Much has been said about the PTAB and the impact that post-AIA proceedings (IPRs, PGRs, and CBMs) have had on innovation in the US. Although data-sharing efforts by the USPTO have significantly increased the level of transparency with respect to the PTAB’s activities, there remains a great deal of confusion surrounding the PTAB due to the fact that data can be (and often is) misinterpreted and misrepresented.
Unified’s Patent Quality Initiative aims to remedy such confusion by providing clear, objective data analyses regarding the current state of patent litigation in district court and at the PTAB. In a previous study, Unified analyzed the relationship between NPEs (non-practicing entities) and small enterprises in district court. In this report, Unified is sharing its findings with respect to the country of origin for Petitioners and Patent Owners at the PTAB.
Since the creation of post-AIA proceedings in 2012, over 10,700 petitions have been filed. Some suggest these proceedings have somehow harmed US innovation, most often by (misleadingly) citing the PTAB’s 88% invalidity rate (in reality, that rate is about 35%, in line with previous proceedings). [1] Relevantly, Unified’s independent analysis reveals that, to date, US-based companies have received the greatest benefit from these proceedings.
Figure 1: Approximately 63% of petitions filed between 2012 and 2019 were brought by US-based companies.
For all AIA proceedings (IPR, PGR, or CBM) filed between 2012 and September 2019, US-based companies were the petitioner(s) 63% of the time. At the same time, foreign-owned companies were the patent owner in, on average, 69% of all AIA proceedings—in some years, more than 75% of all patents challenged were owned by foreign entities. While foreign companies have also leveraged these new proceeding types to challenge patents at the PTAB, the data clearly demonstrates that US companies have received the greater benefit from these improvements to the patent system.
In sum, US companies have benefited the most from the implementation of new proceeding types (IPRs, PGRs, and CBMs) at the PTAB. They also have the most to lose if these proceedings are removed.
Figure 2: Between 52% and 68% of petitioners in post-AIA proceedings filed since 2012 are US-based companies.
Figure 3: Between 67% and 80% of patent owners challenged in these post-AIA proceedings are foreign-owned corporations or their affiliates.
Methodology
This report includes all PTAB cases filed between September 16, 2012 and September 9, 2019. Total number of reported cases can vary based on what is included. Unified made its best attempt to eliminate mistaken or duplicative filings, hence the totals may vary slightly compared to other reporting services.
Unified made its best effort to accurately identify US and Foreign companies through all available materials such as government records, financial reports, tax documentation, and official company websites, profiles and statements.
Footnotes
[1] The 88% figure misrepresents the PTAB’s actual invalidity rate by only considering invalidity in cases where the PTAB issues a final written decision after having already determined in an institution decision that one or more claims of the challenged patent is likely invalid. However, the PTAB also denies institution for many petitions. When including those denied petitions, the PTAB’s overall invalidity rate for all post-AIA proceedings is closer to about 35.5% of cases (i.e., 64.5% of petitions terminate without invalidating a single patent claim).