Anecdotal reports have suggested that the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board has created a dire situation for patent owners, but a recently released study has found that outcomes from the PTAB are much more balanced.
The study, conducted by the law firm Fitzpatrick, Cella, Harper & Scinto, found that 40 percent of patent claims challenged in inter partes review (IPR) proceedings survived scrutiny, and that about 15 percent of patent claims withstood challenges in covered business method (CBM) reviews. The data also shows that the higher rate of unpatentability in CBM reviews has more to do with the U.S. Supreme Court’s decision in Alice v. CLS Bank, which made it more difficult to obtain protection for business method patents. The data also shows that CBM decisions are more likely to strike down claims based on Alice-type challenges than prior art challenges.
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