May 8, 2014 PTAB Trial Statistics

By Eugene T. Perez

As of May 8, 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_statistics_050814.pdf

Graph/chart form of these statistics are found here:

http://www.uspto.gov/ip/boards/bpai/stats/050814_aia_stat_graph.pdf

The proceeding statistics are found here:

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

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 1,035 IPR petitions have been filed:

NUMBER OF AIA PETITIONS

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

A little over 71% of the IPR and CBM petitions filed are in the electrical/computer arts (a slight drop of 0.2% over the last few weeks), and little over 5% are in the biotechnology/pharma arts (of course does not include CBM filings). The petitions by technology breakdown are:

AIA PETITION TECHNOLOGY BREAKDOWN

The pie chart for these filings by technology  are:

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 ( 625/820=76.2% in IPR; 94/105=89.5% in CBM; 719/925=77.7% total for both types). The number of filed PO Preliminary Responses is in the next chart:

NUMBER OF PATENT OWNER PRELIMINARY RESPONSES

AIA TRIALS/INSTITUTED DISPOSALS

+13 cases joined to 12 base trials for a total of 25 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.

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