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Expert Analysis

10 Ways To Avoid Or Limit Institution In An AIA Proceeding

Law360, New York ( November 24, 2014, 10:12 AM EST) -- The post-institution phase of an inter partes review, covered business method review or post-grant review is not where a patent owner wants to be. The Patent Trial and Appeal Board has already found that the petitioner made a threshold showing of unpatentability — "reasonable likelihood" for an IPR, "more likely than not" for a CBM or PGR — for at least one claim. [1] The patentee may be fighting on multiple fronts simultaneously, particularly if a court declines to stay a copending litigation, and costs may be escalating. The historical win rates are also concerning: As of Oct. 6, 2014, all instituted claims were canceled in 73 percent of IPRs and in 100 percent of CBMs. [2]. . .

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