Innovation on Trial: PTAB Wipes Out 70% of Patents

The 70% figure, cited in recent analyses and echoed by prominent IP watchdogs and legal professionals, reflects the proportion of IPR proceedings where all challenged patent claims are invalidated in final written decisions. Even more striking, nearly 78% of all challenged claims are being invalidated across the board. These statistics raise a fundamental question: Are patents being granted too easily, or is the PTAB overreaching in its role?

The PTAB, established in 2012 under the America Invents Act (AIA), was designed to streamline the process of contesting patent validity and reduce litigation burdens. But critics argue that it has evolved into a “patent death squad,” a term first coined by former Chief Judge Randall Rader of the Federal Circuit, as inventors increasingly see their patents struck down after significant investment in research and development.

Proponents of the PTAB system, however, point to its role in eliminating low-quality patents that may have slipped through the USPTO’s examination cracks. They argue that the high invalidation rate simply reflects a more thorough vetting process, especially when challengers bring forward prior art or legal arguments that weren't originally considered.

Still, many in the IP community view the trend with alarm. Independent inventors, small businesses, and startup innovators—who often lack the financial resources to defend against repeated challenges—are disproportionately affected. Legal experts warn that the ease with which large corporations can initiate multiple PTAB proceedings undermines the confidence in patent rights, particularly for vulnerable patent holders.

Some experts are calling for a return to more consistent and objective standards, such as the pre-KSR "teaching, suggestion, motivation" (TSM) test, to ensure that determinations of obviousness are more predictable and fair. Others urge Congress to pass legislative reforms, like the proposed PREVAIL Act, which would limit serial and duplicative IPR challenges and create a more balanced playing field.