Others, such as abolishing the PTAB's technique of construing claims in the broadest possible way, would clearly benefit patent owners, leaving no doubt that the high invalidation rate is fueling the push for those changes. A reversal by the Supreme Court in this case would alter the current claim construction standard, making it harder to invalidate patents and likely lowering the invalidation rate for all three major U. First, while impossible to prove empirically, apocryphal evidence indicates that a large proportion of patents initially challenged at the PTAB were of low quality — precisely the sort of patents these procedures were intended to cull out.
Second, the unexpectedly high invalidation rate has emboldened patent challengers to seek PTAB review of higher-quality patents.
For "first-to-file" patents, a CBM may be sought only after the nine-month period for initiating a PGR has passed.
An important pro-patent feature of all three post-grant procedures is the estoppel effect that accompanies the PTAB's decision.
Patents other than business method patents (such as those in the life sciences sector) are faring better at the PTAB.
But, if these criteria are met, the CBM may be based on the same grounds as a PGR.Numerous changes to IPR, PGR and CBM procedures are currently under consideration.Many appear outcome-neutral: They ostensibly would not favor one side. Supreme Court is set to hear arguments this term regarding the latter change in , to determine the appropriate breadth given to patent claims considered during post-grant proceedings. Regardless of whether reforms are enacted, a number of factors suggest that a decline in the invalidation rate is inevitable and imminent. were invalidated; by comparison, 31 percent of patents in Europe were invalidated in 2015, according to data from the research database Docket Navigator and the European Patent Office annual report.Under the new "first-to-file" rule, an IPR may be filed any time after nine months have passed since the patent's issuance or after any and all PGRs pertaining to that patent have concluded, whichever comes later.However, examiners have huge backlogs and will never be as motivated as a competitor to find prior art.