IPR and biopharma patents: what the statistics show
The purpose of introducing inter partes review (IPR) proceedings through the America Invents Act was, at least in part, to improve the US patent system. IPR proceedings held before the Patent Trial and Appeal Board (PTAB) were viewed as a faster and cheaper mechanism for challenging patents than litigation in federal courts. In particular, the introduction of IPR proceedings was intended to counterbalance district court lawsuits filed by non-practising entities by giving accused infringers an expedited proceeding to challenge the asserted patents.
Judging by the growth in the number of filings, IPR proceedings have been a success. Over the past three years the number of IPR petitions filed has increased dramatically across all technical fields. And although the majority of petitions have been filed against patents in the electrical and computer fields, the number of petitions filed against biotechnology and pharmaceutical (bio/pharma) patents has also steadily increased.
This article examines the institution decisions and final written decisions for bio/pharma patents and provides potential reasons for two observable trends that are markedly distinct from those observed across all technical fields as a whole.
Specifically, a smaller percentage of petitions is instituted against bio/pharma patents, but there is a higher survival rate of instituted claims in final written decisions compared to all technical fields combined. Our analysis of these trends and the potential reasons for them follows.
“WHILE 86.6% OF INSTITUTED CLAIMS THAT REACH A FINAL WRITTEN DECISION ARE CANCELLED ACROSS ALL TECHNICAL AREAS, ONLY 65.6% OF THE INSTITUTED CLAIMS IN A BIO/PHARMA IPR ARE CANCELLED.”
When IPR petitions are filed, they are assigned to different technical centres—for classification purposes—based on the subject matter of the challenged patent. Bio/pharma patents are assigned to technical centre 1600; as of September 30, 2015, 305 out of a total of 3,578 IPR petitions (nearly 10%) were classified under this centre. Figure 1 provides the current institution status of the bio/pharma IPRs.
