February 5, 2015 PTAB Trial Statistics

By Eugene T. Perez

As of February 5, 2015, the Patent Trial and Appeal Board (“PTAB”) has updated the statistics of the number of inter partes reviews (“IPR”), post-grant reviews ("PGR"), 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/0205215_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 4 PGR petitions that have been filed. This should ramp up when more and more patents qualify (must be a first-inventor-to-file patent).

The PTAB determines whether or not an IPR, PGR or CBM 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/CBM 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 started on October 1, 2014. The number of AIA Petitions, where 2,451 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
677
610
63
2
2

Cumulative

2,759

2,451

296

4

8

 

The graphic form of the AIA filings as of 02/05/2015 is shown below (note the decreased filing from Jan - March this year, but a surge since April 2014):

Total
2,759
IPR 2,451
CBM 296
PGR 4
DER 8

chart

The petitions by technology breakdown are:

AIA PETITION TECHNOLOGY BREAKDOWN - FY 2015

 Technology

Number of Petitions

Percentage

Electrical/Computer

432

63.8%

Mechanical

163

24.1%

Chemical

27

4.0%

Bio/Pharma

53

7.8%

Design

2

0.3%

 

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 82.0%). The number of filed PO Preliminary Responses is in the next chart:

chart

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

AIA PETITION & FINAL DISPOSITIONS:

chart

chart

chart

The USPTO also releases the following graph related to how many claims are challenged, instituted, and found unpatentable (cancelled) in IPRs:

chart

 

The USPTO provides the following table where the trend in filings can be seen:

chart

More information on the USPTO PTAB can be found here.

 


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