USPTO Wants To Make Bad Patents Unchallengeable. You Have Until December 2nd To Tell Them No.

from the don’t-let-the-trolls-win dept

The US Patent Office is about to gut the only effective tool we have for killing bad patents—and they’re doing it by administrative fiat, without Congress, in a way that would make patent trolling easier than it’s been in over a decade. They need to hear from you by Tuesday, December 2nd, or this may become reality.

Patent trolling was really holding back all sorts of innovation in the 2000s. As soon as any company started to become successful, trolls would come out of the wood work, holding terrible, vague, highly questionable patents, and demand a payoff. In 2011, Congress finally gave us the America Invents Act, which created inter partes review (IPR)—a process that lets anyone challenge a granted patent at the USPTO and ask them to review whether it should have been approved in the first place.

IPR was necessary because patent examination is fundamentally broken. It’s not adversarial, examiners have limited time and resources to investigate prior art, and applicants can keep resubmitting until someone approves their application. Patent examiners were even being dinged for taking too long reviewing patents, which created perverse incentives to just rubber-stamp applications to clear the queue. The result: a shit-ton of bad patents that never should have been granted.

The IPR process finally began to move the patent landscape back in the right direction, allowing anyone to kick off a review of a patent to see if it had been improperly granted. If it was validly granted, then the IPR process would prove that, in effect strengthening the patent. But if the patent was nonsense, then the IPR process could invalidate it. And it’s done that for a bunch of terrible patents that never should have been granted.

Patent trolls have hated IPR from day one, and they’ve fought it relentlessly. They challenged the process all the way to the Supreme Court—and they lost. Then they tried again. And they lost again. Losing twice at SCOTUS would stop most campaigns, but the troll lobby just pivoted: for years they’ve been pressuring Congress to change the law and kill IPR outright.

Having failed in court and Congress, the troll lobby is now getting the Patent Office to do their dirty work through administrative rulemaking. This started two years ago under Biden, but patent trolling is bipartisan and the Trump USPTO is pushing the same approach. They can’t eliminate IPR without Congress, so instead they’re proposing rules that would make it functionally useless.

Here’s what they want to do, and why each piece is bonkers:

First, IPR would only be available if the patent isn’t being litigated. Which means all a troll needs to do to block IPR is… file a lawsuit. You’ve just created a massive incentive for more patent troll litigation. The cheaper, faster administrative process gets shut down the moment the troll decides to sue someone—which is exactly what trolls do.

Second, if you file an IPR, you forfeit your right to challenge that patent in court later. Think about the game theory here: a troll threatens to sue you. You try to use IPR to kill the bad patent. But now, if the troll decides to sue you, you’ve permanently given up your ability to challenge the patent as part of your defense! The troll has everything to gain and nothing to lose by forcing you into this choice. Again, more incentive to sue.

Third, if anyone challenges a patent in any process and it survives, no one can ever challenge it again. Ever. New prior art surfaces five years later proving the patent is garbage? Too bad. Someone else has better evidence? Doesn’t matter. One shot, that’s it. This effectively gives bad patents a shield of invincibility after a single successful defense.

There’s a comment period open right now (it ends Tuesday, December 2nd—the form says November 17th but it’s been extended), and the USPTO needs to hear why these rules are insane.

Your comment doesn’t need to be long or use fancy legal language. Just explain why you think it’s a bad idea to create rules that give patent trolls more incentive to sue, or that force defendants to forfeit their legal rights, or that make bad patents unable to be challenged forever. As EFF points out, the important thing is that actual users and creators—not just lawyers and lobbyists—show up in the record.

EFF provides a sample comment if you want a starting point:

I oppose the USPTO’s proposed rule changes for inter partes review (IPR), Docket No. PTO-P-2025-0025. The IPR process must remain open and fair. Patent challenges should be decided on their merits, not shut out because of legal activity elsewhere. These rules would make it nearly impossible for the public to challenge bad patents, and that will harm innovation and everyday technology users.

But honestly, you can make it even more specific. Pick one of the three perverse incentives above and explain why it’s backwards. Or talk about what happened before IPR existed, when trolls were shaking down every successful startup they could find.

IPR has actually worked in killing off genuinely terrible patents, including the infamous troll who claimed a patent on podcasts. He tried to shake down all the top podcasters. Without IPR, that patent might still be out there. Or if you use a fitness tracker today, thank the IPR process. It killed off a ridiculous patent that was used by a troll to try to shake down every company in the space.

IPR works. Don’t let the PTO kill it off to appease the troll lobby.

EFF points out how important this is as well:

IPR hasn’t ended patent trolling. But when a troll waves a bogus patent at hundreds or thousands of people, IPR is one of the only tools that can actually fix the underlying problem: the patent itself. It dismantles abusive patent monopolies that never should have existed,   saving entire industries from predatory litigation. That’s exactly why patent trolls and their allies have fought so hard to shut it down. They’ve failed to dismantle IPR in court or in Congress—and now they’re counting on the USPTO’s own leadership to do it for them. 

The USPTO is doing all this without congressional approval. If they really want to rewrite IPR rules, they should ask Congress to conduct a full review and pass a law. Instead, the PTO is trying to rewrite the laws through administrative fiat, betting that no one will notice or care enough to stop them.

They’re wrong. File a comment by December 2nd. Make your voice heard.

Filed Under: inter partes review, ipr, patent trolls, patents, uspto