A massive wave of public comments just told the U.S. Patent and Trademark Office (USPTO): don’t shut the public out of patent review.

EFF submitted its own formal comment opposing the USPTO’s proposed rules, and more than 4,000 supporters added their voices—an extraordinary response for a technical, fast-moving rulemaking. We comprised more than one-third of the 11,442 comments submitted. The message is unmistakable: the public wants a meaningful way to challenge bad patents, and the USPTO should not take that away.

The Public Doesn’t Want To Bury Patent Challenges

These thousands of submissions do more than express frustration. They demonstrate overwhelming public interest in preserving inter partes review (IPR), and undermine any broad claim that the USPTO’s proposal reflects public sentiment. 

Comments opposing the rulemaking include many small business owners who have been wrongly accused of patent infringement, by both patent trolls and patent-abusing competitors. They also include computer science experts, law professors, and everyday technology users who are simply tired of patent extortion—abusive assertions of low-quality patents—and the harm it inflicts on their work, their lives, and the broader U.S. economy. 

The USPTO exists to serve the public. The volume and clarity of this response make that expectation impossible to ignore.

EFF’s Comment To USPTO

In our filing, we explained that the proposed rules would make it significantly harder for the public to challenge weak patents. That undercuts the very purpose of IPR. The proposed rules would pressure defendants to give up core legal defenses, allow early or incomplete decisions to block all future challenges, and create new opportunities for patent owners to game timing and shut down PTAB review entirely.

Congress created IPR to allow the Patent Office to correct its own mistakes in a fair, fast, expert forum. These changes would take the system backward. 

A Broad Coalition Supports IPR

A wide range of groups told the USPTO the same thing: don’t cut off access to IPR.

Open Source and Developer Communities 

The Linux Foundation submitted comments and warned that the proposed rules “would effectively remove IPRs as a viable mechanism for challenges to patent validity,” harming open-source developers and the users that rely on them. Github wrote that the USPTO proposal would increase “litigation risk and costs for developers, startups, and open source projects.” And dozens of individual software developers described how bad patents have burdened their work. 

Patent Law Scholars

A group of 22 patent law professors from universities across the country said the proposed rule changes “would violate the law, increase the cost of innovation, and harm the quality of patents.” 

Patient Advocates

Patients for Affordable Drugs warned in their filing that IPR is critical for invalidating wrongly granted pharmaceutical patents. When such patents are invalidated, studies have shown “cardiovascular medications have fallen 97% in price, cancer drugs dropping 80-98%, and treatments for opioid addiction becom[e] 50% more affordable.” In addition, “these cases involved patents that had evaded meaningful scrutiny in district court.” 

Small Businesses 

Hundreds of small businesses weighed in with a consistent message: these proposed rules would hit them hardest. Owners and engineers described being targeted with vague or overbroad patents they cannot afford to litigate in court, explaining that IPR is often the only realistic way for a small firm to defend itself. The proposed rules would leave them with an impossible choice—pay a patent troll, or spend money they don’t have fighting in federal court. 

What Happens Next

The USPTO now has thousands of comments to review. It should listen. Public participation must be more than a box-checking exercise. It is central to how administrative rulemaking is supposed to work.

Congress created IPR so the public could help correct bad patents without spending millions of dollars in federal court. People across technical, academic, and patient-advocacy communities just reminded the agency why that matters. 

We hope the USPTO reconsiders these proposed rules. Whatever happens, EFF will remain engaged and continue fighting to preserve  the public’s ability to challenge bad patents. 

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:

• EFF Comment to USPTO, Docket No. PTO-P-2025-0025

The U.S. Patent and Trademark Office (USPTO) has proposed new rules that would effectively end the public’s ability to challenge improperly granted patents at their source—the Patent Office itself. If these rules take effect, they will hand patent trolls exactly what they’ve been chasing for years: a way to keep bad patents alive and out of reach. People targeted with troll lawsuits will be left with almost no realistic or affordable way to defend themselves.

We need EFF supporters to file public comments opposing these rules right away. The deadline for public comments is December 2. The USPTO is moving quickly, and staying silent will only help those who profit from abusive patents. 

TAKE ACTION

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

We’re asking supporters who care about a fair patent system to file comments using the federal government’s public comment system. Your comments don’t need to be long, or use legal or technical vocabulary. The important thing is that everyday users and creators of technology have  the chance to speak up, and be counted. 

Below is a short, simple comment you can copy and paste. Your comment will carry more weight if you add a personal sentence or two of your own. Please note that comments should be submitted under your real name and will become part of the public record. 

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.

Why This Rule Change Matters

Inter partes review, (IPR), isn’t perfect. It hasn’t eliminated patent trolling, and it’s not available in every case. But it is one of the few practical ways for ordinary developers, small companies, nonprofits, and creators to challenge a bad patent without spending millions of dollars in federal court. That’s why patent trolls hate it—and why the USPTO’s new rules are so dangerous.

IPR isn’t easy or cheap, but compared to years of litigation, it’s a lifeline. When the system works, it removes bogus patents from the table for everyone, not just the target of a single lawsuit. 

IPR petitions are decided by the Patent Trial and Appeal Board (PTAB), a panel of specialized administrative judges inside the USPTO. Congress designed  IPR to provide a fresh, expert look at whether a patent should have been granted in the first place—especially when strong prior art surfaces. Unlike  full federal trials, PTAB review is faster, more technical, and actually accessible to small companies, developers, and public-interest groups.

Here are three real examples of how IPR protected the public: 

• The “Podcasting Patent” (Personal Audio)

Personal Audio claimed it had “invented” podcasting and demanded royalties from audio creators using its so-called podcasting patent. EFF crowdsourced prior art, filed an IPR, and ultimately knocked out the patent—benefiting  the entire podcasting world. Under the new rules, this kind of public-interest challenge could easily be blocked based on procedural grounds like timing, before the PTAB even examines the patent. 

• SportBrain’s “upload your fitness data” patent

SportBrain sued more than 80 companies over a patent that claimed to cover basic gathering of user data and sending it over a network. A panel of PTAB judges canceled every claim. Under the new rules, this patent could have survived long enough to force dozens more companies to pay up.

• Shipping & Transit: a troll that sued hundreds of businesses

For more than a decade, Shipping & Transit sued companies over extremely broad “delivery notifications”patents. After repeated losses at PTAB and in court (including fee awards), the company finally collapsed. Under the new rules, a troll like this could keep its patents alive and continue carpet-bombing small businesses with lawsuits.

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. 

What the USPTO Plans To Do

First, they want you to give up your defenses in court. Under this proposal, a defendant can’t file an IPR unless they promise to never challenge the patent’s validity in court. 

For someone actually being sued or threatened with patent infringement, that’s simply not a realistic promise to make. The choice would be: use IPR and lose your defenses—or keep your defenses and lose IPR.

Second, the rules allow patents to become “unchallengeable” after one prior fight. That’s right. If a patent survives any earlier validity fight, anywhere, these rules would block everyone else from bringing an IPR, even years later and even if new prior art surfaces. One early decision—even one that’s poorly argued, or didn’t have all the evidence—would block the door on the entire public.

Third, the rules will block IPR entirely if a district court case is projected to move faster than PTAB. 

So if a troll sues you with one of the outrageous patents we’ve seen over the years, like patents on watching an ad, showing picture menus, or clocking in to work, the USPTO won’t even look at it. It’ll be back to the bad old days, where you have exactly one way to beat the troll (who chose the court to sue in)—spend millions on experts and lawyers, then take your chances in front of a federal jury. 

The USPTO claims this is fine because defendants can still challenge patents in district court. That’s misleading. A real district-court validity fight costs millions of dollars and takes years. For most people and small companies, that’s no opportunity at all. 

Only Congress Can Rewrite IPR

IPR was created by Congress in 2013 after extensive debate. It was meant to give the public a fast, affordable way to correct the Patent Office’s own mistakes. Only Congress—not agency rulemaking—can rewrite that system.

The USPTO shouldn’t be allowed to quietly undermine IPR with procedural traps that block legitimate challenges.

Bad patents still slip through every year. The Patent Office issues hundreds of thousands of new patents annually. IPR is one of the only tools the public has to push back.

These new rules rely on the absurd presumption that it’s the defendants—the people and companies threatened by questionable patents—who are abusing the system with multiple IPR petitions, and that they should be limited to one bite at the apple. 

That’s utterly upside-down. It’s patent trolls like Shipping & Transit and Personal Audio that have sued, or threatened, entire communities of developers and small businesses.

When people have evidence that an overbroad patent was improperly granted, that evidence should be heard. That’s what Congress intended. These rules twist that intent beyond recognition. 

In 2023, more than a thousand EFF supporters spoke out and stopped an earlier version of this proposal—your comments made the difference then, and they can again. 

Our principle is simple: the public has a right to challenge bad patents. These rules would take that right away. That’s why it’s vital to speak up now. 

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.

As all things old are new again, a bill that would make obtaining bad patents easier and harder to challenge is being considered in the Senate Judiciary Committee. The Patent Eligibility Restoration Act (PERA) would reverse over a decade of progress in fighting patent trolls and making the patent system more balanced.

PERA would overturn long-standing court decisions that have helped keep some of the most problematic patents in check. This includes the Supreme Court’s Alice v. CLS Bank decision, which bars patents on abstract ideas. While Alice has not completely solved the problems of the patent system or patent trolling, it has led to the rejection of hundreds of low-quality software patents and, as a result, has allowed innovation and small businesses to grow.

Thanks to the Alice decision, courts have invalidated a rogue’s gallery of terrible software patents—such as patents on online photo contests, online bingo, upselling, matchmaking, and scavenger hunts. These patents didn’t describe real inventions—they merely applied old ideas to general-purpose computers. But PERA would wipe out the Alice framework and replace it with vague, hollow exceptions, taking us back to an era where patent trolls and large corporate patent-holders aggressively harassed software developers and small companies.

This bill, combined with recent changes that have restricted access to the Patent Trial and Appeal Board (PTAB), would create a perfect storm—giving patent trolls and major corporations with large patent portfolios free rein to squeeze out independent inventors and small businesses.

EFF is proud to join a letter, along with Engine, the Public Interest Patent Law Institute, Public Knowledge, and R Street, to the Senate Judiciary Committee opposing this poorly-timed and concerning bill. We urge the committee to instead focus on restoring the PTAB as the accessible, efficient check on patent quality that Congress intended.