Patent Invalidation Rates on the Rise at the PTAB | Fenwick & West LLP
The Patent Trial and Appeal Board (PTAB) has seen a steady increase in the invalidation rate of patents in the past five years, reaching 71% for the first two quarters of 2024. In 2023, challenged claims were invalidated 68% of the time. Notably, the cancelation rate peaked at 77% in the first year the procedures were available and hit a low of 55% in 2019. In contrast, the affirmance rate of ex parte appeals has remained relatively stable, ranging between 55.9% and 59.8% from 2019 to 2024.
The consistent rise in claim cancelation rates underscores the PTAB as a favorable venue for patent challengers. This trend suggests that patent holders need to be diligent in their patent prosecution strategies and consider the implications of PTAB proceedings on their patent portfolios.
However, since 2021, the invalidation rate has been increasing and is currently at 71% for the first two quarters of 2024. In 2023, all challenged claims were found invalid 68% of the time. These are daunting statistics for patent holders. They mean that if there is an institution, all challenged claims will be found invalid about 70% of the time.
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