PTAB Errors Fatal to Hundreds of Legitimate Patents

Apologists for the Patent Trial and Appeal Board (PTAB), including Greene’s Energy Group and the Department of Justice continue to proffer the fallacy that the PTAB is merely “correcting” errors committed by the USPTO in issuing “bad” patents through the use of America Invents Act (AIA) post-grant proceedings to adjudicate a patent’s validity. The actual data indicates that the PTAB is instead helping infringers by overturning the examining corps and the real courts to nullify inventors’ hard earned rights. Allyson Ho, counsel for Oil States correctly argued that the PTAB is improperly intervening in property rights disputes between private parties – not “correcting errors.”

Curiously, the Trump Administration did not assign recently confirmed Solicitor General Noel Francisco or Trump-appointed Assistant Solicitor Chad Readler to make these arguments. Instead, Obama-era holdover Malcolm Stewart (who explained to Justice Alito in Citizens United that the Constitution also permits the government to ban books!) was saddled with the task of arguing for the radical theory that patents are “public rights,” like food stamps, and that the PTAB passes Constitutional muster under the mulligan theory of property rights.

Setting aside the Trojan Horse transmogrification of patent rights into entitlements – the key presumption the anti-patent crowd makes is that the PTAB is correcting errors. This is clearly not the case when comparing data on patent invalidity in both real courts and the PTAB. The PTAB is itself making the errors and stripping inventors of their hard-earned rights. We have continued to review the actual data (because everyone supports evidence-based and science-based policies). Some critics have taken issue with a minor error in our previous article on the impact of PTAB proceedings to patents which have been deemed valid in district courts, namely the 220 patents upheld as valid in the real courts and challenged at PTAB; our previous report had said that there were 263 of such patents, but a few of those proceedings actually ended in mixed validity results in the district courts. We have updated our analysis accordingly, and find that the PTAB error rate remains 76% when compared to results in real courts.

We compiled the complete list of these 220 patents that were held valid in real courts and also reviewed by the PTAB. IPWatchdog readers will recognize several of the patents in this list from previous articles:

PTAB apologists say a 76% discrepancy rate between the PTAB and the real courts is perfectly fine – different standards, procedures, and burdens allow for different results. In other words, it is okay for a patent to be both valid and invalid at the same time. This is nonsense. These are the words of people who profit from an unstable patent system – certain attorneys, academics, bureaucrats and infringers.

A patent is either valid or invalid, it can’t be both. The PTAB was expressly intended to reach a faster and cheaper result on validity challenges than can be obtained through real courts. So how do they do that? They skimp on due process. Project managers recognize the axiom of the project triangle – fast, good, or cheap – pick two, because you can’t have all three. Congress chose fast and cheap in creating the PTAB. Therefore, they sacrificed good. How do we get good and accurate adjudication of patent validity? In the real courts with non-party judges, presumption of validity, clear and convincing standard of proof, correct claim construction, liberal discovery, live testimony, life-tenured apolitical judges, and juries.

There have been 220 patents upheld as valid in real courts and also subject to a final written decision in the PTAB. The PTAB only agreed with the real courts on 52 patents, while disagreeing with them on 168 patents. If the U.S. legal system is the gold-standard, that means the PTAB is erroneously invalidating patents 76% of the time.

Not only that, the PTAB will likely go on to kill several of the 52 surviving patents because they are still under review or at risk of follow-on petitions – such as happened to Zond.

The real courts (Article III courts) are considered the gold standard because they permit a complete and thorough adjudication, without sacrificing accuracy for speed or expense. The PTAB is not so calibrated. The PTAB is killing patents that survive challenge in district courts. This means the PTAB is killing good patents, wiping out billions of dollars worth of assets, and destroying confidence in patent rights.

This is just a sample of 220 patents that had the benefit of confirmation via trial in a real court. Yet, the PTAB has reached a final decision on over 1,500 patents with an additional 3,000 threatened by petitions, and 3 million more that are threatened by a wrongful verdict at the PTAB and therefore cannot serve their purpose of securing exclusive rights to their inventors.

The hazard and risk is drastic. An inventor must calculate this. There is a 76% chance that perfectly valid inventions will be taken away from an inventor – after the inventor hands over a half million dollars or more to the USPTO and patent attorneys. Furthermore, the entire system seems rigged. Flip a coin. If it comes up tails, the patent owner loses his rights. If it comes up heads, flip the coin again. If the second flip comes up tails, the patent owner loses his rights. Only if the patent owner flips heads twice in row is the patent on the invention kept. It has nothing to do with the law – utility, novelty, non-obviousness, specification compliance – it’s just a completely random chance. If his invention is truly valuable, like the Zond, Paice, or SmartFlash patents, the patent owner needs to win 5 or 6 times in a row or patent rights are taken away.

One more argument has been raised with regard to our earlier analysis of the incongruity between the PTAB and the real courts. PTAB apologists argue that each of the 220 patents were tested on different grounds in the two venues. This is an argument that actually works against those apologists. In the PTAB, generally only two grounds of attack are available – 35 U.S.C. §102 for novelty and 35 U.S.C. §103 for non-obviousness. But in the real court four grounds are available as a defense – along with §102, §103, accused infringers are also afforded validity challenges under 35 U.S.C. §101 for basic patentability and 35 U.S.C. §112 for specification. So how is it that the PTAB invalidates three times as many patents with only half as many grounds available? The only answer is because it is designed to help infringers by bypassing due process protections afforded to inventors in real courts. Apologists will go on to argue that the PTAB had better evidence, better prior art, better experts, better judges – nonsense! The real courts have rules and procedures which are tremendously more thorough, developed, proven, and fair. The PTAB has not and cannot measure up.


Warning & Disclaimer: The pages, articles and comments on do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of

Join the Discussion

40 comments so far.

  • [Avatar for Damien]
    January 12, 2018 05:49 pm

    Its very simple. The two courts have different burdens of proof for establishing invalidity. Because of this, it is not surprising that the rulings do not always agree… in fact what we see is EXACTLY what we woudl expect. Since the PTAB’s burden of proof is lower, we expect that the PTAB would result in invalidating many more claims than would be in DC.

    In fact, with the different burdens of proof, even the SAME CLAIMS may result in different, “opposing” rulings. This is a very common aspect of having two systems with different burdens of proof. This aspect is incredibly important to an understanding of why the results are different.

    Yet… it isnt mentioned even once in your articles. Im not saying you have to agree that it is the cause, but by not including that EXTREMELY RELEVANT information in your analysis, your are presenting the issue in a misleading way.

  • [Avatar for Damien]
    January 12, 2018 05:40 pm

    “The “evidence” you refer to is false, as our articles have shown over and over again.” Again…. for the hundredth time…. My comments were directed to how your articles do not consider (and in fact ignore) the vastly more likely reason for the statistical difference in rulings between DC and PTAB.

    “Interesting, but again false.” You say this in response to me saying that you provide no other explanation than PTAB fault as a cause of the difference in statistics…. Would be nice if instead of simplying stating its false, please point me to where in your articles you give any other explanation… Ive asked this I think 3 or 4 times now in the comments to no avail… So please, show me.

    ” the critics cherry pick and ignore what doesn’t prove their narrative” Funny… thats what I am accusing you of.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 12, 2018 05:27 pm


    There is nothing to respond to that doesn’t simply cut and paste from the articles you are choosing to ignore. Why you choose to ignore the proof in the articles is a mystery. The articles speak for themselves.

    As for you saying that you don’t disagree with the statistics, earlier in this chain you said there were no statistics provided, which was false. So you really need to make up your mind and stay consistent. Your flip-flops demonstrate you have an agenda and will say anything — even things you can’t remember saying because they are false.

    You say: “your articles are written specifically to promote YOUR agenda.”

    Nice try, but I don’t have an agenda. I don’t do any post grant work, and at this point I don’t have any inventor clients I’m representing either. I am doing less and less legal work, and what I do is strictly consulting. So saying that I have an agenda probably makes you feel good, but like everything else you’ve said it is false. I’m just telling the truth. That you don’t like the truth speaks volumes about you.

    You say: “your articles ignore any evidence that tends to give another explanation other than the one you presented.”

    Interesting, but again false. The “evidence” you refer to is false, as our articles have shown over and over again. The PTAB statistics reported by the USPTO are misleading (at best), the critics cherry pick and ignore what doesn’t prove their narrative. Even critics have admitted in comments that they should have looked at the entirety of the cases.

    In any event, more articles will be published with more analysis and facts that you won’t like. But for those who care about truth there is more truth on the way.

  • [Avatar for Damien]
    January 12, 2018 03:39 pm

    “As for you saying there are no statistics or facts presented in the articles on” lol… i never said that…. at all.

    In fact I said that I dont disagree with your statistics that you present. The stats are not the problem… its your INTERPRETATION of those statistics. If youd like to actually respond to anything Ive posted, please do. Simply replying with “youre wrong, get over it” or accusing me of completely irrelevant accusations (” saying there are no statistics or facts presented”) that have really no basis in fact or trying to imply (though quite explicitly) that I am attempting to promote some agenda…

    So…. was there not an agenda being promoted when you wrote the articles to begin with? You shouldnt speak to harboring agendas when your articles are written specifically to promote YOUR agenda. We know this… because as ive detailed, your articles ignore any evidence that tends to give another explanation other than the one you presented.

  • [Avatar for Damien]
    January 12, 2018 03:13 pm

    haha Night rider actually explicitly stated that the argument I am making is fair. He states: “Some fairness to that. I think the all else being equal is used because the PTAB is being used as a substitute for federal district courts. ”

    Which again brings up the point… The article is written as though all things are equal between the PTAB and Federal District Courts…. BUT THAT IS NOT TRUE. There are NUMEROUS differences between the courts that could lead to the “opposing” results we see. And interestingly, these vastly more likely reasons for the statistics we see were ENTIRELY ignored in the articles presented thus far. So not a single article has yet to mention the very things that the EFF article goes into great detail explaining…. which is that DC court rulings and PTAB rulings, although they sometimes are about the same issue, cannot always be unequivocally compared because of the numerous things that distinguish how the two operate.

    I gave a pretty on point comparison in comparing sexual assault rulings in criminal vs civil court. As any attorney would know, there are big differences between rulings in these two courts, even on the exact same facts. Now is it that one court is biased towards the facts… or…. are these differences the result of the courts having different rules, different evidence, and most importantly different burden of proof requirements. (the very same differences present between DCs and PTAB)

    The eff article, as well as my comments, are merely explaining that there are many other factors and differences between those two courts that could affect what results they came to. The ipwd articles ignore all that… they presume all to be equal and then since PTAB seemingly invalidate more claims than DCs then that must mean the PTAB is faulty.

    That reasoning is faulty since it ignores the most likely explanation to the results seen. As ive asked several times, please point to the place in the articles where IPWD mentions ANY of these differences between the courts/ptab. The fact that these CLEAR differences havnt been mentioned kinda shows how over-simplistic the articles are. Just like an article about the differences between criminal and civil sexual assault rulings would be insufficient without at least a mention of their vastly different operations, the same is true of the conclusions made here.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 12, 2018 02:10 pm

    Damien @34-

    As anyone who can read will notice, it is you that are spewing the nonsense. Night Writer @23 had it right. You are wrong and refuse to admit it.

    As for you saying there are no statistics or facts presented in the articles on, that is false to the point of it being an outrageous and intentional lie. Obviously you have an agenda, and the agenda does not include factual reality.

  • [Avatar for Damien]
    January 12, 2018 10:12 am

    lol…. anymore unrelated nonsense youd like to spew?

  • [Avatar for Eric Berend]
    Eric Berend
    January 11, 2018 07:38 pm


    All of your ardent obfuscation does not nearly address the criminal (as it clearly is a conspiracy wherein obvious evidence of collusion at multiple levels and specific beneficiaries of the effects of said loss) wealth destruction practiced against inventors of late, in the United States of America.

    How dare you and your collectivist “all IP is created for the free taking”, presume to dictate down over the accumulated knowledge and experinces of learned and wise men and women, over the past 500 years? — ‘Quite Easily’…as it now is abundantly apparent, at this stage.

    English law and practice precedents upon which the legitimacy of the original and 200-plus-year-traditional U.S. patent law jurisprudence is based, were also informed by the sea power advantage that superior naval technologies had bestowed upon the Royal Navy during ‘Pax Britannica’.

    Your very living enjoyment of personally blessed economic position in the world today, is based in large part upon the position of the U.S. Dollar as the reserve currency of most of the world’s nations, which finds its direct precedent in that era. Yet, you would flaunt this advantage so as to promote the unjust enrichment of entities already absurdly wealthy and powerful and at the direct expense and harm to those who create new technological power, to everyone’s potential benefit: a very antithesis of collectivist ideals and stated goals.

    You, “sir”, are a mere ‘useful idiot’, to quote the ever-eloquent “Uncle Joe”. You ardently argue in sycophancy of those who turn technology into technocracy, while sneering down on your socialist high horse at those of us who toil in traditionally genius ways – you might as well be an advocate for the Duke of Google and the Marquis of Apple.

  • [Avatar for Night Writer]
    Night Writer
    January 9, 2018 07:54 am

    >Yoyre trying to say “assuming all else to be equal” when all else is not equal and those differences are closely tied to the result.

    Some fairness to that. I think the all else being equal is used because the PTAB is being used as a substitute for federal district courts. So, maybe the different standard more likely than not is just part of the weapons of the death squads.

  • [Avatar for Damien]
    January 8, 2018 07:09 pm

    If you did a comparison of criminal sexual assault cases withtheir civil sexual assault cases.. Yoi will notice a marked difference and a large number with “opposing” results.

    Is it that there is a conspiracy among civil courts to rule against innocent (ie not found guilty) or…. Is it vastly more likely the difference is due to the numerous differences in how those courts operate.

    Now imagine you are writing an article about crimibal vs civil sexual assault, and the differences in the reaults… Dont you think it would be misleading to not mention the numerous differences?

    Yoyre trying to say “assuming all else to be equal” when all else is not equal and those differences are closely tied to the result.

  • [Avatar for Damien]
    January 8, 2018 06:28 pm

    “That is exactly what our articles demonstrate. If the district court reaches 102 and 103 and confirms validity and the PTAB reaches 102 and 103 and finds the claims invalid that is a direct contradiction.”

    Unless of course the burden of proof for those findings are different…. or the evidence is different… or the court procedure is different…

    Please, point me to a place in your articles where you address these differences.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 8, 2018 06:26 pm


    You say: “What is not true is your assertion that these cases represent the DC and the PTAB being in direct contradiction to each other.”

    That is exactly what our articles demonstrate. If the district court reaches 102 and 103 and confirms validity and the PTAB reaches 102 and 103 and finds the claims invalid that is a direct contradiction.

    As for your statement that our articles mislead, only someone with an agenda could conclude that. We cite and explain everything, and have proven the critics are wrong and cherry-picked data. We’ve demonstrated that USPTO statistics are not to be believed, and we’ve shown that “evidence” claimed by critics simply doesn’t say what they say it means. You really should read our articles. They would cure you of your ignorance and bias.

  • [Avatar for Damien]
    January 8, 2018 06:26 pm

    Im not ignoring it, I dont deny that the data itself is wrong…. again, I am suggesting that you are incorrectly suggesting that two sets of data are directly comparable when they are not.

    But please… point me to a place in any of these articles on PTAB where you mention and explain tot he reader the many nuanced differences between the courts…

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 8, 2018 06:22 pm


    Obviously you are unable to comprehend what you read. The articles I cited explain themselves and are very clear (and correct). That you choose to ignore the facts and play games with fuzzy math speaks volumes about your intellectual honesty.

    Ignoring Lex Machina data and Docket Navigator data is stupid. Even one of the critics has appeared in comments here admitting that they should have looked at all the cases and not make ridiculously wild assumptions based on a few cherry picked cases.

  • [Avatar for Damien]
    January 8, 2018 06:18 pm

    Which article? This one doesnt mention any differences (

    ( This one doesnt mention any except a SINGLE mention that critics claimed that your comparison was not exactly apples to apples…. you then went on about how 58 cases were decided based on the same statute. This of course, as you know, DOES NOT MEAN THAT THE TWO CASES WERE COMPARABLE. Just becacuse its based on the same statute does not consider all the NUMEROUS differences between the two entities. Again… you are IGNORING those differences and pretending that all cases decided under the same statute must somehow mean that they were decided in the same way for the same reasons.

    ( This article does not mention a single difference either. It just does the same blaise reference to critics’ differences but continues to not mention ANY of these alleged differences. In fact you state…

    “Apparently the critics would have us believe that defendants thought they had winning arguments based on prior art but settled anyway in Federal District Court after receiving an adverse decision on § 101 or § 112?”

    No… they arent suggesting that. As has been repeated NUMEROUS TIMES (but found entirely lacking in ANY of your articles) is that the two courts operate in VERY DIFFERENT WAYS and the cases were not directly comparable. The burden of proof difference by itself is so incredibly important to this discussion if you are attempting to directly compare the conclusions from one court to another court.

    Yet… as usual…. not a single reference to ANY difference, let alone this incredibly large obvious one, in any of your articles. I think you should at least mention these numerous differences between the courts since these types of things are far more likely to be the cause of the differences you see, rather than the conspiracy that the PTAB is a government agency to kill patents ::eye roll::

    Perhaps you can point me to a place in those articles where you mentioned that the two have entirely different burdens of proof? Or point to ANY difference mentioned…

  • [Avatar for Anon]
    January 8, 2018 05:54 pm


    I directly mention the very type of “apples and oranges” things that you note – and use this to point out the GREATER legal flaw of the PTAB (instead of, as you appear to be doing, defending the indefensible).

  • [Avatar for Damien]
    January 8, 2018 05:48 pm

    @Night Writer lol what? All he did was point me to two articles that again are based on the same misleading reasoning. I didnt make up any statistics. You are attempting to compare two very different systems and suggest that they instead are so similar that any difference in result must be because of bias.

    But when you consider how very different the two are, it becomes very difficult to hold on to the idea that the only possible reason for the difference must be bias or because its broken. I guess thats why none of those differences is ever mentioned in your articles.

  • [Avatar for Night Writer]
    Night Writer
    January 8, 2018 05:44 pm


    So, in other words, you were wrong and won’t admit it. You made up statistics and now are talking past being caught making up things.

  • [Avatar for Damien]
    January 8, 2018 05:41 pm

    “The reality is that with respect to 168 patents out of 220 the district court found valid the PTAB found them invalid.” That is true. What is not true is your assertion that these cases represent the DC and the PTAB being in direct contradiction to each other. They arent…. as was clearly explained in the EFF article. Just because their findings are opposite, does not mean that they resulted in opposite conclusions based on the same merits (which is what you are implying in your article).

    As has been repeated by me and the EFF article…. the merits/evidence of many of the DC cases are not directly aligned with the merits/evidence at the PTAB. Maybe they should have their legal tests and such in alignment, I agree with you there. But until they are, you shouldnt be publishing articles asserting that they should be viewed as equivalent. The minimum one would do is at least address these issues in the article and make the reader aware of the numerous small and several large differences in the two systems. Your articles provide NONE of that. Instead they (mis)lead the reader into believing that these two things are nearly identical and that any difference in their results therefore MUST be related to bias and not just simply the result of the previously mentioned NUMEROUS differences.

  • [Avatar for Damien]
    January 8, 2018 05:32 pm

    About your second article… there are no statistics in it. You are just describing some particular cases where district court decisions appear to be the opposite of PTAB. Care to describe the other 160 odd cases that you are using to suggest the high error rate?

    I just researched the first case mentioned, but it kinda lays out one of the arguments made by the EFF article. The difference in PTAB and district court is the test. In the district court, one must prove by clear and convincing evidence. In PTAB, one need only prove by preponderance of evidence. its not surprising that an invalidity test with a higher burden of proof finds claims invalid less often than a much lower standard. Not to mention there were several evidentiary differences in the cases… there were deposition “admissions” that were considered in the DC case, but excluded in the PTAB case for hearsay. Different evidence, different test…. normally this leads one to the conclusion that the results may not be 100% comparable.

    DCs and PTAB use two VERY different tests… an issue addressed in the EFF article, but discussion of this difference is seemingly entirely absent from your articles.

    This one is great…. lets look at the jury verdict, luckily you have a pdf of it stored on your servers (

    Page 6…. The jury found infringement of claim 10 BUT ALSO BELOW… found that the claim was invalid for obviousness.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 8, 2018 04:53 pm


    You can choose to ignore what the articles say, but there is no “incorrect method.”

    I like your creative math. There is a universe of patents where both the PTAB and district court reach 102 and 103, and in that universe the PTAB disagrees with the district court 100% of the time, yet you want to try and peddle it off as 26% somehow. Funny.

    The reality is that with respect to 168 patents out of 220 the district court found valid the PTAB found them invalid. The criticism was that some of those 168 patents were only reviewed under 101 and 112. So we remove them from the list to compare the apples to apples that the critics wanted and we find 58 patents that fit the apples to apples comparison. Nice try, but you don’t then get to assume that the other cases are situations where the district court really agreed with the PTAB… the fact is the district court DID NOT agree with the PTAB.

    Like the other critics you don’t want to accept the truth, no doubt because it is a damning truth you don’t like.

    I invite you to actually read the articles. If you do then there is no way you can remain as in the dark as your commentary suggests you are.

  • [Avatar for Damien]
    January 8, 2018 04:34 pm

    Not sure what you mean… the first article just restates the incorrect method.

    As does the second…. Here is a quote from the second “There have been 220 patents that were found to be valid in various Federal District Courts that were also reviewed by the PTAB. Of those, 52 patents were determined to have valid claims by the PTAB whereas 168 patents had claims, which were determined invalid by the PTAB. This means that 76.4% of those 220 patents found valid in Federal District Court were found defective by the PTAB.”

    Once again…. you are clearly stating the problem. “There have been 220 patents that were found to be valid in various Federal District Courts” THIS IS NOT TRUE. YOU ARE PRESUMING THAT ALL 220 OF THOSE CASES WERE COMPARABLE WHEN THEY ARE NOT.

    You seemingly admit that only 58 of the patents addressed the same issues as PTAB (and thus the only ones that are truly comparable)… so why is the statistic not 58/220 = 26%? Perhaps its because you dont want it to be the opposite of what you are arguing… that the PTAB, when comparing like cases, is ALIGNED with the district court 74% of the time. The exact opposite statistic you are trying to promote.

  • [Avatar for Gene Quinn]
    Gene Quinn
    January 8, 2018 04:14 pm

    Damien @16 and @17

    Looking forward to how you try and misrepresent the facts presented in our last two articles.


    Clearly, the facts demonstrate the critics are wrong. Enjoy!

  • [Avatar for Damien]
    January 8, 2018 03:59 pm

    @Lost in Norway “Where is the outcry from the PTAB apologists to improve the examination system itself?” There of course is that outcry… that is the TRUE outcry. Patent trolls are a fiction… made up. The patent system was DESIGNED from the outset to be used by non-practicing entities.

    The problem is not with “patent trolls” the problem is bad patents… patents that were granted that SHOULD NOT HAVE BEEN for whatever reason. Much of this stems from the USPTO’s examining process and the push to vast reduction in filing fees. The lower the filing fees, the more people tend to innovate…. but the lower the filing fees, the shorter the amount of time any examiner will spend on an application. There are two extremes that are both equally wrong…. the USPTO is never right…. and the USPTO is always right.

    People who claim the patent is an absolute right and theres no possible chance that an examiner allowed a bad patent to be granted are…. well, stupid. They dont want to bring up the issue of examination as the cause of bad patents because if they do, then they have to admit that the system of granting patents is not 100% perfect… and if its not 100% perfect, then perhaps their right shouldnt be 100% either. And of course the USPTO doesnt want to admit culpability in the problem either. So they made up a culprit to place the blame on… “patent trolls”.

    The fact is…. prosecuting patents is not something that can be done with 100% correctness. Therefore, its quite reasonable that we have checks and balances in our patent system to minimize the impact of these bad patents. Some people dont like the idea that their 100% patent right is being dilluted into a 90% patent right with 10% risk of having nothing.

    But…. the law often entertains fiction. And to defend the 100% right standpoint, you simply have to disregard entirely that the process of granting patents is not perfect. Hence why no one is really discussing improving examiners/examination process.

  • [Avatar for Damien]
    January 8, 2018 03:42 pm

    “Some critics have taken issue with a minor error in our previous article on the impact of PTAB proceedings to patents which have been deemed valid in district courts” LOL what a grand simplification of an article that poked HUGE holes in the reasoning. Funny you didnt provide a link… here it is for anyone who wants to read “”

    The error, which is clear to anyone who works in law, is that you are EQUATING ANY win in a district court as an assertion that the patent not only is valid, but has been found valid on the merits. The critic took the time to do much of research and to explain in rather clear terms the source of the error.

    It was not a math error… It was an error in grouping. In other words, you either mistakenly (or vastly more likely purposefully obfuscated) the data to support the absolutely RIDICULOUS claim that the PTAB has a 70%+ error rate. You quite plainly took those 220 district court cases and ANY court case that didnt invalidate the patent, you presumed that meant the district court validated it on the merits. Then later when the PTAB vacated those claims, you try to claim this was an “error’ since it was directly opposed to what the court did…

    …except its not. As was explained in the article, just because a patent survives a district court case (or even just a small set of the claims) IS NOT the same as saying that the district court has found the patent valid on the merits. Comparing only district court cases where there was a finding of validity ON THE MERITS, the “error” rate is only 7%.

  • [Avatar for EG]
    January 8, 2018 11:40 am


    I’ve followed you and the EFF’s propaganda for many years on IP rights. You and the EFF continually posit the astounding and shameful proposition that IP rights (i.e., private personal property) are entitled to no respect and can be infringed and stolen at will. Accordingly, whatever statistical data you provide to the contrary on court verdicts vs. PTAB is therefore suspect to me and others on its face.

  • [Avatar for Night Writer]
    Night Writer
    January 8, 2018 10:07 am

    @6 Vera Ranieri

    Your point is that the district count never reached a verdict on 102/103 for some of the patents in this article. OK. What was the percentage for when the district court did reach a 102/103 opinion? I’d bet about the same invalidation percentage by the PTAB.

  • [Avatar for angry dude]
    angry dude
    January 8, 2018 09:50 am


    Dude, everybody and his brother knows that EPO search and examination are much better compared to USPTO
    They are also more expensive
    I say make USPTO examination and issue fees 3 times higher BUT cancel post-grant opposition procedures like IPRs and PTAB (unless completely new prior art is discovered)
    Then they can only argue novelty and enablement, but not patent eligibility or obviousness
    Patent eligibility and obviousness have to be decided from the get-go – not years later – and especially not retroactively like after Alice

  • [Avatar for PYT]
    January 8, 2018 08:52 am

    @11 & @ 10. Indeed, the minimum qualifications for EPO examiners (and EPO practitioners for that matter) compared to USPTO examiners (and US reg number holders) are substantially more rigorous. Anecdotally, I hear training is better on the Continent too.

  • [Avatar for Benny]
    January 8, 2018 06:01 am

    “Congress chose fast and cheap in creating the PTAB”.
    Well, they didn’t get it, unless they have unrealistic definitions for those terms. It is still a long way from not so “fast and cheap” PGR in other countries.

    Lost at 10, in answer to your question as to whether USPTO examiners are worse than EPO examiners, having filed applications in both jurisdictions my opinion is that the answer is yes in capital letters.

  • [Avatar for Lost In Norway]
    Lost In Norway
    January 8, 2018 03:50 am

    Let’s assume for a second that the PTAB is correcting errors and that patents are being issued that shouldn’t have been. Where is the outcry from the PTAB apologists to improve the examination system itself? By that logic reduce the “bad patents” to a point where PTAB is unneeded.

    Are the USPTO examiners so much worse than the EPO examiners that the invalidation rate is so much higher? If so, fix get those people trained better. But the brain drain at the USPTO is a different issue.

  • [Avatar for Josh Malone]
    Josh Malone
    January 7, 2018 11:27 pm

    They are not considering different things. They are considering whether the patent is invalid.

    The only reason the PTAB is not applying 101 and 112 is because most patents are not eligible for those grounds. If they were eligible, the PTAB error rate would necessarily be even worse.

    Many of the 52 patents that the PTAB decided correctly under 102/103 would fall under a 101/112 challenge. Like my own.

  • [Avatar for Paul Morinville]
    Paul Morinville
    January 7, 2018 11:23 pm

    Vera Ranieri, How do you explain the PTAB’s rate of over 90% of patents that it reviews are either fully invalidated, partially invalidated (and thus neutered), or forced into a zero or near zero value settlement? Do you think that this is an example of a fair administrative tribunal at work?

    Do you think this astronomical invalidation rate contributes to the fact that early stage funding has fallen 62%? Or that we are at an 40 year low in startups? Does this contribute to the patent system now being ranked in 10th place tied with former Soviet Bloc nation Hungary?

    How does this validation rate interoperate with China’s newly strengthened patent system? Does it contribute to venture capital fleeing the US and going to China? Does China’s stronger system play into their record breaking numbers of new startups? Does that contribute to their leading position in Artificial Intelligence? Does China’s capture of this and other entire swaths of technology have a damaging effect on our national security?

  • [Avatar for angry dude]
    angry dude
    January 7, 2018 11:08 pm

    There should be no post-grant reviews for *duly* issued patents absent newly discovered “prior art” directly reading on patent specification and/or claims – not a combination of many references to argue obviousness.
    Obviousness MUST be determined by the PTO from the get-go.
    Discussing obviousness years after patent is granted is a dishonest trick.
    Only novelty can be reconsidered if new prior art is discovered.
    End of discussion.

  • [Avatar for Vera Ranieri]
    Vera Ranieri
    January 7, 2018 10:48 pm


    Your patent, if I recall correctly, is actually one that we considered to have “inconsistent” findings with the PTAB decision. I apologize if the use of the term “preliminary” was confusing. I did not mean to refer to a preliminary injunction, but rather, issues that are often determined earlier in a case (e.g., 112/101 issues) rather than later (102/103). I do not think you are stupid (I actually think your bunch of balloons is pretty neat!), and I regret it if that is the impression you took. My argument, rather, is that the data is “stupid,” in that it provides a simple description when reality is much more complex.

    My article does not suggest, for the vast majority of the patents, that the patents would actually be ruled invalid by a district court. Instead, the point is that the district court had made no finding as to issues related to 102/103 (the issues in an IPR). Thus a comparison arguing that the PTAB got it wrong and the district court got it right is like comparing apples to the number of craters on the moon. It just doesn’t give much information. For example, if you heard your child didn’t go to school one day, and you asked them where they were, they may say they weren’t at the mall. But that doesn’t inform whether they were actually at school – sure, it gets you some information. You know they weren’t at the mall. But that doesn’t mean they weren’t at the park, or more importantly, that they were in school.

    To put it in an example from patent law, a finding that a claim is not indefinite, for example, does not generally inform the outcome of whether a claim is anticipated or obvious. The data shows that the vast majority of cases you reference are actually in this category: the PTAB and the court were considering different things, thus comparing them doesn’t tell us that much.

    I’m happy to share our data with you, exactly how we coded everything, and explain the rationale to the extent my article doesn’t already do so. Feel free to email me if you would like to see it.

  • [Avatar for angry dude]
    angry dude
    January 7, 2018 07:52 pm

    Vera Ranieri@1

    Electronic Frontier Foundation is a very well known shill for SV patent infringer cartel

    “The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world”

    Civil liberties my ars3
    ideas must be free, software is written like poetry, blah blah blah
    Those dudes have no shame at all

  • [Avatar for Josh Malone]
    Josh Malone
    January 7, 2018 07:19 pm

    Vera, notwithstanding the implication of the title of your article, I am not stupid and I don’t misunderstand patent law. I paid my fees, I disclosed my invention, the examiner approved the claims, and the infringer lost his validity defense in District Court. But the PTAB overruled them all.

    You say I didn’t win because a preliminary injunction ruling (that the infringer had not raised a substantial question of validity) is only preliminary. You suggest that the patent would eventually but “hadn’t yet” been invalidated by the District Court. You say the PTAB is correct because they entered a final decision first and thereby derailed my trial in District Court.

    At bottom you believe the PTAB is correct whenever they issue an opinion, regardless of the data demonstrating otherwise.

    These 220 patents are the tip of the iceberg. Thousands more have been precluded from a full and fair adjudication because the PTAB killed them before they were tried in a real court.

    Your rationalization works well in third world legal system, which is what the American patent system has become.

  • [Avatar for Anon]
    January 7, 2018 07:09 pm

    Consider the source, Vera.

    Anything out of the “eff” is itself suspect.

  • [Avatar for Vera Ranieri]
    Vera Ranieri
    January 7, 2018 06:08 pm

    I reviewed the data generating the statistics relied on in this post, and it is not what it would facially appear to be. The vast majority of patents were never found “valid” by any district court, but rather were subject to preliminary rulings where the court found the argument presented hadn’t yet shown invalidity, based on limited issues before the Court.

    See here:

  • [Avatar for Bemused]
    January 7, 2018 04:54 pm

    The PTO examiner (during initial prosecution), the Central Reexamination Unit (where one front-line examiner and two supervisory patent examiners participate in the reexamination), the District Court and the CAFC can all agree that a patent is valid. But if the PTAB subsequently holds differently, it simply doesn’t matter. The PTAB’s opinion trumps all.

    What a horrible and terribly unfair system that our elected representatives have foisted on us.