Unpredictable Arts = Unpredictable Success at PTAB
In a previous post I noted the growing interest from Bio/Pharma in the patent challenge mechanisms of the Patent Trial & Appeal Board (PTAB). While the Board offers strategic value, speed and a cost effective, technical review, these benefits are not without risk. Recent statistics out of the PTAB demonstrate that patent challenges in the unpredictable arts are far more likely to fail as compared to those in the predictable arts.
Going forward, the PTAB institution rate for bio/pharma will drop even further.
As shown below, bio/pharma patents have the lowest institution rates of all utility patents.
In terms of success beyond institution, bio/pharma claims are also more likely to be upheld as not unpatentable as compared to the predictable arts (settlements excluded from below chart).
In my opinion, the above chart reflects the increased value of testimonial evidence in the unpredictable arts. That is, prior to the recent rule change, patentees were unable to present evidence until after trial institution. For example, the introduction of such evidence in electrical/computer cases leads to some claims being found not unpatentable (checkered bar), but not a significant amount. On the other hand, there is a marked departure for bio/pharma (checkered bar). As new testimonial evidence is now being accepted pre-institution, my expectation is that the trial institution rate in the bio/pharma space will fall further. (institution being for at least one claim of a given patent).