The new Director of the Patent and Trademark Office, Undersecretary of Commerce for Intellectual Property John A. Squires has spent the last few weeks making serious policy changes in the Office (see “New Director Overturns PTAB Procedural Precedents: Part I“; “USPTO Proposed New Rules Limiting the Availability of Inter Partes Review, But Are They Legal?“). Towards the end of last month, the Assistant Commissioner for Patents Brian E. Hanlon made his contribution, issuing a Memorandum to the Patent Examining Corps entitled “Advance notice of change to the MPEP with respect to false assertions or certifications of entity status.”
The Memorandum references an Official Gazette Notice on June 12, 2025 on “Statutory Penalties for False Assertions or Certifications of Small and Micro Entity Status,” later published at 1536 OG 204 (July 8, 2025). Substantively that Notice informed the public that the Office could “institute a review of pending patent applications or patents to determine whether there is a false entity status claim that resulted in the payment of at least one fee in an unentitled reduced amount”; in a footnote the Assistant Commissioner was careful to reassure that this Notice does not suggest any lack of previous authority to review small entity status or had “previously refrained from doing so.”
The most recent Notice identified the changes to the M.P.E.P. that will effectuate the desired effects of the Memorandum, in particular M.P.E.P. § 410 (ante- and penultimate paragraphs), giving “employees reporting to the Assistant Commissioner for Patents that oversees the Office of Petitions” the authority to review a claim for small entity status entitlement “as well as [assessing] the reasonableness of their conduct” in doing so. This portion of the Memorandum cites 37 C.F.R. § 11.18(b) for determining violation of an applicant’s or practitioner’s duties of disclosure and 37 C.F.R. § 11.18(c) for sanctions to be imposed in the event such violations are determined.
Further changes in M.P.E.P. § 509.03(b) are set forth with regard to “any attempt to fraudulently establish status as a small entity or pay fees as a small entity,” which will be considered to be fraud on the Office, and that an applicant cannot rely on any verbal advice “inadvertently” given regarding entitlement to small entity status. The same “employees reporting to the Assistant Commissioner for Patents that oversees the Office of Petitions” referenced above are given the authority (“may review”) whether the applicant or patent owner is entitled to small entity status. Similar provisions apply under M.P.E.P. § 509.04 for micro entity status under 37 C.F.R. § 1.29(j).
Finally, the Memorandum discloses provisions under M.P.E.P. § 1001.02(b) for reconsideration requests under circumstances that a claim for small entity status was determined to be “falsely made and not in good faith.”
These changes came into effect upon issuance of the Memorandum on October 24, 2025.
What the Memorandum does not do is provide any rationale or basis for or any evidence that claims to small or micro entity status are being improperly made.
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