Thousands Tell The Patent Office: Don’t Hide Bad Patents From Review

We filed our own comment with the USPTO regarding their attempt to weaken the important inter partes review (IPR) process that has been hugely helpful in getting rid of bad patents. Over at EFF, Joe Mullin wrote up an analysis of some of the comments to the USPTO, which we're running here as well.

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 the11,442 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 ourfiling, weexplainedthat 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

TheLinux Foundationsubmitted 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 wrotethat the USPTO proposal would increase litigation risk and costs for developers, startups, and open source projects." Anddozensofindividualsoftwaredevelopers described how bad patents have burdened their work.

Patent Law Scholars

A group of22 patent law professorsfrom 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 Drugswarned in their filingthat 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 ofsmall businessesweighed 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.

Republished from the EFF's Deeplinks blog.