PTAB favourable to patent owners, report shows

The Patent Trial and Appeal Board (PTAB) may not be the “death squad for patents” it was once described as, with a report revealing that patentees are surviving in more than 66% of cases.

According to legal analytics company Lex Machina, which released its “Patent Trial and Appeal Board 2015” report on Thursday, January 21, the patent owner has come out on top in 1,783 of the 2,700 cases filed at the PTAB since September 2012.

Apple and Samsung topped the list of companies that have filed the most challenger petitions.

Introduced as part of the America Invents Act, the PTAB enables parties to challenge the validity of existing patents without going to court. The PTAB handles inter partes reviews (IPRs), covered business method (CBM) reviews and post grant reviews, but the report only focussed on the first two.

In October 2013, Randall Rader, formerly the chief judge at the US Court of Appeals for the Federal Circuit, said the PTAB would be a “death squad” for intellectual property rights and predicted that many patents would be invalidated.

But the report revealed that challenges to patents were only successful 23% of the time.

In terms of challenger activity, Apple topped the list with 252 PTAB trials filed. It has filed 197 IPRs and 55 CBMs since 2012, but has yet to appear as a patent owner.

Samsung, which came second, has filed 155 trials: 141 IPRs and 14 CBMs. It has been the patent owner in 11 petitions. Google, LG and Microsoft made up the rest of the list.

Owen Byrd, general counsel at Lex Machina, said: “The report presents a number of highlights in current PTAB trends, but it also provides graphical explanations of the many enhancements we’ve made to legal analytics for the PTAB so that users can easily generate the metrics that are most relevant to their own practice.”