Brett Trout
If you are an inventor, entrepreneur, or startup with a technical idea, the good news is that a recent shift in United States Patent and Trademark Office (USPTO) policy limits how third-parties can attack your patents. The even better news is that this new policy shift can make a patent drafted today stronger than one drafted under the old policy.
This rare “window of opportunity” at the USPTO gives inventors wanting to file new patent applications some new advantages, and removes some old disadvantages, in the patent application process.
What Changed: USPTO Restricts Use of Applicant Admitted Prior Art in IPRs
What does that all mean? Basically, if a challenger wants to try to invalidate your patent, they typically go through a process known as an Inter Partes Review (IPR). An IPR allows a patent challenger to argue to the Patent Trial and Appeal Board (PTAB) that your patent is invalid. The challenger typically argues that the Patent Office did not take into account certain known technologies (prior art), or that the Patent Office failed to combine various pieces of prior art to show that your invention was obvious, and therefore unpatentable.
Prior to September 1, 2025, if a challenger could not find all the elements of your patent claims in the prior art, the Patent Office allowed the challenger to instead use “general knowledge” to fill in the gaps to show the invention was obvious at the time the patent application was filed. “General knowledge” includes things like expert testimony, common sense, and applicant admitted prior art (AAPA) submitted as part of the patent application.
As of September 1, 2025, however, challengers are no longer allowed to rely on this type of general knowledge to fill in the missing elements to invalidate your patent. From now on, a challenger must specify exactly where in the prior art that each and element of your patent claim can be found. If they cannot find each and every element in the prior art, their IPR petition must be rejected by the PTAB for failing to meet the statutory requirements of 37 C.F.R. § 42.104(b)(4).
Why This Matters for You (the Inventor)
- Stronger defense: Now you no longer have to choose between adding AAPA to support your patent application and avoiding having that AAPA later used against you in an IPR.
- Strategic drafting matters more than ever: The way you frame your specification, disclosures, and claim dependencies against the prior art can make a difference on the defensibility or your patent under the new standard.
- Limited Window: As the Patent Office can change its mind at any time, if you have been considering filing for a patent to protect your invention, filing during this favorable window of opportunity could mean the difference between your patent being valid or invalid.
- A battle avoided is always better than a battle won: Now that challengers will have a more difficult time finding prior art for every element of your patent claims, they will be less likely to file an IPR in the first place, making your patent more valuable and less likely to be challenged.
Other Patent Trends Worth Watching (and Using to Your Advantage)
To position your patent well, here are trends you should leverage in 2025:
| Trend | Why It Helps You | Action Tip |
| AI and cross?discipline inventions | AI is fueling invention across biotech, materials, software, energy. | Frame your invention to highlight cross?field novelty; look for overlap points |
| Quality over quantity | Patent portfolios are judged on impact, not sheer number. | Focus on broad claims with commercial strength; avoid weak “kitchen sink” claims |
| Backlog & examination delay | USPTO has a record high backlog of unexamined applications. | Determine your optimal timeline for an issued patent and leverage priority examination if necessary; plan your timelines realistically |
| Global patent competition | China (and others) are dominating patent filings globally. | Don’t ignore foreign patent strategy; international filing makes a difference |
How to Make the Most of This Opportunity
- Talk to a patent attorney you trust and who knows your technology: make sure your patent application fully describes your invention and has claims tailored to take advantage of new Patent Office policies.
- Avoid overly broad admissions in your patent specification: focus on differentiating your invention from the prior art.
- Build flexibility into claims: structure your patent specification and claims so that fallback positions remain meaningful.
- Plan for global filings: assess countries where your invention may have commercial value and pursue international protection accordingly.
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