In 2012, intellectual property specialists were worried that the Patent Trial and Appeal Board (“PTAB”), created the by U.S. Patent and Trademark Office (“USPTO”), would turn out to be a patent-eating monster.
In the beginning, out of the first 20 challenges that made it to a final decision, 17 resulted in losses for the patent holder and those concerns seemed to manifest into a potential nightmare.
However, according to a recent report by legal analytics firm Lex Machina, which looks at all 2,700 decisions from the Board’s first three years in existence, the finding showed that patents are surviving the process 66% of the time.
Formed in 2012 as part of the America Invents Act, the PTAB was set up, in part, as a way to fight back against patent trolls, focusing on being a more effective forum than federal courts for hearing challenges to existing patents.
According to Brian Howard, a legal data scientist with Lex Machina, “a lot of press says that PTAB is basically munching its way through patents, but what the data shows are that it’s not like an ATM, where you just submit a petition and you get an invalidation of a patent back.”
“When they started invalidating patents for first time, there was a lot of press on it,” said Ted Behm, a partner in the IP department at Barnes & Thornburg. “But our own experience, and these numbers bear it out, is that it’s not truly a death knell when someone files a petition.”