June 12, 2017
On March 31, 2017, the United States Patent Trial and Appeal Board (“PTAB”) released updated statistics showing the fate of resolved inter partes review (“IPR”) proceedings. These statistics show that a total of 4,563 IPR petitions were resolved as of March 31, 2017 including 1,577 final written decisions. In 81% of these final written decisions (27% of the total number of petitions filed), at least some instituted patent claims were found unpatentable. This statistic has contributed to concerns that PTAB is a patent “death squad.”
Fitzpatrick’s BiologicsHQ reports that such concern is not justified for drug patents. On the contrary, IPR statistics for this subset of patents are significantly more favorable: a smaller percentage of drug patent IPRs are instituted; and of those that reach a final written decision, a higher percentage of patents survive with at least some claims remaining patentable. This is welcome news to the pharmaceutical industry.