The Global Shift in Patent Invalidation: PTAB, UPC & Emerging Trends

March 19, 2025
- Intellectual Property (IP)
- Invalidation

1. Introduction

In the rapidly evolving landscape of intellectual property, patent invalidation has emerged as a pivotal mechanism to balance innovation incentives with the public interest. As of 2025, significant developments in post-grant challenges, particularly within the U.S. Patent Trial and Appeal Board (PTAB), and the establishment of Europe’s Unified Patent Court (UPC) have reshaped the global patent arena.

2. The Rise of Post-Grant Challenges and PTAB Precedents

One of the most significant trends in the past decade has been the use of administrative patent trials to invalidate patents. The U.S. PTAB, in particular, has earned both fame and notoriety.

3. PTAB “Death Squad” or Just Quality Control?

Ever since then-Chief Judge Rader of the Federal Circuit provocatively dubbed PTAB panels a “death squad” for patents, there has been debate about how hard the PTAB is on patents. Recent statistics show that when the PTAB does fully adjudicate a case (reaches a final written decision), it often does invalidate patents at a high rate.

In fact, in the first half of 2024, 71% of PTAB trials resulted in all challenged claims being cancelled. In 2023 the rate was about 68%, up from a low of 55% in 2019. This steady rise means the PTAB is seen as a favorable forum for challengers.

Patent owners view these odds as daunting – as one analysis noted, “if there is an institution [of an IPR], all challenged claims will be found invalid about 70% of the time”. Proponents of the PTAB process, however, argue that this simply shows the system is working to eliminate weak patents that “never should have been allowed” in the first place.

In the words of the Electronic Frontier Foundation (EFF), which is a vocal supporter of IPR, the PTAB is “limiting the damage of wrongly granted patents” and has canceled thousands of bad patent claims, all while not harming legitimate patent holders.

They point out that only a tiny fraction of patents (hundreds out of millions) are ever affected by IPR each year. This debate between patent owners and public interest groups continues to shape policy – with some lobbying to make PTAB reviews harder to get (to protect patentees) and others fighting to keep them accessible.

4. Supreme Court and PTAB Procedures

The rules of engagement at the PTAB have been tested in courts too. For example, the Supreme Court in Thryv, Inc. v. Click-to-Call (2020) held that certain PTAB institution decisions (like whether a petition is time-barred) are not appealable, effectively giving the PTAB Director broad discretion.

More recently, challengers took aim at the controversial Fintiv rule, an internal PTAB policy to deny IPRs if a parallel court trial is imminent. Intel Corp. v. Vidal (2023) petitioned the Supreme Court to declare this practice unlawful. While observers noted the case raised fundamental questions about how much discretion the PTAB has, the Supreme Court ultimately declined to hear it, leaving the Fintiv policy intact for now.

Meanwhile, VirnetX v. Mangrove Partners was another petition that reached the Court’s doorstep, involving a situation where Apple, after being time-barred from filing an IPR itself, joined an IPR filed by a third-party to successfully invalidate VirnetX’s network security patents – patents that had won VirnetX a $576 million verdict against Apple.

VirnetX argued this maneuver “destroys an important limit on inter partes review” and asked the Court to rein in the PTAB’s joinder practices. As of early 2025, the Supreme Court had not taken up that case either, but these issues highlight the procedural battles around PTAB invalidation: who can challenge a patent and when.

5. Director Review and PTAB Oversight

Following a 2021 Supreme Court decision (United States v. Arthrex), the USPTO Director now has greater ability to review and reverse PTAB decisions to ensure accountability (addressing the Appointments Clause issue). USPTO Director Kathi Vidal has actively used this power, for instance, to crack down on abuse of the IPR system.

In a notable 2022 incident, a little-known entity filed an IPR not to genuinely challenge a patent, but allegedly to extort the patent owner (by offering to sabotage their own challenge for a price). The Director intervened, kicked out the bad-faith petitioner, and allowed others to proceed properly. This shows the PTAB is adapting – trying to maintain a fair balance so that IPR remains a tool to serve justice (invalidating bad patents) and not a tool for harassment.

6. International Developments: Europe’s Unified Patent Court and Beyond

Patent invalidation is not just a U.S. phenomenon. Globally, 2025 finds other regions also refining how patents can be challenged:

Unified Patent Court (UPC) – After years of planning, the UPC opened its doors in June 2023, creating a one-stop venue for patent enforcement and revocation across participating EU countries. Already by mid-2024, the UPC issued its first-ever revocation judgment, and coincidentally it involved some of the same PCSK9 antibody patents that were at issue in the U.S. Amgen v. Sanofi case.

In the UPC case (Regeneron v. Amgen), the court in Munich invalidated Amgen’s patent for lack of inventive step, finding prior art had pointed the way and that creating the antibody was within routine skill. It’s intriguing that the European court invalidated on obviousness while the U.S. court invalidated on enablement for a similar technology– highlighting how different legal standards can achieve a similar result of patent invalidation.

The UPC’s arrival is a game-changer because a single revocation action there can knock out a patent in up to 17 countries at once, making it a powerful tool for challengers (and a new concern for patentees). We are seeing strategic behavior: some patent owners are opting out their existing European patents from the UPC’s jurisdiction (at least temporarily) to avoid this new centralized attack vector.

The UPC also operates alongside the EPO opposition system, and interestingly, the EPO has begun fast-tracking oppositions if there’s a parallel UPC case to ensure consistency. For practitioners in 2025, Europe’s patent validity landscape is in flux with this dual system, and early UPC case law on validity (inventive step, sufficiency, etc.) will be watched closely.

Other Jurisdictions – Around the world, countries have their own mechanisms.
- In China, patent invalidation petitions are handled by the CNIPA’s Reexamination and Invalidation department.
- In India, revocation can be sought before specialized IP tribunals or high courts.

Many countries are updating their laws: for instance, some are considering introducing pre-grant or post-grant opposition systems to involve third parties in ensuring patent quality. By 2025, the global trend is toward more accessible challenges – recognizing that a robust innovation environment requires clearing out improperly granted patents.

However, the degree of rigor varies. Europe traditionally has been strict on things like technical effect (for software) and inventive step, leading to invalidations, whereas some other regions might have different thresholds.

7. Conclusion

As of 2025, patent invalidation processes have become integral to maintaining a balanced innovation ecosystem. The PTAB’s heightened scrutiny and the UPC’s establishment reflect a global commitment to ensuring that patents granted truly meet the requisite standards of novelty and non-obviousness. These developments underscore the dynamic nature of patent law, continually adapting to technological advancements and the evolving needs of society.