Is Your Product “Made in America”? USPTO and White House Raise the Stakes on Domestic Manufacturing Claims

On March 11 and March 13, 2026, the U.S. Patent and Trademark Office (USPTO) and the White House released a memorandum and executive order, respectively, that reemphasize this administration’s focus on promoting domestic manufacturing and the strategies federal agencies are adopting to further that goal.

On March 11, 2026, the USPTO issued a memorandum to all Patent Trial and Appeal Board (PTAB) users addressing additional discretionary institution considerations concerning American manufacturing operations and investment. The memorandum identifies new discretionary factors for consideration by the USPTO director in deciding whether to institute inter partes review (IPR) or post-grant review (PGR) of challenged patents. The new factors include the parties’ domestic manufacturing footprint and small-business status in the United States.

Shortly thereafter, on March 13, 2026, the president issued Executive Order 14392, titled “Ensuring Truthful Advertising of Products Claiming to Be Made in America.” The executive order targets allegedly deceptive country-of-origin claims and lays out an aggressive enforcement policy for the Federal Trade Commission (FTC) and other agencies to police such claims and penalize misrepresentations.

The closely aligned releases suggest a multiagency policy shift that penalizes foreign manufacturing by exposing a company’s intellectual property to greater risk of invalidation proceedings while simultaneously increasing policing of claims of domestic manufacture under statutory provisions that carry significant monetary penalties for misrepresentations.

As discussed further below, these developments create new challenges for parties making country-of-origin claims to not only audit their supply chains but also exercise caution in maintaining consistency in their representations before different federal agencies as they navigate the U.S. marketplace.

The PTAB Memorandum

In 2012, the America Invents Act (AIA) established the IPR and PGR procedures as alternative mechanisms for challenging patent validity before the PTAB. Such proceedings are often viewed as less expensive means of challenging patents and have been favored by alleged infringers when patent owners have sought to enforce patents in U.S. district court proceedings. The AIA also allows parties to bring IPRs and PGRs before the PTAB even without any pending litigation, permitting potential infringers to invalidate patents before any infringement action.

The AIA grants the PTAB the discretion to deny institution of IPR proceedings under 35 U.S.C. § 314(a), and the PTAB’s guidelines for such denials have evolved since the passage of the AIA.

In 2022, the PTAB articulated a six-factor test for denials of institution for IPR proceedings in Apple Inc. v. Fintiv Inc. The factors include the status of parallel court proceedings, proximity to the trial date, investments by parties in parallel proceedings, overlap in issues and parties between the PTAB and U.S. district court proceedings, and any other circumstances relevant to institution of IPR or PGR proceedings.

Subsequently, on March 26, 2025, the USPTO issued a memorandum titled “Interim Processes for PTAB Workload Management,” outlining factors supporting discretionary denial including whether the challenged claims have already been adjudicated; developments in the law; the strength of the challenge; reliance on expert testimony; settlement expectations; economic, public health, or national security interests; and any other considerations potentially relevant for institution.

In the PTAB memorandum, USPTO Director John Squires added new factors supporting discretionary denial. The PTAB memorandum first articulates the rationale for the new considerations, rooted in concerns about the global economy and national security, noting that “[i]n setting forth standards for instituting [IPR]and [PGR], the [AIA] requires that the Director consider the effect of these standards on the ‘economy, the integrity of the patent system, the efficient administration of the Office, and the ability of the Office to timely complete proceedings.’” It then discusses recent trends in the offshoring of the manufacturing base, and the economic and national security implications of that movement. Further, it notes that many of the most frequent petitioners are large corporations lacking meaningful domestic manufacturing presence. Considering the limited domestic footprint of frequent petitioners, and the national interest implications, the director will now consider three new discretionary factors including:

1. The extent to which any products accused of infringement in a parallel proceeding are manufactured in the United States or are related to investments in American manufacturing operations.
2. The extent to which any products made, sold, or licensed by the patent owner that compete with the accused products are manufactured in the United States.
3. Whether the petitioner is a small business that has been sued for infringement of the patent at issue.

The PTAB memorandum offers few specifics and only broad guidelines on how parties may support or attack claims of domestic manufacturing. However, the analysis is likely to look beyond the location of final assembly, to where components are sourced and processed throughout the supply chain. For method claims, the relevant product for this analysis would be the device used to carry out the claimed method.

For determining whether an entity is a small business, the Small Business Administration’s size standards under 13 C.F.R. §§ 121.801–121.805 and the reduced patent fee eligibility criteria under 37 C.F.R. § 1.27(a) would guide the determination.

While the new requirements are applicable to all parties, the PTAB memorandum specifically refers to the “electronics and computer industries” as areas of concern. It also references reports issued by the Departments of Commerce and Homeland Security and the Bureau of Industry and Security discussing the microelectronics industrial base in the United States and the status of critical supply chains supporting the U.S. information and communications technology industry.

The Made in America Executive Order

The Made in America executive order does not specifically mention the PTAB memorandum or the USPTO. Rather, the executive order directs the FTC to prioritize enforcement against deceptive origin claims and consider new rules addressing online marketplaces that fail to verify sellers’ country-of-origin representations. The FTC also is directed to consult with “agencies with oversight of country-of-origin labeling” to “promulgat[e] regulations that promote voluntary country-of-origin labeling” and to “ensure that American businesses receive consistent guidance on voluntary country-of-origin labeling.”

In addition to specific directives on policing representations in online marketplaces, the order also directs agencies overseeing governmentwide acquisition contracts (GWACs), Multiple Award Schedule (MAS) contracts, and other governmentwide indefinite-delivery, indefinite-quantity (IDIQ) vehicles to “periodically review and verify” claims such as “Buy American Act,” “Country-of-Origin USA,” or similar American-origin representations associated with products sold through these contracts. Contractors or vendors found to have misrepresented American-origin status will have products removed from government procurement and may be referred to the Department of Justice for actions under the False Claims Act.

Takeaways

While the PTAB memorandum and the Made in America executive order do not reference each other, taken together, they impose significant obligations on patentees, manufacturers, suppliers, vendors, and contractors to examine their supply chains, audit the rationale for country-of-origin designations, and maintain consistency in representations before different agencies. The Made in America executive order delegates responsibility to the FTC to police such representations in the marketplace, but patent owners and accused infringers are also likely to mount private challenges to such designations to support their respective positions before the PTAB. Parties should be prepared for discovery concerning these representations, and for aggressive challenges by opposing counsel. In addition, stakeholders should consider compliance gaps between different statutory and regulatory schemes as to what constitutes “Made in America” and develop a cohesive approach to reconcile potentially conflicting obligations in support of such designations.

Further, the PTAB memorandum does not address whether representations regarding country-of-origin designations may be kept confidential under a protective order. As a result, representations made to the PTAB may expose that party to scrutiny by the FTC, which has the power to impose significant financial penalties under the False Claims Act for misrepresentations.  

An additional complexity is the lack of clarity as to the applicable framework for companies to apply in an internal audit. Different requirements govern origin claims under federal procurement law versus consumer protection law. For example, the Buy American Act applies to goods purchased directly by the federal government and governs the representation of “domestic end products.” But the “Made in USA” standard regulated by the FTC is significantly stricter than the Buy American Act. Further, Section 5 of the FTC Act requires that a product be “all or virtually all” made in the United States.

This difference in existing statutory and regulatory standards, compounded with what may be the applicable PTAB standards, may require companies to engage in a holistic audit of any and all “Made in America” claims, regardless of the agency involved, to assess the basis of country-of-origin claims and the extent of exposure under different frameworks.

The following practical considerations merit attention in light of the cross-agency implications:

• Implications for patent owners and petitioners. Both the patent owner and the petitioner (usually the infringer) should document the basis, if any, for a “Made in America” claim or to establish status as a small business. As this evidence should likely be presented during the discretionary denial phase to maximize leverage, parties should consider whether to seek early discovery of such information in any parallel district court proceedings and craft a protective order controlling the use of such information in PTAB proceedings.
• Review of patent portfolio and pending or imminent litigation and PTAB proceedings. The PTAB memorandum applies immediately to all proceedings in which the patent owner’s discretionary brief is not yet due. Parties in such situations should consider their discretionary briefing strategies to incorporate applicable claims in a timely manner.
• Audit and harmonize the basis for “Made in America” claims across the product portfolio. The Made in America executive order references multiple statutory schemes applicable to government contracting, which have less stringent standards for country-of-origin claims compared with obligations for consumer-facing products under the FTC. The PTAB may also adopt different standards as it addresses the issue in upcoming proceedings. To avoid compliance gaps, and attendant risks of penalties that may be imposed by different agencies, companies may wish to engage in a comprehensive audit to document and harmonize the basis of “Made in America” claims across their global portfolio.
• Potential lack of remediation framework and exposure to penalties. The Made in America executive order suggests that if a company is determined to have made a misrepresentation as to the country of origin, there is no framework for remediation but rather a direct escalation into the penalty phase, with the products being removed from government procurement programs, if applicable, and/or referral to the Department of Justice and exposure to liability under the False Claims Act. This suggests an enforcement approach that treats inaccurate origin claims as serious compliance failures rather than technical procurement or paperwork errors. False Claims Act liability can carry significant financial consequences as the statute calls for treble damages — three times the government’s actual loss and mandatory penalties for each false claim or invoice submitted.