EFF Tells Patent Office: Don’t Cut the Public Out of Patent Review

EFF has submitted its formal comment to the U.S. Patent and Trademark Office (USPTO) opposing a set of proposed rules that would sharply restrict the public’s ability to challenge wrongly granted patents. These rules would make inter partes review (IPR)—the main tool Congress created to fix improperly granted patents—unavailable in most of the situations where it’s needed most.

If adopted, they would give patent trolls exactly what they want: a way to keep questionable patents alive and out of reach.

If you haven’t commented yet, there’s still time. The deadline is today, December 2.

TAKE ACTION

Tell USPTO: The public has a right to challenge bad patents

Sample comment:

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.

IPR Is Already Under Siege, And These Rules Would Make It Worse

Since USPTO Director John Squires was sworn into office just over two months ago, we’ve seen the Patent Office take an increasingly aggressive stance against IPR petitions. In a series of director-level decisions, the USPTO has denied patent challengers the chance to be heard—sometimes dozens of them at a time—without explanation or reasoning. 

That reality makes this rulemaking even more troubling. The USPTO is already denying virtually every new petition challenging patents. These proposed rules would cement that closed-door approach and make it harder for challengers to be heard. 

What EFF Told the USPTO

Our comment lays out how these rules would make patent challenges nearly impossible to pursue for small businesses, nonprofits, software developers, and everyday users of technology. 

Here are the core problems we raised:

First, no one should have to give up their court defenses just to use IPR. The USPTO proposal would force defendants to choose: either use IPR and risk losing their legal defenses, or keep their defenses and lose IPR.

That’s not a real choice. Anyone being sued or threatened for patent infringement needs access to every legitimate defense. Patent litigation is devastatingly expensive, and forcing people to surrender core rights in federal court is unreasonable and unlawful.

Second, one early case should not make a bad patent immune forever. Under the proposed rules, if a patent survives any earlier validity fight—no matter how rushed, incomplete, or poorly reasoned—everyone else could be barred from filing an IPR later.

New prior art? Doesn’t matter. Better evidence? Doesn’t matter. 

Congress never intended IPR to be a one-shot shield for bad patents. 

Third, patent owners could manipulate timing to shut down petitions. The rules would let the USPTO deny IPRs simply because a district court case might move faster.

Patent trolls already game the system by filing in courts with rapid schedules. This rule would reward that behavior. It allows patent owners—not facts, not law, not the merits—to determine whether an IPR can proceed. 

IPR isn’t supposed to be a race to the courthouse. It’s supposed to be a neutral review of whether the Patent Office made a mistake.

Why Patent Challenges Matter

IPR isn’t perfect, and it doesn’t apply to every patent. But compared to multimillion-dollar federal litigation, it’s one of the only viable tools available to small companies, developers, and the public. It needs to remain open. 

When an overbroad patent gets waved at hundreds or thousands of people—podcasters, app developers, small retailers—IPR is often the only mechanism that can actually fix the underlying problem: the patent itself. These rules would take that option away.

There’s Still Time To Add Your Voice

If you haven’t submitted a comment yet, now is the time. The more people speak up, the harder it becomes for these changes to slip through.

Comments don’t need to be long or technical. A few clear sentences in your own words are enough. We’ve written a short sample comment below. It’s even more powerful if you add a sentence or two describing your own experience. If you mention EFF in your comment, it helps our collective impact. 

TAKE ACTION

Sample comment: 

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.

Further reading: