From the research awarded the 2025 Nobel Prize in economics to a patentee-friendly shift at the US Patent and Trademark Office, innovation is having a moment. Kristen Osenga tells MLex the attention is long overdue — and that it’s time for Congress to do its part.
Kristen Osenga is feeling optimistic.In an interview with MLex, the Associate Dean for Academic Affairs at the University of Richmond School of Law applauded steps being taken by the US Patent and Trademark Office to strengthen the US patent system.
Kristen Osenga
Although targeting differing areas of concern, both actions by USPTO leadership chip away at the view, long held by some, that the Patent Trial and Appeal Board is a vehicle for undoing patent protection.
“The whole idea of the PTAB, the inter parties review system, was to provide a quick, low-cost alternative to challenging patents in district court or at the ITC [but] that hasn't been how it worked out,” Osenga notes.
“Instead of being an alternative,” she continues, “it has become yet another bite at the apple. Sometimes within the USPTO, it's been multiple bites at the apple. IPR isn't doing the work it was intended to do.”
Any effort to return the procedure to its roots is, in Osenga’s mind, “a great thing” — and not just for patent owners.
— Border defense —
Because innovations are foundational in nature they serve as building blocks for societal-benefitting breakthroughs yet to come. Strong patent protections confer a measure of confidence that the time and money spent developing those new technologies won’t be for naught.
But when US patents are perceived as weak, and capable of being picked off claim by claim via the IPR procedure, Osenga feels it diminishes the inventor’s return on investment which, in turn, disincentivizes continued experimentation and exploration.
“If you analogize patents to land — which in some respects it is and in some respects it isn't — you wouldn't want to have to keep fighting your borders every day. That makes your land much less valuable and less likely you can enjoy it,” she explains.
There is also a practical reality.
Fending off an IPR comes with a steep price tag well into six figures, and appealing an adverse PTAB outcome only adds to the tab. That can leave solo inventors and other small and medium-sized enterprises with an impossible choice: abandon their patent protections or put their current inventive plans on hold.
“The more money they have to put into defending their borders, or their patents, the less money they have for innovation,” Osenga notes.
Stewart made a similar comparison in a September (see here) speech* that would later be cited by Sandisk Technologies and others seeking mandamus relief from discretionary denials of their petitions for IPR. Although the US Court of Appeal for the Federal Circuit already turned away some of those requests (see here), others have not yet been acted upon.
Meanwhile, following a 15-day extension by Squires, the window to weigh in on the NPRM remains open through Dec. 2. So far, more than 2,700 comments have been submitted in response, according to the Federal Register.
That leaves open a possibility that some of the USPTO’s most ambitious undertakings this year won’t come to fruition — a missed opportunity, Osenga says, when pro-innovator momentum is building across the globe.
— Slaying giants —
The 2025 Nobel Prize in Economic Sciences was awarded last month to a trio of academics who have made the study of innovation-driven economic growth their focus for decades.
Joel Mokyr, a professor at Northwestern University, was singled out by the committee for “having identified the prerequisites for sustained growth through technological progress” — useful knowledge, mechanical competence and institutions conducive to change.
He splits the approximately $1 million prize with the London School of Economics’ Philippe Aghion and Brown University’s Peter Howitt, who together pioneered mathematical models directly linking long-term economic prosperity to “creative destruction” — the regular introduction of new technologies capable of displacing outdated ones.
Their selection, Osenga says, serves as a powerful reminder that “economic growth and innovation happen when inventors have real incentives — and real protections — to take risks.”
But that same growth, she cautions, “depends on a system where new ideas can rise and challenge established giants.”
— ‘A teacher first’ —
As a child, Osenga tells MLex, she aspired to a career in education, but she took a detour at the University of Iowa, majoring in biomedical engineering instead.
“Quickly,” she recalls, “[I] realized it wasn’t for me.”
“At a career fair, a lawyer suggested that law school was perfect for engineering grads who didn’t want to be engineers — and that stuck. In law school, a wonderful patent law professor encouraged me to teach, and I found that IP was the perfect blend of my technical background and the work I actually enjoyed,” Osenga explains.
Those two fortuitous encounters have proven beneficial for not only her students in Richmond but also the US patent community as a whole, Adam Mossoff tells MLex.
A professor at George Mason University’s Antonin Scalia Law School and newly-tapped senior advisor at the USPTO, Mossoff has teamed up with Osenga on everything from amicus curiae briefs in some of the most influential intellectual property cases of their generation, to agency comments, to research and academic articles in a partnership he calls “a real pleasure” and “a distinct honor.”
“She is passionate about innovation and intellectual property law, rigorous in her research and writing, and is one of the most fun and affable people I know. She truly loves patent law — she often declares this love in her speeches and conference presentations — and she backs up this passion with a keen mind and intellect,” Mossoff raves of his friend.
Osenga, for her part, would almost certainly downplay her contribution to the national IP discourse, telling MLex, “at heart, I’ve always seen myself as a teacher first.”
“If it weren't patent law, I'm sure I'd be teaching something else. Anything but engineering!"
— Congressional will —
But she and Mossoff aren’t just colleagues in academia and co-amici; they also serve together as academic affiliates at the International Center for Law & Economics.
While Osenga endorsed many of the moves being made at the USPTO, she concedes the agency’s rumored termination of its chief economist as part of an Oct. 1 1 percent reduction-in-force is “a concern.”
“I much prefer policy decisions based on evidence and data,” she explains to MLex.
With the position seemingly unfilled, it could beg the question of who or what is driving the internal analysis of the economic impacts of the changes being made and implemented across the agency. But the chief economist role is also outward-facing, Osenga notes, developing and providing metrics that IP stakeholders and policymakers can use to guide their own decision making.
“While it may have made sense during the reduction in force, I really hope . . . it's an office that can find its way back to being open, staffed and up and running,” Osenga says.
On the topic of Congress — and its inability to pass meaningful IP legislation — she is less measured in her critique.
Two bills, in particular, are most needed to shore up the US patent system according to Osenga: the Patent Eligibility Restoration Act (PERA), which would reinstate the pre-2012 standard for assessing Section 101, and the Realizing Engineering, Science, and Technology Opportunities by Restoring Exclusive (RESTORE) Patent Rights Act, which would reinstate the patentee’s presumptive right to an injunction.
Both would effectively undo holdings by the US Supreme Court and are back on the Congressional agenda after being introduced in prior sessions.
On one hand, that PERA and RESTORE are making a repeat appearance shows “a will” in Congress for IP reform, Osenga says; on the other, she worries elected officials are running out of time to get the bills across the finish line.
Patentees, she elaborates, now frequently forego making so much as a request for injunctive relief in infringement litigation — even though the right to exclude others from practicing an invention is “all a patent ever gives you.” Continued confusion over patent eligibility, meanwhile, could be nudging innovators in sectors hard-hit under Section 101, like artificial intelligence and diagnostics, abroad.
“The longer we live without PERA," Osenga says, "the more patent applications we're going to file in China."
Worse still, she says, is that other legislation being considered — including the Litigation Transparency Act, which requires disclosure of outcome-dependent third-party litigation funding, and the Tackling Predatory Litigation Funding Act, which would tax earnings realized by third parties who provide patentees with financial backing in court — threaten to “erode” patent protections further, making it “harder for small innovators to compete at all.”
Such a result would stand in stark contrast to the Nobel Prize-winning findings by Mokyr, Aghion and Howitt.
“Weakening these incentives” Osenga warns, “would choke off the very progress their research celebrates.”
*Intellectual Property Owner's Association annual meeting, San Diego, California, Sept. 7, 2025.
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