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Another day, another change at the USPTO.

If you have ever filed a patent application, you know there is a section that asks for your entity status: Large, Small, or Micro. If you have ever asked yourself whether size matters, the answer is now officially yes.

On October 24, 2025, the Office of the Assistant Commissioner for Patents released an Advance Notice of Change to the Manual of Patent Examining Procedure (MPEP) (https://www.uspto.gov/sites/default/files/documents/uaiamemo-oct2025.pdf) regarding false assertions or certifications of entity status. This is not the kind of memo that makes headlines, but the changes can ruin your day if you get it wrong.

What Is an “Entity Status”?

In the patent world, your entity status determines how much you pay in USPTO fees. The different tiers are intended to level the playing field between inventors and large corporations, but like all good things, the system only works when everyone is honest.

A large entity is the default. These entities pay full price for everything.

A small entity is generally a startup, small business, or individual inventor. You qualify if you have fewer than 500 employees, have not assigned your patent rights to a large entity, and are not owned by a large entity. Small entities receive a 50 percent discount on most fees.

Then there is the micro entity, which represents the underdog’s underdog. To qualify, you must first meet the small entity requirements and also have a gross income less than three times the median United States household income (approximately $240,000 this year). In addition, the inventor or inventors cannot have been named on more than four prior patent applications. The discount at this level is a whopping 75 percent.

What Is Changing in the MPEP

Claiming a reduced entity status is not a casual formality. It is a legal certification under 37 C.F.R. § 11.18, in which the applicant tells the government, under penalty of sanction, that it is entitled to pay a reduced amount. 37 C.F.R. § 11.18 specifically provides that by presenting any paper to the USPTO, a party certifies that all statements are true and made after a reasonable inquiry, and that any knowing or willful falsification may result in sanctions or even criminal penalties.

Until now, the USPTO did not routinely review correspondence for compliance with 37 C.F.R. § 11.18. In practice, this issue typically surfaced only during litigation, when a defendant’s legal team searched the prosecution history for anything that could be used as leverage. Even then, it rarely resulted in a patent being invalidated because courts often found that a mistaken fee payment was not sufficient to render the patent unenforceable unless it was made with deceptive intent.

The memorandum revises several key sections of the MPEP to reflect a stricter enforcement approach. The USPTO now expressly authorizes the Office of Petitions to review entity status claims and to determine whether an applicant or patent owner was entitled to the claimed discount.

Sections 509.03(b) and 509.04 now state that fraudulently or improperly claiming small or micro entity status, particularly with intent to deceive, constitutes fraud practiced on the Office. If such conduct occurs, the applicant can be referred to the Deputy Commissioner for Patents for further action. That phrase, “fraud practiced on the Office,” carries serious consequences. It is the patent law equivalent of being sent to the principal’s office.

The memorandum also adds a new entry under MPEP § 1002.02(b) to address petitions for reconsideration of fines or sanctions resulting from a determination that an entity status claim was falsely made and not in good faith. So if you get caught checking the wrong box, there’s now a formal process to beg for mercy.

In short, the USPTO has established a clear procedural framework to identify, review, and penalize false entity claims.

What Practitioners Should Take Away

This is not a new expansion of power. Rather, it is a formal acknowledgment of authority that the USPTO has always possessed but rarely exercised. The difference now is that the USPTO has put this in writing and has made clear that it intends to use that authority.

The memorandum concludes with a simple statement: these changes take effect immediately and supersede the 2024 MPEP. In other words, enforcement begins now.

For practitioners, this means that entity status cannot be treated as a one-time box to check. Companies expand, merge, and change ownership, and those changes can alter eligibility for reduced fees. Always verify entity status before filing rather than guessing at the deadline. Resist the temptation to select “small entity” simply because it saves a few dollars. If there is any uncertainty, the safer approach may be to pay as a large entity and request a refund later. It may be easier to recover overpaid fees than to explain to the Office of Petitions why your so-called micro entity just went public on NASDAQ.

Entity status discounts are an important tool for inventors and startups, but they only work when everyone participates in good faith. As the USPTO has now made clear, a false discount today can result in significant costs tomorrow.

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Igor Omilaev, Unsplash

When Dr. Stephen Thaler asked the U.S. Supreme Court to reconsider the human authorship requirement for copyright protection last month, many observers dismissed the effort. Thaler’s claim—that his generative AI system should be recognized as the author of its own outputs—has been consistently rejected by courts and the Copyright Office. On its face, Dr. Thaler’s petition for a writ of certiorari looks untenable: under current law, “authorship” remains a human concept.

And yet, Dr. Thaler is right, in part.  While his claim that an AI system should itself be treated as a legal author is (currently) unconvincing, his broader complaint—that the Copyright Office’s conception of “human authorship” is too narrow—deserves consideration. The law should continue to require human authorship, but it should also recognize that creativity mediated through generative AI can and often does meet that standard.

Dr. Thaler Challenges the Human Authorship Requirement

Thaler v. Perlmutter arises from Dr. Thaler’s application to register a visual work generated by his “Creativity Machine” with the U.S. Copyright Office. The Copyright Office denied the application, reasoning that the work lacked the “human authorship” necessary for protection under the Copyright Act because the Creativity Machine is a generative AI system programmed to autonomously produce images. Both the U.S. District Court for the District of Columbia and the D.C. Circuit affirmed the decision, concluding that copyright law protects only works of human creation.

Applicable legal precedent traces back to the nineteenth century. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Supreme Court upheld copyright protection for a photograph of Oscar Wilde, reasoning that it was “a product of the author’s intellectual invention” rather than a mere mechanical reproduction. Implicit in the reasoning was that the “author” was human—a creative agent capable of using a machine to generate original expression.

More recently, in the so-called “monkey selfie” case Naruto v. Slater (9th Cir. 2018), the Ninth Circuit held that non-human animals cannot own copyrights and cannot be authors. The court explained that the Copyright Act does not contemplate non-human animals as authors and presupposes a human author. Similarly, in administrative decisions and its Compendium of U.S. Copyright Office Practices (3d ed.), the Copyright Office has reaffirmed that it “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

Dr. Thaler’s petition to the Supreme Court challenges this position. He argues that the Creativity Machine—even operating autonomously, as he described—should be recognized as the author of its images, and that he as its owner should be recognized as the owner of the resulting copyrights.[1] 

On that point, the lower courts were right to reject Dr. Thaler’s claim under current law. Our current understanding is that machines are not sentient agents; we believe currently lack consciousness, intent, agency and, thus, the capacity for authorship as the law understands it. Granting authorship to a machine would potentially upend basic tenets of copyright, from ownership to duration to transfer. 

Still, Dr. Thaler’s case exposes a genuine tension: while the law correctly requires human authorship, the Copyright Office’s enforcement of that principle has drifted toward overbreadth.

The Copyright Office’s Overcorrection

In its recent guidance on “Works Containing Material Generated by Artificial Intelligence” (March 2023), the Copyright Office took a hard line: if a work’s “traditional elements of authorship were produced by a machine,” then the work lacks authorship and is not registrable or protectable. Only the portions “conceived and executed” by a human author may be registered.

In practice, this position has resulted in a number of well-publicized denials of registration.  When artist Kris Kashtanova registered their graphic novel Zarya of the Dawn, the Office later revoked the registration in part, finding that the images produced using Midjourney lacked human authorship. The decision recognized Kashtanova’s creative arrangement of images and text but excluded the images themselves. According to the Office, the images were the visual output of the generative AI technology as opposed to the product of human authorship, despite evidence of Kashtanova’s comprehensive involvement in the production and editing of the images. Similarly, the Office refused registration of Jason Allen’s Midjourney-generated digital image Théâtre D’opéra Spatial. To create the image, Allen had entered 624 distinct prompts and further edited and upscaled the image using Photoshop and Gigipixel AI. However, the Office found that because “Midjourney does not treat text prompts like direct instructions,” the traditional elements of authorship were executed by the machine rather than Allen himself. The Office noted that Allen could have disclaimed the machine-generated portions of the work and sought registration for the human contributions, but Allen did not do so.

The Office’s approach, while administratively neat, is too blunt. It treats “AI-generated” as synonymous with “AI-authored,” collapsing important distinctions. Most creators using generative tools are not ceding authorship to the machine; they are directing, refining, and curating outputs through a process that remains human.

This is particularly evident in “prompt engineering,” an emerging art form in itself. Skilled users like Jason Allen often iterate dozens or hundreds of times, adjusting phrasing, style parameters and seed values to achieve a desired effect. They select among results, modify them, and integrate them into broader works. This process resembles—and can even exceed—the level of creative control exercised by photographers, editors, or art directors in traditional media.

If the photographer in Burrow-Giles was deemed the author of a photograph taken by a camera—a mechanical device that merely recorded the scene the human envisioned—then a human who uses an AI model as a tool of expression should likewise be recognizable as an author, at least in some cases. The tool may be complex, but the authorship often remains human.

Automatic Public Domain Status Is Too Harsh

Under the Copyright Office’s current position, any work lacking sufficient human authorship is not protected by copyright and therefore enters the public domain upon creation. That might seem appropriate where a human plays zero creative role, but it is overly punitive where the person’s creative contribution is substantial but intertwined with contributions from a generative AI system.

This automatic forfeiture creates perverse incentives. It encourages creators to obscure or minimize their use of AI tools. It also risks undermining investment in AI-assisted creative processes, as the output would be immediately free for anyone to copy.

Moreover, “no protection” is not the only doctrinal option. Courts have long recognized frameworks such as joint authorship, derivative works, works-made-for-hire,[2] and compilations—one or more of which might accommodate human-machine collaboration without granting authorship to a machine. A balanced solution would recognize that the human directing and curating AI output is the author, while the generative AI platform is simply an assistive instrument.

A More Coherent Approach

A revised framework should include three principles:

  1. Human Creativity
    Copyright should attach when a human imposes meaningful human creativity on the expressive elements of the work. Such control or contribution may occur through the design of prompts, iterative selection, post-processing or other involvement—any process through which the human authentically shapes the final expressive result.
  2. Instrumental View of AI
    Generative AI systems should in most cases be regarded as instruments, akin to cameras, synthesizers, or design software. The mere use of a generative AI system should not automatically negate authorship in the output, so long as the human user contributes to the expression through substantive choices and direction.
  3. More Permissive Registration Process
    The Copyright Office does not need to burden applicants with identifying exactly which parts of their creative works are attributable to generative AI tools, just as it does not require disclosure of other software tools used in the creative process. If a defendant were to wish to challenge the (human) authorship in a particular work, the better place for that type of dissection would be infringement litigation.

These principles align with both the constitutional purpose of copyright—“to promote the progress of science and useful arts”—and the pragmatic need to allow the law to adapt to new creative technologies. The alternative, a blanket exclusion of AI-assisted works, could effectively freeze copyright in an outdated view of authorship and potentially chill the use of AI and stifle its potential.

Dr. Thaler’s Role in the Debate

To his credit, Dr. Thaler has escalated this issue. By pressing his claim to the Supreme Court, he has compelled legal and cultural institutions to confront what “authorship” means in an age when machines can contribute to creative processes in novel ways. His arguments may fail in court, but they should succeed in drawing attention to the gaps in current policy.

If the Creativity Machine operates autonomously without human selection, curation, or control, Dr. Thaler’s own case may be an extreme example. However, most real-world creators are not operating at that extreme. They are collaborating with and controlling generative AI tools. In that sense, Dr. Thaler may be wrong about his own claim, but right that copyright law needs to evolve to reflect the reality of human–machine creativity.

[1] It is interesting to note that, in his appeal to the District Court of the Copyright Office’s denial of his application, Dr. Thaler introduced new facts, namely, that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by [him],” and that “the AI only operates at [his] direction.” The District Court refused to consider these newly-asserted facts, because it was bound only to review the decision of the Copyright Office based on the record that was actually before the Office at the time of the Office’s final decision. It is unclear whether the new facts would have mattered. Based on the Office’s current position regarding AI outputs, the application likely would still have be denied.  However, this information suggests that there may have been sufficient human authorship present in the applied-for work.

[2] Dr. Thaler has asserted that work-made-for-hire is in fact an appropriate framework, with the Creativity Machine as the putative employee/creator and himself as the employer/commissioner. This position has received recent favorable attention; on October 31, 2025, a group of scholars filed an amicus brief in support of treatment of AI-generated works as works-made-for-hire, among other points.  Ivan Moreno, Academics Back IP Rights For Generated Art At High Court, IP Law 360 (Nov. 3, 2025) https://www.law360.com/ip/articles/2406913.

Growing up, my mom had a rule: you have to make your own Halloween costume from whatever we had at home. This worked fine until the year I wanted to be He-Man. Unfortunately, we couldn’t use household items to harness the power of Grayskull. Eventually, my mom gave in and bought the costume. I’m still working on the homemade version, but the gains just aren’t coming at the gym. Maybe less blogging and more bench pressing would help.

With that DIY background, I’ve always been fascinated by the technology hiding in Halloween costumes. And as you can imagine, the world of spooky season is crawling with patents. Every year, inventors dream up new ways to make costumes brighter, safer, gorier, or just plain cooler. Behind every glowing pumpkin and motion-activated skeleton, there’s probably an inventor and a patent attorney, grinning somewhere in the dark.

While some of us are busy finding last-minute costumes, some inventors are busy filing claims. Take U.S. Patent No. 6,854,131, titled “Illumination and Halloween Costume.” This invention adds light-emitting and reflective elements so kids can stay visible while trick-or-treating. It’s part safety device, part costume, proof that when you add a functional twist to a familiar product, you can cross the line from art project to patentable invention.

Even the candy buckets have risen from the IP grave. U.S. Patent No. 6,619,810 protects a “Halloween Treat Carrier Including Glow-in-the-Dark Material.” This invention is a reminder that sometimes the smallest tweak, such as adding photoluminescent material, can breathe new life into an otherwise ordinary object. Novelty doesn’t always mean inventing something new from scratch; sometimes it’s about seeing the familiar through fluorescent eyes.

For those who like a little more blood with their innovation, U.S. Patent No. 6,093,475 discloses a “Bleeding Costume Element.” Picture a transparent mask or chest plate with an internal fluid pump that circulates fake blood. This invention is half horror prop, half engineering experiment, and a textbook case of how adding a mechanical feature can make even a gag item a serious piece of IP.

And because no Halloween is complete without flashing lights and jump scares, U.S. Patent No. 6,035,447 covers a “Halloween Mask with Flash Device.” Think of it as a wearable strobe effect: dramatic, modular, and reusable. A frightfully good example of early user-customizable tech long before “modular design” was trendy.

My personal favorite is U.S. Patent No. 6,904,612, a “Weather and Climate Adaptive Halloween Costume.” This gem combines insulation and ventilation panels so trick-or-treaters can stay warm in Minnesota or cool in Miami without sacrificing their spooky aesthetic.

The claims read like bedtime reading for patent nerds:

(a) a flexible garment base portion made of plush fabric,
(b) an insulating layer,
(c) a venting portion functioning as a ventilator,
(d) a hood, and
(e) a plush animal head disposed on said hood.

But there’s one fatal flaw: “a plush animal head.” This limitation narrows the scope to, well, plush animals. So if you made the same costume with an alien head or a vampire head, you might escape infringement, unless, of course, someone argues an alien is an animal. (Patent lawyers have lost sleep over less.)

The lesson? A single word can make your claim a trick or a treat. Draft too narrowly and competitors can design around you. Draft too broadly and the examiner will chase your claim back to the graveyard. The sweet spot, like a full-size candy bar, is hard to get but worth the effort.

Lessons from the Pumpkin Patch

These Halloween patents remind us that innovation doesn’t only live in laboratories, it lurks in closets, garages, and sewing rooms too. And the line between “craft project” and “patentable invention” is thinner than a vampire’s reflection.

Here’s the takeaway for inventors and creative professionals alike:

  • Add a technical feature (e.g., lighting, airflow, motion) and you’re in utility-patent territory.
  • Add a distinct ornamental design, and you’re looking at design-patent protection.
  • Add a recognizable character or logo, and you’ve just summoned the trademark and copyright spirits.

Every creative spark can become protectable IP if you frame it right. The real magic is understanding where your idea fits in the IP cauldron and choosing the right potion to protect it.

So when you see a glowing candy bucket or a bleeding mask, remember: someone had to think it up, build it, and file for it. Even in a world of witches, ghosts, and goblins, there’s nothing scarier than an unprotected invention.

Now I’m off to the gym so maybe I’ll have the physique to pull off a He-Man costume by Halloween 2026… but at this rate, I may have to settle for Orko.

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Conny Schneider, Unsplash

Another day and another change at the USPTO. On October 8, the USPTO announced an Artificial Intelligence Pilot Program for pre-examination searches. Last week, on October 24, the USPTO followed with the Streamlined Claim Set Pilot Program aimed at accelerating examination through simplified claim structures. Together, these initiatives reflect Director John Squires’ drive to modernize the patent system and explore fresh approaches to make examination faster, more consistent, and more transparent.

The Automated Search Pilot Program represents one of the USPTO’s first large-scale efforts to integrate artificial intelligence directly into the pre-examination phase. Under this program, applicants can receive an AI-generated search report before an examiner begins reviewing the application. To participate, practitioners must file an original, noncontinuing utility application under 35 U.S.C. 111(a) between October 20, 2025, and April 20, 2026, and submit Form PTO/SB/470 with the petition fee under 37 CFR 1.17(f) on the same day as filing. Once accepted, the USPTO’s internal AI tool will conduct a search using the application’s claims, specification, and classification information. The results will be issued in an Automated Search Results Notice (ASRN) that lists up to ten references ranked by relevance.

The ASRN provides applicants with an early view of potential prior art concerns before the first Office action. Practitioners can use this information to adjust claim scope, file a preliminary amendment, request deferral of examination, or even choose to abandon the case and recover certain fees. The USPTO plans to accept about 1,600 applications in total, with roughly 200 per Technology Center, to gather meaningful data on how AI-assisted pre-examination searches affect pendency and examination quality.

Federal Register Notice – Automated Search Pilot Program

The Streamlined Claim Set Pilot Program takes a procedural approach to improving efficiency. This program is designed for applicants who can present their invention in a compact, well-structured set of claims. To qualify, the application must be an original, noncontinuing utility application filed before October 27, 2025, containing no more than one independent claim and no more than ten total claims, with no multiple dependent claims. Participation requires filing Form PTO/SB/472 with the petition fee under 37 CFR 1.17(h) before the first Office action and certifying that each inventor has been named on no more than three other applications under the same program. Accepted cases are advanced out of turn and examined on an expedited basis for the first Office action, after which the application returns to normal status.

Federal Register Notice – Streamlined Claim Set Pilot Program

Director Squires has signaled that he intends to make bold, data-supported changes to improve the efficiency and predictability of the patent system. The Automated Search Pilot gives practitioners early insight into how the USPTO’s search tools might identify relevant prior art, allowing for more informed drafting and prosecution strategies. Additionally, the Automated Search Pilot may improve examination quality by helping examiners start from a stronger baseline. The Streamlined Claim Set Pilot offers applicants a way to trade breadth for speed, which could be especially useful for start-ups or early-stage companies seeking faster clarity on patentability to support investment or product development.

If these pilots succeed, they may lead to new permanent procedures where examination tracks vary based on claim complexity or where AI tools assist both examiners and applicants from the outset. For now, these pilots are an early preview of where the USPTO is headed: leaner, smarter, and more data-driven. It seems every week brings a new chapter in Director Squires’ modernization playbook. Stay tuned, because at this pace, next week’s “big change” might already be in the works.

Stacked books and journal
Mikhail Pavstyuk, Unsplash

In a new Law360 article, Seyfarth partners Puya Partow-Navid and Brian Michaelis examine the early actions of newly appointed USPTO Director John A. Squires and their potential impact on patent eligibility, PTAB proceedings, and patent prosecution.

The piece explores Director Squires’ initial policy moves, including his decision to personally oversee AIA trial institution decisions and his efforts to recalibrate Section 101 analysis for AI and software-related inventions.

Read the full article here.

The phrase “Boston Strong” became a rallying cry for the strength and support Bostonians displayed after an act of terrorism. 

In 2013, two brothers planted bombs near the finish line of the Boston Marathon in Copley Square.  Three people were killed, and hundreds were injured.  Residents of Boston and surrounding neighborhoods were told to stay indoors while a search for the suspects was underway – it was an unsettling time for those of us living in the city. But in the wake of this horrific act, the community rallied.  Boston came together to honor those that were lost and injured and salute the first responders that attended to the victims. 

Boston Strong became ubiquitous. The phrase was displayed on the Green Monster in Fenway, adorned on flags and banners outside peoples’ homes, and featured on clothing and other items. Five days after the bombing, Bostonians took to the streets wearing bibs with the abbreviated phrase “BoStrong” and Boston’s 617 area code to show that we would not be intimidated:

The phrase began to function as a sort of motto for the city.  But what affect do these uses have on the ability for the phrase to function as a trademark?

In a recent decision from the Trademark Trial and Appeal Board (TTAB), an application to register BOSTON STRONG was refused.  In re Franklin Sports, Inc., Application No. 98326109(August 12, 2025). The reason? The phrase doesn’t function as a trademark. Instead, it serves as a common message, not a brand.

A company called Franklin Sports, Inc. applied to register BOSTON STRONG for entertainment services like volleyball competitions, sports broadcasting, and ticketing. But the TTAB found that the phrase is too widely used and too deeply embedded in public sentiment to serve as a source identifier.

The TTAB relied on extensive evidence: Boston Strong appears on t-shirts, hats, mugs, stickers, and even at blood drives. It’s been used by Boston sports’ teams, the Massachusetts State Police, and countless community events. It’s everywhere and that’s the problem for establishing trademark rights in the phrase.

Under trademark law, a mark must identify the source of goods or services. If a proposed mark is informational, ubiquitous, or otherwise does not act as a source indicator, an application to register the mark may be refused on failure to function grounds. Because Boston Strong is so widely used, it is difficult for the phrase to be associated with a single source. The TTAB compared it to other phrases like “Team Jesus” and “investing in American jobs,” which were also denied registration on failure to function grounds because they convey an affiliation with Christianity and promote the manufacture of goods in the United States, respectively.    

Franklin Sports argued that media coverage and sports branding could make Boston Strong a recognizable team name, like other Boston sports teams. But the TTAB wasn’t convinced. The phrase’s deep cultural meaning and widespread use made it incapable of functioning as a trademark.

This decision sends a clear message: you can’t own a city’s soul.  Boston Strong belongs to the people, not a company. It’s a reminder that some phrases are bigger than branding—they’re part of our collective identity.

We are, Boston Strong.

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David Kristianto, Unsplash

You’ve heard the name Labubu and have likely seen the wildly popular collectible plush toy. The craze around these dolls is reminiscent of times past when we (or perhaps a family member) all wanted Beanie Babies, Cabbage Patch Kids, or Troll dolls. This spike in popularity has brought about counterfeit LABUBU toys dubbed “Lafufus.” These spurious goods typically come into the U.S. from other countries.  But is there anything that can be done about it?

In August 2025, Customs and Border Protection (CBP) officers at Seattle-Tacoma International Airport intercepted a shipment falsely labeled as “LED Bulbs.” Inside were over 11,000 counterfeit LABUBU toys. The estimated retail value of the seized goods?  Over $500,000.

This seizure is more than just a win for brand protection. It’s a wake-up call for creators, companies, and IP owners. It underscores the critical importance of recording IP rights with CBP.

LABUBU toys, created by Pop Mart, have surged in global popularity. With retail prices around $30 and resale values reaching into the thousands, they’ve become a prime target for counterfeiters. The Lafufus were made with inferior materials and violated federal trademark and copyright laws.

While no arrests were made, the smugglers suffered a significant economic loss as the dolls were destroyed. However, how does CBP know what to look for? 

Pop Mart not only registered its LABUBU trademark with the United States Patent and Trademark Office (USPTO) and copyrights in the design of the toys with the United States Copyright Office (Copyright Office), but it also recorded those registrations with CBP. Those recordations assist CBP with recognizing counterfeit products and preventing them from entering the market. 

Why IP Holders Should Record with CBP

Recording your trademark or copyright registrations with CBP is a powerful tool in the fight against counterfeiting. Here’s why:

1. Proactive Enforcement

CBP officers are trained to identify and seize counterfeit goods but only if they know what to look for. Recording your IP registrations gives CBP important information needed to spot fakes at ports of entry.  Once your IP is recorded, CBP can detain, seize, and destroy infringing goods before they enter the U.S. market, preventing dilution of your brand and loss of revenue.

2. Deterrence

Publicized seizures like this Lafufu bust send a strong message to counterfeiters: U.S. brand owners take IP enforcement seriously. This can discourage future attempts to smuggle fake goods.

3. Cost Savings

Stopping counterfeit goods before they enter the market is far more efficient and cost-effective than pursuing legal action afterward.

4. Support for Legal Action

Documentation of seizures can support civil or criminal proceedings against counterfeiters, strengthening your legal position.

How to Record Your IP with CBP

The process is relatively straightforward:

  • Register your trademark or copyright registrations with the USPTO and Copyright Office.
  • Submit a recordation application through CBP’s Intellectual Property Rights e-Recordation system.
  • Provide product identification guides to help CBP distinguish genuine products from counterfeits.
  • Train CBP officers to distinguish between legitimate and dubious goods. 

The Lafufu seizure is a textbook example of how effective border enforcement can protect brands and consumers alike. But it only works if IP owners allow for CBP to act on their behalf.

If you’re a brand owner, artist, or entrepreneur, don’t wait until counterfeit goods flood the market, and record your IP with CBP. But in this instance, let’s not cry over spilled Lafufus.

Laptop on desk book stacks
freddie marriage, Unsplash

The USPTO just changed how interviews between a USPTO patent examiner and a patent applicant are treated. On October 2, USPTO management revised the examiner Performance Appraisal Plan (PAP) for FY 2026, capping compensation for interviews at one hour per round of prosecution.

Previously, examiners earned an hour of credit for each interview, with no real cap, so long as the discussions were productive. Under the new system, any additional interview after the first interview now requires supervisory approval and a showing that the second or subsequent interview will “advance prosecution.” Here, the first interview is any interview that occurs between the first Office Action and the filing of a Request for Continued Examination (RCE). The counter resets after filing an RCE.

Here’s a quick primer in case a patent attorney isn’t reading this. Note, this is a very watered-down primer. After a patent application is filed, the examiner usually issues an initial rejection based on prior art. The patent practitioner then responds, explaining why the claims differ from that art, often through arguments and/or claim amendments. The examiner reconsiders, possibly citing the same or new references, or may allow the application. If the examiner issues another rejection, it becomes a Final Office Action. At that stage, further amendments or arguments can be filed, typically with an RCE for them to be considered. The process restarts after the RCE.

Much of the back-and-forth can be avoided by simply calling the examiner. For example, suppose your claim covers a self-driving car that finds an “alternative route” to avoid bad weather. The examiner cites prior art where the car just pulls over until the weather clears. Technically, that’s an “alternative route.” Instead of exchanging lengthy written arguments, a quick call can clear it up. The examiner might suggest clarifying the claim to say “an alternative route that includes a road different from the original route.” A short conversation like this can make the process far more efficient.

The new shift appears to clash with long-standing Manual of Patent Examining Procedure (MPEP) guidance, which recognizes that interviews are central to advancing prosecution. As MPEP § 713 states:

“Discussions between an applicant and an examiner are often indispensable to advance the prosecution of a patent application. Generally, interviews that improve the mutual understanding of specific issues in an application should be promoted. Properly conducted, an interview can bridge the gap between an examiner and an applicant with regard to the substantive matters at issue in an application. Interviews often help to advance prosecution and identify patentable subject matter. The applicant and the examiner should consider the advantages of conducting an interview to advance the prosecution of a particular patent application. Positions presented during an interview should be advanced with decorum and courtesy.”
— MPEP § 713 (Interviews)

MPEP § 713.01 makes after-final interviews discretionary, meaning examiners may deny them if they believe the discussion will not materially advance prosecution. Now, with the new PAP rule, examiners have a further disincentive: no compensation unless they secure supervisory approval.

In practice, this means we’re likely to see more denied after-final interviews, especially if one already took place post–first action, and fewer examiner-initiated interviews, which have historically helped applicants and examiners clarify issues early and move toward allowance. One examiner noted that their Supervisory Patent Examiner (SPE) already said they’ll automatically approve all requests, so we’ll have to wait and see if that becomes the norm (fingers crossed).

In practice, I’ve only had a small minority of examiners deny interviews. It’s fine, my feelings weren’t hurt. Okay, maybe a little. Most have been collaborative, willing to take an extra call when an application was complex or when a discussion could break an impasse. That flexibility just got harder to exercise.

Interviews have always been one of the most effective tools to move prosecution forward efficiently. They humanize the process, prevent misunderstandings, and often avoid unnecessary RCEs.

Now, that collaboration comes with friction. In a world where even dating is digitized, interviews were one of the few chances to actually “reach out and touch someone.” They reminded us that behind every action and amendment are two people trying to reach understanding. Taking that away does not make the process more efficient; it makes it slower, less personal, and ultimately more costly in the long run.

I used to joke with examiners and say, “I hope this is the last time we speak, since allowance is next.” Now it’ll be, “I hope this is the last time we speak, since allowance is next. If not, I hope we can speak again—with discretionary approval.” A little human connection still goes a long way, even in patent law.

Tomorrow, October 9, 2025, Lauren Leipold and Owen Wolfe, Intellectual Property Partners at Seyfarth, will be speaking at the WIPR AI & IP Summit in New York.

Lauren and Owen will take part in the session “AI vs Copyright: Tackle the New Creative Battleground,” which will examine how generative AI is disrupting traditional copyright principles and the legal frameworks around them. The panel will address critical issues such as training data usage, authorship and ownership of AI-generated works, fair use in the AI era, and attribution and moral rights concerns in creative fields.

Owen will serve as the session moderator and Lauren will present with this distinguished group of panelists:

  • Michelle Brody, Principal, International Federation of Accountants
  • Allie Craver, Associate Director of Intellectual Property and Contract Specialist, Pérez Art Museum Miami

The WIPR AI & IP Summit convenes leading IP professionals from around the world to explore the evolving intersections of technology, innovation, and intellectual property law. This year’s agenda features forward-looking sessions on AI, patents, trademarks, and copyright, offering practical insights for navigating today’s rapidly changing IP landscape.

To learn more about the summit and register, visit the WIPR AI & IP Summit page.

Urban street art sticker
Markus Spiske, Unsplash

Although the market for NFTs has cooled off from its heyday several years ago, digital goods are still a hot commodity. This summer, the Ninth Circuit recognized that such goods are more than mere ephemera:  they are “goods” under the Lanham Act to which trademark law applies.

The case, Yuga Labs v. Ripps, involved a dispute over the Bored Ape Yacht Club (BAYC) NFT collection. Yuga Labs sued artist Ryder Ripps and his collaborator for creating a nearly identical NFT collection using the same images and branding. The defendants argued that the trademark infringement claims failed because an NFT is not a “good” under the Lanham Act. While the court ultimately reversed summary judgment on trademark infringement due to unresolved questions about consumer confusion, it made a clear and consequential finding: NFTs are trademarkable goods.

The court’s reasoning wasn’t limited to NFTs as a niche art form. It emphasized that the Lanham Act protects marks used with “any goods or services,” referencing reports from the USPTO on the subject. The court reasoned that although NFTs are intangible, they are bought and sold in curated online marketplaces, functioning as commercial goods. The decision indicates that trademark protection extends to a wide range of digital assets, including virtual fashion and wearables, in-game items and avatars, tokenized memberships and experiences, and digitally branded merchandise.

The court distinguished NFTs from earlier cases involving intangible content embedded in physical goods (like video cassettes or karaoke tracks). The intangible elements of goods like video cassettes represented ideas or creative works that were not protectable by trademark law. Unlike those goods, NFTs are not tied to tangible media: they exist and are traded entirely in digital environments. Thus, the intangible elements of NFTs are not merely expressive, but include the package in which the content is distributed. That difference was key to the court’s conclusion.

In short, if consumers perceive a digital asset as a product in commerce, it may qualify for trademark protection.

This decision is a reminder that courts are willing to adapt traditional IP frameworks to emerging technologies. Tellingly, the court quoted a recent Supreme Court case, stating that “we are mindful that when we apply ‘established legal rules to the ‘totally new problems’’ of emerging technologies, our task is “not to ‘embarrass the future.’”

For companies operating in the digital space, it’s also a reminder to:

  • Audit your digital offerings for trademarkable elements, such as logos, names, symbols.
  • Review your trademark portfolio to determine whether your digital offerings are adequately protected; and
  • Monitor marketplaces for unauthorized use of your marks in digital assets.