Richard Lloyd

Five years since the Patent Trial and Appeal Board (PTAB) came into force one of the defining elements of the US patent market has been the degree to which major operating companies have used inter partes reviews (IPRs) to challenge patents that are being asserted against them. The zeal with which the likes of Apple, Samsung and Google have turned to the PTAB has meant that IPR proceedings have been far more popular than anyone predicted.

But how do the leading filers compare in terms of their success at the PTAB? To dig a bit deeper I took the IPR stats for five of the leading filers (Apple, Samsung, Google, Microsoft and LG) and then included another four who I thought were notable. One (Mylan) is drawn from the pharma sector, another (Facebook) has been a particularly active filer of late, a third (Toyota) is one of the leading filers in the auto sector and the final one (Unified Patents) is the most active third-party filer. I also included the numbers for the market overall to see how each company compares with the totals (all of the data is sourced from Lex Machina). I did not include data for every outcome — for instance I didn’t include the numbers on how many IPRs were open pre-institution or had been procedurally dismissed — just a selection which I thought would best capture each company’s performance.

As you can see from the table below there are some interesting and significant differences in performance at the PTAB. LG and Samsung lead the way on institution rates (64% and 57% of their filings have been instituted) while Toyota and Unified Patents badly underperform (38% and 27%). Apple suffers in comparison with many of its closest rivals when it comes to denial of institution with 22% of its IPR filings being waved away by the PTAB in comparison to just 9% of Google’s. The search giant is also far more likely to settle pre-institution than the iPhone maker. But both far outperform the market when it comes to finding all claims unpatentable (Apple is at 21% while Google notches an impressive 24%).

With almost 100 more reviews filed than its closest rivals, Apple clearly seems to be playing a numbers game – looking to see what it can make stick at the PTAB. It is possible to look at this data and wonder why some of these players, which have the deepest pockets and some of the largest legal teams in corporate America, aren’t performing even better. If the PTAB was simply about eradicating bad patents then perhaps they would as they might more carefully pick the patents they challenged. But as the IPR process has become ever more popular it has become a part of the market maxim that a bad patent is simply one being asserted against you. 

  IPRs filed (as petitioner) Instituted Denied institution All claims unpatentable All claims upheld Settled pre-institution Settled post-institution
Apple 374 188 (50%) 81 (22%) 77 (21%) 3 (1%) 39 (10%) 20 (5%)
Samsung Electronics  275 158 (57%) 36 (13%) 50 (18%) 9 (3%) 25 (9%) 16 (6%)
Google 189 93 (49%) 17 (9%) 46 (24%) 9 (5%) 39 (21%) 10 (5%)
Microsoft 134 66 (49%) 17 (13%) 15 (11%) 6 (4%) 22 (16%) 9 (7%)
LG Electronics 132 85 (64%) 13 (10%) 21 (16%) 7 (5%) 7 (5%) 12 (9%)
Mylan Pharmaceuticals 81 44 (54%) 10 (12%) 7 (9%) 10 (12%) 20 (25%) 2 (2%)
Facebook 76 35 (46%) 10 (13%) 5 (7%) 1 (1%) 0 3 (3%)
Unified Patents 74 20 (27%) 22 (30%) 5 (7%) 0 14 (19%) 5 (7%)
Toyota 52 20 (38%) 7 (13%) 5 (10%) 2 (4%) 12 (23%) 8 (15%)
Overall market 7,242 3,628 (50%) 1,194 (16%) 1,115 (15%) 270 (4%) 921 (13%) 693 (10%) 

Source: Lex Machina

NB: the table above does not include every possible outcome for an IPR just those deemed the most significant.