The State of US IP Strategy in 2026: What the New USPTO Era Means for Your Portfolio

If you built your US IP strategy around the assumptions of the last decade, some of those assumptions no longer hold. The environment for patent owners in the United States has shifted meaningfully over the past year — at the Patent Trial and Appeal Board (PTAB), in the guidance coming out of the US Patent and Trademark Office (USPTO), and in the reform bills moving through Congress. For a founder approaching a funding round, an in-house team managing a portfolio, or anyone weighing where to spend a finite IP budget, the practical question is simple: what actually changed, and what should you do about it?

This guide breaks down the shifts that matter most in 2026 — on both the patent and trademark sides — and gives you a concrete set of portfolio moves to make this year.

Shift 1: The PTAB is a harder place to invalidate a patent

For years, the PTAB functioned as a fast, relatively low-cost forum where a company accused of infringement could challenge the validity of an asserted patent — often in parallel with district-court litigation. That leverage has narrowed. A newer emphasis on what has been described as the settled expectations of patent owners, particularly for patents more than six years old, has reduced the availability of PTAB review for accused infringers, especially those already defending a district-court or International Trade Commission (ITC) action.

Alongside that, proposed rules would further limit when the Board institutes review — including provisions that would discourage challengers from pursuing parallel invalidity attacks in multiple forums. The cumulative effect is a system in which the PTAB is no longer the reliable, inexpensive off-ramp it once was for defendants in patent-assertion cases.

The downstream consequence is a legal environment that many practitioners expect to be more conducive to patent litigation than it has been in years. If you own patents, that is a strategic opening: your rights are harder to unwind and therefore more valuable as leverage. If you might be accused of infringing someone else’s patent, the cheap escape hatch you may have been counting on is smaller than it used to be — which raises the value of knowing your risk in advance.

Shift 2: Section 101 eligibility is getting clearer for emerging tech

Patent eligibility under 35 U.S.C. Section 101 has been the single most frustrating area of US patent law for a decade, particularly for software, diagnostics, and other computer-implemented inventions. Countless applications died not because the invention was obvious or already known, but because it was deemed an ineligible abstract idea.

The USPTO is now signaling a move toward greater clarity and inclusivity on eligibility, especially for emerging technologies such as artificial intelligence, machine learning, medical diagnostics, and cryptocurrency-related inventions. New guidance and decisions point toward examiners applying eligibility in a more predictable, less exclusionary way for these categories.

This does not repeal the underlying case law, and it does not guarantee any specific application will be allowed. But the direction of travel matters for how you draft and where you invest. Categories of invention that many companies had written off as unpatentable deserve a second look with current counsel — particularly AI/ML method claims that were drafted defensively, narrowed heavily, or abandoned in prior years when the odds looked hopeless.

Shift 3: Reform is on the table — and AI is forcing the issue

Several bills aimed at modernizing the patent system are in play, including the Patent Eligibility Restoration Act (PERA), the PREVAIL Act, and the RESTORE Patent Rights Act. Any of them, if enacted, could reshape what qualifies as patentable and how patents are enforced. None is law yet, and — importantly — much of what has shifted at the agency level can be reversed without legislation. So the right posture is to plan for the current environment while staying alert to change rather than betting the portfolio on any single outcome.

Running underneath all of this is AI. Businesses using AI in research and product design now need to document the human contribution behind each innovation, both to preserve patent eligibility and to avoid inventorship disputes. That is not a theoretical concern — it is a recordkeeping discipline you should build into your development process now. We cover the AI dimension in depth in our companion piece, AI and Your IP in 2026.

Do not forget the trademark side

Patents get the headlines, but 2026 brought trademark developments that matter for any brand-driven business. Expect greater scrutiny around digital trademarks and use-in-commerce requirements — meaning the USPTO is looking harder at whether a mark is genuinely used in commerce as claimed. Sloppy or overstated specimens are a growing source of refusals and later vulnerability.

There have also been updates to the Nice Classification of goods and services that took effect at the start of 2026, modernizing the language used to describe goods and services in applications. If you are filing new marks or expanding existing ones, your classifications and descriptions should reflect the current framework. And as AI-generated logos, taglines, and brand assets proliferate, questions of trademark ownership and authorship are becoming live issues — another reason to get your brand-asset paper trail in order.

Five portfolio moves to make in 2026

Strategy is only useful if it turns into action. Here is a practical sequence you can run against your own portfolio this quarter.

1. Run a full portfolio audit. Inventory every patent, application, and registered mark. Confirm ownership and recorded assignments, verify maintenance and renewal fees are current, and flag anything that has drifted out of alignment with your actual product roadmap. This is where most avoidable problems surface.
2. Revisit abandoned or unfiled AI/software claims. Given the clearer Section 101 signals, inventions you shelved as ineligible may now be worth pursuing. Have current counsel re-assess them against today’s guidance.
3. Build a human-contribution record for AI-assisted work. Update inventor declarations, employee and contractor IP-assignment agreements, and internal invention-disclosure forms to capture who contributed what — especially where AI tools were used in the process.
4. Get a freedom-to-operate read on your core products. With litigation risk rising and the PTAB less available as a fallback, knowing which third-party patents sit near your product is defensive hygiene, not a luxury. Finding a problem early is far cheaper than finding it in a complaint.
5. Align filing strategy with where you actually do business. US-only protection is rarely enough for a company selling across borders. Map your filings to your real and near-term markets, including Europe — where the Unified Patent Court has reshaped strategy, as we explain in Filing Patents in Europe in 2026.

What this means for founders and in-house teams

The headline for 2026 is that US patents are, on balance, worth more and easier to defend than they were a few years ago — but the environment rewards preparation and punishes neglect. A portfolio that is unaudited, misaligned with the product, or missing clean ownership records is exposed precisely at the moment the system has become friendlier to owners who have their house in order.

If you are within 12 to 18 months of a Series A or B, there is an additional reason to act now: investors and acquirers increasingly scrutinize IP in diligence, and a clean, well-documented portfolio directly supports valuation. The reverse is also true — gaps in ownership or lapsed rights discovered during diligence can reduce a price or sink a deal.

The firms that benefit from this shift will be the ones that treat IP as an active, maintained asset rather than a drawer of certificates. If you are not sure where your portfolio stands, an audit is the place to start — and it is exactly the kind of work we do for clients navigating this new landscape.

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Disclaimer: This article provides general information about IP strategy and should not be relied upon as legal advice. IP laws vary significantly by jurisdiction and every business situation is unique. Consult qualified counsel about your specific circumstances.