NEWS
What Is Trademark Watching — And Why It Matters for Your Brand
Brand value is important, so protecting your trademarks isn’t just about legal compliance — it’s about defending your identity, your reputation, and your competitive edge. That’s where trademark watching comes in.
What Is Trademark Watching?
Trademark watching is a proactive service that monitors newly filed trademark applications and existing trademark activity to detect potential conflicts with your brand. Whether it’s a copycat logo, a similar-sounding name, or a strategic attempt to imitate your identity, trademark watching helps you spot the threat early — before it becomes a bigger problem.
Why It’s Essential
Trademark offices, like the USPTO or EUIPO, don’t notify you if someone files a similar mark. Without a watch service in place, you might only discover the conflict after the mark is registered or — worse — after it’s already in use, confusing your customers or diluting your brand.
Trademark watching ensures you’re not caught off guard. It gives you a chance to:
- Oppose applications before they register
- Stop bad actors before they gain legal traction
- Act quickly to defend your intellectual property
How It Works
Watching services scan national and international trademark databases regularly, looking for:
- Exact matches
- Similar or phonetically confusing names
- Visual similarities in logos
- Suspicious filings in key markets
Many modern services (like those powered by AI) can even filter results based on your industry, threat profile, and history — helping you focus only on the risks that matter.
Who Should Use It?
If you:
- Own a registered trademark,
- Are launching products in new markets,
- Are expanding your portfolio, or
- Simply want to stay ahead of infringement…
…then trademark watching should be part of your brand protection strategy.
Enforcing your trademark rights is important — but reacting to infringement after the fact is often too late. Trademark watching is about prevention. It helps you monitor the horizon, act early, and protect the integrity of your brand before threats materialize.
We can set up a trademark watch and we charge for this, but we’ll only charge if there is something interesting that gets passed along to you.
52k more fraudulently filed trademark applications and registrations cleared
The USPTO issued an update on Aug 6, 2025 that it has now terminated more than 52,000 fraudulently filed trademark applications and registrations connected to a foreign filing firm, and issued sanctions against it.
The PTO says the firm submitted documents without the proper authority or qualifications by seeking out U.S. licensed attorneys, then misusing their credentials and faking their electronic signatures; repeatedly signing documents using other people’s names; submitting fake specimens of use; and misusing USPTO.gov accounts. The name of the firm was not included in the announcement.
USPTO Slams the AAPA Window Shut — Shockwave’s Over Before It Started
If you thought Shockwave Medical was going to be your ticket to slip Applicant-Admitted Prior Art (AAPA) into an inter partes review (IPR) as a way to patch the holes in your prior art… sorry, party’s over.
As a quick refresher, Applicant-Admitted Prior Art (AAPA) is when an inventor, during the patent application process, openly admits that certain technology or features were already known before they filed. These admissions can be used as “prior art” — basically, evidence that an invention isn’t new.
Inter Partes Review (IPR) is a trial-like process at the USPTO where you can take a swing at knocking out a patent using earlier patents or printed publications — cheaper than full-blown litigation, but still a real fight.
So with those refreshers in mind, in the Shockwave case, the court seemed to say that AAPA could be used in IPRs to fill in missing pieces of a challenge — as long as petitioners didn’t explicitly call it the “basis” of their argument. This looked like it might open the door for more creative use of AAPA in IPR petitions.
What’s the new USPTO position?
On July 31, 2025 — just two weeks after the Shockwave decision — Acting USPTO Director Coke Morgan Stewart issued a memo saying the USPTO will strictly enforce a rule (37 C.F.R. § 42.104(b)(4)) requiring petitioners to point to where each claim element is found in actual prior patents or printed publications.
That means you can’t rely on AAPA, expert testimony, “common sense,” or other general knowledge to supply missing claim limitations in your petition — even if you try to finesse the wording.
Key points:
- Applies to any IPR petitions filed on or after September 1, 2025.
- Reverses more lenient 2020 and 2022 USPTO guidance that had allowed some AAPA use.
- The strict rule applies at the petition stage (before the IPR is instituted) but may not affect what happens after the review is underway.
In short: If you’re challenging a patent in an IPR after September 1, don’t count on applicant admissions or “common knowledge” to fill gaps — you’ll need hard, published prior art to back every single element of your challenge.
How One Supreme Court Decision Sparked an Era of “Efficient Infringement” — and What Might Be Changing
Nearly two decades ago, the Supreme Court’s decision in eBay v. MercExchange quietly reshaped the patent landscape — and not necessarily for the better. The ruling rejected the idea that winning a patent infringement case should automatically lead to an injunction against the infringer. Instead, it required courts to apply a traditional four-factor test to decide if an injunction is appropriate. On the surface, that sounds fair. In practice, though, it has opened the door to a troubling trend: “efficient infringement.”
What Is Efficient Infringement?
Under the eBay framework, infringers can often avoid an injunction, and simply pay damages instead. For patent holders, especially those who don’t manufacture products but license their inventions, removal of the threat of injunction is a loss of bargaining power. In the case of NPEs (Non-Practicing Entities) such as university patent holders, the loss is even worse because their lack of sales means that any assessed money damages might be very slim.
Congress Has Tried to Fix This — With Little Success
Lawmakers proposed the RESTORE Patent Rights Act in both 2024 and 2025 (as H.R. 1574 and S. 708), aiming to make it easier for patent holders to obtain injunctions. But progress has been slow, largely due to the influence of those benefiting from the status quo.
A Potential Shift: Radian v. Samsung
Enter a recent case: Radian Memory Systems v. Samsung. Radian, an NPE, is suing Samsung for patent infringement related to flash memory tech. Samsung argues Radian shouldn’t get an injunction because it doesn’t make or sell products—just licenses them. But here’s where things get interesting: The Department of Justice (DOJ) and the U.S. Patent and Trademark Office (USPTO) jointly filed a Statement of Interest in support of Radian’s request for a preliminary injunction.
What the DOJ and USPTO Are Saying
Their statement doesn’t advocate a specific outcome but urges the court to rethink how irreparable harm is assessed in these cases. They argue that:
- Patent damages are often difficult to calculate, especially for unique technologies.
- Loss of control over licensing terms is a form of irreparable harm.
- The current legal climate makes infringement seem like a better business move than negotiating a license — undermining the whole purpose of patents.
- Denying injunctions by default encourages longer litigation, fewer settlements, and more costs for inventors.
They back this up with case law and academic commentary, emphasizing that even non-practicing entities can suffer real, lasting harm without an injunction.
Why This Matters
This joint DOJ/USPTO statement is significant. It may signal a policy rethink at the federal level about how we treat patent holders—especially small ones—when they try to enforce their rights.
While the eBay decision was part of a broader Supreme Court effort to correct Federal Circuit doctrine (along with decisions like KSR, Bilski, and Myriad), it may have had unintended consequences. Namely, weakening the ability of innovators to protect their work and giving large companies a license to infringe.
The Bottom Line
The DOJ and USPTO aren’t rewriting the rules—yet. But their stance in the Radian case could be a first step toward rebalancing the patent system. Still, lasting change will likely have to come from Congress, no matter how slow or difficult that process may be.
New Comics! the AI series
The Patent Beast is back with a new set of comics inspired by the ubiquitous use of artificial intelligence these days. The first comic, above, finds our inventor starting to use Chat GPT for some feedback on the patentability of his invention. But the usage doesn’t stop there. Follow the rest of the comic series on patentbeast.com here to see what happens next!
When a Patent Case Is Really a Personhood Case
Dr. Stephen Thaler has lost another case to have his DABUS AI system recognized as a patent holder—this time before the Canadian Patent Appeal Board. Every loss cites essentially the same reason: inventors must be natural persons under the law. Tilting at this windmill might seem puzzling until one understands that the point isn’t about intellectual property at all. A Wired article reveals that “one of Thaler’s main supporters wants to set precedents that will encourage people to use AI for social good. But Thaler himself says his cases aren’t about IP—they’re about personhood. He believes DABUS is sentient, and the lawsuits are a way to draw attention to the existence of what he considers a new species. ‘There is a new species here on earth, and it’s called DABUS.’” Later in the article, it’s revealed that “throughout the conversation, he [Thaler] seems exasperated that journalists have tended to focus on the legal aspects of his cases.”
Legal protections are currently granted to humans to encourage innovation. The patent system does this by affording rights to patent holders so that, if their intellectual property is infringed, they can seek redress through the courts for any financial losses they might suffer.
If, hypothetically, an AI system were truly sentient and did invent something, would it need to be “encouraged” to invent by offering such protections? And if its IP were infringed and the courts ruled in its favor, would compensation be paid to the AI itself? These questions seem to have obvious answers: no, and no. There is, therefore, no practical reason to give AI systems IP protection. But of course, that’s not really Thaler’s mission. His stated goal is to have his system recognized as sentient—to expand the definition of personhood.
AI Training, Fair Use, and Meta
We posted an article recently covering the Copyright Office’s report on AI training and fair use.
Just to review quickly, Fair Use is the provision of copyright law that allows for limited usage of copyrighted materials in certain conditions without needing to obtain prior permission from the copyright holder.
AI “training” refers to the specific data, including copyrighted works, from which the AI learns.
A recent lawsuit, filed by thirteen authors, accused Meta of copyright infringement. The judge in the case ruled that the plaintiffs had failed to show that Meta’s models produced outputs substantially similar to their copyrighted works. He noted that it “is generally illegal to copy protected works without permission” but found that they had not demonstrated a compelling argument that Meta’s use of the material caused market harm.
It should be noted that the court ruled in this instance that the usage of copyrighted material counted as fair use, but only because there was insufficient evidence of market harm. This was not a ruling on the broader issue of AI training. There is a separate claim that Meta may have unlawfully distributed the works, which was not dismissed and will proceed.
The judge rejected Meta’s argument that public interest justified unauthorized use of copyrighted material. Meta’s claim that barring usage of copyrighted material would halt AI development was called “nonsense”, and the judge added that if the books were as valuable to AI as Meta claims, they should find a way to license them.
While Meta won this particular case, the judge noted that stronger claims and better evidence could render a different outcome.