Have you visited a retailer’s website in the last week? Searched for items or read product reviews? Or have you checked out using your mobile device at the store? These basic features that consumers take for granted are all being targeted by opportunistic patent suits in litigation campaigns filed by non-practicing entities (NPEs), sometimes referred to as patent trolls.
NPEs are in the business of buying bad patents and suing as many companies as possible. These bad patents often claim to cover basic functions such as online shopping or mobile payments, and NPEs use them to sue retailers, restaurants, grocery stores, hotels and others.
Main Street has been the target of bad-patent suits for years. Congress attempted to address the issue in 2011 by establishing an efficient, cost-effective, and expert process known as Inter Partes Review (IPR), which enables businesses to request the Patent and Trademark Office (PTO) to correct errors it made in granting patents. The IPR process made abusive litigation less lucrative while incentivizing better overall quality in our patent system. In recent years, that progress has begun to unravel.
Litigation by NPEs is again on the rise, driven by changes the PTO has made to the IPR process that have made it challenging for retailers to get bad patents invalidated. These suits are usually super-charged by litigation investment entities that pour money into patent cases, expecting a payout. These investors often remain anonymous, and no federal law requires them to disclose their involvement. The result: more cases against more companies in more industries.
In 2024, 29 litigation campaigns targeted nearly 200 retailers. Unfortunately, 2025 appears to be just as busy. One current campaign has already gone after 100 companies, including retailers.
Part of the problem lies with the PTO. In recent years, the agency has made it difficult to use the system Congress created to weed out bad patents. One example is the so-called Fintiv rule, which allows the PTO to reject IPR petitions simply because a parallel lawsuit is moving quickly, regardless of whether the patent is invalid. This means businesses can be denied access to review just because they’ve already been sued.
Additionally, the PTO has adopted a vague standard known as “settled expectations,” which gives patent owners the benefit of the doubt if their patent has been in force for a long time or litigation is already underway. That creates even more uncertainty for businesses and makes it harder to predict whether the PTO will even consider a valid IPR petition. Meanwhile, the number of administrative patent judges available to review these petitions has declined, making delays and backlogs worse. Instead of supporting fair outcomes, the system is increasingly tilted in favor of entities filing lawsuits.
Retailers can’t function without websites and electronic payment tools. Instead of protecting legitimate commerce, the PTO has adopted policies that make IPR hard to access, especially for businesses sued in fast-moving courts or on nearly expired patents. These barriers leave companies with a difficult choice: pay up or engage in a lengthy, costly court battle.
This is a problem Congress and the PTO can fix. First, the PTO should restore predictability and fairness to the IPR process, so that businesses can challenge invalid patents without artificial roadblocks. Second, Congress should require transparency in patent litigation funding so companies know who is suing them. Third, lawmakers should make clear that website and software providers, not retailers who use their products, should be the ones to handle these disputes.
Common-sense yet critical improvements like these are urgently needed. Retailers are ready to innovate and compete, but they shouldn’t have to fight through a maze of legal traps to do it. Let’s fix the system. Let’s bet on American business.