JUST THE STATS:
IPR: UNPATENTABILITY FINDINGS IN FINAL DECISIONS RELATIVE TO CLAIMS INSTITUTED

Key Finding: The higher rates show that the likelihood of a successful challenge jumps significantly upon institution. However, these statistics have shifted due to the effects of SAS. For instance, the unpatentability rate for Section 103 claims went from 73.6% in 2018 to 66.3% in 2019. In the first half of 2020, the rate was 68.0%. It is possible that this is due to claims that previously would have been denied institution being found not unpatentable in final written decisions. The rate of unpatentability has remained relatively steady for Section 102 claims (51.7% in 2018, 54.6% in 2019, and 52.3% in the first half of 2020). Some claims were invalidated under both sections. We excluded cancelled claims for which the PTAB could not issue a ruling under a specific section. Download Venable Fitzpatrick's PGHQ June 2020 Reporter here.