This figure shows PGR institution rates 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 invalidity challenges such as improper narrowing of dependent claims, ornamentality and double-patenting were not included in our analysis due to the limited data available for those challenges.
Invalidity challenges under § 103 were the most frequent PGR challenge (challenged in about 85% of all PGR petitions), with challenges based on § 102, § 112 indefiniteness, and § 112 written description being challenged about half as often as § 103.
PGR institution rates ranged from 42-46% for invalidity challenges based on §§ 102 (n=54 of 119), 103 (n=106 of 231), 112 indefiniteness (n=56 of 121), written description (n=59 of 130), and enablement (n=39 of 92). Institution rates for § 101 challenges were slightly lower at 37% (n=22 of 59).
It appears that patent challengers are using PGRs to take advantage of invalidity challenges that are not available in IPRs since only 25% of PGR petitions contained challenges based solely on §§ 102 and/or 103, which are challenges that are also available in IPRs (data not shown).
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