September 11, 2014 PTAB Trial Statistics
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):
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:
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:
More information on the USPTO PTAB can be found here.
- 77 Fed. Reg. 48764 (Aug. 14, 2012).
- Id. at 48756.