October 2, 2014 PTAB Trial Statistics

By Eugene T. Perez

As of October 2, 2014, the Patent Trial and Appeal Board (“PTAB”) has updated the statistics of the number of inter partes reviews (“IPR”), post-grant reviews of covered business method patents (“CBM”), and derivation proceedings (“DER”) that have been filed. These stats are shown below, and can be found at:

http://www.uspto.gov/ip/boards/bpai/stats/aia_trial_statistics.jsp

Graph/chart form of these statistics are found here:

http://www.uspto.gov/ip/boards/bpai/stats/100214_aia_stat_graph.pdf

The proceeding statistics are found here:

http://www.uspto.gov/ip/boards/bpai/stats/aia_trial_proceedings.pdf

It is worth noting that the first regular PGR (not for CBM) was filed on August 5, 2014. As shown below, there are now 2 PGR petitions that have been filed.

The PTAB determines whether or not an IPR or PGR will be granted.  The PTAB may not authorize the IPR unless the petition and response shows there is a “reasonable likelihood” that the petitioner would prevail with at least one of the challenged claimed.[1] The granting of a PGR trial requires an initial threshold requirement of “more likely than not”, and is slightly higher than the IPR threshold standard. However, the latest statistics clearly show that the initial threshold has been met the majority of the time (see the AIA Trials Instituted/Disposals chart below). Note that the new fiscal year (2015) for the USPTO has started. The number of AIA Petitions, where 1,406 IPR petitions have been filed, is as follows:

NUMBER OF AIA PETITIONS

 FY

Total

IPR

CBM

PGR

DER

2012

25

17

8

2013

563

514

48

1

2014

1,494

1,310

177
2

5

2015
12
11
1
   

Cumulative

2,094

1,852

234

2

6

 

The graphic form of the AIA filings is shown below (note the decreased filing from Jan - March this year, but a surge in April 2014):

chart

71.2% of the IPR and CBM petitions filed are in the electrical/computer arts, and 5.8% (slight increase from 5.2% about a month ago) are in the biotechnology/pharma arts. The number of petitions for design patents has not changed in a while. The petitions by technology breakdown are:

AIA PETITION TECHNOLOGY BREAKDOWN

 Technology

Number of Petitions

Percentage

Electrical/Computer

1,491

71.2%

Mechanical

320

15.3%

Chemical

154

7.3%

Bio/Pharma

121

5.8%

Design

8

0.4%

 

The pie chart for these filings are as follows:

chart

During an IPR, PGR or PGR for CBM, the Patent Owner (“PO”) can optionally file a Preliminary Response.[2]  Clearly, according to these statistics, the PO is choosing to file a Preliminary Response most of the time (overall 81.0%). No PO Preliminary Responses have been filed in 2015 yet.  The number of filed PO Preliminary Responses is in the next chart:

NUMBER OF PATENT OWNER PRELIMINARY RESPONSES

 Filed

Waived

FY2013

FY2014

FY2015

FY2013

FY2014

FY2015

IPR

237

829

10

63

202

1

CBM

33

116

 

2

18

 

The institution rate now includes fiscal year 2015 as shown below. Note that there are already 4 cases of joinder in 2015.

AIA TRIALS/INSTITUTED DISPOSALS

Trials Instituted

Joinders

Denials

Total No. of Decisions on Institution

Disposals

Settlements

Final Written Decisions*

Other**

IPR

FY13

167

10+

26

203

38

 

1

FY14

557

15+

193

765

210

130

1

FY15
7
4+
4
15
1

CMB

FY13

14

3

17

3

1

FY14

91

1+

30

122

27

13

2

FY15
2
2

 

+30 cases joined to 28 base trials for a total of 46 cases involved in joinder.

*Includes judgment on request for adverse judgment.

**Includes terminations due to dismissals.

 

A month-to-month view of the filings:

chart

More information on the USPTO PTAB can be found here.

 


  1. 77 Fed. Reg. 48764 (Aug. 14, 2012).
  2. Id. at 48756.