By Denis Sullivan, Barclay Damon LLP (January 25, 2017, 4:52 PM EST) -- As the five-year anniversary approaches for American Invents Act inter partes reviews at the Patent Trial and Appeal Board, the available statistics confirm that a patent owner's best chance at avoiding cancellation of its claims is to avoid institution of the proceeding in the first place. Once an IPR has been instituted, the chances for survival of instituted claims drops dramatically. Accordingly, arguments and evidence presented in a patent owner's preliminary response to the petition[1] should be carefully crafted to convince the PTAB that there is not a reasonable likelihood that at least one of the claims challenged in the petition is unpatentable. Fortunately, for patent owners, there have been a number of developments in the past few years that have improved their chances at avoiding institution....
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