Unified has published its own study of institution success rates for top law firms at the PTAB. While prior studies have focused on case-level statistics by law firm, this report adds further insight by providing claim-level statistics and distinguishing between decisions on the merits from decisions on procedural grounds.
Institution Decisions on the Merits (as of July 1, 2015)
Among the top petitioner law firms, there is a great deal of variance. Haynes & Boone earns the highest institution rate by case at 95%, while WilmerHale boasts the highest rate by claim at 85%. Claim-level institution rates tend to be lower than case-level institution rates for any individual firm. However, this discrepancy may range from as much as 20% to as little as 3%.
The sometimes significant difference between case and claim level success rates is not immediately clear. By challenging a larger number of claims within a fixed page limit, a case as a whole has a higher chance of getting instituted on at least one of the challenged claims. On the other hand, by challenging fewer claims, a petitioner can devote more discussion towards each claim and thereby increase the likelihood of prevailing for each challenged claim. Regardless of these speculations, what is clear is that case-level institution rates alone do not provide a complete metric for law firm success.
As part of Unified's ongoing effort to provide our members with a clearer picture of actual PTAB outcomes and to enable them to make more-informed decisions at PTAB, we have compiled a database of PTAB cases which includes the specific claims that were challenged, the invalidity grounds (101,102,103, and 112), the prior art cited, among other data.
Note: These statistics include only cases which have reached an (1) institution decision (2) on the merits (3) as of 7/1/2015. Thus, it includes currently pending cases as well as terminated cases. It also includes cases that were settled or otherwise terminated after an institution decision. It does not include cases that were settled or otherwise terminated prior to an institution decision, nor cases that were denied institution on procedural grounds (e.g. because the petitioner was time-barred).