Statistics Show IPRs Favor Patent Challenges

The America Invents Act of 2012 introduced Inter Partes review as a new way to challenge the validity of patents before the USPTO. Statistics show that more than 3,000 IPR petitions have been filed since the Act was signed into law, and to date, 1,200 of these challenges have been instituted.

The survival rate of challenged claims is low. The PTO found 61 percent unpatentable, and the patent owner cancelled or disclaimed another 13 percent. As of April 6, 2015, 74 percent of challenged claims did not survive.

This has prompted calls for reform, and those calls are gaining traction. Three bills have been introduced in Congress.

Post-grant Opposition proceedings challenging patents issued by the European Patent Office have been available for 35 years, and the statistics are telling. Of the approximately five percent of issued patents that are challenged in European Opposition proceedings, 31 percent are revoked, 31 percent upheld, and the validity of the remaining 38 percent is upheld but with amended claims.

The PTO has announced that it is considering allowing motions to amend as of right, and limiting the burden on patent owners to prove patentability only over the prior art of record, as is the case before the European Patent Office.

If these changes come, whether by PTO action or legislative reform, they will shift the odds away from challengers. Whether this will fully redress the currently perceived imbalance remains to be seen.