Patent Owners Get Veto Power: New Bill Requires Consent to Challenge Weak Patents

This bill, the Balancing Incentives Act of 2025, packs a massive change into a short piece of legislation. It amends the rules for challenging patents at the Patent Trial and Appeal Board (PTAB).

Specifically, it adds a new requirement to Title 35 of the U.S. Code, stating that before anyone can file a petition for either an Inter Partes Review (IPR) or a Post-Grant Review (PGR)—the two main ways to challenge a patent’s validity outside of a courtroom—the owner of that patent must explicitly consent to the filing. Think of IPR and PGR as the administrative shortcuts designed to quickly invalidate patents that shouldn’t have been granted in the first place, often based on existing prior art. If this bill passes, those shortcuts are effectively closed unless the patent holder signs off.

The Veto Power: What This Means for Competition

To understand the real-world impact, you need to know why IPRs exist. They were created to provide a faster, cheaper alternative to district court litigation for challenging patents. For a small tech startup or a manufacturing company facing a patent infringement lawsuit, an IPR is often the only affordable defense. It’s a way to say, “Wait, this patent is invalid, and here’s the proof,” without spending millions in court.

This bill hands the patent owner absolute veto power over that entire process. Why would a patent owner, especially one using a potentially weak patent to shut down competition, ever consent to an administrative review that could invalidate their claim? They wouldn't. This change effectively locks competitors out of the PTAB, forcing all challenges back into the much more expensive, time-consuming federal court system. For the average small or medium-sized business, this is a huge blow to their ability to defend themselves against questionable patent claims.

The Cost of Certainty: Who Benefits and Who Pays?

The primary beneficiaries here are current patent holders, particularly those holding broad or potentially weak patents. They gain massive certainty because the most efficient threat to their exclusivity—the PTAB—is neutralized. If you’re a large corporation sitting on a portfolio of patents, your legal risk just dropped significantly.

But who pays the price? Competitors and, ultimately, consumers. When companies can’t easily challenge patents that should be invalid, those patents continue to grant market exclusivity. Imagine a generic drug manufacturer trying to invalidate a questionable patent extension on a life-saving medication. If they can’t use the IPR process, the cost of challenging that patent skyrockets, delaying the introduction of cheaper alternatives. This scenario applies across all industries, from software to construction equipment. Fewer challenges mean less competition, which usually translates to higher prices and less innovation in the marketplace.

This bill doesn't just tweak a legal procedure; it fundamentally changes the balance of power in patent disputes, giving patent holders a powerful shield against scrutiny. It concentrates the power to review patent validity entirely in the hands of the very people whose rights are being reviewed, severely limiting access to an important, cost-effective defense mechanism for everyone else.