Outcomes at the PTAB (as of May 2015)

Figure 1: Only 12% of the almost 13,000 litigated patents (in district court) have been challenged before the PTAB since 2012.

Unique Patents used in Litigation since January 1st, 2012Challenged in PTABNot challenged in PTAB12.1%87.9%
High Tech PTABQuantity
Challenged in PTAB1,590
Not challenged in PTAB11,520
 

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.

Claim Outcomes for Terminated Cases (All)Not InstitutedPatentableUnpatentableCancelled6%31.8%8%54.2%
High Tech PTABQuantity
Not Instituted6,253
Patentable928
Unpatentable3,665
Cancelled687
 

Claim Outcomes for Terminated Cases (High Tech)Not InstitutedPatentableUnpatentableCancelled30.7%8%56.9%
High Tech PTABQuantity
Not Instituted4,236
Patentable592
Unpatentable2,282
Cancelled330
 

Claim Outcomes for Terminated Cases (Bio/Chem/Pharma)Not InstitutedPatentableUnpatentableCancelled8.3%28.6%8.1%55%
High Tech PTABQuantity
Not Instituted923
Patentable136
Unpatentable480
Cancelled140
 

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.

Claim Outcomes in Final Written Decisions (All)Not InstitutedPatentableUnpatentableCancelled10.4%15.7%11.7%62.2%
High Tech PTABQuantity
Not Instituted613
Patentable928
Unpatentable3,665
Cancelled687
 

Claim Outcomes in Final Written Decisions (High Tech)Not InstitutedPatentableUnpatentableCancelled12.5%16.2%9%62.3%
High Tech PTABQuantity
Not Instituted458
Patentable592
Unpatentable2,282
Cancelled330

Claim Outcomes in Final Written Decisions (Bio/Chem/Pharma)Not InstitutedPatentableUnpatentableCancelled6.8%16.8%17.3%59.2%
High Tech PTABQuantity
Not Instituted55
Patentable136
Unpatentable480
Cancelled140
 

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.