These rules say that a company cannot preemptively challenge a bogus patent before developing something that would infringe that patent.
This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.
You should read the rules. They only apply to patents that currently have ongoing litigation and parties that are not involved in the litigation or likely to produce a product. They are a lot more narrow than you think.
> They only apply to patents that currently have ongoing litigation
No they don't. The allow the USPTO to prevent initiation of proceedings by denying petitions for IPR/PGR. The proposed discretionary denial criteria do not require that there is other ongoing litigation.
Contrived scenario:
- My company makes spoons, but I'm toying with the idea of pivoting into making keyboards.
- PatentTrollCo. is granted a patent on "a button that is connected electronically to a computing device."
- My company files for a petition for PGR on the grounds that this is not novel.
- The petition is denied: it meets all the criteria for discretionary denial listed in the comment above [1].
That comment is wrong. The rules clearly state that there has to be ongoing litigation on the patent. Otherwise, basically nobody could IPR anything until they get sued.
It is a direct quote from the Federal Register notice published by the USPTO. The quote, with a bit more context:
> The changes under consideration would make clear that the Board would discretionarily deny any petition for IPR or PGR filed by an entity that: (1) is a for-profit entity; (2) has not been sued on the challenged patent or has not been threatened with infringement of the challenged patent in a manner sufficient to give rise to declaratory judgment standing; (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market; and (4) does not have a substantial relationship with an entity that falls outside the scope of elements (1)–(3).
This seems pretty clear.
> The rules clearly state that there has to be ongoing litigation on the patent.
Can you direct me to the part of the new rules that state there has to be ongoing litigation? There are entire sections regarding parallel petitions and parallel litigation, but they are clearly presented as sufficient cause for discretionary denial on their own, and not as requirements for discretionary denial based on the other criteria referenced.
Unless you're saying this rule will only apply to petitions where there are both parallel petitions AND parallel litigation (they are listed and discussed separately) AND the other mentioned criteria are referenced.
> Otherwise, basically nobody could IPR anything until they get sued.
Or demonstrate that the petitioner does not satisfy point 3) above:
> (3) is not otherwise an entity that is practicing, or could be alleged to practice, in the field of the challenged patent with a product or service on the market or with a product or service in which the party has invested to bring to market
This would have a chilling effect on the challenge of bogus patents, which is bad for creativity and innovation, and therefore against the EFF's mission.