Posts Tagged: "gang tackling"

87.2% of patents in the study, per the table, were subjected to just 1 or 2 IPR petitions – so gang tackling is no big deal. But make this simple observation: If a patent is killed in its first IPR, it can’t possibly be considered for a second one. The USPTO keeps their denominator fixed (and too large), which artificially lessens the reported percentage of patents which have large numbers of petitions filed against them. The calculation shouldn’t be 55/4,376 = 1.3% because by the time a patent faces its 7th(!) IPR petition, the universe of eligible-for-challenge patents is much smaller than during the first petition.

If you are having trouble figuring out how Zond could have had 371 claims, lost all of them, but only 1,220 claims were instituted out of 1,377 claims challenged, you understand the problem. These are not misprints or mistakes. Zond had 371 unique patent claims, but because of the IPR gang tackling phenomena those 371 claims were challenged a total of 1,377 times, but instituted only 1,220 times. Thus, the number of institutions is more than three times the number of unique claims Zond owned. In other words, the institution rate shouldn’t have been 88.6%, it should have been closer to 329%!