Opponents now suggest that IPRs are ‘out of control’ and might be canceling valid patents. But the data show, if anything, how judiciously the PTAB is being used. To date, the PTAB has been asked to review less than one tenth of one percent of all issued patents, most subject to related litigation. More telling, of the approximately 13,000 patents asserted in District Court since creation of the PTAB, only about 12 percent have been before the PTAB, demonstrating careful selection (i.e., only bringing IPR where prior art and solid arguments against validity exist). Given this selection bias, one would expect rather high invalidity rates at the PTAB. Instead:

• Where trial is granted and the case does not settle, 25 percent of claims are found valid;
• When including claims denied institution, more than 60 percent of challenged claims are unaffected;
• Claims related to the high tech and bio/chem/pharma sectors are even more likely to be unaffected.

This suggests that the PTAB is weeding out patent claims that should have never been granted while protecting and strengthening patents of merit.

The critics’ argument that IPR has been frequently abused simply doesn’t add up. Action before the PTAB, while more cost-efficient than the courts, is still neither cheap nor easy. Challenging a patent before the PTAB costs hundreds of thousands (and occasionally millions) of dollars, and lasts approximately eighteen months. Petitioners are barred from making the same or similar arguments later if they lose. The PTAB offers a worthwhile alternative because it takes these cases out of federal court, and puts the patent before technically trained judges.

Improving patent quality requires protecting innovation. It is the reason that Congress passed America Invents Act, and why Congress is considering further patent litigation reform. The IPR process allows the office to review information that has come to light post-grant or was missed during the initial application process.

The IPR process continues to improve patent quality by removing some patent claims that should have never issued. The number of denied petitions, patentable claims, and settlements proves the PTAB is doing its job methodically. IPR is working. It is protecting businesses from costly assertions of likely invalid patents.

http://thehill.com/blogs/congress-blog/technology/243778-congress-should-preserve-the-ipr-process