Hello all,
We review up to five new portfolios daily from patent owners seeking our help to market their patents. Often, we find promising patents that have lapsed due to missed maintenance fee payments, only to be revived with some last minute legal CPR —sometimes years later.
Most do not realize that this severely impacts validity and, therefore, valuation, unless the rules were scrupulously followed. I expand on this topic and how to mitigate risks below.
The current US administration LOVES patents, so much that it now wants to tax them! Think of it as a new tariff on innovation. More on this below.
As usual, as I focus on the macro picture in this newsletter, I want to remind everyone that we track everything that is going on in this world and for those who need their regular dose of news, once again you can follow me on LinkedIn where I post almost daily about some of the most newsworthy events. If you want to catch up on what grabbed my attention these recent weeks, you can access all my posts directly here.
Happy reading!
Louis
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Tangible IP News
Welcome to IP Dealstream™: Compact Portfolio Exchange.
For nearly 15 years, Tangible IP has built a strong reputation by brokering high-quality patent portfolios. Due to the volume of new opportunities—up to five daily—we prioritize larger portfolios with solid evidence of use, often leaving smaller, innovative collections unrepresented. To address this, we are introducing a new channel to market these valuable assets.
I am pleased to announce the launch of IP Dealstream™: Compact Portfolio Exchange as a way to give a voice to inventors and innovative companies that have created great IP, but do not necessarily meet the bar of some buyers who prefer to invest in large sets of assets. The details of this new program are available here. We invite our readers to visit our website often as we begin adding new offerings each week.
In addition, if your organization is looking to acquire patents, either because of an urgent need or to meet a longer term freedom to operate goal, feel free to contact us at info@tangibleip.biz. We can source relevant assets and approach patent holders anonymously on your behalf, all the way to closing a transaction.
All of our patents for sale are listed here. Similarly, if you’d like to be added on our distribution list in the future so that you are the first to receive new opportunities, please email us at info@tangibleip.biz.
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AI Tools: The One We Prefer
Like most of you, we’ve been inundated with demos from various patent analytics and evidence of use search platforms that claim to replace seasoned analysts. While none truly eliminate the need for human expertise, we found that Limestone|Report stands out as the most practical solution we’ve encountered, at a price most can afford.
What sets Limestone|Report apart is its ability to provide a comprehensive view of portfolio pedigree while effectively identifying potential infringers. The platform delivers near real-time, actionable insights across Enforceability, Infringement, and Economics for portfolios of any size – capabilities that have proven invaluable in our day-to-day practice.
We’ve been so impressed with the results that we’re now incorporating Limestone|Report into all our represented portfolios.
What about you? Well, our good friends at Techson IP have agreed to extend special pricing to our readers so that you can try it for yourself. You will receive a 20% discount off their standard pricing on your first project through 12/31/2025 * if you use this link.
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So Much for Taxing the Poor Now!
In our last issue, I recounted (“So Much For Taxing The Rich”) the late introduction of Tackling Predatory Litigation Funding Act by Senator Tillis who tried to tie it to the Big, Beautiful Bill passed by Congress, now signed into law, just to be kicked out embarrassingly by the Congress Parliamentarian who decided that it has no legal ground to be there. A rare event these days where we actually let someone not elected or confirmed by Congress do their job.
Fast forward a few weeks later and the Trump administration found another way to keep the IP community on its toes in the middle of summer vacations.
The administration’s proposed patent tax—charging patent holders 1%-5% of their intellectual property’s annual value— has triggered the kind of unified outrage typically reserved for referees at World Cup finals. Commerce Secretary Howard Lutnick’s July 2025 proposal represents an unprecedented departure from 235 years of U.S. patent policy, proving that irony isn’t dead—it’s just been appointed to Cabinet positions.
The proposal would replace flat maintenance fees with percentage-based “property taxes” on patent value, making the U.S. about as popular with inventors as a tax audit during Christmas dinner. What’s particularly amusing is that Lutnick himself holds over 800 patents worldwide—essentially making him the turkey voting for Thanksgiving.
July 28, 2025 marked when The Wall Street Journal first reported the proposal, revealing Commerce Department officials were discussing “new fees based on patent value” as part of broader revenue generation efforts. Because nothing says “promoting innovation” quite like treating patents as untapped piggy banks.
The timing reflects Lutnick’s mandate to narrow the government’s budget deficit without raising traditional taxes – a task roughly equivalent to losing weight by eating more cake. Revenue projections suggest the tax could generate up to $10 billion annually, though these figures apparently assume patent holders will behave like passive dairy cows rather than rational economic actors.
Currently, patent holders pay three modest maintenance fees, with approximately half of all patents abandoned before the final fee under the existing system. One can only imagine the abandonment rates when the government starts charging rent on ideas.
Constitutional challenges loom under Article I, Section 8, Clause 8, which grants Congress power “to promote the Progress of Science and useful Arts”—not “to tax the Progress of Science and useful Arts into submission.” The valuation methodology presents an intractable problem: patents are granted for new ideas whose value remains unknown, making assessment about as reliable as weather forecasting in the Sahara.
Meanwhile, 13 EU countries offer preferential “patent box” tax regimes that reduce rates on IP income, suggesting that while America prepares to tax patents into oblivion, Europe is rolling out the red carpet. It’s like hosting a potluck where you serve gruel while your neighbors bring champagne.
The intellectual property community’s reaction has been so uniformly negative, it makes Congressional approval ratings look robust. Dennis Crouch of Patently-O characterized the proposal as “a radical transformation of the US patent system” that would make America an international anomaly—though not the kind that attracts tourism.
Market response was swift: biotech stocks dropped following the initial Wall Street Journal report, proving that investors can recognize policy catastrophes faster than patent examiners can spot prior art.
The proposal would create devastating impacts across all sectors, with small inventors facing particular annihilation. The Information Technology and Innovation Foundation warns the tax would “place the greatest burden on startups” who would be “forced to pay taxes on the uncertain ‘paper value’ of a patent rather than on actual economic activity.”
Large corporations would likely abandon the U.S. patent system entirely, shifting to keeping valuable inventions internal as trade secrets or resorting to defensive publication strategies. This would eliminate crucial protection mechanisms that prevent competitors from patenting around innovative technologies—essentially turning the patent system into a suggestions box.
The pharmaceutical industry faces particular devastation, given its heavy reliance on patent protection. Universities would struggle with technology transfer missions under the Bayh-Dole Act, which was designed to encourage patenting taxpayer-funded research—not to make it financially ruinous.
Despite overwhelming opposition, some government officials support the proposal with the enthusiasm of people who’ve never actually dealt with patent law. Reports suggest that incoming USPTO director John Squires “thinks this a good idea and looks forward to implementing it”—demonstrating either remarkable optimism or a fascinating misunderstanding of his job description.
Treasury officials view the proposal through a deficit reduction lens, focusing on potential revenue generation without apparently considering that destroying the innovation ecosystem might reduce overall tax receipts. It’s the economic equivalent of killing the goose that lays golden eggs to save on bird feed.
At a time when China and other competitors are investing heavily in innovation infrastructure, making the U.S. uniquely punitive toward patent holders constitutes the kind of strategic error typically studied in business schools under “What Not to Do.”
Doing CPR on Patents
Patent holders face severe enforcement vulnerabilities when attempting to revive lapsed patents or abandoned applications under false premises about “unintentional” abandonment. While the USPTO may gladly accept reinstatement petitions and fees—because who doesn’t love money?—patents and applications revived on questionable grounds create permanent litigation liabilities that can lead to unenforceability.
The same revival rules apply to both abandoned pending applications and expired patents—apparently, the USPTO believes in equal opportunity disappointment. Under 35 U.S.C. § 27 and 37 CFR § 1.137, abandonment must be genuinely “unintentional” whether dealing with a failure to respond to an Office Action or failure to pay maintenance fees – the entire delay from original abandonment through petition filing cannot involve any deliberate decision-making. The foundational In re Maldague (1988) case established that strategic business decisions, even if later regretted, constitute intentional abandonment that precludes revival. When Belgonucleaire’s agent deliberately chose not to respond to a final Office action after reviewing prior art, the Commissioner ruled this intentional abandonment could not be cured by subsequent changed circumstances. In other words, “I changed my mind” is not a valid legal strategy.
This creates the first major pitfall: inventors who assume business-driven delays can be characterized as “unintentional” face potential inequitable conduct liability. The USPTO’s general acceptance of unintentional delay statements, while relying on practitioner candor—a touching display of institutional faith—does not insulate patents from later challenge. Recent cases like Freshub v. Amazon (2024) demonstrate that even five-year delays before revival of abandoned applications can trigger serious inequitable conduct challenges during litigation. Apparently, courts are less trusting than the USPTO.
USPTO acceptance doesn’t guarantee litigation survival. Even when patent offices accept reinstatement, courts apply heightened scrutiny to the underlying abandonment circumstances regardless of whether the issue involves pending applications or expired patents. In Network Signatures v. State Farm (Fed. Cir. 2013), the Federal Circuit provided limited protection for using standard USPTO forms, but the decision’s narrow scope (maintenance fees only) leaves application abandonment cases vulnerable. The recent Freshub v. Amazon (2024) case demonstrates that while inequitable conduct claims face high evidentiary burdens, five-year delays before revival still trigger serious litigation challenges. Apparently, judges are less impressed by retroactive explanations than patent examiners.
Abandoned applications face particular vulnerability because the USPTO has revived approximately 73,000 patent applications since 1982, creating a massive pool of potentially questionable patents. That’s a lot of “oops, didn’t mean to” moments. The Aristocrat v. IGT litigation revealed how courts can invalidate entire patent families when underlying applications were improperly revived—a reminder that bad foundations make for shaky houses.
The US “unintentional” standard is notably more lenient than other major jurisdictions—because America loves second chances, even dubious ones. The European Patent Office requires “all due care” with detailed upfront evidence and strict two-month deadlines. Canada follows the US model, but Japan historically required “justifiable cause” (though transitioning to “unintentional” for post-2023 applications). This disparity creates strategic vulnerabilities when patents are challenged across multiple jurisdictions. What passes for “unintentional” in Alexandria might not fly in Munich.
Federal Circuit precedent shows courts scrutinize whether abandonment resulted from: strategic business decisions, commercial viability assessments, or conscious prosecution choices (all intentional); versus attorney errors, docketing failures, or genuine mistakes (potentially unintentional). The Rembrandt Technologies (2018) case warned that inappropriate “unintentional” statements can render patents unenforceable for inequitable conduct. Turns out courts are surprisingly good at detecting creative interpretations of “unintentional.”
The timing of revival petitions creates additional vulnerabilities. USPTO guidance clarifies that petitions filed more than two years after abandonment face heightened scrutiny and require detailed explanations of circumstances. Courts view delayed revival attempts with suspicion, particularly when they coincide with competitor product launches or litigation threats. Funny how these “unintentional” discoveries always seem to happen right after someone else gets successful.
Research reveals that reinstated patents encounter higher settlement rates, intervening rights complications, and reduced damages potential. About 40% of litigated patents face invalidity challenges, but reinstated patents suffer additional vulnerabilities from procedural defects and heightened judicial skepticism. The Aristocrat v. IGT (2008) decision confirmed that while “improper revival” cannot be a direct invalidity defense, it supports powerful inequitable conduct claims. It’s like having a pre-existing condition—technically covered, but everyone knows there’s something wrong with it.
Applications revived after abandonment face particular risks because their prosecution history becomes a roadmap for challenging validity. Unlike maintenance fee lapses which are often administrative oversights—the patent equivalent of forgetting to pay your electric bill—application abandonment typically involves substantive prosecution decisions that create discoverable evidence of intent.
The critical pitfall is that even successful USPTO reinstatement creates permanent vulnerabilities that follow the patent through its remaining term, whether dealing with revived applications or expired patents. Patent holders who assume reinstatement is merely administrative – like renewing a driver’s license – face discovery burdens, expert testimony requirements, and potential findings of unenforceability that can eliminate an entire patent portfolios’ value. Surprise: opposing counsels are significantly less forgiving than USPTO examiners.
Smart patent strategy requires robust docketing systems, comprehensive documentation of any abandonment circumstances, and realistic assessment that revival under questionable circumstances may create more problems than solutions. The identical legal standards for both pending applications and issued patents mean that the same strategic cautions apply regardless of whether dealing with Office Action deadlines or maintenance fee payments. In the immortal words of patent law: just because you can doesn’t mean you should.