PTAB shields infringers from law suits---drives small innovators out of the market

Turning to petitions pending alongside litigation, it appears that the PTAB mechanism has been a successful means for accused infringers to halt patent suits filed against them. As shown in Table 8 above, 83% of the patents challenged at the PTAB were asserted in federal courts simultaneously. Specifically, the software industry is using IPRs more frequently to fight back, with 89% of the challenged software patents also asserted in federal court litigation. In the biosciences industry, only 71% the challenged patents are also being asserted in federal court litigation.

While such trends confirm the popularity of using PTAB proceedings as a shield for those accused of patent infringement, it remains to be seen whether this popularity will continue, especially when institution rates are decreasing. Back in 2014, there was an 81.9% chance for a district court to grant stay if there was a pending PTAB petition 99 Now with more uncertainties in the institution process, it would be interesting to see whether district courts are still willing to grant stays, especially when it is unclear if the filed IPRs will get instituted or thrown out of the PTAB. If district courts do not grant stays, many patent owners would be forced to take on additional expenses to defend their patents on two fronts, both in front of the PTAB and in district courts. For smaller innovators, such double-whammies might drive them out of business.