Coke Stewart’s recent show cause order offers hope for addressing serial patent challenges

“By all outward indicators, the Trump Administration appears to clearly believe that the PTAB is going too far and that patents are important.”

The Patent Trial and Appeal Board has been under fire by patent owners almost since its inception. PTAB was expected to handle between 450 and 500 challenges a month, but between April 1, 2020, and March 31, 2025 it received 1,395 requests. The number of challenges at this level is about triple what was predicted when the PTAB era began. This rate of post grant challenge has remained relatively constant since FY 2019. It ranges from 1,292 challenges in FY 2024 up to a peak of 1,513 challenges in FY 2020. In earlier years, it was common to have at least several hundred more challenges filed, with peak years being FY 2017 (1,901 challenges) and FY 2015 (1,897 challenges), both years which were close to quadruple the number of predicted challenges.

Examiner Error Examined

Regardless of whether you like the PTAB or loathe the PTAB, what is clear is the PTAB has been used far more than anyone ever anticipated. It is clear that the PTAB has been used far more than anyone anticipated. Of those patents that reach a final written determination, 70% of the claims are invalidated while 85% have atleast one invalid claim. It would seem logical, then, that all patents, 90% or more of which are never going to be valuable, must have a high error rate. Not so fast!

According to the USPTO error rates by examiners as reported in USPTO annual reports, between FY 2017 to FY 2024, patent examiner quality was excellent. According to the USPTO’s annual reports, examiners consistently met or exceeded key performance metrics, earning stellar ratings. Between FY 2017 and FY 2020, the Office received consistently A or A+ grades from examiners in what Director Iancu called “patent accuracy indicators”. Examiners were correct between 96.5% and 98.3% the time when making decisions about patent eligibility. Examiners were correct between 94% and 96% of time when it came to novelty decisions. Examiners were graded correct between 88.9% and 93.2% of the time for obviousness, which is often subjective. Examiners were right between 90.6% to 95% of the times for 112 decisions relating specification sufficiency and indefiniteness, as well as means-plus-function. That is a question that has defied a satisfactory answer.

Fielding Patent Challenges on All Fronts

Patent owners have long complained about a multiplicity of challenges. Patent owners will never be able to enjoy a quiet title. If you own a valuable patent and it is being violated, especially if the infringement is large, you will be the victim of endless challenges. It doesn’t matter how many times a patent has won. It is that simple. The patent owner will continue to fight until he loses. It doesn’t really matter if the Office reviewed, re-reviewed or even subsequently rere-reviewed a patent. Everyone is given their own unique opportunity to challenge and re-challenge patents they infringe, which is disrespectful to every other decision-maker throughout the process and an incredible waste of resources.

Patent owners feel like their struggle is never finally over until they have lost–and they are correct. Patent owners can’t win enough. Ironically, and unfairly, the battle is over when the challenger wins for the first time. Patent owners must win each and every time. The challengers must win at least once. Surviving the PTAB is now a costly gauntlet. A New Administration is in Town

But finally, things are changing. The Trump Administration appears to believe that the PTAB is too extreme and that patents are important. v. Omega Patents, LLC, (IPR2023-01162), the petitioner was asked to explain why she did not want the Office to terminate the inter-partes review (IPR). The case was brought to her by the Director Review Process after it had been initiated by the PTAB, and then after the patent holder lost. This case is shocking because this patent — U.S. Patent No. Patent No. Five times the Office re-ratified the claims! The ‘287 Patent survived five reexaminations by the Office. It survived all challenges before federal district courts and the Federal Circuit affirmed. This means that after seven challenges the patent owner won. The PTAB, however, was not deterred. They launched another challenge because they believed that they knew better than other decision-makers at the USPTO as well as two different federal courts. Many people, including those in the Trump Administration, believe that the PTAB has gone too far because of its arrogance. Kudos to Acting Director Stewart for seeing through the subterfuge and demanding the petitioner explain to her why she shouldn’t just put an end to this IPR charade.

Verizon has until May 16 to make their case. Stay tuned!

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