PTO Data Shows 92% Rate of Success Using Inter Partes Review (“IPR”)

Although it is still a relatively small amount of data, initial results from 167 terminated IPRs released by the USPTO last week suggests that IPR is a good alternative to litigation (the intended goal of the AIA). In fact, 70% of all terminated IPRs have been resolved through settlement.
The number of settlements before institution stands at 32% and jumps to 61% for IPRs that were instituted. In IPRs where the PTAB has issued a Final Written Decision ("FWD"), 83% of the IPRs were instituted against all challenged claims and 76% of the FWDs found with all challenged claims unpatentable, canceled or disclaimed (94% of all instituted claims were found unpatentable).  Assuming that all settlements and requests for adverse judgments are positive outcomes for petitioners, 92% of the terminated IPRs have been successful for petitioners.