September 11, 2014 PTAB Trial Statistics

By Eugene T. Perez

As of September 11, 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/091114_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).  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

1,406

1,240

159
2

5

Cumulative

1,994

1,771

215

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 - August):

chart

71.8% of the IPR and CBM petitions filed are in the electrical/computer arts (slight decrease from August ~ 72.1%), and 5.2% 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

1,432

71.8%

Mechanical

308

15.5%

Chemical

134

6.7%

Bio/Pharma

112

5.6%

Design

8

0.4%

 

The pie chart for these filings are as follows:

chart

During an IPR or 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 80.5%). The number of filed PO Preliminary Responses is in the next chart:

NUMBER OF PATENT OWNER PRELIMINARY RESPONSES

 Filed

Waived

FY2013

FY2014

FY2013

FY2014

IPR

237

760

63

195

CBM

33

115

2

16

 

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

509

15+

167

691

165

114

1

CMB

FY13

14

3

17

3

1

FY14

74

1+

25

100

26

11

2

 

+26 cases joined to 24 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.