JUST THE STATS:
IPR: SURVIVAL RATE OF INSTITUTED CLAIMS

Key Finding:

Prior to the Supreme Court’s decision in SAS, institution could be based on all of the challenged claims or some subset of claims. This chart shows the survival rate of instituted claims in IPR proceedings that reached a final written decision (as compared to prior charts that show the survival rates relative to claims originally challenged, some of which were not instituted). Trial is instituted on a claim if the PTAB believes that “it is more likely than not that” the claim is unpatentable. This initial institution decision had a large impact on the ultimate outcome. The SAS decision likely will affect overall survival rates for instituted claims, inasmuch as the PTAB now must institute trial on all claims, even if the burden was met for only a subset of claims.  Also of note, the total number of claims found unpatentable/cancelled is lower than that in the challenged claims chart due to requests for adverse judgment granted prior to institution.