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

VO, which has offices in the Netherlands, Belgium and Germany, is the second European IP firm to secure external backing this week
The Bardehle Pagenberg attorneys-at-law discuss the firm’s Managing IP EMEA Awards 2026 success, Unified Patent Court litigation strategy, and evolving European patent trends
A patent battle between two legal tech companies and a loss for Elon Musk’s xAI against OpenAI were also among the top talking points
With drug prices a hot topic in the US, courts are seemingly more reluctant to prevent the entry of generics to the market
Academic Eden Sarid joins us during Pride Month to discuss queer expression and IP law, Patagonia v Pattie Gonia, and how queer and AI-generated creations both pose novelty concerns
Patent attorney Michael Henson joins the firm to lead its freshly launched blockchain and digital assets practice
A dispute over mammogram technology, and a development in the case between GSK and Moderna were also among the top talking points in recent weeks
With rankings for Western Europe set to be published on June 25, we sat down with our research lead to find out what practitioners and law firms can expect
Peter O’Sullivan, a professional services executive, says he is looking forward to helping Pearce IP become the leading life sciences firm in Australia and New Zealand
Matteo Di Lernia, advocate at LCA Studio Legale, unpicks the CJEU’s ruling in M.M. Ristorazione v Villa Ramazzini, including its impact on litigation strategies
Gift this article