Inter Partes Reexam Kill Rate Slowly Climbs to 88%

Thanks to The Patent Prospector for pointing out that the recent patent "kill rate" in inter partes patent reexamination is up to 88%.

The PTO recently released reexamination stats through 3Q of the fiscal year
(ending June 2007). . . . Year to date inter partes reexam requests have more than doubled : 90 this year versus 40 last year. Currently, half of the pending inter partes reexams are co-pending with litigation, up from a comparable 26% last year. 96% of requests are granted. Only eight inter partes reexaminations have been completed, but all the claims have been axed in seven of eight.

Under 35 U.S.C. 315(c), a third-party requester is estopped from asserting at a later time, in any civil action, the invalidity of any claim finally determined to be valid and patentable on any ground which the third-party requester raised or could have raised during the inter partes reexamination proceedings. However, this subsection does not prevent the assertion of invalidity based on newly discovered prior art unavailable to the third-party requester and the Patent and Trademark Office at the time of the inter partes reexamination proceedings.

Under 35 U.S.C. 318, once an order for inter partes reexamination of a patent has been issued, the patent owner may obtain a stay of any pending litigation which involves an issue of patentability of any claims of the patent which are the subject of the inter partes reexamination order, unless the court before which such litigation is pending determines that a stay would not serve the interests of justice.