The U.S. Patent Office Should Drop Proposed Rules That Favor Patent Trolls

More than 14,000 people and organizations, including EFF, have sent public comments responding to a wrongheaded proposal by the U.S. Patent and Trademark Office (USPTO) to change the rules about patent challenges in a way that would favor patent trolls. 

If implemented, the proposed rule changes could seriously damage the system of “inter partes reviews,” or IPRs, that Congress created 10 years ago. The IPR system is far from perfect, but it has been effective in holding patent trolls accountable for some of their outrageous and harmful patent claims. In the 10 years it’s been operating, the Patent Trial and Appeal Board has thrown out thousands of patent claims that never should have been issued in the first place. 

At EFF, we used the IPR process to crowd-fund a challenge to the Personal Audio “podcasting patent” that tried to extract patent royalty payments from U.S. podcasters. We won that proceeding and our victory was confirmed on appeal.

Earlier this month, we asked supporters to speak out and file public comments with the USPTO asking them to withdraw these proposed rules. The response was fantastic. More than 600 supporters filed comments using our suggested language, and countless more chose to explain their own reasons for opposing this proposal. 

This is an unprecedented amount of public input for a proposed federal rule change to the patent system. To those of you who sent comments, thank you! We can only maintain the progress we’ve made towards a more fair patent system with your help. 

While it’s impossible for us to read all of the comments, it’s clear that thousands of people—an overwhelming majority of the total—sent comments explaining to the USPTO that effective inter partes reviews are critical to American innovators. Bad patents increase costs to consumers, and harm software developers in particular. 

Lobbyists for patent trolls and large-scale patent licensors talk to Congress all the time. But in this case, the public at large was alerted to the proposal that they had pushed for, and is opposing it. The USPTO’s proposed rules would install arbitrary limits on who could challenge patents, and greatly exceed the office’s authority to tinker with a process that was created by Congress. 

As we’ve said for years, when it comes to putting our broken patent system back in balance, the USPTO must—at a minimum—run a robust IPR system, as Congress intended. 

The USPTO should work in the public interest, not the interest of patent trolls. People have a right to challenge bad patents. And they have a right to work together to do so, including through membership-based companies like Unified Patents, or non-profits like the Linux Foundation and EFF. 

We hope that USPTO reads and processes the full array of public comments on this matter, and withdraws these proposed rules. 

You can read EFF’s comments on our website. You also can watch a recording of our online event discussing the rule changes, together with experts from Unified Patents and the Linux Foundation.