Patent Law Forum
What is Inter Partes Review (IPR) of a patent?
About the Author: Mr. Sheerin is a California licensed patent attorney having represented clients accused of patent infringement in Federal District Court as well as through Inter Partes Review (IPR) at the US Patent Office. A few of Mr. Sheerin's recent results may be viewed here:
Inter Partes Review (IPR) is an administrative trial proceeding conducted at the US Patent Office (Patent Trial and Appeal Board (PTAB)) to challenge the validity of patent claims. Although essentially any party (other than the patent owner) may file a petition for an IPR, typically an IPR is filed by a party against whom a patent is being asserted, and typically after a legal complaint has been filed in a federal court. The grounds for challenging the patent claims are typically limited to issues under 35 USC § 102 (anticipation) and 35 USC § 103 (obviousness), which means the review is limited to prior art (patents and printed publications) as opposed to other invalidity defenses (e.g., ineligible subject matter under 35 USC § 101). Typically an IPR petition is granted (instituted) by the PTAB when the challenge is based on prior art not considered by the examiner during prosecution of the patent (and when the prior art establishes a reasonable likelihood the challenger will prevail on at least one claim). Filing a petition to challenge a patent through an IPR has become very common given the relative high success versus failure rate as well as increasing the likelihood of reaching a favorable settlement. The chart below illustrates the IPR success rate (invalidating at least one claim) at around 21%, the settlement rate at around 32%, and the failure rate (some or all claims found patentable) at only 11%: