Introduction

On April 16, 2025, the U.S. Patent and Trademark Office (USPTO) announced a new Fraud Detection and Mitigation Working Group.  The USPTO states that the working group is aimed at protecting the integrity of the patent system.  In doing so, they also announced another change, the suspension of expedited examination for design patent applications, effective April 17, 2025. This decision claims to be rooted in a dramatic 560% surge in “rocket docket” filings over recent years.  In support of these changes, the USPTO suggests that there has been a rise in fraudulent micro entity status claims—which grant applicants an 80% fee discount.

What is the USPTO trying to do?

The USPTO seeks to curb two seemingly interconnected issues: abuse of expedited design patent examinations and improper micro entity certifications. Expedited processing, once a niche tool now, covers about 20% of design patent examination resources, according to the agency.  The USPTO claims that, by not accepting the additional fees for those services (and suspending expedited examination), the USPTO could reallocate 36,000 annual examination hours to reduce backlogs, while cracking down on fraudulent fee discounts.  However, does this make sense?

Said another way, the USPTO is rejecting user fees for design patent applicants wishing to have expedited examination under 37 CFR 1.155.  In support of this contention, they cite no authority, but claim that through “reallocation” the agency could reduce design application backlog—currently at 21.3 months.  Amazingly, the USPTO’s own records show that total pendency for design applications is down in FY 2025 from a high in 2024 of 22.3 months.

The USPTO also claims, without support, that many applicants are abusing the micro entity certifications.  However, the USPTO’s arguments lack any support.  While many practitioners often fail to keep records of a client’s income or prior applications (which of course is not required by the rules), the USPTO’s notice failed to provide any factual basis to suggest that any applicants were abusing micro entity status.

What is the USPTO’s Goal?

The USPTO’s Patent Fraud Detection and Mitigation Working Group appears to follow efforts in the USPTO’s Office of Trademark Legal Policy & Office of Enrollment and Discipline, which focus on foreign applicants, mostly from China, who appear to be using their trademark applications  to sell products on Amazon (by utilizing the benefits of Amazon’s Brand Registry program).

The USPTO’s efforts have included investigating and disciplining lawyers, attempting to cancel trademark applications, and more recently attempting to cancel patent applications.  Of course, the USPTO lacks such authority to do so; however, they appear to be relying on applicants and their counsel to not put up a fight.

Will it work?

Reallocating examination hours may reduce pendency for standard applications; however, it may also impact some of the largest corporations who utilize design patent protection as part of their marketing and enforcement strategy.   For example, the top filers of design applications from 2023 include companies such as Nike, Samsung, Apple, LG, Google, and Ford.  In fact, Amazon is also on that list.  While those companies may not qualify for micro entity status, many choose to use expedited examination.

Instead of slashing expedited examination with a sword, the USPTO should consider dealing with the issue cautiously, with a scalpel.  Most importantly, the USPTO should work to uncouple the requirements of Amazon Brand Registry for the filing of a trademark application to enter the program, as well as curb the use of design patents to report infringement on Amazon’s platform.

Conclusion

As someone who has criticized the USPTO for this issue on a number of occasions, the answers I continue to receive suggest that Amazon is an independent business, and the USPTO cannot tell it what to do.   While such is correct, in my opinion, the outsourcing of determining IP ownership to the USPTO has caused more harm to the U.S. IP system than any other actor in the past decade.

 

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