Statistical Analysis of the Patent Trial and Appeal Board “Patent Death Squads”

Approximately two years have transpired since inter partes review was instituted to replace inter partes reexamination.  During this period, petitioners have submitted some two-thousand requests to the Patent Trial and Appeal Board (“PTAB”) to review the validity of issued U.S. patents.  A recent survey by Professor Brian Love of Santa Clara University has found that petitions for IPR are instituted for at least one challenged claim 84 percent of the time.  Further, among instituted IPRs that reach a final decision on the merits, all instituted claims are invalidated or disclaimed more than 77 percent of the time.   This trend led Judge Randal Radar in 2013 to coin the phrase “patent death squads” to describe the panels of the PTAB.  This past summer, PTAB Chief Judge James Smith admitted that the PTAB statutory mission indeed involves some degree of “death squadding.”   This development has led some to amend challenged claims in order to distinguish the prior art or, alternatively, seek application of alternative claim interpretation rules in the PTAB.