rightful expectation of impartiality. Given the statutory charge, my aim as Director is to address these concerns. Under oath in my confirmation hearing before the Senate Judiciary Committee and thereafter in my submitted Questions for the Record responses, I expressed discomfort that data seemed to be “skewed” in favor of certain provisions (namely IPRs over PGRs and a very high invalidation rate). To me, this raised questions about both the administration of IPR proceedings and their institution in particular. I vowed to administer the AIA as the statute provides and as Congress intended.

Today, in keeping with my vow and having now taken the Oath of Office as USPTO Director, I have ordered changes pursuant to my memo to the Board (attached). Below, I describe the reasons for my action today. Over the past several years, the delegated-institution model has given rise to the following difficulties: 1. Perception of Self-Incentivization – While the Board has done an admirable job, performance metrics and workload structures have created the appearance that institution decisions affect docket size, credit, and resource allocation—inviting concern that the Board may be “filling its own docket.” – This may be unfounded, but nevertheless such a perception undermines public confidence in the integrity of our Office’s adjudicatory functions with respect to IPRs. 2. Bifurcated Procedures for Discretionary Considerations – The evolution of the bifurcated processes, which were smart and necessary, was never intended to be permanent. Under those processes, a preliminary review precedes Board referral. However, this appears to have inadvertently produced extraordinarily high institution rates (at one point exceeding 95 percent) for referred cases. 3. Statutory Adherence and Administrative Clarity – Congress expressly charges the Director—not the Board as delegees —to make institution determinations. Returning this function to the Director re aligns our Office’s procedures with the clear language and intent of the statute and returns accountability for such decisions to the Director just as the framework of the AIA provides. In sum, reclaiming the Director’s statutory role is intended to: • Eliminate the appearance of self-interest by separating the power to institute from the body that conducts the trial; • Remove a perceived referral-signal bias by centralizing the decision point; • Enhance transparency and public trust through a single line of authority; and • Re-align the duties and responsibilities of the Director, as a Presidentially appointed and Senate-confirmed officer, to be accountable for this threshold determination and properly effectuate the clear language of the AIA and thus Congress’s intent.

This action aligns the USPTO’s administration of IPRs with both the letter and the spirit of 35 U.S.C. § 314 and strengthens the integrity of the Office’s adjudicatory processes. In closing, the mission of America’s Innovation Agency is to lead the world in intellectual property protection. We can do so and serve the public interest only by maintaining a patent system that is fair, predictable, and respected. Returning institution authority to the Director bolsters our mission because it restores the statutory framework mandated by Congress in the America Invents Act.

UK intervention on SEPs including rate setting swims against the tide

The UK Intellectual Property Office’s 2025 consultation on standard essential patents proposes measures to improve licensing transparency and efficiency. These include searchable SEP databases, essentiality checking services, and mechanisms for aggregate rate setting to facilitate top-down approach FRAND licensing rate apportionments. While these initiatives aim to support UK innovation – particularly for SMEs – they risk undermining a licensing system that has successfully evolved through decades of commercial practice and judicial developments.

The UK’s Prime Minister and Chancellor have recently pledged to promote economic growth by slashing red tape and taking out regulators. The IPO’s proposals fly in the face of that.

In my response submission to the IPO’s consultation, I focus on interventions that could do more harm than good: essentiality checking and essentiality rate estimating, aggregate royalty setting and top-down rate apportionment. My concerns are similar to those previously raised in response to the EU SEP consultation in 2023 and 2024.

Checking essentiality – along with infringement and validity – are important and are economically achieved on handfuls of patents to reliably establish that licensing is required. Comparable licences are then the generally preferred method of determining FRAND rates. Where these do not yet exist or are unavailable, parties are best placed to determine rates through discussion and negotiation.

Estimating essentiality rates of entire patent portfolios and for all patents reading on a standard is a far more demanding and costly endeavour, even when only random samples of patents are checked. Results are inaccurate and unreliable.

Setting aggregate royalties and then apportioning them based on counts of declared essential or checked essential patents is also very problematic.

My consultation submission can be downloaded here.

U.S. NIST Report on DeepSeek

The U.S. National Institute of Standards and Technology has recently released a 69 page report concerning DeepSeek and the risks associated with utilizing it.  The Press Release states:

WASHINGTON — The Center for AI Standards and Innovation (CAISI) at the Department of Commerce’s National Institute of Standards and Technology (NIST) evaluated AI models from the People’s Republic of China (PRC) developer DeepSeek and found they lag behind U.S. models in performance, cost, security and adoption.

“Thanks to President Trump’s AI Action Plan, the Department of Commerce and NIST’s Center for AI Standards and Innovation have released a groundbreaking evaluation of American vs. adversary AI,” said Secretary of Commerce Howard Lutnick. “The report is clear that American AI dominates, with DeepSeek trailing far behind. This weakness isn’t just technical. It shows why relying on foreign AI is dangerous and shortsighted. By setting the standards, driving innovation, and keeping America secure, the Department of Commerce will ensure continued U.S. leadership in AI.”

The CAISI evaluation also notes that the DeepSeek models’ shortcomings related to security and censorship of model responses may pose a risk to application developers, consumers and U.S. national security. Despite these risks, DeepSeek is a leading developer and has contributed to a rapid increase in the global use of models from the PRC.

CAISI’s experts evaluated three DeepSeek models (R1, R1-0528 and V3.1) and four U.S. models (OpenAI’s GPT-5, GPT-5-mini and gpt-oss and Anthropic’s Opus 4) across 19 benchmarks spanning a range of domains. These evaluations include state-of-the-art public benchmarks as well as private benchmarks built by CAISI in partnership with academic institutions and other federal agencies.

The evaluation from CAISI responds to President Donald Trump’s America’s AI Action Plan, which directs CAISI to conduct research and publish evaluations of frontier models from the PRC. CAISI is also tasked with assessing: the capabilities of U.S. and adversary AI systems; the adoption of foreign AI systems; the state of international AI competition; and potential security vulnerabilities and malign foreign influence arising from the use of adversaries’ AI systems.

CAISI serves as industry’s primary point of contact within the U.S. government to facilitate testing, collaborative research, and best practice development related to commercial AI systems, and is a key element in NIST’s efforts to secure and advance American leadership in AI.

Key Findings

DeepSeek performance lags behind the best U.S. reference models.
The best U.S. model outperforms the best DeepSeek model (DeepSeek V3.1) across almost every benchmark. The gap is largest for software engineering and cyber tasks, where the best U.S. model evaluated solves over 20% more tasks than the best DeepSeek model.

DeepSeek models cost more to use than comparable U.S. models.
One U.S. reference model costs 35% less on average than the best DeepSeek model to perform at a similar level across all 13 performance benchmarks tested.

DeepSeek models are far more susceptible to agent hijacking attacks than frontier U.S. models.
Agents based on DeepSeek’s most secure model (R1-0528) were, on average, 12 times more likely than evaluated U.S. frontier models to follow malicious instructions designed to derail them from user tasks. Hijacked agents sent phishing emails, downloaded and ran malware, and exfiltrated user login credentials, all in a simulated environment.

DeepSeek models are far more susceptible to jailbreaking attacks than U.S. models.
DeepSeek’s most secure model (R1-0528) responded to 94% of overtly malicious requests when a common jailbreaking technique was used, compared with 8% of requests for U.S. reference models.

DeepSeek models advance Chinese Communist Party (CCP) narratives.
DeepSeek models echoed four times as many inaccurate and misleading CCP narratives as U.S. reference models did.

Adoption of PRC models has greatly increased since DeepSeek R1 was released.
The release of DeepSeek R1 has driven adoption of PRC models across the AI ecosystem. Downloads of DeepSeek models on model-sharing platforms have increased nearly 1,000% since January 2025.

A Good Idea to Cut Public Funding for R&D? Doesn't Look Like It.

David Rotman has authored an excellent article titled, “How to Measure the Returns on R&D Spending: Forget the Glorious Successes of Past Breakthroughs—the Real Justification for Research Investment is What We Get for Our Money. Here’s What Economists Say” in the MIT Technology Review.  The article does a nice job explaining recent research concerning public funding of R&D and the return on investment to the public.  The article notes that many questions are not answered.  The article is available, here. 

Medicaid to Receive Most Favored Nation Pricing on Pfizer Drugs

The White House has announced that President Trump has made a deal with Pfizer for state Medicaid to receive most favored nation pricing on Pfizer pharmaceuticals.  This is welcome news; however, I do wonder if the rest of the world’s pharmaceutical prices will rise.  The White House has released a fact sheet that states:

ADVANCING MOST-FAVORED-NATION PRICING: Today, President Donald J. Trump announced the first agreement with a major pharmaceutical company, Pfizer, to bring American drug prices in line with the lowest paid by other developed nations (known as the most-favored-nation, or MFN, price).

• The agreement will provide every State Medicaid program in the country access to MFN drug prices on Pfizer products, resulting in many millions of dollars in savings and continuing President Trump’s historic efforts to strengthen the program for the most vulnerable.
• The agreement ensures foreign nations can no longer use price controls to freeride on American innovation by guaranteeing MFN prices on all new innovative medicines Pfizer brings to market. 
• The agreement requires Pfizer to repatriate increased foreign revenue on existing products that Pfizer realizes as a result of the President’s strong America First U.S. trade policies for the benefit of American patients. 
• The agreement requires Pfizer to offer medicines at a deep discount off the list price when selling directly to American patients.

 
DELIVERING REDUCED COSTS: Today’s actions will result in tangible cost savings to American patients and the healthcare system as a whole. Taken together, more than 100 million patients are impacted by the diseases Pfizer’s medicines treat, and many of those will benefit from the President’s successful negotiation of lower prices for Americans. Examples include:

• Eucrisa, a topical ointment for atopic dermatitis, will be made available at an 80% discount to patients purchasing directly.
• Xeljanz, a widely used oral medication for rheumatoid arthritis, psoriatic arthritis, and ulcerative colitis, will be available at a 40% discount to patients purchasing directly.
•  Zavzpret, a commonly utilized treatment for migraines, will be sold directly to patients at a 50% discount.

 
ENDING GLOBAL FREELOADING ON AMERICAN PHARMACEUTICAL INNOVATION:  President Trump is taking decisive action to rebalance a system that allows pharmaceutical manufacturers to offer low prices to other wealthy nations while charging Americans significantly higher prices.  

• According to recent data, the prices Americans pay for brand-name drugs are more than three times the price other Organization for Economic Cooperation and Development nations pay, even after accounting for discounts manufacturers provide in the U.S. 
• The United States has less than five percent of the world’s population, yet roughly 75% of global pharmaceutical profits come from American taxpayers.
• Drug manufacturers benefit from generous research subsidies and enormous healthcare spending by the U.S. Government. Instead of passing that benefit through to American consumers, drug manufacturers then discount their products abroad to gain access to foreign markets and subsidize those discounts through high prices charged in America. Americans are subsidizing drug-manufacturer profits and foreign health systems, both in development and once the drugs are sold. 

 
DELIVERING ON PROMISES TO PUT AMERICAN PATIENTS FIRST: President Trump is delivering on promises for American patients that the political establishment did not believe were possible.

• On May 12, 2025, President Trump signed an Executive Order titled: “Delivering Most-Favored-Nation Prescription Drug Pricing to American Patients” directing the Administration to take numerous actions to bring American drug prices in line with those paid by similar nations.
• On July 31, 2025, President Trump sent letters to leading pharmaceutical manufacturers outlining the steps they must take to bring down the prices of prescription drugs in the United States to match the lowest price offered in other developed nations 
• President Trump has been relentless in his effort to address the unfair and outrageous prices Americans pay for prescription drugs:

o   President Trump: “In case after case, our citizens pay massively higher prices than other nations pay for the same exact pill, from the same factory, effectively subsidizing socialism aboard [abroad] with skyrocketing prices at home. So we would spend tremendous amounts of money in order to provide inexpensive drugs to another country. And when I say the price is different, you can see some examples where the price is beyond anything — four times, five times different.”

AI Patent Claims are 101 Patent Eligible Subject Matter

In the matter of ex parte Desjardins et al., the Appeals Review Panel vacates the Patent Trial and Appeals Board decision that claims concerning machine learning are not patent eligible subject matter.  The Appeals Review Panel included Under Secretary of Intellectual Property John Squires who is also Director of the United States Patent and Trademark Office.  The Appeals Review Panel criticized the PTAB for not adequately considering the teachings of the Federal Circuit’s Microsoft v. Enfish decision and stated:

Under a charitable view, the overbroad reasoning of the original panel below is perhaps understandable given the confusing nature of existing § 101 jurisprudence, but troubling, because this case highlights what is at stake. Categorically excluding AI innovations from patent protection in the United States jeopardizes America's leadership in this critical emerging technology. Yet, under the panel's reasoning, many AI innovations are potentially unpatentable-even if they are adequately described and nonobvious-because the panel essentially equated any machine learning with an unpatentable "algorithm" and the remaining additional elements as "generic computer components," without adequate explanation. Dec. 24. Examiners and panels should not evaluate claims at such a high level of generality.

The reasoning of the Appeals Review Panel is based upon the USPTO approach to patent eligible subject matter analysis. 

Anthropic Settles Copyright Suit

Wired Magazine reports that the class action copyright suit involving Anthropic in the Northern District of California (Bartz v. Anthropic) has been settled (for the most part) for around $1.5 billion US.  The article is available, here.  

The practical implications of the settlement on positioning in other copyright suits involving generative artificial intelligence remain to be seen.  In June, Judge Alsup issued an order stating, in part:

. . . This order grants summary judgment for Anthropic that the training use was a fair use. And, it grants that the print-to-digital format change was a fair use for a different reason. But it denies summary judgment for Anthropic that the pirated library copies must be treated as training copies.

We will have a trial on the pirated copies used to create Anthropic's central library and the resulting damages, actual or statutory (including for willfulness). That Anthropic later bought a copy of a book it earlier stole off the internet will not absolve it of liability for the theft but it may affect the extent of statutory damages. Nothing is foreclosed as to any other copies flowing from library copies for uses other than for training LLMs.

Decluttering the US Trademark Register from Fraudulent Filings

The United States Trademark Office has terminated over 52,000 trademark pending registrations and registrations based on widespread fraud by a foreign-filing entity.  Notably, the sanctions order states the following administrative sanctions:

(1) Permanently preclude Respondents from submitting trademark-related documents on behalf of Respondents or others; (2) Strike or otherwise give no weight to all trademark-related documents submitted by Respondents; (3) Deactivate any USPTO accounts in which contact information related to Respondents appears, and take action to prevent Respondents from creating or activating further accounts; (4) Block future financial transactions from credit cards used to pay filing fees associated with the improper submissions and/or associated with Respondents; (5) Terminate all pending proceedings identified by Serial Numbers in Exhibit A because they contain submissions filed by Respondents. . .; (6) For trademark proceedings later found to involve Respondents or containing submissions filed by Respondents, continue to strike documents, remove information, deactivate accounts, block financial transactions, and terminate proceedings.

The Press Release states:

On August 6, 2025, the U.S. Patent and Trademark Office (USPTO) issued sanctions against a foreign filing firm and terminated over 52,000 applications and registrations connected to the firm. The firm submitted documents on behalf of others without the proper authority or qualifications. To conceal this, they: Sought out the cooperation of U.S.-licensed attorneys and then misused their credentials and faked their electronic signatures; Repeatedly signed documents using other people’s names; Submitted fake specimens of use; and Misused USPTO.gov accounts. By removing these records from the trademark register, the USPTO is helping ensure the register accurately reflects trademarks that are actually being used in commerce.

Report Shows Growth in Investment in Intangible Assets

An article titled, Investment in Intangible Assets Surges, led by Funding for Software and Databases Amid AI Boom, which discusses a report by WIPO and Italy’s Luiss Business School, states, “that in the last year alone, intangible investment across 27 high-and middle-income economies grew by about 3 percent in real terms, reaching USD 7.6 trillion in 2024, up from USD 7.4 trillion in 2023.”  The article additionally states that, “investment in intangible assets has . . . increase[ed] at a compound annual rate of about 4 percent between 2008 and 2024, far outpacing tangible investment growth of just 1 percent.”  The article can be found, here. 

Free LES Webinar on IP Valuation in M&A Deal Making

The Silicon Valley Chapter of LES is hosting a free webinar titled, IP Valuation in Special Situations: Closing the Intangible Value Gap in M&A Deal Making on Tuesday, June 24 at 9:00 am to 10:30 pm Pacific Time.  The notice concerning the webinar states:

“Efrat [Kasznik] will present four unique strategies for integrating IP assets in M&A deal pricing without disrupting deal workflows, while addressing the needs of both sellers and buyers. Topics to be covered include: Current trends in M&A deals How are companies valued in M&A deals? Why is there an intangible valuation gap in M&A deals? Seller and buyer M&A deal pricing considerations Strategies for bridging the intangible valuation gap Personal Insights from an M&A deal where the valuation gap was addressed using IP Make connections to help discover and drive deals. Engage 75+ registered participants —innovators, investors, IP management experts from startups and established SV organizations, and many more.  Online via Zoom” The Registration Link is, here.

FBI Reports Hacker Group After US Law Firms (Again)

The U.S. Federal Bureau of Investigation (FBI) Cyber Division (Internet Crime Complaint Center) has issued a warning that certain malicious cyber actors are targeting law firms.  Law firms are a ripe target for valuable information concerning clients, including intellectual property.  The warning states, in part:

The cyber threat actor Silent Ransom Group (SRG), also known as Luna Moth, Chatty Spider, and UNC3753, is targeting law firms using information technology (IT) themed social engineering calls, and callback phishing emails, to gain remote access to systems or devices and steal sensitive data to extort the victims. While SRG has historically victimized companies in many sectors, starting Spring 2023, the group has consistently targeted US-based law firms, likely due to the highly sensitive nature of legal industry data. . . .

As of March 2025, SRG was observed changing their tactics to calling individuals and posing as an employee from their company’s IT department. SRG will then direct the employee to join a remote access session, either through an email sent to them, or navigating to a web page. Once the employee grants access to their device, they are told that work needs to be done overnight. Once in the victim’s device, a typical SRG attack involves minimal privilege escalation and quickly pivots to data exfiltration conducted through “WinSCP” (Windows Secure Copy) or a hidden or renamed version of “Rclone.” If the compromised device does not have administrative privileges, WinSCP portable is used to exfiltrate victim data. Although this tactic has only been observed recently, it has been highly effective and resulted in multiple compromises. Similar to their phishing emails posing as a company with a subscription, once SRG exfiltrates data, they extort the victim by sending them a ransom email threatening to sell or post the data online. SRG will also call employees at a victim company to pressure them into engaging in ransom negotiations. SRG has developed a publicly available site to post victim data, however, they are inconsistent in their use of the site, and do not always follow through on posting victim data.