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Divergent Patent Law Blog
Commentary on U.S patent prosecution, PTAB practice, Federal Circuit developments, and cross-border patent strategy.


PIER at the USPTO: Application Selection and Patent Term Consequences
Executive Summary: The USPTO’s PCT Informed Examination Request (PIER) pilot requires selected U.S. national-stage applicants to choose whether to proceed with examination, defer examination for twelve months, or expressly abandon the application after considering the international work products. Selection considers application age and pendency in the relevant technology area, with a preference for applications containing X- or Y-category references; favorable international f
Brandon Theiss
Oct 1712 min read


Taking Over an Unpublished Patent Application Without a Confirmation Number
Executive Summary: A missing confirmation number can complicate the transfer of an unpublished patent application even when the client has provided a properly executed power of attorney. For ordinary confidential U.S. national applications, the missing number does not itself invalidate the appointment, but it can obstruct electronic filing and access to the prosecution record. This article explains how incoming counsel can recover the number from existing documents, submit an
Brandon Theiss
Oct 1511 min read


Electronic Service in Patent Reexamination: Why the USPTO Should Adopt the IPR Model
Executive Summary: The USPTO should amend its reexamination rules to expressly permit electronic service by agreement, following the model already established for inter partes review. Although reexamination papers may be filed electronically, 37 C.F.R. § 1.248 provides no express electronic-service option, and the Central Reexamination Unit has publicly explained that its transmission provision permits first-class mail but excludes email and facsimile. This framework creates
Brandon Theiss
Oct 1310 min read


Electronic Patents, Unexplained Delays: The Case for Issuance Transparency
Executive Summary: The USPTO’s transition to official electronic patent grants has eliminated physical delivery of the legal grant, although optional ceremonial paper copies remain available. A practitioner-reported USPTO estimate of approximately four months between issue-fee payment and grant raises questions about the remaining administrative process, without establishing a national average or the cause of the reported delays. Introduction A practitioner report that the
Brandon Theiss
Oct 119 min read


Inventor Testimony and Corroboration After the New SMED Guidance
Executive Summary: The USPTO’s September 29, 2026 guidance on Subject Matter Eligibility Declarations (SMEDs) provides an opportunity to distinguish legally required corroboration from the factual support that makes inventor testimony persuasive. Drawing on Supreme Court and Federal Circuit decisions and USPTO examination guidance, this article develops a framework that evaluates each assertion according to its purpose, procedural setting, factual foundation, and connection t
Brandon Theiss
Oct 916 min read
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