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.