PTAB invalidates patents 2 times more than district courts and don’t follow IPR regulations

Another way of looking at the data is to consider the percentage of challenged claims that have been invalidated by the PTAB. Out of a total of 1,962 claims before the Board, 1,572 or 81% were found to be invalid. This is a staggering rate, especially considering that the only issues the Board is allowed to consider are novelty and obviousness. By comparison, in district court litigation, claims are invalidated for obviousness or lack of novelty about one third of the time, (i.e., at less than half the PTAB rate). 44Similarly, academic studies suggest that when properly examined, only about 30% of issued patents are actually invalid for reasons of obviousness or lack of novelty. 45That the PTAB invalidates patents at more than double these rates may indicate that it is giving short shrift to the vested patent rights of inventors.

The CBMR data is even less encouraging for patent holders. Admittedly, the data is significantly more sparse, because only a small subset of patents are eligible for CBMR. Nonetheless, the trends are fairly evident. As of November 2014, the PTO received 255 CBMR petitions, and processed 149 of them to determine whether to institute a full-blown trial. The Board chose to institute trial in 76% of all cases it considered. Of the cases that have gone to trial, the Board issued a final decision in 17 cases covering over 339 claims. 46In no case did the Board uphold all challenged claims, and in only two cases did the PTAB find any of the challenged claims to be valid. The total claim invalidation rate in CBMR tops 96%.

Making matters worse still is the fact that IPR and CBMR are often not the first "bite at the apple" for patent challengers. A number of the AIA challenges were brought against patents that had been re-affirmed in previous litigation or ex parte reexamination proceedings. Despite the patent holders' repeated success in confirming their patent rights, the Board invalidated those patents at the same rate as every other patent that came before it. Nor is the PTAB solicitous of motions to amend claims. Indeed, the PTAB denied every contested motion to amend claims that were subject to an IPR or CBMR. Considering the data as a whole, it is not a surprise that former Chief Judge Rader of the U.S. Court of Appeals for the Federal Circuit recently remarked that the new administrative postissuance review procedures are "acting as death squads, killing property rights."