Developers still need the right to challenge junk patents

Just like they did two years ago, the U.S. Patent and Trademark Office has once again proposed new rules that would make it much harder to challenge bad patents through inter partes review (IPR). But this time the rule is much worse for developers and startups. And that’s a serious concern.

Congress created IPRs so those most vulnerable to weaponized patents–startups and developers–could challenge whether a patent should have even been granted efficiently and fairly without the cost of a full-blown federal litigation. Preserving that ability strengthens American innovation, open source, and small-business growth.

The 2023 proposal would have added procedural hurdles. But even with those hurdles developers and startups would still always have their own path to challenge low-quality patents.

The 2025 proposal is different. It would impose bright-line rules that block IPR petitions in many common scenarios—such as when a claim has ever been upheld in any forum or when a parallel case is likely to finish first. It would also require petitioners to give up all invalidity defenses in court if they pursue IPR. These changes would prevent developers from challenging the patent whenever some other party tried and failed. This makes IPR far less accessible, increasing litigation risk and costs for developers, startups, and open source projects.

Innovation isn’t about patents—it’s about people writing code, collaborating, and building tools that power the world. GitHub’s inclusion in the WIPO Global Innovation Index reflects how developers and openness drive progress. Policies that close off avenues to challenge bad patents that block open innovation don’t just affect lawyers—they affect the entire ecosystem that makes innovation possible.

We’re calling on developers, startups, and open source organizations that could be impacted by these rules to file comments underscoring the broad concerns patent trolls pose to innovation. File a comment and make your voice heard before the comment period closes on December 2. 

Written by

Mike Linksvayer

@mlinksva

Head of Developer Policy