The PTAB has been labeled an anti-patent "death squad" because of the high percentage of unpatentability findings in early AIA trials. Through March 2014, all 28 Final Written Decisions decided on the merits held at least one claim of the challenged patent unpatentable. Since then, the PTAB has issued eight decisions finding the patent wholly valid, helping to temper the PTAB's overall record and assuage early fears of patent owners.
At a roundtable on April 15, 2014, the Patent and Trademark Office understandably appeared defensive of the PTAB's treatment of challenged patents and emphasized statistics that included the numerous patents for which the PTAB refused to institute trials. Based in part on the discussion at the roundtable, we reported that we expected to see the allegedly pro-petitioner bent of AIA trials begin to trend back the other way. Since the roundtable, we have indeed seen that trend, as evidenced by a decrease in decisions with unpatentable findings and an increase in decisions with wholly patentable findings.
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