At EFF, we believe that all the rights we have in the offline world–to speak freely, create culture, play games, build things and do business–must hold up in the digital world, as well. 

EFF’s longstanding project of fighting for a more balanced, just patent system has always borne free expression in mind. And patent trolls, who simply use intellectual property (IP) rights to extract money from others, continue to be a barrier to people who want to freely innovate, or even just use technology. 

Defending IPR 

The inter partes review (IPR) process that Congress created about a decade ago is far from perfect, and we’ve supported a few ideas that would make it stronger. But overall, IPR has been a big step forward for limiting the damage of wrongly granted patents. Thousands of patent claims have been canceled through this process, which uses specialized administrative judges and is considerably faster and less expensive than federal courts. 

And IPR does no harm to legitimate patent holders. In fact, it only affects a tiny proportion of patents at all. In fiscal year 2023, there were 392 patents that were partially invalidated, and 133 patents that were fully invalidated. That’s out of a universe of an estimated 3.8 million “live” patents, according to the U.S. Patent and Trademark Office’s (USPTO) own data. 

Patent examiners have less than 20 hours, on average, to go through the entire review process for a particular patent application. The process ends with the patent applicant getting a limited monopoly from the government–a monopoly right that’s now given out more than 300,000 times per year. It only makes sense to have some type of post-grant review system to challenge the worst patents at the patent office. 

Despite this, patent trolls and other large, aggressive patent holders are determined to roll back the IPR process. This year, they lobbied the USPTO to begin a process that would allow wrongheaded rule changes that would severely threaten access to the IPR process. 

EFF, allied organizations, and tens of thousands of individuals wrote to the U.S. Patent Office opposing the proposed rules, and insisting that patent challenges should remain open to the public. 

We’re also opposing an even more extreme set of rule changes to IPR that has been unfortunately put forward by some key Senators. The PREVAIL Act would sharply limit IPR to only the immediately affected parties, and bar groups like EFF from accessing IPR at all. (A crowdfunded IPR process is how we shut down the dangerous “podcasting” patent.) 

Defending Alice

The Supreme Court’s 2014 decision in Alice v. CLS Bank barred patents that were nothing more than abstract ideas with computer jargon added in. Using the Alice test, federal courts have kicked out a rogue’s gallery of hundreds of the worst patents, including patents claiming “matchmaking”, online picture menus, scavenger hunts, and online photo contests. 

Dozens of individuals and small businesses have been saved by the Alice precedent, which has done a decent job of stopping the worst computer patents from surviving–at least when a defendant can afford to litigate the case. 

Unfortunately, certain trade groups keep pushing to roll back the Alice framework. For the second year in a row, we saw the introduction of a bill called the Patent Eligibility Restoration Act. This proposal would reverse course not only on the Alice rule, but also authorize the patenting of human genes that currently cannot be patented thanks to another Supreme Court case, AMP v. Myriad. It would “restore” the absolute worst patents on computer technology, and on human genes. 

We also called out the U.S. Solicitor General when that office wrote a shocking brief siding with a patent troll, suggesting that the Supreme Court re-visit Alice. 

The Alice precedent protects everyday internet users. We opposed the Solicitor General when she came out against users, and we’ll continue to strongly oppose PERA. 

Until our patent laws get the kind of wholesale change we have advocated for, profiteers and scam artists will continue to claim they “own” various types of basic internet use. That myth is wrong, it hurts innovation, and it hurts free speech. With your help, EFF remains a bulwark against this type of patent abuse.

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.