Hello all,
First, you may notice a small but symbolic change in our newsletter’s title: the updates are dead—long live the insights!
Over time, this column has shifted from simply recapping industry headlines to offering deeper analysis of trends shaping the IP market and legal landscape. My goal is to bring you perspective, not repetition.
In this week’s edition, I take a close look at the accelerated demise of IPRs since the arrival of the new USPTO Director, John Squires, and what this shift could mean for patent valuations moving forward. Is it time to say RIP to IPRs?
I also take a critical look at Canada’s latest Federal Budget, which, while commendable in its intent to foster domestic IP creation, does little to solve the country’s chronic IP retention problem—relying too heavily on carrots and not nearly enough on sticks.
As usual, while I focus on the macro picture in this newsletter, I want to remind everyone that we track everything happening in this world. For those who need their regular dose of news, you can follow me on LinkedIn, where I post almost daily about the most newsworthy events. If you want to catch up on what grabbed my attention in recent weeks, you can access all my posts directly here.
Happy reading!
Louis
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Tangible IP News
We’re pleased to report that we recently closed on a voluntary license for one of our clients in the digital content analysis technology area. You can see the full press release here.
We are also delighted to report the sale of various lots under brokerage originating from the AST IP3 2024 program. Full details available here.
With a few more deals in closing, look for additional announcements in the coming weeks.
Our CEO will be speaking in Ottawa on November 18th at the National IP Summit hosted by the Innovation Asset Collective (IAC). He will be speaking on how to optimize innovation transfer from academia to the marketplace.
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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FTO Anyone?
As a Venture Partner to a VC fund for the last decade, I’ve often heard from our Limited Partners how much they appreciate the peace of mind that comes from knowing their next investment won’t be derailed by a patent lawsuit. And as one of the World’s Leading IP Strategist for 13 consecutive years, I know firsthand that conducting a thorough Freedom to Operate (FTO) study provides invaluable clarity on whether an investment may face potential patent challenges before the deal is finalized. At Tangible IP, we have partnered over the last decade with numerous investors that have made this an integral part of their due diligence process. Typically, an FTO project begins once a term sheet is accepted and is completed within 3–4 weeks, though timelines can be seamlessly tailored to meet your specific needs and closing deadlines. For more information, you can contact us at info@tangibleip.biz.
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Time to say RIP to IPR?
In my last column (New Director—New Direction?), I noted that newly confirmed USPTO Director John Squires’ early moves seemed promising for patent owners and inventors. That was BEFORE he lobbed a policy grenade into the PTAB—one that could spell the end of inter partes reviews (IPRs) as we know them. Together with Alice, IPRs have been one of the twin Medusa heads turning patent enforcement into stone for over a decade. To grasp the magnitude of what may be unfolding, it helps to recall what IPRs were supposed to be—and how that experiment has failed spectacularly.
The Thirteen-Year Rollercoaster
When President Obama signed the America Invents Act (AIA) in 2011, IPRs were pitched as an efficient quality-control tool: eliminate “bad patents” quickly, save time and money. The promise—$350,000 and 18 months versus $3 million and three years in district court—was irresistible.
Then reality intervened. Between 2013 and 2015, the PTAB granted 87% of petitions and invalidated 87% of challenged claims. Chief Judge Rader’s infamous “death squads” remark stuck because it was accurate. Patents that had survived examination, reexamination, and sometimes district court scrutiny were being struck down by financially incentivized administrative judges applying looser evidentiary standards and broader claim constructions.
The Supreme Court’s 2018 Oil States decision preserved IPRs by declaring patents “public franchises” rather than private property—a concept that would have sent Madison reaching for his quill in protest. Then came Arthrex (2021), granting the USPTO Director discretionary review power and injecting a political dimension into what were supposed to be technical determinations.
In 2020, the Fintiv framework allowed denials based on parallel litigation timing rather than merit. Institution rates “plummeted” from 87% to about 55%. Patent owners learned to game the system through forum selection. Director Kathi Vidal (2022–2024) tried to restore balance with her “compelling evidence” memo, cutting Fintiv denials from 167 to just four. For a brief moment, IPRs looked functional again, hovering around a 67% institution rate.
That illusion ended on January 20, 2025. Acting Director Coke Morgan Stewart—installed minutes after President Trump’s inauguration—rescinded every Vidal reform within weeks.
The “Settled Expectations” Doctrine
Stewart’s real innovation was her “settled expectations” doctrine, first applied June 6, 2025. It shields patents older than six years from IPR challenge, regardless of merit. No reliance, no public notice—just age-based immunity. Think of it as the “senior discount” program for patents.
The perverse result: the older a patent, the more unassailable it becomes. A patent that never should have issued may now enjoy permanent protection from the PTAB simply by surviving unnoticed long enough. By spring 2025, IPR institution rates fell to 46%, then to 28% for petitions filed after October 2024.
Major tech companies—Google, Samsung, SAP, Motorola, and Instacart have all challenged Stewart’s policy, arguing it exceeds statutory authority and violates due process.
Enter John Squires
On September 17, 2025, John Squires was confirmed as Director. A month later, he assumed personal control over all IPR institution decisions, promising “summary notices” for routine denials. On October 31, he issued the first batch: thirteen denials in one page, no reasoning, no panel names, no analysis—just docket numbers and a citation to §314(a). Among the disappointed: Apple, Amazon, Intel, Cisco, and NVIDIA.
For the first time since the AIA’s birth, the USPTO denied IPRs en masse without explanation. Dennis Crouch aptly dubbed it “a new era of opacity.”
The implications are serious. How can the Federal Circuit conduct even minimal review when there’s no record to review? Ironically, appellate judges are now tasting the same due-process deficit they once overlooked in PTAB practice. Nearly 80% of PTAB denials are now discretionary, not merit-based. In a dozen years, we’ve gone from invalidating almost everything to reviewing almost nothing—neither extreme serves the patent system’s core purpose.
The First Legal Salvo
The legal counterattack began quickly. In JinkoSolar v. First Solar (IPR2025-01130), Scott Weidenfeller—former USPTO Senior Counsel and one of the architects of the original IPR rules—filed a surgical brief arguing that Squires’ direct assumption of authority violates the USPTO’s own regulations.
As he noted:
“The Director previously delegated the authority to institute IPRs exclusively to the Board by rule (37 C.F.R. § 42.4(a)). The Office has not begun amending or rescinding that rule.”
He also pointed to the constitutional vacuum:
“The complete lack of transparency makes even that limited review impossible… The Federal Circuit’s inability to determine whether a decision rests on unconstitutional considerations or shenanigans should itself be viewed as a clear APA violation.”
Just a few hours ago, in a precedential decision, the Federal Circuit denied Motorola’s mandamus petition, thus confirming the rescission of the Vidal memorandum and the current practice of blank denials by the USPTO. While it does not address directly Squires’ latest practice, it suggests that the Court will show strong deference to agency institution decisions.
The Administration’s IP Philosophy
The Trump administration clearly grasps what many patent owners have long believed: the PTAB was weaponized against innovation. Serial challenges, “broadest reasonable interpretation,” and preponderance standards all tilted the playing field.
But the cure may be worse than the disease. Replacing excessive invalidation with total opacity isn’t reform—it’s abdication. The constitutional fix isn’t administrative secrecy; it’s restoring patent validity disputes to Article III courts where they belong.
Consider what’s been lost:
- Predictability. Every new Director rewrites the rules. Vidal’s reforms lasted two years; Stewart’s lasted months. Investors shouldn’t need a political forecast to price patent risk.
- Due Process. District courts issue reasoned opinions and appellate review. Squires’ blanket denials offer neither.
- Independence. PTAB judges serve at the Director’s pleasure; Article III judges serve for life, precisely to avoid political pressure.
- Jury Trials. The Seventh Amendment guarantees them for disputes over $20; patents worth millions are cancelled by administrative fiat.
The Failed Experiment
After thirteen years, the numbers speak for themselves. Institution rates have swung from 87% to 28%. Nearly 80% of denials are discretionary. The pendulum hasn’t just swung—it’s lodged itself in the drywall.
The original sin was removing validity from the judiciary. Patents are property rights, not regulatory privileges. They deserve due process—independent judges, clear procedures, reasoned decisions, and appellate accountability.
Yes, litigation is expensive and slow. But replacing it with a political lottery isn’t efficiency; it’s entropy. The better fix lies in court reform: specialized patent judges, fee shifting for frivolous suits, tighter pleading standards, and limits on discovery abuse. Did anyone say European courts?…
What Happens Next?
Squires’ proposed rulemaking (comments due November 17, 2025) would bar IPR institution when prior adjudications exist or parallel proceedings are pending. Coupled with his black-box denials, the PTAB could become little more than an expensive inbox for rejection notices.
If that happens, one must ask: why have IPRs at all?
The Federal Circuit will soon weigh multiple mandamus petitions. Congress could step in—but history suggests otherwise. More likely, we’ll keep oscillating between overreach and paralysis until lawmakers finally admit that the AIA’s administrative validity experiment has failed and send it back to the courts where it began.
The Economic Fallout: Patent Valuations Rebound
For patent owners, however, every bureaucratic collapse has a silver lining. As IPRs fade into irrelevance, one of the two primary depressants of patent value (the other being Alice) is disappearing. Early market signals already show higher valuations in secondary markets and litigation settlements. Investors and corporate IP departments are beginning to price in lower invalidation risk and longer enforceable lives.
This recalibration could be dramatic. As predictability improves, financing based on patent collateral should expand, technology transfer deals will command higher upfront payments, and the “patent-as-asset” model—long derided as fiction—may finally regain credibility. In short, if PTAB denials are now the default, patent portfolios become safer, and safer assets are worth more.
The Bottom Line
Innovation requires investment. Investment requires predictability. Predictability requires stable property rights. A system where enforceability changes every four years is not stable. One where the issuing office can cancel patents without explanation is not just. And one where institution rates swing 60 points in a decade is not serious.
The Trump administration’s instinct is half right: PTAB, as designed, discouraged innovation. But the answer isn’t to make it even less accountable—it’s to recognize that administrative patent cancellation was a constitutional detour that failed.
Return validity disputes to Article III courts. The IPR experiment is over. Time to let it rest in peace.
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Time to go “Elbows Up” on IP: Why Canada Budget 2025’s “Support” Won’t Stop the Bleeding
Another year, another Canadian budget that talks about innovation while watching our intellectual property walk out the door. Finance Minister François-Philippe Champagne announced $181.9 million in IP “support programs” on November 4th—educational workshops, advisory services, patent collectives. All worthy ideas, and all utterly insufficient to address the systematic hemorrhaging of Canadian innovation to foreign ownership.
Let me be blunt: Canada just brought advice pamphlets to a gunfight.
The Carnage We’re Ignoring
Fifty-eight percent of patents with Canadian inventors end up owned by foreign companies. Two-thirds of software engineering graduates leave for the United States. Remember Nortel—35% of the TSX at its peak? When it collapsed, $4.5 billion in patents got auctioned off to Apple, Microsoft, and others. Decades of taxpayer-funded innovation, now powering foreign products. BlackBerry followed the same path. These weren’t just company failures—they were wholesale transfers of Canadian innovation infrastructure to foreign competitors. And we never replaced them.
This isn’t a market failure. It’s a policy failure.
Every competitor nation implements binding IP retention rules. Canada offers advice pamphlets. Here are five IP policy tools Canada should adopt immediately.
Israel (1984-2005) required government-funded IP stay domestic with manufacturing obligations—criminal penalties for violations. Result: high-tech grew to 10% of workforce, highest in OECD. When they weakened rules in 2005, companies sold earlier and scaled less.
The UK now mandates pre-approval for IP transfers with five-year prison terms for violations. France, Germany, Japan, Australia have similar regimes. The US Bayh-Dole Act requires federally-funded inventions be manufactured domestically—contributing $591 billion to GDP since 1996. Thirteen EU countries offer patent boxes.
Every serious nation protects taxpayer-funded IP. Canada offers advice.
Five IP Policy Tools Canada Should Adopt Now
- Canadian Bayh-Dole: Manufacturing Requirements for Federally-Funded IP
Any exclusive licensee of federally-funded research must substantially manufacture in Canada. Grant government “march-in rights” to compel licensing if patents sit unused. The US model generated $591 billion GDP impact over 20 years. Canadian taxpayers fund research—Canadian workers should benefit.
- Expand Investment Canada Act to Cover IP Transfers
Include IP asset transfers in foreign investment screening. Mandatory notification for AI, quantum, semiconductors, biotech. Penalties: five years imprisonment and $10 million or 5% of turnover. When government-funded companies sell, require 3-6x original grant repayment (Israel’s model). Five-year retrospective review prevents evasion.
- Patent Box with Manufacturing Conditions
Offer 10% tax rate on IP income (versus 26.5% standard)—but only where products are manufactured in Canada. Link benefits to employment. Thirteen EU countries offer patent boxes; Canada’s absence disadvantages domestic IP ownership decisions. Implement it right: tie tax breaks to jobs.
- Binding Conditions on Government R&D Grants
For all programs over $100,000: require approval before IP transfers abroad (with 3-6x grant repayment for violations), mandate 3-5% royalties on commercialized revenues, grant Canadian investors first right of negotiation. Change grant terms administratively—no legislation needed.
- Strategic Technology Export Controls
Update Export Control List for AI, quantum, advanced semiconductors, synthetic biology. Require approval for transferring controlled IP to foreign entities—even within Canada. Adopt “deemed export” rules: technology release to foreign nationals requires authorization. China does this. So should we.
Let’s Stop Treating IP Like It Doesn’t Matter
Canadian taxpayers funded the research behind Nortel’s $4.5 billion patent portfolio. Zero Canadian ownership remained after auction. This pattern repeats constantly—we fund discovery, others capture value.
The VC lobby will oppose these measures (they reduce exit multiples). The “free market” crowd will complain about intervention. But the UK, France, Germany, Japan, Australia, Israel, and even the United States all impose conditions on publicly-funded IP and screen sensitive transfers. Not because they’re protectionist—because they recognize taxpayer funding creates taxpayer rights.
Budget 2025’s $181.9 million in “support” represents 0.25% of the deficit. It’s all carrots, zero sticks. Companies will continue taking Canadian grants, then selling IP to better-capitalized foreign buyers.
The five IP policy tools above aren’t radical—they’re standard practice internationally.
Manufacturing requirements for government-funded research (US model). IP-specific foreign investment screening (UK, Australia model). Patent boxes with substance requirements (EU standard). Binding grant conditions (Israeli approach). Export controls (universal for sensitive tech).
What they require is political will to tell companies: take public money, meet public obligations. Transfer government-funded IP abroad? Pay 3-6x the grant back. Want patent box benefits? Manufacture here. Working on quantum computing with federal grants? Get approval before foreign transfer.
Canada can’t out-compete the US on capital or market size. But we can impose conditions on our own public investments. That’s not protectionism—it’s protecting investments already made.
Time to stop being the only developed nation that doesn’t protect its IP. Time to go “elbows up” on IP, Canada!