Figure 1: Only 12% of the almost 13,000 litigated patents (in district court) have been challenged before the PTAB since 2012.
Figure 2: The PTAB has ruled valid 62% of challenged claims based on termination in a Denial of Institution (approximately 6 months after filing) or in a Final Written Decision (approximately 18 months after filing). Of these cases involving High-Tech, the PTAB found about 65% valid; and for those involving Bio/Chem/Pharma, the PTAB found about 63% valid.
Figure 3: When looking only at PTAB cases that were Granted Institution and reached a Final Written Decision, about 26% of the challenged claims were found valid by the PTAB. Of these cases involving High-Tech, the PTAB found about 28% valid; and for those involving Bio/Chem/Pharma, the PTAB found about 23% valid.
Glossary of Terms:
PTAB – Patent Trial and Appeals Board, established by the Leahy-Smith America Invents Act (AIA) to conduct and oversee Post-Grant Proceedings; Post-Grant Proceedings include Covered Business Method Review (CBM), Inter-Partes Review (IPR), and Post-Grant Review (PGR).
Denial of Institution – In a petition for a Post-Grant Proceeding, PTAB declines to institute review for any of the claims challenged by Petitioner; thus, Patent Owner prevails and all challenged claims remain valid.
Grant of Institution – In a petition for a Post-Grant Proceeding, PTAB institutes review on at least one challenged claim; upon institution, trial proceeds only on the instituted claims; within 1 year of institution and 18 months after the filing of the petition, PTAB issues a Final Written Decision on the validity of any instituted claim.
Not Instituted – A claim in which the PTAB declines to institute review; Patent Owner prevails at the Institution Decision (approximately 6 months after filing) and claim remains valid.
Patentable – A claim in which the PTAB finds valid after institution of review; Patent Owner prevails at the Final Written Decision (approximately 1 year after Grant of Institution and 18 months after filing) and claim remains valid.
Unpatentable – A claim in which the PTAB finds invalid after institution of review; Petitioner prevails at the Final Written Decision (approximately 1 year after Grant of Institution and 18 months after filing) and claim is invalidated.
Cancelled – A claim in which the PTAB cancels at the request of Patent Owner; Patent Owner requests cancellation (or Adverse Judgment) of its own claim before or after Grant of Institution.