Developers need the right to challenge junk patents

The United States Patent and Trademark Office (USPTO) recently proposed rule changes that will make it harder to challenge low quality patents. We echo the concerns raised by the Linux Foundation and the Electronic Frontier Foundation. Without the ability to quickly and efficiently challenge wrongly granted patents, innovation and developers suffer.

The impact on developers, startups, and small companies

In 2011, Congress created inter partes review administered by the Patent Trial and Appeal Board (PTAB) as a lower-cost, more efficient procedure for the public to challenge low quality patents–patents that are not new or are obvious over past innovation–and so should not have been granted in the first place. The PTAB has saved billions in litigation costs and reduced the burden of patent trolls on developers, including startups and open source projects.

By restricting access to the PTAB, the proposed rule would be a step backward to an environment that allows low quality patents to stifle technological progress, directly in conflict with the legislation Congress passed to enable the public to remove bad patents.

A stated goal of the changes by the USPTO is to protect against “patentee harassment,” but, in our experience, this is a solution in search of a problem. On the contrary, allowing anyone to weed out low quality patents is vital to protect innovation and promote the public interest.

Weak patents asserted widely against our ecosystems introduce friction in the innovation cycle, hinder developers’ creativity, and impede freedom to make technological advancements. By ensuring we all have the right to advise the patent office that it granted a patent it shouldn’t have, we can ensure a fair and equitable patent system that fosters innovation and benefits all.

Taking action

We urge all developers and supporters–whether a student, open source maintainer, or enterprise (see Microsoft’s comment)–to voice their opposition today to the proposed rules using the USPTO’s public comment system. Regardless of the length or technicality of your comments, your input is vital in safeguarding innovation and advocating for a patent system that serves developers’ interests. Together, we can defend our right to challenge junk patents, protect developers from patent abuse, and foster an environment that nurtures innovation.

Written by

Mike Linksvayer

@mlinksva

Head of Developer Policy