Inter Partes Review

Created by the America Invents Act, Inter Partes Review proceedings have already changed the face of patent litigation.  Lower cost, lower burden of proof to invalidate, broader claim scope, among other advantages to patent challengers, means that there may be no greater opportunity and true reform to come from the America Invents Act than these post-grant proceedings.

While the initial Final Written Decisions were decidedly in favor of Petitioners (a 96.4% cancellation rate as of March 16, 2014), more recent decisions have increasingly sided with Patent Owners, bringing down the total number of canceled claims to 82%.  Critics of IPR proceedings try to argue the various ways in which the proceedings are skewed toward Petitioners. It is becoming increasingly clear, however, that the Inter Partes Review process has added an efficient and cost-effective avenue to test the patentability of patent claims outside of expensive District Court litigation.

Moneyball for IPRs. Harness Dickey clients benefit from the Firm’s expansive and ongoing statistical analysis of IPR decisions.  We have analyzed the reasons why a Petition has not succeeded, either at the Decision to Institute or at the Final Written Decision stage.  By analyzing the results, as a petitioner, we can “pressure test” a draft petition against the data to ensure the highest possible level of success.  As a patent owner, we evaluate a petition against this data to determine the best avenues for attacking the petition, including the identification of key cases that support our argument.  In an advanced analysis, we can learn by judge or by subject matter what are the most common mistakes made in Petitions.  In short, Harness Dickey clients take advantage of our enhanced metrics and are given the highest chance of success in Inter Partes Review proceedings.

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