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


Written for the Skilled Artisan, Read by Everyone: Drafting Patent Applications for Multiple Audiences
Executive Summary: A patent application is legally evaluated through the lens of a person of ordinary skill in the art, but its practical success depends on a much broader audience: patent examiners, continuation counsel, foreign associates and national-phase examiners, judges, opposing counsel, juries, and licensing and business teams. This article argues that the solution is not to write different versions of the invention for different readers, but to develop one coherent
Brandon Theiss
5 days ago21 min read


SMEDs After the USPTO’s 2026 Guidance: Rule 132 Declarations, Corroboration, and the Need for a Court-Ready § 101 Record
Executive Summary: This article argues that Subject Matter Eligibility Declarations (“SMEDs”) can be valuable prosecution tools for building a factual record in response to § 101 rejections, but only if they are used with discipline. A SMED should not ask an inventor or expert to declare that claims are patent eligible; rather, it should provide claim-tethered, corroborated technical facts showing how a person of ordinary skill in the art would understand the specification an
Brandon Theiss
Jul 214 min read


Lean Patent Operations: Jidoka, Automation, and AI in Patent-Prosecution Workflows
Executive Summary Patent prosecution is legal knowledge work, but it is also repeatable process work: new application filings, formalities, assignments, IDS submissions, Office communication processing, allowance, issuance, maintenance fees, foreign filing, and portfolio reporting all depend on accurate information, timely handoffs, reliable controls, and appropriate professional supervision. This white paper argues that patent operations can be improved by applying Lean Six
Brandon Theiss
Jun 2321 min read


Reframing Patent Eligibility: U.S. § 101 Case Law Through the Lens of Japanese Technicality Doctrine
I. Introduction The recent Federal Circuit cases on patent eligibility do not simply show that U.S. law has become hostile to particular technologies. They show something more specific and more institutional: the United States often asks threshold eligibility doctrine to perform work that other patent systems assign to inventive step, enablement, support, or claim clarity. The point is not that those other systems are necessarily more generous. They may be demanding in differ
Brandon Theiss
Jun 1119 min read
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