Patent reexamination: an augmentation of litigation strategy rather than an alternative

Considered as an "alternative to litigation," recent research strongly suggests that Inter Partes Reexamination has become "an augmentation of litigation strategy rather than an alternative" (more than half (52%) of patents in inter partes re-exams are known to be in litigation during that time). People from the recently formed Institute for Progress (IFP) have published a study titled "Reexamining Inter partes Reexam". The study was published by iam-magazine.
The study highlights that it takes more than 3 ½ years for the average case to proceed through the basic reexam process to a final conclusion – this assumes that the case is not appealed to the Board of Patent Appeals and Interferences (BPAI) or beyond. A range of between 34 and 53 months for average pendency for an un-appealed inter partes reexamination average pendency (assuming no “rework” by the patent office and no secondary appeals to the BPAI, the Federal Circuit, or the Supreme Court) is 78.4 months – slightly longer than 6.5 years. A 95% confidence interval suggests an average pendency for appealed cases (again, assuming no rework) is between 5 -8 years. Given that the only three inter partes reexam cases that have received a BPAI decision all require further “rework” and are subject to further appeal, these estimates may be highly conservative
The inter partes reexam process requires special attention by the U.S. Patent Office. At present, the time to complete these cases far exceeds the expectation of “special dispatch” embodied in the patent statute. Federal judges, administrative law judges, and litigants should take special note of these facts as they can significantly impact the progress of patent litigation.

Reexamination Process
Reexamination is a process whereby a third party or inventor can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. In order to have a patent reexamined, the party of interest must submit prior art that raises a "substantial new question of patentability".
request for a reexamination can be filed by anyone at anytime during the period of enforceability of a patent. In order to request a reexamination, one needs to submit a “request for reexamination”, pay a fee, and provide an explanation of the new reasons why the patent is invalid. These reasons must be based on prior art. Copies of the prior art must be provided and the requester has to let the patent owner know that a request has been filed. The USPTO will then review the request. If the request does raise a substantial new question of patentability, the USPTO will order a reexamination. Most requests for reexamination are filed by third parties. A substantial fraction of these parties are already involved in a patent infringement lawsuit. By filing a reexam, they can hopefully invalidate the patent while at the same time keeping their legal fees low. If the judge in the lawsuit agrees, then the trial proceedings may be delayed pending the outcome of the reexamination.
Ex parte reexaminations are initiated by members of the public, but once said members submit their request, they no longer actively participate in the proceedings. The correspondence is strictly between the examiner and the patent owner.
Inter partes reexaminations are initiated by member of the public, but said members of the public continue to participate in the proceedings.
Link to report
Link to presentation