http://www.postgranthq.com/wp-content/u ... porter.pdf
Desert Fox wrote:lol no. PTAB is being less insane on throwing out patents and the Fed Cir will make sure they do even less. Also ARE HERO ED Texas isn't holding cases.
All of this. I'd actually like to see stats on the number of IPRs filed on patents being litigated in E.D. Tex. vs. all other Jx. Given that they won't grant a stay for a single fucking reason other than a joint motion, defendants lose a decent amount of incentive for filing 'em. That said, I wonder what, if anything, will change based on the new judge when Davis comes off the bench and is replaced.
Obviousness invalidation is twice as likely in the PTAB than in district courts. That, and the rate of invalidation under 101, should scare the bejesus out of patent plaintiffs.
I mean.. your contention was that PTAB is going to bring down the patent system, not scare patent plaintiffs.
I mean, I agree with two things: (1) there is a very high success rate of invalidation at the PTAB, especially compared to district court and (2) the PTAB is a bit of a fucking kangaroo court.
But, I think there is a little confirmation bias in the stats regarding challenges: you are looking data that is still in the prime time (maybe trailing edge) of pretty loose NPE litigation where the goals have been nearly extortative toward quick settlement. This could mean, and certainly would have incentivized, litigation of very broad patents that (from my experience) have pretty early priority dates--dates when, let's say, the PTO wasn't the most diligent in their review. You know, those less than 100 page file wrappers? So, my question on the data is are we looking at a situation where plaintiffs were asserting low hanging fruit patents which are then getting challenged and are low hanging fruit for invalidation as well.
Also, this doesn't address the E.D. Tex. vs. other Jx distinction either. I mean, if you take a judgment of infringement (an no invalidity, if a non-RPIA to the lit filed the IPR/CBM petition), I'm pretty sure the existing case law doesn't let you take a subsequent invalidation at the PTO to the trial court for an auto reconsideration or Rule 50(b). Nor are they given much weight at the Fed. Cir., IIRC.