PTAB Strategies and Insights - January 2019: 2018 Trends and Statistics for PTAB Proceedings

Sterne, Kessler, Goldstein & Fox P.L.L.C.

Sterne, Kessler, Goldstein & Fox P.L.L.C.

PTAB Petitions Filed by Year

Total PTAB petition filings dropped to their lowest level since 2014, but the 2018 figure was still in the same range as each of the previous four years. For the second straight year, more PGRs than CBMs were filed, a trend that is expected to persist.

PTAB Petitions Filed in 2018

Year-end totals were boosted by an active November, as petitioners rushed to get on file prior to the PTAB’s shift from broadest reasonable interpretation to Phillips claim construction.

Proceeding Institution Rate in 2018

After the Supreme Court’s SAS ruling in April requiring the Board to issue all-or-nothing institution decisions, proceeding institution rates dipped throughout the summer.  The institution rate rebounded to pre-SAS levels in the fall, suggesting that SAS was more of a tremor than a landscape-altering earthquake.

Instituted Claim Cancellation Rate

The Board cancelled about 75% of instituted claims that it ruled on in 2018 – close to the long run average of 77%. Time will tell whether this rate declines as a consequence of SAS. With the Board prevented from instituting on a claim-by-claim basis, it’s conceivable that fewer instituted claims will be cancelled at final written decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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