PTAB Statistics: Fiscal Year 2018

This page reports Patent Trial and Appeal Board trial activity in fiscal year 2018, which ran from October 1, 2017 to September 30, 2018. Each figure is a count of USPTO Open Data Portal records; the methodology on the statistics page explains the counting rules.

Figures by Trial Type

Petitions are counted by filing date. Institution decisions, final written decisions and terminations are counted by the date of the event, so a petition filed in one fiscal year may be decided in the next.

Measure	IPR	PGR	CBM	DER	Total
Petitions filed	1,521	56	36	4	1,617
Institution decisions: instituted	724	22	7	1	754
Institution decisions: denied	521	19	25	2	567
Institution rate (by petition)	58.2%	53.7%	21.9%	33.3%	57.1%
Final written decisions	565	6	20	0	591

Terminations without a final written decision	Count
Settlements	375
Settled before institution	166
Settled after institution	209
Adverse judgment	0
Dismissed	0
Other terminations	184

Figures by Trial Type in Detail

Inter Partes Review (IPR)

In FY2018, 1,521 IPR petitions were filed (94.1% of all AIA petitions). Of 1,245 IPR institution decisions, 724 instituted a trial and 521 denied institution, a rate of 58.2%. The Board issued 565 IPR final written decisions. An IPR may be instituted only on a reasonable likelihood that the petitioner will prevail on at least one claim (35 U.S.C. § 314(a)), on grounds of anticipation or obviousness over patents and printed publications. See the inter partes review guide for the procedure.

Post-Grant Review (PGR)

In FY2018, 56 PGR petitions were filed (3.5% of all AIA petitions). Of 41 PGR institution decisions, 22 instituted a trial and 19 denied institution, a rate of 53.7%. The Board issued 6 PGR final written decisions. A PGR petition must be filed within nine months of grant and must show that it is more likely than not that at least one claim is unpatentable (35 U.S.C. § 324(a)). See the post-grant review guide for the procedure.

Covered Business Method Review (CBM)

In FY2018, 36 CBM petitions were filed (2.2% of all AIA petitions). Of 32 CBM institution decisions, 7 instituted a trial and 25 denied institution, a rate of 21.9%. The Board issued 20 CBM final written decisions. CBM review applied to covered business method patents and closed to new petitions on September 16, 2020. See the covered business method review guide for the procedure.

Derivation Proceedings (DER)

In FY2018, 4 DER petitions were filed (0.2% of all AIA petitions). Of 3 DER institution decisions, 1 instituted a trial and 2 denied institution, a rate of 33.3%. The Board issued 0 DER final written decisions. Derivation proceedings decide whether an inventor named in an earlier application derived the claimed invention from the petitioner’s inventor; they are few in number, so rates rest on small counts. See the guide to the Patent Trial and Appeal Board for the procedure.

How Proceedings Ended

Of the proceedings that ended during the period, 591 ended in a final written decision under 35 U.S.C. § 318, 375 in settlement under 35 U.S.C. § 317 (166 before institution and 209 after), 0 in adverse judgment, 0 by dismissal and 184 by other termination. Denials of institution are counted separately above. A final written decision can lead to estoppel against the petitioner; see estoppel arising from PTAB trials.

Legal and Policy Context

On April 24, 2018, the Supreme Court decided SAS Institute Inc. v. Iancu, holding that when the Board institutes an IPR it must decide the patentability of every claim the petitioner challenged, and Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, upholding IPR against constitutional challenge. Since SAS, institution is all-or-nothing by petition; see PTAB guidance after SAS.

These events are noted for context; the statistics alone do not show what caused any change.

Summary

• Inter partes review accounted for 94.1% of petitions filed.
• Petitions fell by 289 from FY2017 (1,906), a change of 15.2%.
• The institution rate fell by 3.2 percentage points from 60.3% in FY2017.
• By type, the institution rate was 58.2% for IPR petitions and 53.7% for PGR petitions and 21.9% for CBM petitions.
• Of 1,150 proceedings that ended after institution or by settlement or other termination in the year, 591 (51.4%) ended in a final written decision.

Statistics by Date in FY2018

Figures as of specific dates in this fiscal year, reconstructed from the same records:

• PTAB trial statistics as of February 28, 2018: 655 petitions filed in FY2018 to that date

Other Fiscal Years

FY2017 · FY2019 · All fiscal years and charts

Final written decision outcomes (all, some or no challenged claims unpatentable) are not reported because the USPTO records state them for too few decisions; see the methodology. Figures may differ from the USPTO’s published reports. For how trials end and why reported rates differ, see reading PTAB trial outcomes.