Harness IP Principal and St. Louis Patent Litigator Matt Cutler was quoted in Law360’s new article, “Things We’ve Learned As The PTAB Turns 5,” in which he discusses various insights he has made since the review system at the Patent Trial and Appeal Board was created five years ago.
Regarding the “doom and gloom” mood surrounding the PTAB — a result of the high percentage rate of final decisions in Inter Partes Reviews that found all challenged claims invalid — Cutler notes that it is indeed a favorable venue for petitioners but patent owners also have good chances of successfully defending their claims “if you do it the right way.” Recent evidence would seem to support this assertion, with percentages of cases in which claims were found invalid declining from 86% in late 2015 to only 56% in late 2016.
Cutler goes on to comment on the Federal Circuit’s newfound involvement in shaping the PTAB, saying that their initial broad deference appears to be swinging the opposite way. A decision from the CAFC in late August, in fact, signaled to many an outright criticism of the PTAB.
Cutler closes the article with an air of skepticism by observing that, for him, “[Nidec v. Broad Ocean] signaled more of a hostile future for the PTAB in the near term.”