Is “Hunting Patent Trolls” a Thing of the Past? Corporate Survival Strategies as the USPTO Raises the IPR Bar

 

“What if your business license had to be reviewed every year?” A bold statement from the Acting Director of the USPTO heralds a major upheaval in the U.S. patent system! In this deep analysis, we examine what patent holders and companies need to know in the face of a sweeping paradigm shift brought about by Acting Director Stewart’s pro-patent policies.

 

Recently, Acting Director Coke Morgan Stewart delivered a keynote speech at the IPOA annual meeting that sounded like a seismic shift in the U.S. patent landscape. In unusually strong terms, he criticized the current IPR system, saying, “Imagine if your college degree or your home ownership were reviewed every year, endlessly, by anyone and everyone.” He argued that this kind of system undermines the constitutional rights and certainty afforded to patent holders.

Stewart asserted, “A stable patent system is essential to a stable economy,” and directly targeted the structural flaws of the current system—particularly the ease of repeatedly challenging patents under a low burden of proof. He further suggested that PTAB’s high invalidation rates may be a “statistical illusion” caused by repeated challenges, and that the Federal Circuit’s “reasonableness” standard alone cannot ensure the substantive accuracy of PTAB decisions. This speech makes it clear that the USPTO will actively promote policies that significantly strengthen patent stability. So, how should companies prepare amid this large wave of change? Let’s dive into the core issues. 😊

 

📜 What's Changed at the USPTO: Stewart’s Three Key Pro‑Patent Initiatives

Stewart has rolled out distinctly different policies under the banner of a "strong and stable" patent system. Most notably, the bar for challenging already-issued patents through IPR has been raised—making it significantly harder to invalidate patents. We can break down these major changes into three key points:

1. Resurgence of Discretionary Denial & bifurcated proceedings: Not only has the flexibility introduced under former Director Kathi Vidal been reversed, but as of March 2025, IPR proceedings have become two-tiered—split between “discretionary denial assessment” and “merits review.” This shift is paving the way for more discretionary denials in favor of patent holders.
2. New grounds for denial: “Settled Expectations”: This concept is critical. If a patent has been valid for a long time, protecting the social and economic reliance on that patent—i.e., ‘settled expectations’—becomes paramount. Thus, older patents are now much harder to challenge via IPR.
3. Separate briefing process introduced: Under the USPTO’s interim procedures issued March 26, 2025, patent owners may now submit a separate brief arguing for discretionary denial—known as the Discretionary Denial Brief—and it’s capped at 14,000 words. This matching word limit ensures that patent holders have a robust opportunity to defend their rights.

 

🤔 Who Benefits More—Patent Holders or Challengers?

Clearly, these changes affect market players differently. Patent owners stand to gain, while challengers face increasing hurdles. Here's a summary in a convenient table:

Category	Patent Holder	Practicing Entity (Challenger)
Advantages	Stronger IPR defenses, increased patent value, more leverage in licensing	–
Disadvantages	Risk of prosecution laches (though difficult to establish in practice)	Harder to invalidate patents via IPR, increased legal costs, vulnerability to NPEs
Key Strategy	Leverage continuations, strengthen discretionary denial arguments	File IPRs early and in compliance, utilize defensive patent communities

💡 Quick Tip: What Is Prosecution Laches?
Prosecution laches refers to the doctrine preventing patent owners from intentionally delaying prosecution to target competitors later. However, courts apply this doctrine very sparingly—especially where normal continuation strategies are used. In practice, it’s very hard for a challenger to neutralize a patent by relying on prosecution laches alone.

 

🚀 Tailored Strategies for Your Company

Given these sweeping changes, how should your company navigate the IPR landscape? We’ve outlined actionable strategies for both patent holders and challengers:

👑 “Aggressive Value‑Maximization” Strategy for Patent Holders

Your patents are now more powerful than ever—use that to your advantage.

• Maximize Continuations: Secure core technologies early, then build a dense patent portfolio through strategic continuations—this allows you to block competitors and set up for stronger licensing opportunities down the line.
• Invoke the “Settled Expectations” Principle: Emphasize that your patent has been relied upon in the marketplace—especially if it’s been six years or more since issuance—to argue against IPR initiation.

🛡 “Strategic Workaround” & “Rapid Response” Strategy for Challengers

IPR isn’t as powerful as it used to be—but a smart, rapid approach can still make a difference.

• Timing and compliance are critical: IPR is now a race. You must file within 9 months after patent issuance or within one year of being sued—but beware that the USPTO may also deny IPR if a patent has been around for ~6 years or if civil or ITC proceedings are well underway.
• Target exceptions to “Settled Expectations”: Older patents can still be challenged if you uncover powerful new invalidity evidence or show the patent was never practiced or licensed—thus no settled expectations apply.
• Use defensive networks like LOT Network & Unified Patent: If you're a small company concerned about NPE attacks, joining a collaborative defense community can offer collective patent risk mitigation.

💡 Legislative Spotlight:
Beyond administrative changes, Congress is also pursuing pro-patent legislation. These bills highlight where the U.S. patent system may be headed:

• PREVAIL Act: Aims to revamp PTAB structure and bolster patent holder protection—designed to curb challenger abuse of IPR and stabilize issued patents.
• RESTORE Patent Rights Act: Would make it easier for patent holders to secure permanent injunctions following infringement victories—adding pressure on infringers.
• PERA (Patent Eligibility Restoration Act): Seeks to clarify §101 patent subject-matter eligibility—especially for software and business methods—to make it easier for such inventions to obtain patents.

 

💡

Key Takeaways from USPTO’s 2025 Policy Shifts

Pro-Patent Era: Stewart’s policies significantly strengthen patent holders’ rights.

Higher IPR Bar: Fintiv and “Settled Expectations” make invalidating patents older than six years much harder.

Patent Holder Strategy: Leverage continuations and assert discretionary denial to maximize patent value.

Challenger Strategy: File timely IPRs and consider collective defenses such as LOT Network.

Understanding these shifts is the first step to success in the U.S. market.

 

Frequently Asked Questions (FAQ)

Q: What’s the most important timing restriction when filing an IPR?

A: You must consider both statutory and discretionary limits. Statutorily, you must file within one year of being sued for infringement. Discretionarily, the USPTO is more likely to deny IPR if a patent has been issued for ~6 years or if other litigation has already advanced significantly.

Q: Does that mean older patents can never be invalidated?

A: It’s very difficult, but not impossible. If you uncover a strong “smoking gun” prior art reference, or show the patent has never been practiced or licensed, you may argue the “Settled Expectations” doctrine doesn’t apply. You can also pursue invalidity in federal court.

Q: We’re a small startup. Are these changes especially challenging for us?

A: Yes, startups face tougher conditions, as large corporations’ patent portfolios become even stronger. That’s why collective defense is key—joining groups like LOT Network (where members agree not to sue each other with patents) or Unified Patent (focused on invalidating NPE patents) can provide cost-effective protection.

Today we reviewed major changes in the U.S. patent system for 2025. It’s a pivotal moment: an opportunity for patent holders, but a serious challenge for challengers. As always, companies that read the shifts correctly and act quickly will prevail. Still, given that much of America’s innovation is driven by startups, policymakers may need to fine-tune these changes to ensure small businesses remain protected. I hope this analysis helps your business. If you have questions, feel free to ask in the comments! 😉

*This post is for general informational purposes only and does not constitute legal advice. For specific issues, please consult with a qualified professional.

※ This blog post is intended for general informational purposes only and does not constitute legal advice on any specific matter. For individual legal issues, please consult a qualified professional.