About half of patents adjudicated in district courts and at the PTAB are found invalid. Patent invalidity rates observed in adjudication will necessarily cluster around the 50% point regardless of the true validity of the overall stock of issued patents. Some observers wrongly infer from adjudication statistics that about half of all issued patents are invalid. The GAO adopted the PTAB invalidation rate as a quality measure in two reports, which risks misleading Congress and undermining GAO credibility. Two GAO reports cited are dated December 5, 2024 and May 7, 2025.
Any suggestion that USPTO patent examination quality is a controlling factor in the high rate of patent invalidation in the district courts and at the PTAB is a fallacy that should be rejected and excised with prejudice from all discourse on USPTO examination quality. About half of the patents adjudicated in district courts and at the Patent Trial and Appeal Board (PTAB) are found invalid.
Alarms should be raised when the U.S. Government Accountability Office (GAO) buys into this fallacy and adopts the rate at which the PTAB finds adjudicated patents invalid as a quality measure of all patents issued by the U.S. Patent and Trademark Office (USPTO). This is alarming particularly because some members of Congress have been misled by the GAO on this issue in recent hearings on the USPTO.
Congress and the public have long relied on the GAO as an unimpeachable source of valid, unbiased, and reliable information to ensure the accountability of the federal government. When the GAO discards as unreliable the USPTO empirical quality data and relies instead on such fallacies to render its biased inferences, conclusions, and recommendations, it risks losing its credibility and the appearance of impartiality and objectivity.
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