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I am from [X open source project, company, or sector] and [explain your business, tell a recent NPE story if you have one]. I support the collaborative development of software under free and open source licenses. A sad reality is that non-practicing entities (NPEs) have been targeting users of open source software and open source foundations with patent litigation. 


The PTAB, as Congress provided, provides a critical tool for protecting us from some of the thousands of overbroad patents that get over-asserted or threatened each year based on the ability to demand less than the cost of litigation in licensing fees. I also write to express my support for do-gooders and third-party entities that file objective challenges at the PTAB; entities like Unified Patents. 


I am deeply concerned about the impact of the proposed changes on the open source software community that relies on third-party entities to protect the openly developed commons of technology that we are all dependent upon. There are seemingly political motivations at play here. The ANPRM's proposed expansion of discretionary denials and de facto standing requirements will leave invalid patents in force to be asserted in litigation against open source foundations and companies like ours. 


For example, we oppose the ANPRM's proposals restricting access through a standing requirement, the expansion of parties that may be affected by a proceeding under a "substantial relationship test," and the affirmation and expansion of discretionary denials (including the adoption of a "compelling merits" threshold, requiring a stipulation to relinquish other rights, the restriction related to ex parte reexaminations, and requirement for filing a petition within six months under certain circumstances). Shielding invalid patents from cancellation on policy grounds is the opposite of what the PTAB was created to do, is not within the agency's authority, and should be left to Congress. The proposed rules attempt to run around AIA reforms and stand to hurt American businesses.  


In particular, certain provisions, without evidence, target Unified Patents, LLC, which has for over a decade been lawfully and openly fighting non-practicing entities who assert overbroad patents, harass businesses and open source foundations, and generally have little or no interest in defending their patents' merits. Instead, they shake down American businesses for less than the cost of defense. Passing rules to limit meritorious challenges at the behest of an agency's political policy goals would mean that many more invalid patents remain in force and must be litigated or settled at significant cost. 


This failure to consider the merits and cancel objectively invalid patents is one of the primary causes of the recent significant increase in litigation by non-practicing entities and the rise in patent litigation funding. These proposals will primarily benefit litigation-funded NPEs that file dubious claims to the detriment of US companies and open source software. And membership organizations like Unified Patents are an important, if limited, objective check on patent validity of broadly asserted, overbroad patents. 


Congress and the rest of the federal government should be doing everything within their power to prevent unnecessary and abusive litigation against U.S. companies and employers in this critical and uncertain time, not inventing new ways to stop companies from reducing wasteful litigation. These discretionary denials favor the interests of litigation by shell-company plaintiffs that do not make anything or employ anyone, to the detriment of the real-world manufacturers and service providers who are the backbone of the U.S. economy. 


Any of these rules would encourage parties to file first and forum shop for rocket dockets to maximize their financial leverage to settle spurious claims. These actions harm the economy and are contrary to the promise of the AIA. They are particularly problematic in light of the House Judiciary Committee's recent statements that the USPTO does not have the authority to enact many of the proposals. For example, it has no authority to create standing or limit filings.


Thank you very much for taking stakeholders' concerns into consideration.