Patent Attorney and Founder
For years, patent disputes – especially at the Patent Trial and Appeal Board (PTAB) – have largely been about one thing: the strength of the legal arguments.
Is the patent valid?
Is there prior art?
Does the petition meet the technical thresholds?
But a recent shift at the U.S. Patent and Trademark Office (USPTO) signals something bigger.
Now, where products are made – and who is making them – may influence whether a patent challenge even gets heard.
And for small businesses and solo inventors, that could be a very big deal.
A Quiet Change with Major Implications
The USPTO recently introduced new discretionary considerations for deciding whether to institute inter partes review (IPR) and post-grant review (PGR) proceedings.
In plain English:
Before the PTAB decides whether to review and potentially invalidate a patent, it will now consider economic and policy factors – not just legal merit.
Among the most important of those factors:
- Whether the accused products are manufactured in the United States
- Whether the patent owner’s competing products are made in the U.S.
- Whether the challenger is a small business being sued for infringement
This marks a meaningful shift.
Patent challenges are no longer purely about “Is this patent weak?”
They are increasingly about “Who are the parties, and what role do they play in the U.S. economy?”
Why This Change Is Happening
To understand the significance, you need to look beyond patent law and into broader policy trends.
For decades, U.S. manufacturing has steadily moved overseas – particularly in industries like electronics and computing. That shift has raised concerns about:
- Economic resilience
- Supply chain vulnerability
- National security
- Long-term innovation leadership
The USPTO is now signaling that patent policy can play a role in addressing these concerns.
In other words, the patent system is being used not just to resolve disputes – but to incentivize domestic innovation and production.
That’s a big philosophical change.
The PTAB Has Been a Double-Edged Sword
To appreciate why this matters for inventors, it helps to understand the PTAB’s reputation.
Since its creation under the America Invents Act (AIA), the PTAB has often been viewed as:
- A fast and efficient way to challenge patents
- A tool frequently used by large companies to invalidate patents
- A venue where patent owners – especially smaller ones – face an uphill battle
Some critics have even called it a “patent death squad” (though that label has softened over time).
For many solo inventors and startups, the PTAB has been a major risk:
- You enforce your patent
- A large company responds with an IPR
- Your patent is suddenly under review – and potentially invalidated
This new USPTO guidance introduces a potential counterweight to that dynamic.
What’s Actually Changing?
Let’s break this down in practical terms.
When deciding whether to institute an IPR or PGR, the USPTO may now ask:
1. Where Are the Products Made?
- Are the accused infringing products manufactured in the U.S.?
- Or are they primarily made overseas?
2. What About the Patent Owner?
- Does the patent owner manufacture competing products in the U.S.?
- Do they contribute to domestic production or supply chains?
3. Who Is the Challenger?
- Is the petitioner a small business defending itself?
- Or a large company with limited U.S. manufacturing presence?
4. What’s the Broader Economic Impact?
- Does instituting review align with supporting U.S. innovation and industry?
- Or does it potentially disadvantage domestic production?
This is not a rigid formula. It’s discretionary.
But discretion matters – a lot.
Because even a strong petition can be denied if the broader context weighs against it.
Why This Is a Big Deal for Small Businesses and Inventors
This shift could meaningfully rebalance the playing field in several ways.
1. Stronger Position When Enforcing Patents
If you are a small business or inventor:
- And you manufacture (or plan to manufacture) in the U.S.
- And your patent covers a product tied to that activity
You now have a new argument when facing a PTAB challenge.
Instead of relying solely on legal defenses, you can say:
“Invalidating this patent undermines domestic manufacturing and innovation.”
That argument didn’t carry much weight before. Now it might.
2. More Friction for Large, Non-U.S. Manufacturers
Many of the most frequent PTAB challengers have historically been:
- Large multinational corporations
- Companies with significant overseas manufacturing
Under the new framework, those companies may face:
- Greater scrutiny
- Additional briefing requirements
- A higher risk of discretionary denial
This doesn’t mean they can’t file challenges. But it does mean:
The path is no longer as straightforward.
3. Recognition of Small Business Defendants
Importantly, the USPTO is also paying attention to small businesses on the other side of the equation.
If a small company is sued for infringement and uses an IPR defensively, that status may be considered.
That’s a subtle but important signal:
The system is trying – at least in part – to differentiate between:
- Defensive use of PTAB by small entities
- Strategic use by large, repeat players
4. A Shift Toward “Policy-Aware” Patent Decisions
Perhaps the biggest takeaway is this:
Patent disputes are no longer purely technical exercises.
They are becoming policy-aware decisions that incorporate:
- Economic impact
- Industry dynamics
- National priorities
For inventors, this creates both opportunity and uncertainty.
The Hidden Opportunity: Telling Your Story
One of the most overlooked aspects of this change is narrative.
In the past, PTAB proceedings were heavily focused on:
- Claims
- Prior art
- Legal standards
Now, there is room – arguably a need – for a different kind of argument:
- Where are your products made?
- How do you contribute to the U.S. economy?
- What investments have you made?
- What jobs or supply chains are tied to your innovation?
For small businesses and solo inventors, this is powerful.
Because while you may not have the legal war chest of a multinational corporation, you may have something else:
A compelling story about real-world impact.
But There Are Tradeoffs
This isn’t a one-sided benefit. There are real challenges to consider.
1. Increased Cost and Complexity
To take advantage of these factors, parties may need to:
- Investigate supply chains
- Document manufacturing locations
- Analyze economic impact
That adds time and expense.
For smaller entities, that burden is not trivial.
2. Less Predictability
When decisions incorporate discretionary, policy-based factors:
- Outcomes become harder to predict
- Different cases may be treated differently
- Guidance may evolve over time
That uncertainty cuts both ways.
3. Not Every Inventor Benefits Equally
If you:
- License your technology
- Don’t manufacture products
- Operate primarily in software or digital domains
Then the “Made in USA” factor may have less impact.
In some cases, it may be neutral.
Practical Takeaways for Inventors and Small Businesses
So what should you do with this information?
Here are a few strategic considerations.
1. Document Your U.S. Footprint
If you have any connection to U.S. manufacturing, capture it:
- Where are your products made?
- Where are components sourced?
- What investments have you made?
This information may become critical in future disputes.
2. Think About Manufacturing Early
For startups, this raises a strategic question:
Does manufacturing location affect not just operations – but IP strength?
The answer increasingly appears to be yes.
Even partial U.S. manufacturing or assembly could become relevant.
3. Align Your Patent Strategy with Business Strategy
Your patent position is no longer isolated from your business model.
They are connected.
- Licensing-only models may need stronger legal positioning
- Product-based businesses may gain additional leverage
Understanding that distinction is key.
4. Be Prepared to Tell a Broader Story
If you’re enforcing your patent:
Don’t just argue validity.
Be ready to explain:
- Your role in the market
- Your contribution to innovation
- Your connection to U.S. industry
That broader narrative may influence outcomes.
The Bigger Picture
This development is part of a broader trend:
The intersection of intellectual property and economic policy.
We’re seeing similar themes in:
- Trade law
- Antitrust enforcement
- Industrial policy
Patent law is now moving in that direction as well.
The message is clear:
Innovation is not just about ideas – it’s about where and how those ideas are brought to life.
Final Thoughts: A Subtle Shift with Real Impact
At first glance, this change might seem like a technical adjustment in PTAB procedure.
But in reality, it represents something more significant:
A recognition that the patent system plays a role in shaping the economy.
For small businesses and solo inventors, that could be meaningful.
- It may provide new leverage in enforcement
- It may create new defenses against challenges
- It may reward those who invest in domestic innovation
At the same time, it introduces new complexity and uncertainty.
As with any legal shift, the real impact will depend on how it is applied in practice.
But one thing is already clear:
Patent disputes are no longer just about what you invented.
They are also about where you build, who you employ, and how you contribute to the broader innovation ecosystem.
And in that new landscape –
“Made in USA” just became a lot more important.
If you’re a small business owner or independent inventor, now is the time to think strategically about where your products are made – and how your patent portfolio is positioned. The rules are shifting, and the inventors who understand what that means will have an edge.
At Bold Patents, we exist to help everyday inventors and entrepreneurs navigate exactly these kinds of changes. Whether you need to strengthen your patent position, prepare for a PTAB challenge, or build a strategy that accounts for the new landscape, our team is ready. Schedule a free discovery call today and let’s talk about how to make your U.S. footprint work for you.