The Patent Office Wants to Make Bad Patents Untouchable. 97% of Commenters Said No.

If someone has accused your company of infringing their patent, you need to know about Inter Partes Review. IPR is a process that lets you challenge a patent's validity directly at the U.S. Patent and Trademark Office (USPTO) instead of fighting it out in federal court. It's faster and cheaper than a lawsuit. The USPTO wants to make that option nearly impossible to use.

On October 17, 2025, the Patent Office published proposed rules that would sharply restrict access to IPR. The basic idea: if a patent survives any challenge, anywhere, it becomes virtually immune from future challenges. The proposal drew 11,442 public comments. Ninety-seven percent opposed it.

This matters if you build technology. Your next board meeting will include questions about patent risk. Your Series B diligence will probe how you'd defend against patent claims. And if you're a startup that can't afford $2 million in federal court litigation, you're about to lose your most cost-effective defense.

The Basics: What Is IPR and Why Does It Matter?

Before diving into the proposed changes, here's what you need to know about the current system.

A patent gives its owner the exclusive right to make, use, or sell an invention. But not every patent should have been granted. Sometimes the Patent Office misses evidence that the invention wasn't actually new, or that it was an obvious combination of existing ideas. These are called "invalid" patents.

Traditionally, if someone sued you for patent infringement, your only option was to fight it in federal court. That costs $1 million to $4 million and takes years. In 2012, Congress created Inter Partes Review as a cheaper, faster alternative. IPR lets you ask a panel of patent judges at the USPTO to take a second look at whether the patent should have been granted in the first place. This typically costs $300,000 to $700,000 and takes about 18 months.

IPR has been remarkably effective. In cases that go all the way to a final decision, 70% result in the patent being found invalid. That's not because the system is biased against patents. It's because the patents being challenged often have real problems that the Patent Office missed the first time.

What the USPTO Is Proposing

The proposed rule adds four restrictions that, taken together, would eliminate IPR as a practical option for most companies.

Restriction 1: Pick Your Forum, Lose the Other

Under the new rules, if you file an IPR, you must agree to give up your right to argue the patent is invalid in any other proceeding. That includes federal court lawsuits, cases at the International Trade Commission (which handles disputes involving imported goods), and other Patent Office review processes.

This forces a choice that doesn't exist today. Currently, companies can challenge a patent at the USPTO while also defending themselves in court. The new rule says: pick one.

Why this matters: IPR has a lower standard of proof than federal court. It's easier to show a patent is invalid at the USPTO. Under the new rules, choosing the easier path means giving up the harder one entirely.

Restriction 2: One Chance, Forever

If the patent has already survived a challenge anywhere, you can't file a new IPR against it. Period.

This applies even if you discover better evidence. Say a patent survived an IPR challenge three years ago, and last month you found a document proving the invention wasn't new. Too bad. The rule explicitly says that "new or additional prior art" doesn't qualify as an exception.

Prior art, by the way, is evidence that an invention existed before the patent was filed. It's the main tool for proving a patent shouldn't have been granted.

Restriction 3: The Race to Judgment

If a court case is moving fast enough that it might reach a decision before the IPR would finish, the USPTO will refuse to start the IPR at all.

IPR takes about 18 months. Some federal courts move faster than that. Under the new rule, a patent owner could file a lawsuit in a fast-moving court, push for an aggressive schedule, and block the defendant from using IPR entirely.

This turns litigation speed into a weapon. Patent owners who want to avoid IPR challenges now have a playbook: sue quickly, in a fast court, and race to judgment.

Restriction 4: The Meaningless Exception

The rule includes an "extraordinary circumstances" exception. But it's so narrow it barely exists.

The exception covers situations where an earlier challenge was made in bad faith, or where the Supreme Court fundamentally changes the law. It doesn't cover new evidence, new arguments, or any of the situations where a second look would actually matter.

Why 97% of Commenters Opposed This

The opposition spans every corner of the technology and healthcare industries. Apple, Google, Tesla, Ford, Intel, and Micron all submitted comments urging the USPTO to withdraw the proposal. So did the Linux Foundation, the Electronic Frontier Foundation, the generic drug industry's trade association, and 22 patent law professors from universities across the country.

The Cost Problem

IPR costs $300,000 to $700,000 on average. Federal court patent litigation runs $1 million to $4 million. For a startup defending against a patent claim, that's the difference between a manageable expense and an existential threat.

The proposal doesn't take away the ability to challenge patents. It just moves that fight to a forum that costs three to ten times more. Companies that could afford IPR will now face a choice: pay millions more for court, or settle claims they might have won.

The Quality Problem

Patents sometimes get granted when they shouldn't. The Patent Office processes hundreds of thousands of applications every year. Examiners have limited time to search for prior art. Mistakes happen. Invalid patents get through.

IPR exists to fix those mistakes. When 70% of challenged patents are found invalid, that tells you there's a real quality problem that IPR is solving.

The proposed rule would insulate bad patents from review. Once any challenger loses on any ground, the patent becomes effectively immune. Regardless of quality.

The Patent Troll Problem

Some companies exist solely to buy up patents and sue other businesses. They don't make products. They don't employ engineers. They just assert patents and collect settlements. These are commonly called "patent trolls," or more formally, non-practicing entities (NPEs).

Here's how the current system works: An NPE sues Company A. Company A files an IPR. If the IPR succeeds, the patent is canceled, and Companies B, C, and D are protected. If the IPR fails, those other companies can still file their own challenges with different evidence.

Under the new rules, if the first challenge fails, the patent becomes untouchable. The NPE can strategically pick a weak first defendant, win that case, and then sue everyone else with no IPR option available.

What This Means for Your Company

If You're Raising Money or Selling Your Company

Your next funding round or acquisition process will include intellectual property diligence. Investors and buyers will ask: What's your exposure to patent claims? How would you defend yourself?

Today, the answer includes IPR as a cost-effective defense. Under the new rules, that answer changes. Your risk profile goes up because your options go down.

Prepare for these conversations now. Document how you've assessed patent risk. Identify patents that could be asserted against your technology. If IPR remains available, consider whether it makes sense to challenge risky patents before the rules change.

If You're Currently Facing a Patent Lawsuit

Timing matters more than ever.

File IPR petitions early. If the court case moves faster than expected, you could lose the IPR option entirely.

If you're defending multiple claims, prioritize which patents to challenge at the USPTO versus which to fight in court. The new rules would eliminate the ability to do both.

If You Own Patents

The calculus shifts in your favor. Forum selection becomes more strategic. Filing in fast-moving courts offers a path to block IPR challenges. Your patents become more valuable because they're harder to challenge.

In Your Contracts

Patent risk will show up in deal documents. Acquisition agreements, licensing deals, and joint ventures all address intellectual property.

Expect buyers and partners to push harder on patent-related representations. If you're selling your company, you may face questions about whether your patents have been challenged, and what happens if they are. Negotiate these provisions understanding that the landscape is shifting.

What Happens Next

The Timeline

The public comment period closed December 2, 2025. The USPTO must now review comments and decide whether to finalize, modify, or withdraw the proposal.

Given that 97% of comments opposed the rule, the agency faces a choice. Proceeding as written invites legal challenge. Federal law requires agencies to meaningfully consider significant public comments. Ignoring this level of opposition would provide ammunition for lawsuits claiming the rule is "arbitrary and capricious."

But the current administration supports stronger patent rights. The proposal aligns with that policy direction. The most likely outcome is a final rule that softens some provisions while preserving the core restrictions.

Legal Challenges

If the rule is finalized, expect lawsuits. The legal arguments against it include:

The USPTO may be exceeding its authority. The statute gives the Patent Office Director discretion to deny individual petitions. Whether that authorizes sweeping categorical bars is a different question.

The rule may violate constitutional rights. Historically, accused infringers have the right to a jury trial on patent validity. A rule that forces you to waive that right to access IPR raises serious constitutional questions.

The rule may contradict what Congress intended. Congress created IPR to provide an alternative to expensive court litigation, not a trap that eliminates your court options.

The Congressional Alternative

A bill called the PREVAIL Act would accomplish some of the same objectives through legislation. It would require challengers to have been sued or threatened before filing IPR, raise the standard of proof, and limit follow-on challenges.

Legislation has advantages over agency rulemaking: it would resolve questions about the USPTO's authority and provide clearer political accountability. But the bill has its own opponents, and its prospects remain uncertain.

Practical Takeaways

Assess your patent exposure now. Review any patents that have been or could be asserted against your company. If IPR remains available, evaluate whether to file before the rules change.

Accelerate pending challenges. If you're preparing an IPR petition, file it before a final rule takes effect. It's unclear whether pending petitions would be grandfathered.

Update your risk disclosures. Board presentations and investor materials should reflect that patent defense costs may increase significantly.

Negotiate contract provisions carefully. In M&A and licensing deals, anticipate requests for stronger patent-related representations and indemnification.

Document your patent analysis. Investors and buyers will ask how you've assessed patent risk. Having a documented process demonstrates diligence.

Track the final rule. Subscribe to Federal Register alerts for Docket No. PTO-P-2025-0025. The final rule could publish with minimal warning.

Talk to patent counsel. If you're facing active patent claims, the strategic calculus is shifting. Get advice specific to your situation before the rules change.

The Patent Office is trying to make patents harder to challenge. The tech industry, generic drug makers, and open-source advocates are pushing back. Whether you're defending against patent claims or protecting your own portfolio, the rules of the game are about to change. Build your IP strategy now, while you still have options.