The US Patent and Trademark Office (USPTO) is proposing major changes to how companies challenge low-quality patents. For software providers, and for industries increasingly built on software, from manufacturing and logistics to healthcare, aerospace, and financial services, the stakes are significant. The new rules would make it harder to fix errors in the patent system, easier for abusive plaintiffs to extract settlements, and risk giving foreign competitors and patent trolls a strategic advantage.
At the center of this rulemaking is the Inter Partes Review (IPR) process. Congress created IPR so technical experts at the Patent Trial and Appeal Board (PTAB) could efficiently review questionable patents that slip through examination. This matters across the economy: a flawed patent can stop a small software developer from releasing a product, block a manufacturer from deploying automation tools, or hold back entire sectors that depend on interoperable, reliable software.
BSA’s concern is that USPTO’s proposal would weaken this essential safeguard at exactly the moment businesses need it most. Despite claims of abuse, USPTO’s own data shows the opposite: IPR petitions have declined for years, and just 0.009 percent of active patents were even partially invalidated during 2024.The system is not overused — it is under threat.
The proposed rules would create new chokepoints that prevent legitimate scrutiny of weak patents, including:
-
- Mandatory waivers of legal defenses, which would force software companies and other operating businesses to give up key rights simply to access the process Congress intended for them to use;
- Broad bans on review if a patent was previously litigated, even when circumstances, technologies, or challengers differ — a barrier that would lock in bad patents and amplify risk across sectors that rely on rapid product iteration; and
- An automatic “race-to-trial” denial, allowing litigants to manipulate court schedules to shut down expert review at the PTAB.
For companies building AI tools, cloud infrastructure, advanced manufacturing systems, or cybersecurity technologies, the consequences are clear: higher litigation exposure, reduced ability to defend innovation, and a greater risk that foreign adversaries or non-practicing entities weaponize weak patents to slow US competitiveness.
That’s why BSA is urging the USPTO to withdraw or substantially revise the rule. The Office should preserve a strong, predictable IPR process; stay anchored to Congress’s statutory design; and ensure patent quality remains a pillar of US economic and national security. Weakening IPR doesn’t just burden software companies — it reverberates across every industry that depends on software to grow, compete, and innovate.