Patent Challengers Just Hit a Challenging Wall
Authored by Babak Akhlaghi on September 6, 2025. September 1st marked the end of an era in patent law. The USPTO just made it nearly impossible to challenge patents the easy way.
Rule 42.104(b)(4) enforcement means IPR petitioners must now identify exactly where each claim element appears in prior art. No more expert testimony to fill gaps. No more common sense arguments. No more hand-waving.
I’ve been watching this system evolve for years, and this represents something bigger than a procedural tweak.
The Numbers Tell a Damning Story
Here’s what I couldn’t wrap my head around: 84% of patents fully reviewed by the PTAB were found invalid.
Think about that for a moment. The same government agency that grants patents was systematically destroying 8 out of 10 that got challenged.
I tell my students the patent system exists to encourage innovation. But how do you encourage innovation when the agency granting patents turns around and invalidates most of them under challenge?
What does that say about the quality of work being performed at the USPTO?
The Pendulum Swings Back
IPRs became the go-to weapon for accused infringers. Patent owner files suit? Rush to the USPTO for cheaper, faster invalidation under a lower evidentiary standard.
However the pendulum is swinging back in favor of the patent owners and acting Director Coke Morgan Stewart’s discretionary denial powers accelerated this trend.
The recent data is showing that the IPR institutions rates are drastically decreasing. The door that IPRs opened is slamming shut.
This rule change represents the final push toward recalibration. We’ve swung too far toward invalidation, and it’s time to move toward the middle.
Where the Pressure Goes
Accused infringers will go back where they always went before IPRs skyrocketed: district court and the negotiation table.
The system is healing itself from both ends. When patent examiners know their work won’t be easily overturned, they’re encouraged to do thorough work upfront. Nobody wants the fruit of their labor tarnished.
We’re entering an exciting era for startups and innovators who rely on patent portfolios to raise capital and maintain market exclusivity.
Founders who spent significant money developing patent portfolios will feel more comfortable using them as swords against infringement, not fearing easy invalidation at the USPTO.
The Immediate Reality
If you’re filing IPR petitions, get them in before September 1st or prepare for dramatically higher legal costs and increased likelihood of them being rejected.
After September 1st, you’ll need to identify where each claim element appears in prior art. Patent analytics tools and services will emerge to meet these stricter requirements, but they’ll be expensive and specialized.
For patent owners, request discretionary denials and raise every reasonable argument. Also, challenging the merits of the case just got easier since petitioners must show every element in prior art.
A Philosophical Reset
This represents a fundamental shift in how we view patent strength. We’re transitioning from an era where patents were presumptively weak to one where they carry real weight.
The USPTO is essentially saying “we stand behind our work.” That confidence will ripple through every aspect of patent strategy, from prosecution to enforcement to licensing negotiations.
The patent challenge industry will adapt, becoming more specialized and expensive. Ironically, this might lead to higher quality challenges even with fewer of them.
We’re witnessing the restoration of integrity to a system that was systematically undermining the very patents it issued.
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