Why Fewer People Are Challenging Bad Patents

From Deeplinks

The number of petitions being filed at the Patent Trial and Appeal Board (PTAB) has collapsed. That’s not reason for celebration. The PTAB is an important line of defense against low-quality software patents being used in lawsuits against people and companies. The drop didn’t happen because suddenly patents have become higher quality. It’s simply because USPTO leadership is increasingly refusing to consider good challenges to patents, for reasons unrelated to the merits. The process has become so unreliable that many would-be patent challengers aren’t even trying. Inter partes review (IPR) is a process that allows people to challenge patents at the Patent Office, rather than having to fight an expensive lawsuit in federal court. It’s one of the most important ways to get bad patents out of the system. In the third quarter of 2026, July through September, only 97 IPR petitions were filed at the PTAB, compared to 327 petitions during the same period in 2025. Similarly, only 37 IPR petitions were filed in September 2026, compared to 129 petitions in December 2024—the last full month before the current USPTO leadership began reshaping how the Board handles patent challenges. This dramatic decline shouldn’t just concern patent lawyers. EFF has fought bad patents because so many software and internet patents make claims to the basic tools of free expression online, like sending email, using online ads, or publishing web pages. When bad patents go unchallenged, they affect everyone who cares about the freedom to write new code and make new technology. That’s why EFF has defended IPR since it came on the scene more than a decade ago. It provides a faster and less expensive way to challenge patents that should never have been granted. Congress created IPRs because the Patent Office makes mistakes. District court litigation is an extraordinarily expensive way to correct them. Without a meaningful administrative review process, bad patents remain powerful weapons in the hands of patent trolls and others seeking to extract settlements from companies that often did nothing wrong. Now, USPTO leadership is dismantling that safeguard. Petitions and Institution Rates Are Falling Since Congress created the IPR patent challenge process in 2012, the PTAB has always had some discretion in deciding which petitions deserve review. But institution rates today are much lower than their typical historical range. Between fiscal years 2022 and 2024, the PTAB instituted between 66% and 68% of IPR petitions. In fiscal year 2026, which concluded in September 2026, the institution rate fell to 41%. And institution is only the first step of an IPR—it means the PTAB has agreed to hear the challenge, not that the challenger won, and the patent will be invalidated. That decline helps explain why fewer petitions are being filed in the first place. Preparing an IPR petition takes substantial time and money. While cheaper than federal court, it’s still a complicated administrative process. Before filing, a challenger typically needs to search for prior art, hire experts, and develop detailed technical and legal arguments about why the patent never should have been granted. Companies were willing to pay for IPRs because, historically, they could expect a predictable process. Petitions that met the statutory standard generally had a reasonable prospect of being heard and decided on the merits. But the USPTO has made it harder to get petitions heard and is throwing them out for reasons that have nothing to do with the merits of the challenges. Faced with these odds, many potential challengers aren’t filing at all. Even After a Challenge Is Accepted, The USPTO Director Can Cancel It When the PTAB decides to hear an IPR case, that means the petition has been “instituted”—but that has never meant that the petitioner will definitely win. It means the PTAB has determined the challenge warrants a full merits review, and the parties could expect the proceeding to continue toward a final written decision. But under the current USPTO leadership, that expectation has disappeared. The PTAB’s institution decisions are being repeatedly vacated by the Director. USPTO Director John Squires has vacated at least 29 decisions granting institution of IPR proceedings, and subsequently denied the petitions, terminating those proceedings before a final written decision. These include cases that PTAB judges had already agreed to hear, as well as proceedings that Squires himself had previously allowed to proceed. This level of retroactive intervention is unprecedented. In some cases, the parties had already invested substantial time and money litigating before the PTAB, only to have the proceeding terminated based on new reasoning by the Director’s office that arose after institution. For example, in Revvo Technologies v. Cerebrum Sensor Technologies, the Director vacated an institution decision and remanded the case to the Board. The Board then instituted review again…

More episodes of Deeplinks

More episodes

PodSearch is a free, independent podcast search engine. Read about PodSearch, the privacy policy or contact us.