JUST THE STATS:
CBM: SURVIVAL RATE OF CHALLENGED CLAIMS

Key Finding: This statistic accounts for final written decisions and substantively denied petitions. It excludes challenged claims that were denied CBM review for procedural reasons (e.g., time-barred) and cases in which the PTAB determined the patents did not claim a qualifying business method. The analysis includes decisions not to institute through 2015, and final decisions through 2016. Final decisions typically issue about one year after the decisions to institute. Accounting for that one year differential avoids an improper skewing toward the outcomes of institution decisions. As compared to IPR proceedings, CBM proceedings allow for additional statutory grounds of unpatentability and relate only to qualifying business method patents (which opens the door to Section 101 challenges). The availability of Section 101 challenges largely accounts for the higher rate of unpatentability as compared to IPRs.