Submission to the US Patents and Trademark Office (USPTA) on proposed changes

Our friends from the global FOSS community have requested us to submit a comment to the USPTO regarding the changes proposed to the Inter Partes Review (IPR) process. IPRs have been successfully used by Unified Patents, an ally of the open source community, to challenge bad patents. A discussion on this subject hosted by the Linux Foundation, Electronic Frontier Foundation and Unified Patents is at Stopping Patent Trolls: Why Open Source Urgently Needs Your Help, Now!

I request comments by 4PM tomorrow, 20th June, 2023. Apologies for the short notice.


FOSS United is a non-profit based in India, that aims to grow the Free and Open Source Software (FOSS) ecosystem in India. We are concerned about the changes to the American Patent Rules, specifically changing the Inter Partes Review (IPR) review process that allows the FOSS community to challenge bad patents. The Advance Notice of Proposed Rulemaking (“ANPRM”) would unjustly increase patent abuse, and harm our industry.

Although the proposed rule changes apply only to US patents, the rule changes will impact FOSS innovation globally due to the global nature of FOSS. A developer, adopter, or end user located anywhere in the world could be threatened by a patent troll for infringement of US patents if they provide products, services, or technology used or distributed in the US.

We request the USPTO to recognize the global importance of FOSS, and roll back the proposed rule changes. Today, FOSS is used everywhere, from smartphones to supercomputers, to the Mars Rover. FOSS forms the foundation of organizations ranging from the biggest technology companies to the smallest startups.

The Linux Foundation, a leading FOSS organization that hosts 300+ FOSS projects, estimates that these projects have created 1.15 billion lines of code worth $54 billion. Similarly, the Apache Software Foundation estimates that the 350+ projects it hosts have created FOSS worth $22 billion. These projects cover the most fundamental technologies from cloud computing, distributed computing, big data and analytics, and many others.

While FOSS creates tremendous value for society, patent trolls have been hacking away at FOSS. According to Unified Patents, almost 80% of patent threats against FOSS come from trolls. This is deeply anti-innovation because the business model of trolls is litigation and not innovation. According to a June 2022 report by Unified Patents, almost 71 percent of patent litigation against FOSS is by patent trolls. The report can be seen at Defending Open Source: An 2022 Litigation Update — Unified Patents. This will negatively affect the growth of FOSS and impair the ability of startups and enterprises to benefit from FOSS.

FOSS United is deeply concerned about the impact of the proposed changes on the FOSS community. The FOSS community relies on third-party entities to protect the openly developed commons of technology that all of us use (knowingly or unknowingly) on a daily basis.

Shielding invalid patents from cancellation on policy grounds is the opposite of what the Patent Trial and Appeal Board (PTAB) was created to do. This failure to consider the merits and cancel objectively invalid patents is one of the primary causes of the recent significant increase in litigation by non-practicing entities and the rise in patent litigation funding. These proposals will primarily benefit litigation-funded NPEs that file dubious claims to the detriment of open source software.

Thank you very much for taking stakeholders’ concerns into consideration.

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The above comment has been submitted to the US Federal Register at Federal Register :: Request Access