The Other Thirty Percent: An Economic Assessment of Duplication in PTAB Proceedings and Patent Infringement Litigation

Abstract

Congress “repeatedly stated [that] its paramount goal” in having inter partes review (IPR) before the Patent Trial and Appeal Board (PTAB or the Board) was to “serve as a cheaper, faster alternative to be used instead of – rather than in addition to – litigation in district court.” More than five years after IPR trials were established, however, it is unclear whether Congress will achieve its goal. Some argue that “rather than an absolute alternative to civil litigation, the AIA’s new proceedings increase the likelihood of duplicative concurrent inter partes administrative and judicial adjudication of a patent’s validity.” Duplicative patent challenges within and across IPRs and district court litigation is the focus of this article.