PTAB Snapshot – A Quarterly Report on Trends and New Precedent at the PTAB – Q2 2021

Institution Rate, Discretionary Denials, and PTAB Estoppel | April.28.2021

PTAB Snapshot Q2 2021

In this first edition of Orrick’s quarterly series on PTAB trends and precedent, we provide statistics on the falling institution rate, relatively steady challenger success rate, and rapid increase in discretionary denials. 

Key Takeaways:

  • Recent institution decisions suggest that we may see the rise in IPR discretionary denials finally subside.
  • Diligence and stipulations that limit district court invalidity defenses have become the key factors in avoiding IPR discretionary denials.
  • Petitioner success rate has been holding steady at around 60%.
  • While the scope of IPR estoppel may be growing with respect to prior product defenses, recent cases suggest that its scope is shrinking with respect to printed publication defenses.