The transitional program for covered business method (“CBM”) patents, which took effect on September 16, 2012, will sunset for new CBM petitions on September 16, 2020. Accordingly, unless Congress extends the program, parties have approximately one month left to file a new CBM petition.

The transitional program for CBM patents was created as a new trial proceeding before the Patent Trial and Appeal Board ("PTAB"), providing for the review of patentability of one or more claims of a CBM patent. The America Invents Act (“AIA”) defines a CBM patent as “a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except that the term does not include patents for technological inventions.” AIA § 18(d)(1).

While CBM reviews permit challenges on broader grounds than inter partes reviews ("IPR"), IPRs remain the most prevalent type of AIA trials. According to statistics from the U.S. Patent and Trademark Office, for the period from September 16, 2012 to April 30, 2020, 93 percent of trials were IPRs. CBM challenges accounted for only five percent of trials, which may be one of the reasons the transitional program is being allowed to sunset.

With the deadline for CBM review program quickly approaching, any party that wishes to take advantage of the program must act now.