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were invalidated; by comparison, 31 percent of patents in Europe were invalidated in 2015, according to data from the research database Docket Navigator and the European Patent Office annual report.

As a more diverse range and a stronger group of patents undergo review, over time the invalidation rate should decline.

Third, limitations on PTAB resources will mean the PTAB will have to use a more critical eye at the petition stage to prevent a backlog of proceedings, a particular concern given the mandated timelines for resolution of these proceedings.

But, if these criteria are met, the CBM may be based on the same grounds as a PGR.

For "first-to-file" patents, a CBM may be sought only after the nine-month period for initiating a PGR has passed.

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Second, the unexpectedly high invalidation rate has emboldened patent challengers to seek PTAB review of higher-quality patents.

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