Traditionally the United States Patent and Trademark Office (USPTO) has allowed inventors, whether domestic or foreign citizens, to represent themselves during the patent application process. However, the USPTO is now proposing a new rule that would require foreign applicants to be represented by a registered practitioner—i.e., a patent attorney or a patent agent—in the US. The new rule is aimed at harmonizing US practice with what is done in other countries, increasing efficiency and accountability while reducing fraud.
According to the USPTO, more than 55 percent of patent applications filed in fiscal year 2022 had at least one foreign inventor. Of those applications, 1,217 of the foreign applications were filed by the inventors without registered US patent attorneys or agents. Under predominant global practice, patent applicants must be represented by a licensed or registered professional of that country. The proposed rule change would emulate this rule practiced by foreign patent offices and require that foreign applicants also be represented by a licensed or registered professional.
The proposed rule change would also increase the efficiency of the patent application process. Currently, the USPTO must use extra resources in assisting unrepresented inventors, both US and foreign, usually because the unrepresented inventors file papers that do not comply with USPTO rules and standards. Therefore, examiners must spend additional time on procedural matters unrelated to examining the merits of the patent application. Representation by a registered practitioner will reduce the procedural errors and help expedite issuance of patents.
Relatedly, requiring representation by registered patent practitioners will help with enforcing compliance with US regulations and requirements. Registered practitioners in the US not only are subject to the rules of professional conduct but also have an obligation to cooperate with investigations and inquiries. For example, the USPTO has noticed an uptick in the number of false micro entity certifications used by unrepresented applicants to fraudulently pay the reduced fees associated with this micro entity status. When confronted by the USPTO, unrepresented inventors involved in fraudulent behavior can simply melt away by abandoning the application. The same does not hold true for registered practitioners, who have ethical and professional responsibilities that extend far beyond one patent application. By requiring a registered practitioner, the USPTO can mitigate fraud and protect the integrity of the US patent system.
The proposed rule change provides myriad benefits to future patent applicants, to current patent holders, and to the US patent system at large by harmonizing US practice with that of foreign patent offices, increasing efficiency and accountability, and decreasing fraudulent activities. The entire text of the proposed rule can be found here, and comments can be submitted before January 28, 2026 at https://www.regulations.gov/. If you would like additional information on this topic, please contact the authors or your lawyer at McCarter & English, LLP.