A Rule Change That Raises the Bar for Patent Challenges

For the second time in as many years, the U.S. Patent and Trademark Office has put forward rule changes that would make it harder to challenge questionable patents through inter partes review (IPR). The latest proposal, however, goes considerably further than the one floated in 2023, and the difference matters for developers and startups.

IPR was created by Congress specifically to give those most exposed to low-quality patents—startups and independent developers—a way to contest a patent's validity without the prohibitive cost of full federal litigation. Anything that narrows that avenue raises the stakes for anyone building software, particularly in open source and early-stage companies.

Why the New Proposal Is Different

The 2023 version of the rule added procedural requirements but still left a path for developers to challenge weak patents. The 2025 proposal replaces those hurdles with bright-line bars that shut the door in common situations: a petition would be blocked if the claim had ever been upheld in any forum, if a parallel case was likely to resolve first, or if the petitioner had to waive all invalidity defenses in court to pursue IPR. The practical effect is that a failed challenge by one party—regardless of the circumstances—could prevent everyone else from ever getting a hearing.

Rather than being a procedural speed bump, those rules would make IPR inaccessible in many of the exact cases where it was intended to help. Developers would be forced into court, where the cost of discovery and trial creates a strong incentive to settle, even on meritless claims.

Innovation flows from people writing code, collaborating, and shipping tools—not from the patents that sometimes encumber them. Recognition of that dynamic, including GitHub's inclusion in the WIPO Global Innovation Index, underscores how critical an open development ecosystem is to overall progress. When policy closes off the means to challenge junk patents, the harm is not confined to legal teams. It reaches the projects and developers who build on shared technology.

Those who could be affected by the rules have a concrete opportunity to weigh in. The USPTO is accepting comments on the proposal until December 2, and voices from the developer and startup community can help highlight the innovation costs that patent trolls impose.