For years, America’s leading retailers have benefited from a little-known program that helps to resolve meritless patent disputes, called Inter Partes Review. Congress created the IPR process in 2012 to give businesses an efficient, expert, and cost-effective way to address weak patents that should never have been granted in the first place.
Entities in the business of suing on weak, vague patents take these bad patents and claim that unsuspecting businesses are infringing on them. These opportunistic plaintiffs, sometimes called patent trolls, go after regular businesses, both small and large, across the United States. These stores, restaurants, and hotels paid off those trolls not because the patents on which they were suing were valid, but because it was a lot cheaper to pay a “nuisance settlement” than to try to fight the matter in court.
Congress created the IPR process when it passed the America Invents Act in 2011 to change that. If a defendant in one of these abusive suits made a strong showing that a patent was invalid, the U.S. Patent and Trademark Office, the government agency that granted the patent, would re-evaluate the patent and determine whether it made a mistake the first time around. This led to a dramatic decrease in abusive patent litigation.
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But now, patent trolls are once again targeting Main Street businesses with abusive patent litigation, many of which involve patents for everyday things such as online menus and websites. The reason? The very agency tasked with creating and enforcing the IPR process has single-handedly gutted it. Instead of re-evaluating patents that have been identified as being likely invalid, the patent office is shutting the door based on factors that Congress simply did not create.
The patent office recently proposed new rules that would fundamentally dismantle the IPR process. The most damaging would bar IPR if any other proceeding is already underway, or if a validity ruling has been issued. The result: a defendant sued by a patent troll today can be locked out of IPR entirely because an unrelated company was sued by the same troll last month. That eliminates the only affordable tool defendants have to challenge a bogus patent. Without it, trolls revert to their pre-AIA playbook, threatening expensive litigation and collecting nuisance settlements from businesses that can’t afford to fight.
The numbers tell that story clearly. Before the AIA, patent troll suits skyrocketed — peaking at 4,519 troll suits filed in 2011. After IPR took effect, filings dropped sharply, as defendants finally had a cost-effective way to knock out weak patents early. Now that the patent office has gutted IPR, that progress is reversing with a staggering 19% jump in cases filed for 2025.
The targets are not abstract. Hotels, restaurants, auto dealers, home builders, airlines, and financial services firms have all faced patent suits in recent months, as have the mom-and-pop retailers targeted for routine business activities such as maintaining a website or accepting electronic payments. Any business that uses technology now sits in a troll’s crosshairs. If the patent office finalizes these rules, the litigation surge won’t be a prediction — it will be a return to a problem Congress already solved once.
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While it may not be a program that many Americans have heard of, the IPR process has helped to keep businesses from having to pass along the cost of abusive patent litigation to their customers for years. This is as Congress intended. The changes that the patent office wants to make do the opposite, and fly in the face of the text and the intent of the America Invents Act.
Only Congress can change the law. And in the meantime, the Trump administration’s USPTO must restore the IPR program so that we can stop the flood of abusive patent litigation before we are right back to where we started prior to IPR’s enactment. American business depends on it.
Stephanie A. Martz is the chief administrative officer and general counsel at the National Retail Federation and a member of the United for Patent Reform coalition.