IPRs are more accessible to petitioners that acts in bad faith---PTAB shields them from court litigation and poses a lower bad for invalidation.

Due to its petitioner-friendly features, IPRs have been popular within patent challengers. From September 16, 2012, the first date on which IPRs could be filed, to September 16, 2020, the USPTO received a total of 11,091 petitions seeking IPR, which amounts to 93.5% of the total 11,860 petitions filed for all types of PTAB trial proceedings.3 1 According to one Federal Circuit judge, the new PTAB post-grant proceedings "have become the new frontier of patent litigation." 32

Procedurally, an IPR is indeed cheaper and faster. While a patent infringement litigation in a district court could cost between $2 million to $7 million, a PTAB invalidation proceeding usually only costs around $300,000.33 An IPR also resolves faster than a typical district court patent case, as it is required by statute that the PTAB issues final verdicts within a year.34 District court litigation, on the other hand, could take years to get to trial. It is very common for to wait over a year just to receive the court's interpretation of the claims."

Moreover, compared to Article III judges, administrative patent judges who preside over the PTAB are more technically equipped to address patent related questions because they are statutorily required to possess "competent legal knowledge and scientific ability." 36 To many petitioners, this difference translates (at least purportedly) to more certainty in case outcomes because factfinders at the PTAB are subject matter experts familiar with the technology at issue whereas factfinders at the district courts are usually lay jury. Another corollary of this difference: a filing of an IPR tends to halt district court litigation (82% of the time, district courts stayed the patent suit once the patent is under validity review at the PTAB), 37 acting as a powerful shield for accused infringers.

Additionally, IPRs incorporate a more relaxed evidentiary standard for patent challengers. The PTAB can "cancel" a patent as long as there is a preponderance of evidence rather than by clear and convincing evidence, a more stringent standard required in Article III courts. 38 Lastly, when it came to claim construction, 39 the PTAB used a different standard from the district court. The PTAB applied a standard of claim construction that gives claims their "broadest reasonable interpretation."40 In other words, the previous method PTAB used to interpret the scope of the patent made it easier for petitioners to find more prior art references to destroy the challenged patent's supposed novelty, something that petitioners could not accomplish under the district court standard.4 1

As a testament of its extreme popularity, the PTAB received 7,930 IPR requests in the first five years of its inception, comparing to its predecessor inter partes reexamination, which received fifty-three requests in its first five years of existence. 4 2 By June 2020, out of all petitions, 34% reached final written decisions and the rest were denied institution or settled.43 In fact, the first eight-plus years of results are decidedly in favor of the challengers who petition to invalidate patents, with an invalidation rate of 80% out of all instituted petitions. 44 At the same time, precisely because so many patents have been invalidated since the inception of PTAB, the IPR proceeding was referred to as "death squad," a term coined by the former Chief Judge Randal Rader at the Federal Circuit.45