Some proposed fixes to the US patent system, but is it even broken?

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Some proposed fixes to the US patent system, but is it even broken?

The Electronic Frontier Foundation (EFF) has released a white paper it says is the culmination of two-and-a-half years’ worth of research that outlines a plan to fix a broken patent system

The “Defend Innovation” whitepaper says overbroad and vague patents, combined with an insufficient review process by the USPTO, have hindered rather than supported innovation. The whitepaper concludes that the result is abuse by patent trolls and an explosion in software patents leading to a patent arms race.

The whole whitepaper is worth a read but I’ll save you some legwork and reveal the six fixes the EFF proposes:

  • Passing measures that focus on strengthening patent quality – such as reaffirming limits on functional claiming and ending continuation abuse – as well as implementing inexpensive, efficient tools to challenge the validity of issued patents.

  • Passing a comprehensive patent litigation reform bill, such as the Innovation Act, that levels the playing field and removes systemic advantages for patent trolls.

  • Ending the Federal Circuit’s exclusive jurisdiction over patent cases, so that other appellate courts have a chance to offer alternative approaches and legal interpretations.

  • Passing meaningful reform to discourage bad actors from sending frivolous demand letters.

  • Putting a stop to “forum shopping,” the ability for patent owners to file suit in distant favorable districts that have minimal ties to defendant.

  • These legislative reforms should be combined with action by the Patent Office to modernize its procedures (such as its use of online resources and databases) and promote patent clarity. The courts, for their part, could seek to limit exorbitant damages awards.

  • Private parties also have a role to play. For example, companies could encourage open innovation by adopting alternative patent licensing schemes that prevent patents from being abused by trolls.

Other than targeted reform to stop frivolous demand letters being sent – which is pretty hard to argue against on its face – these fixes are enough to start fierce arguments.

Pro-patent types will point out – rightly – that the Supreme Court last year already made it harder to obtain and to keep certain types of software patents, in Alice v CLS Bank, as well as relaxed the standard for awarding attorney’s fees, in Octane Fitness v Icon Health & Fitness.

In addition, unlike a few years ago, it is far from clear that patent litigation is increasing. My Twitter feed has been a hotbed of increasingly bitter arguments recently over patent litigation statistics, with this just one example.

Expect the rancor to increase even further as patent reform gets debated during the next weeks and months. 

more from across site and SHARED ros bottom lb

More from across our site

Nick Redfearn, head of enforcement at Rouse and a classic car enthusiast, explains the sudden viral appearance of classic car restomod parts from China and the impact of IP in this new trade
Our 2026 rankings for Western Europe, taken with historical data, reveal that some European IP markets hardly change – while others are more fluid
Selina Hinchliffe, head of commercial services at Shakespeare Martineau, reflects on rejecting Cambridge, leading through empathy, and why authenticity matters more than fitting in
US corporates are using the UPC, but much of that work still flows to European boutiques. Last week’s merger, as well as others, could alter that dynamic
Publicly listed Australian group IPH delivered on its promise to profoundly shake up the Canadian market. Four years on, rivals have had time to adapt
IP practitioners debate whether new guidelines will make it more difficult to challenge a patent
Varuni Paranavitane says she is excited to bring ‘rounded expertise’ to the firm, which will have a solicitor in its ranks for the first time
Lawyers adapting to AI-driven recommendations are being pushed to demonstrate expertise publicly rather than simply relying on a polished website
Mid-market businesses looking to establish an online presence need ‘holistic’ brand protection services at an accessible cost, according to partners
Our latest update also includes the latest case filing statistics, and an update on how a transatlantic merger could be a UPC opportunity for the US half of the partnership
Gift this article