Wednesday, November 2, 2016

PTAB Analytics Indicate Record Highs for Bio/Pharma IPR/PGR Institution Rates

The U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) offers a few avenues through which any person or entity can challenge the validity of an issued U.S. patent. Two of these processes are known as inter partes review (IPR) and post grant review (PGR). These two methods allow people other than the patent owner who have not previously challenged the validity of a patent through filing of a civil action in U.S. district court to seek review of a patent on a charge of invalidity.

Once a motion to challenge a patent’s validity through an IPR or PGR process is filed, the administrative judges at the PTAB decide whether to institute the review. If institution of the IPR or PGR is denied, then the legal matter is closed and the interested party filing for PTAB review must find another way to challenge the patent’s validity.

The rate of institution for IPRs and PGRs filed against patents in the pharmaceutical and biotech sectors is on the rise recently, according to statistics pulled from Docket Navigator’s data analytics services. Of the 231 combined IPR and PGR petitions filed against such patents during 2015, a total of 92, or 39.8 percent, were denied institution by the PTAB. Thus far in 2016, the PTAB has denied institution on only 34.3 percent of the 254 IPRs and PGRs filed this year against drug and biotech patents. This means that the percentage of review processes which are granted either in full or in part by the PTAB is increasing.

Meanwhile, institution denial rates for all other patent classifications has remained very steady over nearly two years. Through most of 2016, the rate at which IPR and PGR petitions on other patents are denied institution by the PTAB is 33.2 percent. This is very close to the same percentage of such petitions being denied institution in 2015, when 450 petitions of a total 1,349 IPR and PGR petitions were denied institution by the PTAB. It bears noting that the percentage of IPRs and PGRs which are granted institution has risen from 37.6 percent in 2015 up to 42.3 percent thus far through 2016, which means that the percentage of petitions which are only partially granted has dropped from 29 percent in 2015 down to 24.3 through most of 2016.

Overall, 2016 looks like it will see fewer IPR and PGR instituted decisions at the PTAB than last year. By the end of 2016, it’s estimated that a total of 1,266 IPR and PGR institution decisions will be filed, lower than the 1,349 such decisions filed through 2015. So while the percentage of petitions granted full institution by the PTAB is up in 2016, the total amount of institutions is down.

If the current trend continues, 2016 may be the first year where the number of petitions filed in the PTAB decreases from the previous year. Docket Navigator estimates that there will be 1,716 total petitions (IPR, PGR, and Covered Business Method Reviews) filed in 2016, compared with 1,798 that were filed in 2015.

Accurate data analytics can give both patent owners and legal teams a better idea of the challenges which are unique to a certain sector of technology. Docket Navigator delivers such analytics which can be helpful to those who need help navigating patent challenges at PTAB.

Charts made using Docket Navigator's data.
This guest post was written by Steve Brachmann.

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