Their data doesn’t assume mixed invalidations – those account for the vast majority of IPR invalidations.
Morinville and Tomsin ’24 [Paul Morinville is the founder of US Inventor. He is a Veteran and an inventor of multiple software-related patents and pending applications, with nine issued and 30 pending. He is the founder and CEO of OrgStructure, LLC,. Dirk Tomsin is the Project Director at US Inventor, Inc.; 5-14-2024; Innovation Gadfly; “Dear Congress, The PTAB Hinders Innovation And Threatens National Security”; https://innovationgadfly.com/dear-congress-the-ptab-hinders-innovation-and-threatens-national-security/; accessed 6-28-2024]//cephas
This card is part of the card above, but I don’t have this part highlighted in the previous card because I’ve turned this claim into a separate card designed to only be about the amount of PTAB invalidations.
The USPTO classifies patent invalidations into two categories: mixed and all. Mixed refers to final written decisions in which one or more claims are invalidated, but not all. All signifies the invalidation of all claims within a patent.
This distinction is important because the invalidation of even a single claim, particularly an independent claim, can effectively neutralize the patent’s enforceability in the infringement case. Therefore, if even a single claim is invalidated, the patent suffers damage so extensive it is effectively invalidated.
The claimed PTAB invalidation rate of 26% is incorrect and skewed because it considers only patents with all claims invalidated while excluding mixed invalidations. It is important to note that it also includes petitions not instituted and petitions settled, which bring the invalidation rate magnitudes lower.
In federal court, cases are also dismissed and settled, but they are not considered in calculating invalidation rates because they are the result of decisions made due to the risk of invalidation at final decision. Federal court invalidation rates are calculated by dividing fully adjudicated cases where a patent was invalidated by all fully adjudicated cases. This excludes cases dismissed or settled from the invalidation rate.
Using the same federal court calculation for the PTAB, of the 466 final written decisions issued by the PTAB, 392 resulted in the invalidation of one or more claims. This means that the PTAB invalidation rate is 84% of fully adjudicated patents.
The PTAB’s unconscionable 84% invalidation rate is so much higher than the federal court’s 7% rate that it poisons the entire U.S. patent system. Inventors are coerced to make self-defeating decisions in every critical decision in PTAB litigation.