Defend Open Collaboration: Have Your Say on Proposed US Patent Rules

Open source and open collaboration communities face ongoing threats from “non-practicing entities” (NPEs, also sometimes called “patent trolls”). The United States Patent and Trademark Office (USPTO) has proposed new procedural rule changes that would benefit NPEs, by making it harder to defend against NPEs who assert weak patents. 

We are letting the USPTO know why we think this is bad for developers and users of open source software, and we hope that the broader community will join us in speaking out against these proposed changes. The deadline for comments is December 2nd, 2025.

Inter Partes Reviews

NPEs are legal entities that hold patents without manufacturing or selling products. In some cases, an NPE may own a patent that is substantively problematic or weak, but was nonetheless issued by the USPTO. Such a patent could likely be struck down as invalid in litigation. 

However, NPEs (and their targets) know that the litigation required to actually strike down a patent can be very expensive. Prevailing against the patent’s validity is not guaranteed, and the costs of losing can be extreme. As a result, NPEs often assert weak patents against target organizations, extracting settlements for less than the expected cost of litigation—regardless of the likelihood of success if litigation went to conclusion.

In 2011, the U.S. Congress passed a statute establishing the current “inter partes review” (IPR) process. IPRs are a regulatory procedure—occurring within the USPTO, rather than in court litigation—for challenging a patent on the basis that its invention was obvious or not new in light of prior art. Because of this, IPRs are a critical tool for community members to efficiently disable weak and invalid patents, while avoiding the high costs of litigation.

Proposed 2025 Rule Changes

The USPTO has proposed changes to the regulatory rules governing when IPRs are available. These changes would effectively remove IPRs as a viable mechanism for challenges to patent validity.

Specifically, the revised rules would include the following changes:

• Requestors of IPRs would be required to give up their right to challenge the patent’s validity for novelty or non-obviousness in any other proceeding (such as actual litigation)—even if the IPR is never commenced by the USPTO.
• An IPR would not be instituted if the patent had been upheld in another proceeding with any other third party.
• An IPR would not be instituted if the USPTO determines it is likely that another proceeding could occur sooner.

The first change would be an extremely strong deterrent against requesting IPRs. And the second and third would make it rare that an IPR would be instituted at all when requested.

Share Your Feedback

In 2023, The Linux Foundation partnered with a coalition of foundations and organizations to stand against similar proposed rule changes at the USPTO. Thanks in part to the comments by individuals, businesses, and organizations from across the community, the USPTO omitted several problematic changes from its final 2023 rulemaking. It took an overwhelming volume of responses to stymie these changes in 2023 and we need your help again - as individuals, as contributors, and as companies.

It’s now time for the community to come together again and speak out against these proposed rule changes. Along with others in the community who oppose these changes, including the Electronic Frontier Foundation (EFF) and GitHub, The Linux Foundation will be submitting comments to the USPTO to express why these changes are problematic for not only the open source developer community, but also all organizations, companies, and individuals who use and depend on open source.

We are also providing a template response for others to customize and use to submit their own comments to the USPTO. Users of this template should customize the bracketed language near the top as appropriate. Both individuals and companies are encouraged to submit responses. You can submit comments on the regulatory notice page by clicking on the “Submit a Public Comment” button. Please be aware that comments are due no later than December 2, 2025, at 11:59 PM EST.