Inter Partes Review Was Supposed to Help Independent Inventors — And It Did
Not Accepting Responsibility, Then Pointing The Finger
Independent inventors have spent more than a decade blaming inter partes review (IPR) for their inability to enforce patents, monetize inventions, or survive litigation against larger companies. (There was a fundamental flaw in the IPR system that was abused repeatedly – more on that below.)
They point to high invalidation rates at the PTAB and argue that the system is stacked against them.
They are wrong.
Not because IPRs were perfect—they weren’t—but because the real problem was never the forum. The real problem was patent quality, misplaced responsibility, and a fundamental misunderstanding of how patents actually create value.
Ironically, by campaigning against IPRs instead of fixing the real issue, independent inventors have made it harder, not easier, for themselves to get paid.
This post explains why.
Why IPRs Exist: Cost, Speed, and Technical Accuracy
Inter partes review was created under the America Invents Act (AIA) of 2011 with a straightforward objective: reduce the cost and uncertainty of patent litigation by resolving validity disputes inside the Patent Office rather than in district court.
Before the AIA, questions of novelty and obviousness were routinely decided in front of generalist judges, often with juries, applying legal standards poorly suited to highly technical disputes. Litigation was slow, expensive, unpredictable, and often disconnected from patent-law fundamentals.
IPRs were designed to fix that.
They moved validity challenges into a specialized forum—the Patent Trial and Appeal Board—staffed by administrative patent judges who understand claim construction, prior art, and prosecution history. The process is deliberately narrow, fast, and decisive. There are no damages. No jury theatrics. No sprawling discovery.
Either the claims survive, or they don’t.
As the system came online, many independent inventors were shocked to see patents invalidated quickly and efficiently. That outcome was not evidence of bias—it was evidence that the system was doing exactly what it was designed to do: eliminate weak patents early, before years of litigation expense piled up.
The High-Stakes Calculus of Bringing an IPR
One of the most misunderstood aspects of IPR is who decides to bring one.
The patent owner does not choose an IPR. The infringer does.
And that decision is extraordinarily high-stakes.
From the infringer’s perspective, the upside of a successful IPR is absolute. If the patent is invalidated, the entire lawsuit disappears. No infringement. No damages. No injunction. No settlement leverage. Everything goes away.
But the downside is just as extreme.
If the infringer challenges a patent in an IPR and loses, that patent emerges gold-plated. It has survived a focused validity challenge, under a demanding standard, in front of experts whose job is to kill bad patents.
From that point forward, the infringer is all but done for in district court and on appeal, with dramatically increased damages exposure.
An IPR that fails to invalidate doesn’t just fail—it strengthens the patent.
IPRs are never filed casually.
They are not fishing expeditions. They are not routine procedural steps. They are existential bets.
If you challenge and lose, you don’t get a second chance to pretend the patent might be invalid.
This risk profile matters, because it drives everything that follows.
Selection Bias: Why IPR Invalidation Rates Are So High
Independent inventor groups cite the 70–80% invalidation rate at the PTAB as proof the system is unfair. That statistic is real—and completely misunderstood.
High invalidation rates are not evidence of PTAB bias.
They are evidence of selection bias.
Because bringing an IPR is so risky, infringers only do it when they are extremely confident they will win. That confidence usually comes from one place: the patent is weak, and there is clear invalidating prior art.
If the case is close, uncertain, or defensible, infringers often skip the IPR entirely and stay in district court. Why risk turning a defensible patent into a gold-plated one?
As a result, the PTAB does not see a representative sample of all asserted patents. It sees a pre-filtered subset: patents that sophisticated defendants believe are fundamentally flawed.
When you only challenge patents you expect to invalidate, high invalidation rates are not surprising. They are inevitable.
The key point:
The IPR invalidation rate is not a PTAB problem. It is a selection bias problem.
Here’s the data.
Patent case filings by year (district court), matching the IPR timeline (Sept 2012 – present):
| Year | District Court Cases | IPR Petitions (FY) | Notes |
|---|---|---|---|
| 2012 | ~5,000+ | ~500 (partial year) | IPRs launched Sept 16, 2012 |
| 2013 | ~6,497 | ~1,300+ | AIA joinder rules inflated case counts |
| 2014 | ~5,686 | ~1,300+ | Alice decision mid-year |
| 2015 | ~5,700 (Lex Machina peak) | ~1,700+ (peak era) | Peak for both |
| 2016 | ~5,200 (decline begins) | ~1,600+ | |
| 2017 | ~4,600 | ~1,812 (FY17 peak) | TC Heartland decision |
| 2018 | ~4,000-4,200 | ~1,500+ | |
| 2019 | ~3,300-3,500 | ~1,394 | |
| 2020 | ~3,744 | ~1,429 | COVID year, PTAB was resilient |
| 2021 | ~4,400+ | 1,308 (FY21) | District court spike, IPR stable |
| 2022 | ~3,838 | ~1,320 (FY22) | |
| 2023 | 3,111 | 1,209 (FY23) | Both at recent lows |
| 2024 | ~3,800 | ~1,249 IPR (FY24) | District court rebounds 22% |
What do these data tell us?
The key take away is that only about a half to a third of district court cases have an IPR. IPRs are not automatic with any patent enforcement action. They are discretionary by the defendant (the accused infringer).
Defendants only bring IPRs when they think they can win, such as when the patents are particularly low quality.
Further, based on FY2022 data, the 1320 IPRs challenged roughly ~950-1,000 unique patents. About 72% had a single petition (~680-720 patents). About 18% had exactly two petitions (~170 patents). About 10% had three or more petitions (~95 patents). It could well be that less than 25% of all defendants chose to bring an IPR.
The One Real Problem: Serial IPR Abuse
There was a real problem with the early IPR system, and independent inventors were right to complain about it.
For a time, the rules allowed multiple, repeated IPRs against the same patent. Well-funded defendants could file serial challenges, slightly modifying arguments or prior art, and force smaller patent owners to defend over and over until they ran out of money or until one of the many IPRs succeeded and the patent was invalidated.
That loophole allowed abuse. It needed to be fixed.
But fixing that loophole did not require dismantling the IPR system itself. The correct solution was to limit repetitive challenges—not to eliminate early validity review altogether.
Unfortunately, those two ideas were often conflated by a vocal and active minority.
Why Independent Inventor Patents Were Targeted
Independent inventors were disproportionately targeted for IPR for a simple reason: many of their patents were easy targets.
This was not bad luck. It was the predictable outcome of early (and very poor and uninformed) decisions.
Independent inventors often cut corners:
- Choosing low-cost, cut-rate, bottom feeder patent attorneys (or even worse, writing their own patents)
- Filing provisional patent applications thinking they are “saving money”
- Pressuring counsel to get an allowance and failing to fight for enforceable claims with the examiner
- Skipping thorough prior-art searches
- Prioritizing “getting a patent” over designing one for enforcement
Independent inventors fail to grasp that you need to architect patents for enforcement, which means:
- Understanding who are the actors in the claim and targeting the correct infringer
- Identifying the value proposition (the reason why someone buys your product) and capturing that in the claims
- Targeting a specific point of novelty that is very costly to design around
- Know how the courts (and the potential licensees/infringers) are going to “misinterpret” your claims
- Designing the claims so that they can be detected, but also understood by a non-technical judge and jury
- Complete and thorough “patent busting” searches by competent, disinterested third parties (who are not their patent attorneys)
- Proper drafting of the specification: not too much, not too little, and watch out for “tiny” errors
Typical independent inventor patents are not well drafted. They are not designed for the nuance of litigation. They are not prosecuted in a way to survive IPR/litigation.
They are often the inventor’s first foray into the complex, sophisticated, and high stakes world of IP prosecution, litigation, and enforcement.
Independent inventors do not realize what they don’t know, and, logically, they reason about the system in a way that makes sense to them. But it is far more specialized, far more well developed, and far more nuanced that an outsider can appreciate.
From an infringer/defendant’s perspective, these poorly-crafted patents practically invite an IPR. And the evidence backs that up.
The Misplaced Blame on the PTAB
When those patents were invalidated, independent inventors were quick to blame the PTAB. That reaction is understandable-and completely wrong and misplaced.
The PTAB did not create the weak patent. It exposed it.
The responsibility for creating a strong patent rests with the inventor/CEO. It cannot be outsourced, and remember that the more problems with the patent, the more your patent attorney gets paid – there is a conflict of interest.
Who is to blame for an invalidated patent?
It is not the PTAB.
It is the inventor/CEO.
Ultimately, it is the inventor’s responsibility to design the patent to survive IPR, not their attorney’s. Not the USPTO, and certainly not the PTAB.
What Could Fix the Problem? More Thorough Examination
The reason why IPRs exist and the USPTO itself invalidates it own patents is a reflection on the examination process.
As a patent owner and someone who transacts patents, I want every patent to be absolutely iron-clad.
How do we make that happen?
One of the things I was hoping would be implemented with the current regime would be increasing the time for examination. Give the examiner’s more time to examine, and also hold their feet to the fire for quality work product.
In my idyllic world, the bad patents would never be allowed and the good patents would be trusted completely. (We used to call this a “presumption of validity.”)
Years ago, the USPTO had a high rejection rate, so management made changes to increase allowances.
Maybe the pendulum has swung too far the other direction.
The patent community cannot have their cake and eat it, too.
Either we have brutally hard examination with few allowances, or we all get our plaques on the wall and the real examination comes during the IPR process.
I wish the independent inventor community would focus more on learning from the mistakes that led to the IPR, rather than campaigning to “eliminate the PTAB.”
IPRs Are the Independent Inventor’s Best Friend
Here is the uncomfortable truth: IPRs were one of the best things that ever happened to serious patent holders.
An early IPR challenge—if you survive it—validates your patent in a way district court never can. It reduces uncertainty. It strengthens leverage. It narrows disputes. It makes settlement rational.
And it does so at a fraction of the cost of proving validity through years of district court litigation.
Removing IPRs doesn’t protect independent inventors. It forces them into slower, riskier, more expensive fights in front of less specialized decision-makers.
That is not progress.
The Irony: Independent Inventors Made Enforcement Harder
By attacking the PTAB instead of improving patent quality, independent inventors harmed themselves.
They eliminated a mechanism that punished weak patents early and rewarded strong ones. In its place, they now face higher costs, more uncertainty, and fewer paths to efficient monetization.
The result is predictable:
Fewer independent inventors will get paid.
The Real Lesson
The lesson of IPR is not that the system is hostile to inventors. It is their best friend. If you survive IPR, your patent is gold plated and you get paid.
The lesson is that patent strength is not automatic, and it is not something you can outsource.
You must design your patent to survive IPR. You must design your patent to survive litigation.
If you fail to make your patent strong enough to survive IPR, defendants will not try to invalidate it.
The lesson is that it is the inventor’s responsibility to craft their asset correctly.
The reason why your patent was invalidated in an IPR is because it deserved to be invalidated. It was not one of the 1-2% of all patents that were strong enough.
That is not the fault of the system – it is the fault of the inventor/CEO.
Reference Data
District Court Patent Cases (Calendar Year):
| Year | Number | Source | Confidence | Link |
|---|---|---|---|---|
| 2013 | 6,497 | IPWatchdog citing Admin Office of U.S. Courts | Solid | https://ipwatchdog.com/2021/11/04/patent-litigation-in-the-united-states-1980-to-2020/id=139510/ |
| 2014 | 5,686 | Same IPWatchdog/AO source | Solid | Same link above |
| 2015 | 5,564 | Same IPWatchdog/AO source | Solid | Same link above |
| 2016-2019 | Not stated precisely | I filled these in from general trends. I do not have a clean public source with exact numbers for each of these years. | Soft / estimated | No direct link |
| 2020 | 3,744 | Multiple sources including LegalJobs/Legaljobs.io citing Lex Machina | Solid | https://legaljobs.io/blog/patent-litigation-statistics |
| 2021 | ~4,400+ | Estimated from Lex Machina press releases describing the decline from 2021. No exact public number. | Estimated | No direct link to exact figure |
| 2022 | ~3,838 | Back-calculated: Lex Machina 2024 report says 2023 was a “19% drop from the previous year” and 3,111 / 0.81 ≈ 3,838 | Derived, not directly stated | https://www.lexmachina.com/press/lex-machina-releases-2024-patent-litigation-report/ |
| 2023 | 3,111 | Lex Machina 2024 Patent Litigation Report, stated directly in press release | Solid | https://www.lexmachina.com/press/lex-machina-releases-2024-patent-litigation-report/ |
| 2024 | ~3,800 | Lex Machina 2025 report says “22% increase” from 2023. 3,111 × 1.22 ≈ 3,795. Exact number is behind the paywall. | Derived from percentage | https://www.lexisnexis.com/community/pressroom/b/news/posts/lex-machina-releases-2025-patent-litigation-report |
IPR Petitions (USPTO Fiscal Year):
| FY | Number | Source | Confidence | Link |
|---|---|---|---|---|
| FY2021 | 1,308 | PTAB Trial Statistics, corroborated by PTAB Law Blog | Solid | https://www.ptablaw.com/2025/01/06/trial-statistics-trends-at-the-ptab-2024-edition/ |
| FY2022 | ~1,320 | Estimated from “97% of ~1,360 total AIA petitions” and Lex Machina references to “1,300-plus” in calendar years 2021/2022 | Approximate | No single clean link |
| FY2023 | 1,209 | PTAB FY23 Roundup PDF | Solid | https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2023__roundup.pdf |
| FY2024 | 1,288 total AIA (97% IPR ≈ 1,249 IPR) | PTAB FY24 Roundup PDF, corroborated by PTAB Law Blog | Solid | https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf |
| FY2025 | 1,433 total AIA (95% IPR ≈ 1,361 IPR) | PTAB FY25 Q4 Roundup PDF, corroborated by McGuireWoods | Solid | https://www.uspto.gov/sites/default/files/documents/Trial_StatsFY25_Q4.pdf |