JUST THE STATS:
IPR: SURVIVAL RATE OF INSTITUTED CLAIMS

Key Finding: The survival rate of instituted claims in IPR proceedings that reached a final written decision trails the survival rate of originally challenged claims. Prior to the Supreme Court’s decision in SAS Institute v. Iancu, institution could be based on a subset of claims challenged, causing institution to be a significant predictor of the ultimate outcome. It is possible that SAS has started to impact this statistic, as the PTAB now institutes trial on all claims even if only some of the claims meet the threshold, i.e., if “it is more likely than not” that at least one claim is unpatentable. In 2019-2020, some claims that were upheld in a final written decision may have been denied institution prior to SAS, causing the rate of unpatentability in final written decisions to fall. Download Venable Fitzpatrick's PGHQ June 2020 Reporter here.