This figure shows PGR FWD outcomes by invalidity challenge type under §§ 101, 102, 103, and 112 (indefiniteness, written description, and enablement).  Where there were multiple challenge types in a petition each was reviewed separately.  Infrequently raised challenges such as improper narrowing of dependent claims, ornamentality and double-patenting were not included in this analysis due to the limited data available for those challenges.  Because claims are often challenged under multiple grounds, they are sometimes found not unpatentable under one ground but are invalidated under another ground.

There is considerable variability in PGR FWD outcomes when analyzed by invalidity challenge type.  Invalidity challenges based on §§ 101 (N=15), 102 (N=25) and 112 written description (N=33) and enablement (N=20) were the most successful with 50-73% success in invalidating all challenged claims.  Patent challengers were least successful at invalidating all claims under §§ 112 indefiniteness (22%) and 103 (45%).

This figure also shows data for outcomes on some and no unpatentable claims for each of the invalidity challenge types.  While the data sets for many of the challenge types are still very small and it is difficult to determine if trends exist in those categories, it appears that split decisions of some claims being unpatentable and some not unpatentable are rare for challenge types other than under § 103.  Where FWDs finding some claims unpatentable for § 103 are similar in frequency to PGR outcomes as a whole (16%, n=9 of 55 and 15%, n=12 of 80, respectively), other challenge types have findings of some claims patentable 10% or less of the time.  Because the data sets are small, we continue to monitor them for trends.

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