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Mission Impossible: Trademarking the US SPACE FORCE

June 5, 2025

Overview of the US SPACE FORCE Trademark Dispute

In a recent ruling, the U.S. Court of Appeals for the Federal Circuit upheld a decision by the Trademark Trial and Appeal Board (TTAB) to deny registration of the trademark “US SPACE FORCE.” The case offers a useful look at how trademark law intersects with national identity and public perception.

How the Space Force Name Entered the Public Domain

The term “Space Force” entered the public spotlight in March 2018, when then-President Donald Trump announced plans for a new military branch focused on space operations. By December 2019, the United States Space Force was officially established as the sixth branch of the U.S. Armed Forces.

The Timing of the Trademark Application

Just days after Trump’s 2018 announcement, intellectual property attorney Thomas Foster filed an application to register the trademark “US SPACE FORCE” for a range of goods and services on behalf of his law firm. 

trademarked logo of the actual US Space Force.

The timing was strategic. However, it ultimately proved insufficient to secure trademark rights.

Why the USPTO Rejected the US SPACE FORCE Trademark

The United States Patent and Trademark Office (USPTO) initially refused the application under Section 2(a) of the Lanham Act. That provision bars registration of marks that falsely suggest a connection with a person, institution, belief, or national symbol.

Section 2(a) of the Lanham Act and False Association

The USPTO concluded that “US SPACE FORCE” would lead consumers to believe the mark was associated with the United States government. As a result, the Office found the mark unregistrable.

The Appeal Process Before the TTAB and Federal Circuit

Foster appealed the refusal to the TTAB, which affirmed the USPTO’s decision. He then sought reconsideration, which was denied. The dispute ultimately reached the U.S. Court of Appeals for the Federal Circuit.

When Trademark Rights Are Evaluated Under Federal Law

Foster’s primary argument focused on timing. He asserted that the trademark should be evaluated based on the facts existing at the time the application was filed, not on later developments.

Filing Date vs. Examination Date in Trademark Review

The Federal Circuit rejected this position. The court held that the proper time to assess whether a mark falsely suggests a connection is during examination, not at filing.

By the time the USPTO examined the application, the government had clearly signaled its intent to use the name for a new military branch.

The Four-Part Test for False Suggestion of Connection

Courts apply a four-part test to determine whether a mark falsely suggests a connection:

  1. The mark is the same as, or a close approximation of, a name or identity previously used by another person or institution.
  2. The mark would be recognized as pointing uniquely and unmistakably to that person or institution.
  3. The named person or institution is not connected with the applicant’s activities.
  4. The person or institution’s fame or reputation is such that a connection would be presumed.

Why US SPACE FORCE Failed the False Association Test

In this case, all four factors were satisfied. The phrase “US SPACE FORCE” clearly pointed to a well-known government entity. That entity had no connection to Foster’s law firm or its services.

Government Names and Unmistakable Public Association

The court emphasized that a mark does not need to exactly match an official government name to create a false suggestion of connection. Even though the Space Force was not formally established at filing, the name was unmistakably tied to the United States.

Why Pop Culture References Did Not Matter

Foster argued that prior fictional uses of “Space Force,” including television references, weakened the association. The court disagreed. The strong public linkage to a newly announced military institution outweighed any fictional or generic uses.

Key Trademark Law Lessons From the Space Force Case

This decision highlights how timing, context, and public perception shape trademark rights. When a mark closely aligns with national identity or government authority, registration becomes far more difficult. For businesses and attorneys alike, the case reinforces the need to consider not only what a mark says, but what it signals to the public.

Related article on Trademark principles: A Tale of Trademark Law, the Rogers Test, and Parody

Decluttering the USPTO’s Trademark Register

June 2, 2025

The USPTO recently announced it had now removed over 50,000 goods and services from the trademark register. Using ex parte expungement and reexamination proceedings, the majority of the cancellations were used against registrations linked to specimen farms.

Trademark registration requires that marks be used in real-life commerce. Specimens of the marks must be provided to the USPTO to demonstrate commercial usage prior to registration. This would serve to show a legitimate connection between the mark and the goods and services provided.

Specimen farms are websites designed to look like commercial sites. These sites list the products and the marks, which are used as specimens provided to the PTO. But the sites don’t actually sell the product.

There are filing firms, companies that assist in filing trademark applications, that created these e-commerce sites purely for the purpose of creating fake specimens.

Clearly the registry of these unused goods and services helps open up the path for legitimate companies and trademarks.

Articles on the USPTO’s ongoing efforts to clean up the registry: 52k more fraudulently filed trademark applications and registrations cleared

Patent Like You Mean It, But Also Show the Structure

May 12, 2025
Word Graphic showing Means + Function Claims.

What Is Means-Plus-Function Claiming?

Means-plus-function claiming is a way of writing a patent that describes what something does, not how it does it. For example, describing a machine that opens a jar, rather than describing all the parts—a motor, a gripper, and how they work together—you just say: “A means for opening a jar.” This is to say you want to protect whatever part does the opening of the jar, without naming the exact part.

Why Structure Still Matters in Functional Patent Claims

However, the actual parts, the structure, must be described elsewhere in the patent. This is a way to write less in the claims, but the downside is that if it doesn’t describe how it works well enough, the claim might be invalid.

Section 112(f): The Legal Framework for Means-Plus-Function Claims

Section 112(f) addresses means-plus-function claiming. The courts apply a two-step analysis for such claims.

The Two-Step Court Analysis Under § 112(f)

First, the court determines whether the claim limitation is drafted in a means-plus-function format, which would invoke Section 112(f). Second, if it is, the court identifies what structure, if any, disclosed in the specification corresponds to the claimed function.

Claim Indefiniteness and Section 112(b)

In cases lacking disclosed structure, the claim is invalid under Section 112(b), which deals with claim definiteness. In simple terms, a patent must clearly tell others what is being claimed so they know the boundaries of the invention.

Why Vague Functional Claims Risk Invalidation

Clear claims can be understood, competitors can avoid infringement, and courts can enforce the patent consistently. Vague or ambiguous claims can be ruled invalid for indefiniteness, which is especially relevant in means-plus-function claims. 

If the patent application doesn’t describe the structure that performs the function, it may be invalid.

Federal Circuit Spotlight: Fintiv v. PayPal

At the heart of the Fintiv v. Paypal case were terms like “payment handler” and “payment handler service,” found in Fintiv’s asserted patents. These terms were intended to cover components that interface with various payment APIs. 

However, the court found they lacked inherent structural meaning and instead described what the component does rather than what it is.

Functional Claim Language Without Structural Support

At the heart of the case were terms like “payment handler” and “payment handler service,” found in Fintiv’s asserted patents. These terms were intended to cover components that interface with various payment APIs. However, the court found they lacked inherent structural meaning and instead described what the component does rather than what it is.

Why “Payment Handler” Failed as a Structural Term

This triggered the court’s application of the means-plus-function analysis under Section 112(f), even though the word “means” was not used.

Why the Court Rejected Fintiv’s Arguments

Fintiv argued that “payment handler” had a recognized meaning in the art, citing dictionaries, examples from the patent, and even the Internet Open Trading Protocol. The court was unconvinced. It found that the terms merely recited functions—such as wrapping APIs or exposing common interfaces—without explaining how those functions were implemented.

The specification did not help. Instead of disclosing a specific algorithm or structure, it restated the functional goals. According to the court, that was not enough under Section 112(f). A person of ordinary skill in the art would not be able to implement the invention based solely on the description provided.

Lessons for Software Patent Drafting

Functional terms, even when they sound technical, can lead to invalidation if the specification does not back them up with structure. For software patents, that structure usually means an algorithm. Avoiding the word “means” does not automatically avoid means-plus-function treatment. Courts look at substance, not form.

Key Takeaway: Substance Beats Form in Means-Plus-Function Analysis

If a claim recites a function, the patent must explain how that function is performed. Without that disclosure, the claim risks being found indefinite and invalid.

Related articles on patent claims: Federal Circuit Reverses ITC Decision, Strengthening Patent Eligibility for Composition Claims

What Did Those Claims Consist Of?

Also of interest: FishFAQ 004 Words are Limitations

Who Gets Credit When AI Invents? A Look at the History—and Future—of Inventorship

May 5, 2025

For centuries, governments have tried to encourage innovation by offering inventors something valuable in return: ownership. The earliest forms of state-recognized intellectual property—like patents—were meant to reward people for coming up with new solutions to problems. But it hasn’t always worked the way we’d like to imagine. 

From Royal Favors to Inventor Rights

Between the 14th and 17th centuries, the English crown handed out patents. But these weren’t always about protecting brilliant ideas—sometimes they were just political favors, granting monopoly rights to the well-connected.

Things began to shift in the 18th century. Under Queen Anne, inventors had to submit detailed specifications explaining how their inventions worked. This marked a move toward recognizing patents not as tools of privilege, but as protections for genuine intellectual contributions.

In the U.S., this principle was written into the Constitution.

caricature of a marble bust of Queen Anne, under whose reign patents began to move from tools of privilege to protections for genuine intellectual contributions.

Queen Anne

The Patent and Copyright Clause gave Congress the power to protect inventors’ rights “to promote the progress of science and the useful arts.” James Madison himself argued that useful inventions belonged to those who created them. By the late 1800s, several countries—including England, France, and Germany—had formal patent laws recognizing inventors’ intellectual ownership.

 The Core of Modern Inventorship: Conception

Today, especially in U.S. patent law, inventorship hinges on a key concept: conception. The inventor isn’t necessarily the person who builds the invention, but the one who conceives it—the one who had the original idea.

Some ground rules:

  • Only someone who contributes to the mental formulation of the invention can be an inventor.
  • There can be multiple inventors, but each must contribute to at least one claim in the patent.
  • Simply carrying out instructions or building a prototype? That’s not inventorship.

Over time, the legal system evolved from handing out monopolies to truly honoring the individuals behind technological progress—those whose ideas shaped the future.

 Then Came Generative AI

In recent years, AI has complicated things.

Autonomous AI systems can now generate ideas, designs, and even prototypes. But who’s the inventor when a machine contributes core ideas? Most global patent offices, including the U.S. Patent and Trademark Office (USPTO), say only a natural person—a human—can be listed as an inventor.

The courts have backed this up. In Thaler v. Vidal, the Federal Circuit ruled that AI can’t be an inventor under current U.S. law. However, that ruling left a critical question open: What about inventions developed by humans working with AI?

 The USPTO's 2024 AI Guidance

In early 2024, the USPTO released new guidance aimed at clarifying this gray area. The agency said that a human can be listed as an inventor of an AI-assisted invention if they make a “significant contribution” to the final invention—even if they didn’t fully conceive it.

This marks a shift. Under this standard, a person could take AI-generated output, shape it meaningfully, and claim inventorship—even if their input alone wouldn’t qualify as an invention.

Legal Risks on the Horizon

This softer standard raises eyebrows in the legal community. Critics argue it contradicts patent law’s long-standing requirement of full human conception. And because USPTO guidance doesn’t carry the force of law, patents issued under this standard might not hold up in court.

There’s also risk for patent attorneys. Filing patents based on this weakened inventorship standard could raise ethical issues under the duty of disclosure rules, especially if the AI did most of the heavy lifting.

And here’s a surprising twist: the USPTO’s standard for inventorship may now be lower than the standard for patentability itself.

Looking Ahead

We’re at a crossroads. On one hand, AI is a powerful tool for accelerating innovation. On the other, our current legal framework still centers on human inventorship.

Without new legislation or clearer judicial rulings, this tension will likely grow. For now, inventors, companies, and patent attorneys should tread carefully. The future of inventorship in the AI era is still being written—and it’s far from settled.

Check out our FishFAQ video: The History of Patents

For other articles related to AI and Inventorship: Federal Circuit to AI Innovators: Generic Machine Learning Isn’t Enough for a Patent

USPTO AI subject matter eligibility guidance

The Impact of Third-Party Litigation Funding on Patent Disputes

May 1, 2025

A Patent’s Value Means Little Without the Means to Defend It

Valuing a patent isn’t simple. Methods like the cost, market, and income approaches are commonly used. But even a high-value patent may be worthless if its owner can’t afford to enforce it in court. Legal battles over patent rights are notoriously expensive, with median costs surpassing $3 million in some cases. For small patent holders, this financial barrier can put them at a major disadvantage. Especially when facing infringement by larger, better-resourced companies.

Icon of a US patent booklet

What Is Third-Party Litigation Funding (TPLF)?

Third-party litigation funding offers a potential solution. These firms provide financial support to litigants in exchange for a portion of any settlement or award. Importantly, TPLF is usually non-recourse—if the case is lost, the litigant owes nothing. Returns for funders can be significant, ranging from 200% to 400% or more. The growing number of TPLF firms in the U.S. since 2013 reflects the profitability of this model. For under-resourced patent owners, TPLF can level the playing field. It enables them to pursue cases they would otherwise have to abandon.

The Rise of Patent Trolls

However, TPLF has also fueled concerns about abuse. Non-practicing entities (NPEs), often called “patent trolls,” acquire patents solely to generate income through licensing or litigation. These entities exploit the system. When backed by TPLF, they gain the resources to aggressively pursue lawsuits, raising ethical and legal questions.

TPLF: Leveler or Enabler?

TPLF firms aren’t altruists; their funding decisions are driven by expected returns, not justice.

As a result, they’re more likely to fund cases with a high likelihood of success. Whether the claims serve a broader social good or not. When TPLF and NPEs align, the result may be more predatory litigation and fewer cases that actually promote innovation or fairness. Most courts don’t require disclosure of funding arrangements. This makes it even harder to determine whether TPLF is helping or harming the system.

The Debate Over Disclosure

A December 2024 Government Accountability Office (GAO) report examined TPLF’s role in patent litigation. It found that requiring disclosure of litigation funding could uncover conflicts of interest, reveal foreign involvement, and encourage settlements. If defendants realize their opponents are well-funded, they are incentivized to settle. On the other hand, funders argue that disclosure has no bearing on a case’s legal merits and could unfairly tip the scales in favor of defendants while adding administrative burdens to the courts.

The GAO report also noted a rise in TPLF-backed patent cases over the past five years. However, precise data is elusive due to the lack of disclosure requirements. One estimate suggests that over 60% of patent infringement lawsuits filed since 2020 have received third-party funding.

A Tool for Smaller Players—With Caveats

For small patent holders facing possible infringement, TPLF can provide a much-needed lifeline to defend their rights. Still, the system’s increasing complexity and potential for misuse raise valid concerns about transparency and fairness. As the debate over regulation continues, both benefits and drawbacks of TPLF remain under scrutiny.

For more information on valuing patents, try this section of our Patent FAQs: Valuing Patents

Generic Drug Label Doesn’t Induce Patent Infringement Just by Listing Optional Refrigeration

April 28, 2025

Generic Drug Labels and Inducement to Patent Infringement

In the ever-evolving world of pharmaceutical patent law, a recent Federal Circuit decision offers guidance on when a generic drug label may induce patent infringement. The case, Metacel Pharmaceuticals LLC v. Rubicon Research Private Ltd., focused on storage instructions for Rubicon’s generic version of Metacel’s Ozobax® oral baclofen solution.

Metacel held U.S. Patent No. 10,610,502, which included a method claim requiring storage of the baclofen solution at refrigerated temperatures between 2°C and 8°C. When Rubicon sought FDA approval through an ANDA, its proposed label instructed storage at room temperature but also stated that the product “can also be stored at 2°C to 8°C.”

Metacel argued that this optional refrigeration language would lead physicians and other healthcare providers to infringe the patented method. Both the District Court and the Federal Circuit disagreed, holding that Rubicon’s label did not induce infringement.

Federal Circuit Rejects Inducement Based on Optional Storage Instructions

The Federal Circuit’s analysis centered on whether Rubicon’s label encouraged or recommended infringement, as opposed to merely permitting it. The court emphasized that inducement requires affirmative encouragement of infringing conduct.

Here, the label’s primary instruction was to store the product at room temperature, which was non-infringing. The refrigeration language was framed as optional rather than mandatory.

Judge Lourie, writing for the panel, explained that the label conveyed that “if a downstream user decides to refrigerate the product, despite instructions to store the product at room temperature (which is noninfringing), then it should store the product at temperatures from 2°C to 8°C.” That permissive statement, the court held, did not amount to inducement.

Cartoon of a courtroom where a judge is asking a lawyer "How is that infringement?" The lawyer responds: "He said you could put it in the fridge!"

Permissive Label Language Does Not Induce Patent Infringement

The decision aligns with prior Federal Circuit precedent, including HZNP Meds. LLC v. Actavis Labs. UT, Inc. In that case, the court similarly held that permissive label language does not necessarily encourage infringement, particularly where the label does not require performance of the patented method.

The key distinction is between language that merely allows a potentially infringing use and language that directs or recommends it. Where a label primarily instructs users toward a non-infringing use, optional references to infringing conditions are generally insufficient to establish inducement.

ANDA Statements Cannot Override the Drug Label’s Instructions

Metacel also relied on statements Rubicon made in its ANDA regarding refrigeration. However, both courts rejected that argument.

The Federal Circuit reiterated that inducement analysis focuses on what healthcare providers actually see and follow. That means the operative document is the drug label, not internal regulatory filings. Statements made during the ANDA process cannot transform otherwise permissive label language into inducement.

The relevant question remains whether the label itself instructs users to perform the patented method.

ANDA Statements Cannot Override the Drug Label’s Instructions

The court further emphasized that when label language is clear and unambiguous, extrinsic evidence cannot override its plain meaning. Even circumstantial evidence suggesting potential infringing use is insufficient where the label does not affirmatively encourage that use.

This reinforces the importance of careful label drafting. Courts will rely on the actual words presented to end users, rather than speculative interpretations or regulatory background materials.

Implications for Generic Drug Labels and Patent Inducement Claims

This decision confirms that generic drug manufacturers retain some flexibility when drafting labels. Including optional information does not automatically create inducement liability, provided the label’s primary instructions direct users toward non-infringing conduct.

For patentees, the case highlights the difficulty of establishing inducement based solely on permissive label language. For generic manufacturers, it underscores the value of precise wording that distinguishes between required instructions and optional conditions.

Ultimately, Metacel v. Rubicon serves as a reminder that in patent inducement cases, label language matters—and clarity can be decisive.

Related articles on patent law infringement cases: Divided Infringement

De Minimus Defense Doesn’t Necessarily Mean Minimal Use

Federal Circuit to AI Innovators: Generic Machine Learning Isn’t Enough for a Patent

April 23, 2025

In a closely watched decision, the Federal Circuit delivered a clear message. Simply applying machine learning to a new domain is not enough. Unless the ML itself improves, the invention will not qualify for a patent.

In Recentive Analytics, Inc. v. Fox Corp. (No. 2023-2437, Apr. 18, 2025), the court affirmed dismissal of four patents. Those patents were held by Recentive Analytics. Each focused on using machine learning for TV broadcast scheduling and event planning.

Although the court acknowledged AI’s growing importance, it drew a firm boundary. Patent eligibility under 35 U.S.C. § 101 still requires more.

Federal Circuit Decision on AI Patent Eligibility

At its core, the case addresses a pressing question. When does applying artificial intelligence make an invention patent-eligible?

According to the Federal Circuit, Section 101 applies fully to AI-related inventions. Merely invoking machine learning will not suffice. Instead, the patent must claim a concrete technological improvement.

In other words, automation alone is not innovation.

The Patents at Issue in Recentive Analytics v. Fox

Recentive’s patents fell into two categories.

Machine Learning Training Patents

First, the training patents claimed systems for generating optimized live event schedules. These schedules relied on historical data. The goal was dynamic, real-time optimization.

Network Map Patents

Second, the network map patents addressed channel assignments. They focused on how television programs were distributed across regions and times.

Overall, the inventions aimed to replace manual scheduling. In its place, they proposed automated optimization using machine learning.

Why the Federal Circuit Found the AI Patents Ineligible

The court emphasized a central principle. Generic machine learning methods are abstract ideas. Without a specific technological improvement, they remain ineligible. Applying ML to a manual task, such as TV scheduling, did not change the outcome. Section 101 requires more than digitizing an existing process.  As the court explained:

“Patents that do no more than claim the application of generic machine learning to new data environments… are patent ineligible under § 101.”

That language leaves little room for doubt.

Why the Machine Learning Patents Failed Under Section 101

Several deficiencies proved fatal to the claims.

No New Machine Learning Technology

Importantly, Recentive admitted it did not invent a new ML algorithm. Rather, it used existing techniques. The court viewed this as little more than saying “do it with AI.” A new application alone was not enough.

No Specific Implementation Details

Equally problematic, the patents lacked technical detail. They did not explain how the ML models operated. 

Nor did they describe any improvement to computer functionality. Without that specificity, the claims remained abstract.

Limiting AI to a Field of Use Is Not Enough

Recentive argued that applying ML to broadcasting made the invention patentable. However, the court disagreed. Limiting an abstract idea to one industry does not make it less abstract. This principle has appeared repeatedly in Section 101 cases.

Increased Speed Does Not Equal Patent Eligibility

The patents also emphasized efficiency and automation. Yet faster processing does not automatically create eligibility. Courts have long rejected speed alone as an inventive concept. That reasoning applied here as well.

No Inventive Concept Under the Alice Framework

Finally, the court considered step two of the Alice framework. Even there, it found nothing “significantly more” than the abstract idea itself. As a result, the claims failed both steps of the analysis.

An inventor argues: "Did you hear me? I used "AI"...". The examiner responds: "Yeah, that's not an invention."

What This Decision Means for AI and Machine Learning Patents

Taken together, the ruling draws a bright line. Using AI is not the same as improving AI.

For patent eligibility, applicants must identify a specific technological advance. Simply automating a manual workflow will not suffice. Likewise, applying known techniques to new data will not qualify.

Importantly, the decision does not eliminate AI patents altogether. Innovations that enhance machine learning technology may still succeed. However, the claims must show real technical progress.

Key Takeaways for AI Patent Applicants

As AI becomes embedded in more industries, scrutiny will increase. Section 101 remains a powerful filter.

Therefore, patent applicants should focus on technical improvements. Detailed implementation matters. Concrete advances in machine learning matter even more.

Without those elements, AI-based claims may struggle to survive.

Related AI articles: USPTO AI subject matter eligibility guidance

PTO Guidance on AI and Inventorship

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