Stand up for Open Source Software Patent Defense

The United States Patent and Trademark Office (USPTO) is considering rules that will help patent trolls, raise patent litigation expenses, and increase the volume of patent litigation overall. We have seen open source targeting by patent trolls many times, including a direct lawsuit against the GNOME Foundation in 2019. You can help support our open source ecosystem, reduce wasteful litigation by non-practicing entities (NPEs), and stop the assertion of bad patents. All it takes is a few minutes of your time. The volume of comments is important – please share this with your friends and colleagues who want to protect open source software from patent attacks.

Watch the replay of the June 7, 2023 webinar below:

The USPTO has issued a set of proposed rules, nearly all of which will make it harder for everyone to challenge bad patents being used against open source, including the Unified Patents Open Source Zone (which the LF sponsors). Many of the proposed rules appear outside of the USPTO’s authority and contradict the statutes that Congress put in place.

Read the Unified Patents letter to the House Committee on Oversight and Reform for more information.

These proposals put a heavy thumb on the scale in favor of Non-Practicing Entities (aka, NPEs, or “patent trolls”). The proposals weaken the Patent Trial and Appeals Board (“PTAB”), seek to stop everyone (such as Unified Patents) from challenging particularly bad, invalid patents, and will raise litigation costs for all defendants.

Patents that slipped through the system and should have never been issued in the first place will be asserted against American and global companies, particularly medium and small-sized businesses. Studies show that even a fraction of these proposals would cost hundreds of millions of dollars.   

The USPTO has asked for your input on these rules, so please let them know you want a fair and open system for all, where anyone can seek a review of an invalid patent. That is what Congress dictated, and the agency should not be trying to overrule them. 

You can take action by clicking here at the Federal Register and submitting a written comment. We have also provided a template document (.txt, for Individuals and Corporate Counsel) for you to fill out and attach for a more formalized comment by your organization.

All comments are due by June 20, 2023, 11:59 PM EDT. It is critical that USPTO hears from stakeholders like you, and the volume of comments is important.

Thanks, everyone!

The Linux Foundation, in partnership with the Electronic Frontier Foundation, Eclipse Foundation, GNOME Foundation, Mozilla Foundation, Open Invention Network, Open Source Initiative, and Unified Patents.

Quotes from supporting organizations

"The recent advance notice of proposed rulemaking issued by the Director of the US Patent and Trademark Office is an attempt to undermine key provisions and the legislative intent of the America Invents Act.   Specifically, the imposition of a standing requirement would impair the ability of the Unified Patents' Open Source Zone to reduce the threat to open source software adoption posed by patent assertion entities.   As one of the founders and funders of this initiative, OIN's patent no fly zone around Linux and adjacent OSS technology would be irreparably weakened." Keith Bergelt, CEO of Open Invention Network

“These proposals put a heavy thumb on the scale in favor of Non-Practicing Entities (NPEs), weaken the Patent Trial and Appeals Board (PTAB”), and seek to stop organizations like Unified Patents from challenging particularly bad, invalid patents, and will raise litigation costs for all defendants.” Jonathan Stroud, General Counsel, Unified Patents

“Patents that slipped through the system and should have never been issued in the first place will be asserted against American companies, particularly medium and small-sized businesses. Even a fraction of these proposals would cost hundreds of millions of dollars. This scenario is an unacceptable and undemocratic barrier to innovation and growth.” Kevin Jakel, CEO, Unified Patents

"The latest set of proposed rules from the USPTO will make it more difficult for everyone involved in open source to challenge bad patents. It will limit the ability for third parties like Unified Patents with their Open Source Zone to defend open source projects and users from frivolous patent litigation. The only way to stop this is by providing a volume of comments in opposition; that is why we are calling everyone in the open source community to submit their comments and stand up for this important mechanism to clean bad patents out of the system." Mike Dolan, SVP and GM of Projects, The Linux Foundation