Uncertainty decks PTAB’s credibility---encourages petitioners to forum shop to invalidate patents.

On the other hand, PTAB opponents see IPRs as the cause for the increased uncertainty of the patent system, and they vocally and passionately disapprove of the mechanism. One major criticism describes IPRs as "an unfair process that tilts too much in favor of the petitioner."55 In the process of screening out low-quality patents, good patents are also inadvertently invalidated. Critics of the PTAB usually cite the high invalidation rate of 80% (percentage of instituted petitions that were partially or entirely invalidated).5 6

Another line of criticism stems from the USPTO Director's discretion to institute petitions. Currently, the PTAB follows NHK-Fintiv, in which it was held that the Director of USPTO has discretion in whether to institute a PTAB proceeding. 57 Opponents argue, however, that such discretion would lead to "forum shopping and gamesmanship" in patent assertion.58 Because the Director has discretion to deny a petition for IPR,59 the availability of IPRs is theoretically limited to one political appointee's preference. In addition, opponents also complain about the further delegation of such discretion, as well as ever-increasing factors PTAB uses for its decision to institute. 60 For example, in 2021, the Board further articulated an additional standard that bases institution decisions on the pendency of litigation over the validity of the same patent claims, factors of which that are not exactly enumerated under the AIA. Opponents argue that such discretionary rulemaking is denying petitioners the alternative to litigation without due process.