The US Patent and Trademark Office (USPTO) has proposed new rules This would effectively eliminate the ability of the public to challenge improperly granted patents at their source – the patent office. If these rules go into effect, they will hand patent trolls exactly what they’ve been chasing for years: a way to keep bad patents alive and inaccessible. People targeted by troll lawsuits will be left with almost no realistic or affordable way to defend themselves.
We need EFF supporters to immediately file public comments in opposition to these rules. The deadline for public comments is December 2. The USPTO is moving quickly, and remaining silent will only help those who profit from abusive patents.
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Tell the USPTO: The public has the right to challenge bad patents
We are asking supporters who care about a fair patent system to submit comments using the federal government’s public comment system. Your comments do not need to be long or use legal or technical terminology. The important thing is that everyday users and creators of technology get a chance to speak and be counted.
Below is a short, simple comment that you can copy and paste. Your comment will have more value if you add a personal sentence or two. Please note that comments must 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 should remain open and fair. Patent challenges should be decided on their merits, and not put off because of legal activity elsewhere. These rules will make it nearly impossible for the public to challenge bad patents and will harm innovation and everyday technology users.
Why does this rule change matter?
inter parte review(IPR), is not correct. This has not ended patent trolling, and is not available in every case. But it is one of the few practical ways for ordinary developers, small companies, nonprofits, and creators to challenge bad patents without spending millions of dollars in federal court. This is why patent trolls hate it – and why the USPTO’s new rules are so dangerous.
IPR is not easy or cheap, but it is a lifeline compared to years of litigation. When the system works, it removes bogus patents for everyone, not just the one that is the target of a lawsuit.
IPR petitions are adjudicated by the Patent Trial and Appeal Board (PTAB), a panel of special administrative judges within the USPTO. Congress designed the IPR to provide a fresh, expert perspective on 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 smaller companies, developers, and public-interest groups.
Here are three real-life examples of how IPRs protect the public:
- “Podcasting Patent” (individual audio)
Personal Audio claimed that it had “invented” podcasting and demanded royalties from audio creators using its so-called podcasting patents. EFF crowdsourced prior art, filed an iprAnd finally thrown out Patent—Benefiting The entire podcasting world,
Under the new rules, such a public interest challenge can easily be prevented based on procedural grounds, such as time, before the PTAB can examine the patent.
- SportBrain’s “Upload Your Fitness Data” patent
sportbrain Sued more than 80 companies On a patent that claimed basic collection of user data and sending it over the network. A panel of PTAB judges rejected every claim.
Under the new rules, this patent could have survived so long that dozens of other companies could have been forced to pay.
For more than a decade, Shipping and Transit sued companies over overly broad “delivery notification” patents. After repeated losses at the PTAB and in court (including fee awards), the company eventually collapsed.
Under the new rules, such a troll can keep his patent alive and continue bombarding small businesses with lawsuits.
IPR has not ended patent trolling. But when a troll waves a fake patent at hundreds or thousands of people, IPR is the only tool that can actually fix the underlying problem: the patent itself. It destroys abusive patent monopolies that should never have existed, saving entire industries from predatory litigation. That’s why patent trolls and their allies have fought so hard to shut it down. They have failed to kill IPR court or in Congress—and now they’re counting on the USPTO’s own leadership to do it for them.
What is the USPTO planning to do?
FirstThey want you to drop your defense in court. Under this proposal, a defendant cannot file an IPR unless it promises never to challenge the validity of the patent in court.
For anyone actually being sued or threatened with patent infringement, this is not a realistic promise. The choice would be: use the IPR and lose your protection—or keep your protection and lose the IPR.
SecondThe rules allow a patent to become “irrevocable” after a prior battle. This is correct. If a patent survives an earlier validity fight anywhere, these rules will prevent all others from bringing the IPR, even years later and even as new prior art emerges. An early decision – even one that was poorly argued, or did not have all the evidence – would close the door on the entire public.
thirdIf the case in district court is projected to move faster than the PTAB, the rules would block the IPR entirely.
So if a troll sues you over one of those outrageous patents we’ve seen over the last few years, such as watching an ad, showing picture menuOr get to workThe USPTO won’t even look at it. It would be back to the bad old days, where you had only one way to defeat the troll (whoever chose court to sue) – spend millions on experts and lawyers, then take your chance in front of a federal jury.
The USPTO claims this is fine because defendants can still challenge the patent in district court. this is confusing. An actual district-court legality fight costs millions of dollars and takes years. For most people and small companies, this is not an opportunity at all.
Only Congress can rewrite IPR
The IPR was created by Congress in 2013 after extensive debate. Its purpose was to provide the public with a fast, affordable way to correct their Patent Office mistakes. Only Congress – not a rule-making agency – can rewrite that system.
The USPTO should not be allowed to quietly weaken IPRs through procedural traps that prevent legitimate challenges.
Bad patents still slip away every year. The Patent Office issues hundreds of thousands of new patents every year. IPR is one of the only tools the public has to push back.
These new rules rely on the absurd assumption that this Defendants– People and companies who are threatened by dubious patents – who are abusing the system with multiple IPR petitions, and should be limited to a slice of the apple.
This is exactly the opposite. It’s patent trolls like shipping and transit and personal audio who have sued, or threatened, entire communities of developers and small businesses.
When the People have evidence that an overbroad patent was improperly granted, that evidence must be heard. This was the intention of Congress. These rules distort that intention beyond recognition.
In 2023, over a thousand EFF supporters spoke and stayed An earlier version of this proposal-Your comments made a difference Then, and they can do it again.
Our principle is simple: the public has a right to challenge bad patents. These rules will remove it immediately. Therefore it is important to speak now.
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Sample comment:
I oppose the USPTO’s proposed rule changes for inter partes review (IPR), Docket No. PTO-P-2025-0025. The IPR process should remain open and fair. Patent challenges should be decided on their merits, and not put off because of legal activity elsewhere. These rules will make it nearly impossible for the public to challenge bad patents and will harm innovation and everyday technology users.