There has been a lot of hype about inter partes review – including by us – and for good reason. The pro-complainant bent of the rules is turning out to be pro-complainant in effect as well, at least when you look at the statistics. On April 11, 2014, the first final decisions were reached that went entirely for the patent owner. Prior to that, every final decision had canceled either all or some of the challenged claims.
While the post-grant review proceedings have the goal of saving time and money, they will not always do that, and depending on the prior art, the location and the timing of the litigation, post-grant review proceedings may not be a good strategy. Further, while the outcomes of post-grant proceedings have been highly favorable for petitioners thus far, this may have resulted in part from particularly strong cases being selected for the first IPR petitions. The recent uptick in IPR petition filing, and the PTAB’s sensitivity to its reputation as a “death squad” for patents, may indicate that petitioners are now bringing weaker cases, and could result in the PTAB finding a higher percentage of claims to be patentable.
Please see full article below for more information.
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