Patent owners beware, your patent has a 15 percent chance (or less) of surviving the PTAB

A year-and-a-half into IPR and CBM implementation, the PTAB’s first 20 final decisions have been brutal on patent owners

The statisticians in the audience will certainly quibble with the title of this article. The sample size is too small for starters. But the fact is that of the first 20 patents taken to a final decision by the Patent Trial and Appeal Board (PTAB), 17 went down in flames. And as the reader will learn below, it’s actually worse than that.

Proponents of the new inter partes review (IPR) and covered business method review (CBM) often touted the belief that the patent office could better judge validity than district courts, and that the new system would improve the quality of patents. But so far improving patent quality seems to mean invalidating the incremental inventions that have been the life-blood of the patent system for many decades.

Contributing Author

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Cyrus Morton

Cyrus Morton is the Chair of the Patent Office Trials Group at Robins, Kaplan, Miller & Ciresi L.L.P. which focuses on the new...

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Contributing Author

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David Prange

David Prange is a registered patent attorney at the firm and focuses on complex litigation with an emphasis on intellectual property, including patents, trademarks,...

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