Patent Trial and Appeal Board Activity in the First Five Years+

September 16, 2017 marked five years since the Patent Trial and Appeal Board (PTAB) was created.  Some of the notable statistics and trends of the previous 5 years are shown here.

As of September 18, 2017, 6,878 inter partes review (IPR) petitions have been filed, 524 covered business method (CBM) reviews have been filed, and 77 post grant review (PGR) petitions have been filed.  As seen in the chart, the filing rate climbed in the first three years (2013-2015), but has remained relatively constant after that.

The number of PGR petitions filed increased significantly in FY2017, stepping up from 24 petitions in FY2016 to 40 petitions in FY2017.  In the future, as more patents become eligible for PGR, PGR petitions will likely continue to increase.

Although petition filing rates have remained relatively constant since 2015, institution rates have decreased each year since the PTAB began. 

Over the last five years (through August 2017), 3,774 trials were instituted, with 1,733 trials resulting in a Final Written decision. Of the 3,774 instituted trials, 707 trials remain open and 3,060 have reached final disposition, where disposition includes settlement, adverse judgment, dismissal and final written decision.  The chart below shows the outcomes of these dispositions.  While over 25% of instituted proceedings resulted in settlements, nearly twice as many of such proceedings (50%) resulted in complete victory for the petitioner challenging the patents. This 50% figure is the combination of 9% of all instituted proceedings ending with requests for adverse judgment (typically conceded by patent owners), and 41% of all instituted proceedings ending with a final written decision finding all claims unpatentable.  In contrast, only 12% of instituted proceedings ultimately resulted in a full victory for patent owners.

Looking only at the 1733 Final Written Decisions, the PTAB found all instituted claims unpatentable in 65% of trials; some but not all instituted claims unpatentable in 16% of trials; and no claims unpatentable in only 19% of trials.  This 65% rate of finding all instituted claims unpatentable is down from FY2016’s rate of 70% and FY2015’s rate of 73%.

Going forward, we will continue to report changes in the institution and final written decision rates, as well as data on filing statistics, which may decrease or increase due to changes in these rates.