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Bio/pharma IPRs by the numbers

Michael Loney

Figures discussed at the BIO International Convention reveal that bio/pharma IPRs at the Patent Trial and Appeal Board have a lower institution rate and lower claim-cancellation rate than for all IPRs

According to the USPTO’s latest statistics, there have been 108 PTAB petitions filed in the TC 1600 class covering bio/pharma patents. This is 8.1% of all petitions filed.

At the BIO International Convention, the USPTO’s Jackie Wright Bonilla provided further detail on how the TC 1600 class stacks up to others.

She revealed the TC 1600 class has a 64% institution rate for inter partes review (IPR) petitions. This is lower than the 76% institution rate for all IPRs.

The rate of claims being cancelled by the Board in pharma IPRs is also below the average. The TC 1600 class has had 28 final written decisions. In these, 75.5% of instituted claims were cancelled (309 claims cancelled and 100 claims found patentable) and 71.7% of challenged claims were cancelled.

In comparison, in the 323 final written decisions in all IPRs 82.5% of instituted claims have been cancelled and 75.3% of challenged claims have been cancelled.

In the same session, Sterne Kessler’s Eric Steffe gave an overview of PTAB cases that have been appealed to the Federal Circuit. He said 141 appeals from final IPR/CBM decisions were docketed at the Federal Circuit. Of these, 104 (75%) are by patent owners, 18 (13%) are by petitioners and 19 (12%) are cross appeals by both parties,

Nine percent of the appeals are from the biotech/chemistry area, with 13 appeals. Nine of these are by patent owners and four are by petitioners, which Steffe said is “roughly mirroring other technologies in terms of who is making those appeals”.


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