How many patents are invalid

Of Trolls, Davids, Goliaths, and Kings: Narratives and evidence in the litigation of high-tech patents. North Carolina Law Review, 87, — Cohen, W. Research Policy, 31 8 , — Cremers, K. Determinants of patent litigation in Germany. Patent litigation in Europe. European Journal of Law and Economics, 44 1 , 1— An analysis of the bifurcated patent litigation system.

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Michigan Law Review, 99, — Oyama, Y. My friend Samuel Clemens and I tend to take a dim view of statistics, especially those used too loosely. Wildly entertaining article. Love it! This is like reading Breitbart for IP. The best part? The title. It says it all. It asks a question. Do they answer it? The thing that made me laugh the hardest is their OWN source does not agree with them.

Lex Machina counts settlements as a Patent Owner success if you look at the graphics they embedded in this very same article. Now just for pure fun and to make this even more of a joy ride into a twilight zone of fake data, you take into account settlement as a complete and total loss for the patent owner because as Gene mentions it is after institution and therefore they are already screwed…if that is true….

If you are going to include any settlement post-institution as a complete loss for patent owners to goose your numbers so they fit your narrative even though the PTAB has not made a FWD, then you need to include the institution decision numbers as well since you are saying that is really where the true decision is being made according to you. Since really what you are saying I am so bold, which I am , is to say that any patent which is instituted on unless the FWD decision shows all claims to be patentable is a complete loss for the PO.

If the ID is real break point then you need to include all the ID decisions, not just the instituted ones. Which lowers the numbers dramactially. Either way it does jive with their previous article written by Paul M. Certainly not a question. Even their own. So I am left with a belly full of joy at the backfilling going on to satisfy bad data and facts. A question which is not answered. Sources which are used which do not even agree with the statements being made in the article.

Finally numbers which are not internally consistent or consistent with prior articles publishing in the same blog and stated as a fact. I was telling you for years that patents are being watered down on purpose by big tech corps and that was no good at all…. How about fixing PTO examination in the first place and instituting re-exams only on NEW prior art previously undiscovered?

And not making any distinction in applying US patent laws between manufacturing entity e. Perhaps someone can explain the difference between me a non-manufacturing NPE mom-and-pop workshop located in USA and Apple a non-manufacturing in USA workshop but manufacturing in China through their partners??? Why are my patents inferior to the blueprints they provide to their manufacturing partners in China??? Just testing to see if comments are working.

Getting reports that some people are experiencing problems. Thanks for your comment. I guess that is predictable. Now that is saying something given the breadth and scope of your ignorance in general. But again, from someone so unacquainted with the truth as you I guess ignorance and misrepresentation is to be expected.

Of course, everything written here is perfectly accurate. Nevertheless, I do greatly appreciate your need to keep coming back and trying to prove me wrong.

I know how you so hate the truth. Your protestations and condescending tone is always appreciated and accepted as an admission that you have nothing substantive to offer. Thanks for answering Shawn before I could and geting myself banned from the comment section in the process. LOL, as a famous politician would probably say, sad, very sad. That is why when we do analytics we never consider settlement a win or loss for either side. Hell, you can even hate me. But dude, seriously. Feel free to have Brian Howard, the Lex M guy you were happy to mention to state that your data and presentation of it is accurate and I will shut up.

I know truth is something you are unfamiliar with. The truth, however, is that settlements in IPRs are unfavorable to the patent owner.

Anyone even vaguely familiar with IPRs knows settlements are unfavorable to patent owners. The fact that you are unaware of it just proves you are uninterested in the truth. As for Howard not being quoted, perhaps you should read the article. That is your problem obviously. You comment without reading. Nothing ever changes I guess. As for me not liking you. You are correct. Well Gene. I forgive you for not liking me.

My heart is large enough for the both of us. I love everyone, especially you. Reading IPWatchdog is a pleasure because it entertains me and makes me laugh every time. I hope it continues for many years to come. Sadly but not surprisingly, it does not. No worries about the statements. I know it can be confusing. All these numbers and stats. Anyone can get twisted around. Have no fear. I am here to clear the air, drain the swamp, make patent analytics great again, improve patent quality, and have a ton of fun doing it.

Do you ever get tired of being wrong? Failure to institute is not a win for the patent owner in a world where the PTAB refuses to follow the law and issue a final written decision confirming the validity of the claims that were not instituted as is required by the statute. Anyone familiar with IPRs knows that challengers file serial petitions over and over again until they are finally instituted.

So winning an institution that carries with it absolutely no estoppel is not a win. Nice try, but your argument ignores reality. There you go again with that condescending attitude. You really better be careful though or those clients of yours from Silicon Valley who so hate the Administration will blackball you just out of a suspicion that you might actually support the President.

Now I understand Quinn logic. Estoppel only attaches for that argument and art, so even a favorable FWD for the patent owners does provide finality right?

Because someone else can file with a new argument and get instituted. So even a favorable FWD just delays the inevitable finding of invalidty based on another argument. Any time an IPR is filed is. I think you should change your headline. Why stop at Go all the way!!!!!! But remember, Lex says a settlement is a Patent Owner win right? So maybe, this is might Quinn logic than good data from a reputable source?

You just have to look at the data. Not even your own data providers which you hand picked agree with you…. Gene, Reading through all this it is obvious that Shawn simply will not look at reality of the damage of PTAB and wishes to attack with non logic.

Are we seeking truth here? Shawn attacks with no logic, only building fake narratives. He knows deep down what he does is wrong. It is people like him that give lawyers a bad name. Perhaps there the saying is true.. Genius has its limits. Your core business is to destroy the core essence of what makes America great. The reality is you just embarrass yourself. You show the world how much of a fool you are. So I guess you did succeed, your foolish posts on LinkedIn only amplify to the world your stupidity.

Congrats, we all can agree on one thing. You are a liar and an idiot. The U. Since condescension, obfuscation and inappropriate opprobrium is all you have to offer here, it is difficult to perceive how anyone concerned in this field can take any of your comments written here seriously. I am left with the conclusion that you must enjoy spewing such self-serving vapid nonsense as the above for the benefit of gratifying your surprisingly insecure ego.

No comment or the article pointed out that many claim were found invalid under Alice, claims that were valid when issued but since the law changed, they were necessarily held invalid. However, there is a set of data that shows that selection bias is not at work at the PTAB. Rather, it is anti-patent bias at work. I think anyone who recalls all of the anti-applicant rules they tried to promulgate during his reign would agree that Dudas was exceptionally anti-patent.

This is somewhat reflected in the numbers from Because there is an institutional bias at the Board — it is part of their culture. It is your comment that is flawed, not the article or the conclusions reached. In an inter partes review the only available challenges are based on 35 U. Alice related to patent eligibility under 35 U.

You really do protest too much. I do appreciate you coming here to IPWatchdog. It is as if you are a moth drawn to the light, as if you have a need to rebut what we post. I understand that you need to challenge the truth. That time is coming. Neither will anyone who actually looks at the data. Your last comment also talked about estoppel with respect to a final written decision. Funny that you would talk about that since my previous comments were about the lack of estoppel with respect to institution decisions.

It is as if you are trying to misrepresent what I said. Of course, we both know that your only game is to misrepresent and obfuscate. My guess is in the echo chamber where you operate these type of low rent tactics play very well. Do you think that makes you sound smart? Truthfully, it just makes you sound ever creepy. Then, there are the IPRs that get settled by the two parties, or one party gives up, and there is no final decision. This is not even counting the number of IPRs lost by patent owners who were represented by attorneys who had never had any experience with any PTO inter partes trial proceedings.

Do you seriously consider the cases where a patent owner achieves a denial of an IPR as a win? I know many patent owners that do not consider it a win because the challenger simply refiles another petition, and another petitioner, and another petition. So at best it is akin to a dismissal without prejudice, which is the real problem here. The statute does not envision denials of IPR as being a dismissal without prejudice that allow petitioners to engage in filing challenge after challenge until one is granted.

That is, however, what happens. In the war of attrition fight that infringers fight is seems to be practically a part of their overall strategy of harassment of patent owners in an effort to make sure title to a patent never quiets.

Yes, if you sue another company, they can file another IPR, even if you won the first IPR — just as every new defendant you sue can re-raise invalidity defenses even if you won the first suit. But it is unlikely one PTAB panel is going to come to an opposite result on the same asserted prior art. Also, the actual number of IPRs instituted more than once on the same claims, while it has occurred, its incidence numbers has been greatly exaggerated here and elsewhere.

The PTO should track and publish those numbers. Folks claiming that almost all asserted patents are hit with IPRs versus folks who claim that only patents in which better prior art was missed are attacked by IPRs. The former cannot possibly be true, on incontestanble facts — the number of D. What other way for a defendant to get out of most lawsuit litigation expenses so fast and cheap is there?

Alice motions that are in a D. If there are more than even D. This is just nonsense. First, there is no standing requirement. Second there is no preclusion if your IPR petition is not granted so you can keep trying.

Third, what happens is if a patentee tries to license or assert the patent, then they get many IPRs filed against them and the panels OFTEN do reach different conclusions. As in all you need is the one panel and you end the patent. The problems are: no standing; no CC, and has been watered down so it is up to the fact finder and pretty much open ended. So, it is a crap shoot.

Imagine I file a petition and panel A denies it. The patent document includes one or more printed sheets of specification and drawings which describe the invention. The law requires that the specification describe the invention in specific enough detail "so Thus the claims are the heart and soul of the patent. To better illuminate just exactly what a claim is, let us suppose that Thomas Edison has just applied for a patent on his incandescent electric light bulb.

As you might recall, Edison discovered the first commercially practical light bulb by passing an electric current through a carbon filament in a high-vacuum glass bulb. Prior to this discovery, most everyone had been futilely experimenting with metallic filaments which glowed for a while and then melted. Following the specification, Edison's patent attorney might have defined or claimed Edison's invention in the following terms: "An electric incandescent lamp including a carbonaceous filament enclosed in a glass bulb, and means for passing an electric current through the filament.

So much for what a patent is. Now let's look at the legal process of obtaining a patent. The process begins when an inventor approaches a patent attorney with what he believes to be an invention.

At this juncture, the patent attorney usually advises the client to have a "preliminary search" made of the "prior art" i. Patent and Trademark Office. The purpose of this search is to determine whether or not the inventor in fact actually made a patentable invention. The purportedly new features of the invention are compared to the results of the prior art search. If, in the attorney's opinion, the invention is patentable in view of the prior art, a patent application, complete with specification and claims, is filed in the U.

In the next step of the process, the application is examined by a federal employee called a Patent Examiner who carefully reads the specification and claims of the application. The primary function of the Patent Examiner is to decide whether or not the claimed invention is legally patentable in view of the prior art.

He does this by searching the pertinent prior art, and carefully comparing the claimed invention with the best prior art he finds. In making the decision as to whether or not the claimed invention is patentable, the Patent Examiner, among other considerations, applies two legal toests to the claims.

First, he checks to see if the claimed invention is identical to any of the inventions disclosed in the prior art. If the invention is not so disclosed, he applies the second and more difficult test of patentability, and determines whether, in his opinion, the claimed invention would be "obvious. If, in the Examiner's opinion, the invention defined by the claims is either "disclosed" or "obvious" in view of the prior art he finds, he "rejects" the patent claims and sends a copy of his opinion to the patent attorney.

The patent attorney then normally "amends" the claims of the original application by rewriting the claims at the end of the specification so that they define the invention in more narrow or limited terms.

The attorney then submits the amended application back to the Patent Office, and the cycle may be repeated. Finally, the attorney and the Patent Examiner usually arrive at some sort of agreement as to how broad or narrow the claims may define the invention without the prior art either disclosing or rendering obvious the claimed invention. To cast some light on this step of the process, let's follow up on our electric light bulb example.

As you recall, Edison, in our semi-fictitious example, claimed "An electric incandescent lamp including a carbonaceous filament enclosed in a glass bulb. Let's suppose that the Examiner searches the prior art on file at the U. Patent and Trademark Office and finds a reference disclosing an electric lamp which utilizes a carbonaceous filament in a glass bulb filled with an inert gas.

The Examiner would "reject" Edison's claim as identically disclosed by the prior art. In response to such a rejection, Edison's patent attorney might amend or narrow the claim to read "An electric incandescent lamp including a carbonaceous filament in a substantially evacuated glass bulb We are now in a position to understand why most patents are invalid.