(Alexandria, VA – Friday, April 18, 2014) Recently, attorneys at an American Bar Association Intellectual Property Law Conference ran amuck, fear-mongering about the Patent Trial and Review Board (PTAB). Attorneys, legal bloggers, and others around the country are and have been claiming that Inter Partes Review has proven to be more popular and more effective at invalidating patents than anyone originally expected. The current rumored figure is that 95% of patent claims brought before the PTAB have been invalidated. These attorneys and bloggers hold up the dismembered patents of inventors and developers like Cuozzo Speed Technologies, Inc. (Garmin International, Inc. v. Cuozzo Speed Technologies, Inc.) and tell patent holders to “Beware! Or all your claims will be invalidated just like Cuozzo.” While it is true that inter partes review has proven more popular than initially expected, Defendants and serial infringers should have all the facts before they jump into this costly and potentially disastrous bandwagon.
When asked to comment on the recent rumors that the PTAB is a death squad for patent holders rights, Vice Chief Judge Scott Boalick responded with the cold hard facts. Of the 2,113 patent claims that have been challenged only 327 have been invalidated or 15%. Another 245 of those claims were cancelled or disclaimed; meaning the applicant challenging the claims sought an adverse judgment against itself or recanted the challenge. Of the 167 patents brought before the PTAB, only 9 have been completely invalidated (5%) and 19 have had some claims thrown out (11%). The first case, the poster child for patent ogres around the country – Garmin International, Inc. – should be more concerning to infringers than inspiring. Garmin was only successful on 3 of the 20 claims it originally challenged or 15%. Costs and fees to invalidate any patent claims range from half a million dollars to upwards of three quarters of a million dollars; before paying that kind of price to buy into the hype, defendants should proceed with caution.
