The United States Patent and Trademark Office (USPTO) is currently experiencing a period of revolutionary change driven by internal reorganization, the explosion of AI-driven technologies, and a shift in philosophy toward patent law itself. Because of these changes, not only will patent practitioners have to rethink their approach to successfully guide patent applications through the USPTO, but innovators and business owners will need to rethink their intellectual property strategies to successfully compete on the new playing field. As the USPTO enters this new phase, all patent professionals and their clients must equip themselves to operate within a patent landscape that is becoming more complex and less predictable, yet filled with potential advantages.
Decoding the USPTO's Transformation
The USPTO's structural revision began in early 2025 under the leadership of new Director, John Squires. Since assuming the office, Director Squires has undertaken a series of reforms aimed at the operational structure of the USPTO, including fundamental changes to four critical dimensions of the agency's function:
- Redefinition of patentable subject matter under 35 U.S.C. §101 (i.e., changes to AI invention eligibility);
- Renewed efforts to mitigate growing backlog of pending patent applications;
- Restructuring of Examiner duties and operational working conditions;
- Rebalancing patent volume and quality processed by the USPTO.
Far from proposing mere administrative adjustments, Director Squires seeks a fundamental rethinking of the jurisprudence and operational methodology governing patent prosecution in the United States.
Section 101: AI Policy Reversal
The most substantial policy revision under Director Squires is the definitive redefinition of what subject matter is patent-eligible pursuant to 35 U.S.C. §101. His administration introduced "Three Pillars of Eligibility" which establishes a more permissive and inclusive framework for determining patentability:
Pillar 1: Acknowledges the patentability of novel applications of existing technologies, an allowance that holds particular significance for biotechnology and pharmaceutical domains. Pillar 2: Incorporates and validates digital and algorithmic innovations predicated upon the delivery of demonstrable technical improvements. Pillar 3: Confirms the validity of claims that produce a non-obvious, technical effect.
In the wake of this new directive, the USPTO has commenced the reversal of prior §101-based rejections and the revival of previously abandoned applications. Practitioners are professionally obligated to investigate the viability of petitions to revive such filings and to structure all prospective applications to adhere to this updated eligibility framework. If you are an innovator in the AI space, it is a good idea to contact a patent professional to see if you have options for revival or reversal of previous §101 rejections.
Operational Challenges: Examiner Capacity and Workload
Changes to examiner responsibilities have fundamentally restructured the internal operations of the USPTO, precipitated by several key policy revisions. These revisions include the creation of a secondary examiner tier ("Personalists") purposed with supporting artificial intelligence (AI) development, the requirement of AI-based similarity searching across all submitted applications, and the formal elimination of the AFCP 2.0 post-final program. Further, examiners face a renewed in-office work mandate even as they lose critical training resources. Another challenge arises from the new mandate requiring Supervisory Patent Examiners (SPEs) to review every independent claim, establishing a workload deemed mathematically unsustainable. Consequently, SPEs are now forced to examine their own dockets while reviewing the work of other examiners and managing the constant surge of new filings. Such increased SPE workload will result in a critical operational bottleneck, causing delays in mailing office actions and injecting unpredictable scheduling into the overall patent examination process.
A Two-Tiered Examination System
All this internal chaos may result in the creation of a de facto two-tiered patent examination system. While traditional examiners continue to process the majority of applications through established art units, older, backlogged applications (PBAs) are handled separately, often with less rigorous supervisory review. Compounding this issue, applicants have zero visibility or control over which of these two paths their application is forced to take.
Moreover, the prioritization of filings under programs like Track One, Patent Prosecution Highway (PPH), and Streamlined Claim Pilot Program has widened the gap and made the difference in processing time much worse for quick versus standard filings. This effect is visible in several technology centers where applicants using the standard process face wait times that can exceed 30 months before receiving of the first office action.
Balancing Speed, Quality, and Volume
The USPTO is currently mandated to solve the inherent dilemma that has persisted in patent system for decades, the "unsolvable triangle." This challenge, first recognized by Commissioner Ooms in 1945, requires the system to continually balance three competing goals: maximizing production volume, reducing application pendency speed, and preserving high examination quality. Current trends clearly show that the office is prioritizing speed and volume over examination rigor. This prioritization is an administrative decision intended to improve key performance indicators, leading to higher grant rates and shorter average wait times for applicants. However, this strategy carries a risk: any sacrifice in examination rigor directly raises doubts regarding the long-term enforceability of the patents issued. While fast grants are initially favorable, they may be subject to stricter invalidity arguments during litigation or aggressive challenges in post-grant proceedings.
Strategic Shifts: What Should Practitioners Do?
To maintain effectiveness and competitiveness within the new regulatory environment, patent practitioners must adjust their interaction with the USPTO system. Essential tactical adjustments include:
- Maximize the One-Hour Interview Limit: The single allotted interview hour must be used efficiently. The discussion should be focused on addressing core, substantive rejections (like anticipation or obviousness).
- Expect Procedural Allowances: Examiners are often granting applications that only need administrative cleanup using Quayle actions. Filings must be prepared meticulously to address minor procedural issues early, allowing the application to capitalize on this streamlined path.
- Plan for Continuations Early: A continuation strategy should be embedded directly into the original application filing plan. On expedited tracks, claims can be issued faster and often more narrowly, which leaves very little flexibility for the firm to modify the claim scope after allowance.
- Leverage the SPE Review Gap: There is a window between an examiner counting their work and the official mailing of the Office Action. IDSs should be filed during this gap to ensure prior art is formally considered without requiring an RCE or suffering a PTA time loss.
- Reevaluate Expedited Filing Programs: The Streamlined Claim Pilot Program is ideal for inventions with very specific, narrow claim sets. Although participation is limited (one independent and ten total claims), it provides a fast-track method to move the application out of the prolonged examination backlog.
Key Takeaways for IP Counsel and Innovators
To ensure maximum effectiveness and compliance within the current regulatory landscape, businesses need to ensure their IP teams are on board with, and IP counsel should adhere to the following directives:
a) Be agile. Deeply understand the procedural adjustments, plan for potential delays, and adjust the prosecution strategy accordingly. b) Prioritize quality. Expedience in prosecution must not be permitted to compromise patent enforceability or the necessary breadth of claim scope. c) Embrace the new §101 framework. Use the Three Pillars proactively to successfully overcome or strategically avoid eligibility rejections.
Conclusion
The USPTO is undergoing a deep structural reorganization that will require corresponding changes to patent practice. To successfully navigate this new reality, practitioners must have a deep understanding of how these changes affect examiners and their decisions, and how to anticipate successful strategies for their clients.