USPTO Destroyed Inter Partes Review. Congress Must Act To Stop Patent Troll Abuse

Inter Partes Review (IPR) has been successful in meeting Congress’ goals of improving patent quality and bringing down the levels of abusive NPE litigation—until recently. Current USPTO leadership has destroyed the program, violating Congress’ directive and harming American business.

Congress should act to restore IPR through every means possible, including legislation.

Low quality patents are a serious drag on innovation and job creation. They fuel abusive patent litigation by non-practicing entities (NPEs), sometimes called patent assertion entities or patent trolls. Patent trolls buy up patents for the purpose of extracting “hold up” settlements. America’s main street and small businesses are easy targets because they cannot afford to fight expensive patent litigation. From 2005 to 2011, NPE litigation skyrocketed.

Congress created the Inter Partes Review (IPR) program to fix that problem when it passed the America Invents Act (AIA) in 2011. IPR allowed businesses to ask the U.S. Patent and Trademark Office (USPTO) to review a patent’s validity in a process that is faster and cheaper than litigation and that corrects short-comings of prior USPTO programs, like ex parte reexam. But due to the USPTO’s recent actions, patent troll litigation is rising again.

The USPTO Has Destroyed IPR and Abusive Litigation Is Making a Comeback

Starting in early 2025, the USPTO began to find new and unfounded reasons to reject IPR petitions without regard to Congress’ intent that the program serve as a faster, cheaper alternative to litigation.

The agency looked at questions irrelevant to IPR’s primary goals, like the age of the patent and posture of district court litigation to issue a high percentage of “discretionary denials” divorced from the question of whether the challenged patent was likely invalid. The rise in NPE litigation during 2025 is a direct result of these policies.

The USPTO’s destruction of IPR hit with full force when the current Director, John Squires, took the helm in September 2025. He took it upon himself to make ALL decisions on whether an IPR petition should be instituted. The role of expert, highly skilled PTAB judges was eliminated for institution decisions. He routinely issues bulk orders denying 10-20 petitions at a time with no explanation. The majority are rejected on unexplained “discretionary grounds,” without any concern for whether an invalid patent is draining valuable resources from American companies. The parties and anyone that might consider whether to file an IPR petition in the future are left to guess at the reasoning.

Director Squires has instituted less than 20% of petitions he has reviewed.

The goal of this policy appears to be to discourage any use of IPR - and it's working. It’s working.

Why would any company invest in preparing a quality petition, even with strong arguments that a patent should never have issued, when the USPTO’s review is only a low-chance roll of the dice not based on transparent legal principles or patent validity? That calculus is all the more true for America’s small and Main Street businesses who do not have resources to gamble this way. They are once again being forced to pay the hold up fees of abusive litigation on low quality patents because the USPTO is abusing its discretion in reviewing IPR petitions.

IPR Is Critically Important to America’s Small and Main Street Businesses

IPR has helped American businesses efficiently fight frivolous claims of patent infringement, saving litigants $2 billion in legal fees. Before the AIA created the IPR program, abusive patent litigation was rampant. Small and Main Street businesses frequently faced “hold up” suits in which a patent troll, whose only activity was filing lawsuits, would demand a settlement on a weak patent based on the cost of avoiding litigation.

IPR disrupted the patent troll business model by giving victims of hold up suits a cheaper, faster way than litigation to challenge an invalid patent. It worked. After patent troll litigation peaked in 2011, the year the AIA passed, it dropped by more than 50% through 2024. Main Street businesses like Realtors have filed successful IPRs. Even when Main Street businesses did not initiate an IPR themselves, they benefited from IPRs filed by their suppliers and service providers invalidating patents that were asserted directly against them on basic technologies like gift cards and marketing emails.

$2B

How much money IPR has saved American businesses in legal fees.

IPR is a Necessary Tool to Combat Invalid Patents

Congress’ design for IPR was simple. Any member of the public (like a defendant in patent litigation or a manufacturer on behalf of its customers) can ask the USPTO to evaluate whether a patent should have been granted in the first place. The requester submits a petition along with evidence, often referred to as “prior art”, to show that someone else invented it first. A panel of expert administrative patent judges on the Patent Trial and Appeal Board (PTAB) compares the patent and prior art to decide whether the IPR should move forward, applying a high standard so that only strong requests are instituted. If instituted, the patent holder and the challenger make their cases to the PTAB through written briefing and oral argument.

The realities of patent examination and the high number of invalid patents issued make a strong IPR program necessary. Examiners have on average only 19 hours to look for prior art, understand the claimed invention, make a comparison, and decide what should be patentable. This is not enough time, which causes mistakes. And with more than 350,000 patents issuing each year, these mistakes can result in a significant number of problematic patents.

Congress Should Restore IPR

Without action by Congress to fully bring back IPR, abusive NPE litigation will return to 2011 pre-AIA levels. This isn’t good for Main Street business, nor is it good for the average American consumer. The only way to avoid this is for Congress to stop the USPTO’s discretionary denials entirely and restore the PTAB’s critical role of considering patent validity when deciding whether to institute an IPR.