January 23, 2014 PTAB Trial Statistics
As of January 23, 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
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 836 IPR petitions have been filed:
NUMBER OF AIA PETITIONS
| FY | Total | IPR | CBM | DER |
| 2012 | 25 | 17 | 8 | |
| 2013 | 563 | 514 | 48 | 1 |
| 2014 | 361 | 305 |
53
|
3 |
| Cumulative | 949 | 836 | 109 | 4 |
About 70% of the IPR and CBM petitions filed are in the electrical/computer arts, and less than 6% are in the biotechnology/pharma arts. The petitions by technology breakdown are:
AIA PETITION TECHNOLOGY BREAKDOWN
|
Technology |
Number of Petitions | Percentage |
|
Electrical/Computer |
667 | 70.3% |
|
Mechanical |
153 | 16.1% |
|
Chemical |
71 | 7.5% |
|
Bio/Pharma |
52 | 5.5% |
|
Design |
6 | 0.6% |
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 (407/544=75%). 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 | 170 | 63 | 74 |
|
CBM |
33 | 30 | 2 | 1 |
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 | 2 | 1 |
| FY14 | 112 | 34 | 146 | 37 | 13 | |||
| CMB | FY13 | 14 | 3 | 17 | 3 | 1 | ||
| FY14 | 16 | 2 | 18 | 5 | 3 | |||
+10 cases joined to 8 base trials for a total of 18 cases involved in joinder.
*Includes judgment on request for adverse judgment.
**Includes terminations due to dismissals.
More information on the USPTO PTAB can be found here.
- 77 Fed. Reg. 48764 (Aug. 14, 2012).
- Id. at 48756.