USPTO's Proposed Rule Sparks Alarm: Developers Warn of Crippling Impact on Software Innovation and Anti-Troll Defenses

The current state of software patents is overwhelmingly viewed as detrimental to innovation, with widespread consensus among developers that patent trolling, rather than fostering creation, actively stifles it. The U.S. Patent and Trademark Office (USPTO) has ignited significant alarm within the tech community with a proposed new rule affecting Inter Partes Reviews (IPRs), slated for implementation by December 2nd. This rule is perceived as a critical threat that could exacerbate existing issues, making it considerably harder for innovators to defend themselves against exploitative patent litigation.

Inter Partes Reviews were established by Congress to provide a cost-effective avenue for startups, independent developers, and open-source projects—parties often vulnerable to weaponized patents—to challenge the validity of questionably granted patents without incurring the immense cost of federal litigation. The USPTO’s proposed changes, however, would introduce “bright line rules” blocking IPR petitions in common scenarios, such as when a patent claim has been upheld in any forum or when parallel litigation is underway. Most critically, the rule would mandate that petitioners pursuing an IPR relinquish all invalidity defenses in subsequent court proceedings if their IPR challenge fails, effectively penalizing attempts to dispute patents and increasing litigation risks. This is particularly concerning given the prevalence of patent trolls operating from jurisdictions like the Eastern District of Texas, known for favorable conditions for such lawsuits.

Historical examples underscore the pervasive damage of software patents. Apple’s attempt to make FaceTime an open standard was reportedly thwarted by patent trolls asserting claims on underlying connection technologies. Similarly, the RED Camera Company held a patent on the concept of compressed RAW video on-camera, leading to widespread litigation against industry giants like Apple, DJI, and Sony, only ceasing enforcement after Nikon acquired RED. Companies like Lodis have also leveraged vague patents, such as one related to “distributing upgrades to software over the internet” (interpreted as in-app purchases), to sue numerous app developers. In response to the proposed USPTO rule, a broad coalition of developers, startups, and open-source organizations, including prominent tech influencers, are urging the community to file public comments before the December 2nd deadline. This collective action aims to preserve IPRs as a vital defense mechanism, ensuring an environment where innovation, collaboration, and small business growth can thrive.