By: Alex Szypa

The USPTO has released its Patent Trial and Appeal Board [1] Statistics for Financial Year 2020 (October 2019 – September 2020) through January 2020. This data includes information related to trials for post-grant proceedings (IPR, PGR, and CBM) [2], as well as information related to appeals and interferences.

Trials

Institution rates for post grant proceedings are at 56% thus far for FY20, which is down from 63% in FY19.  The institution rate, which was 87% in FY13 and 75% in FY14, therefore appears to be continuing a downward trend.

The trial data also includes information for all concluded proceedings since FY13. Of these concluded proceedings, 33% have had institution denied, 33% have reached final written decisions, and the remaining resulted in settlement or requested adverse judgment.  Of the proceedings that reached final written decision, 63% found all claims unpatentable, 19% found all claims patentable, and the remaining 18% of decisions were mixed.  Therefore, historically, if a petition is instituted and reaches the final written decision stage, there is an 81% chance that at least some claims will be found unpatentable.

Appeals

In FY20, 59.4% of ex parte appeals have resulted in all rejections being affirmed. The PTAB has reversed all rejections in 29.6% of appeals and affirmed-in-part the rejections on 9.3% of appeals, such that at least some rejections in 38.9% of appeals were reversed. The PTAB has affirmed all rejections in a slightly higher percentage of appeals thus far in FY20 than it did in FY19, when the percentage was 58.4%.

The number of pending appeals – 8,314 – continues to trend downward, compared to 8,606 at the end of FY19 and 11,021 at the end of FY18. However, the average appeal pendency is up to 15.2 months for FY20, compared to 14.6 months in FY19.

Therefore, statistically, one can currently expect at least some rejections to be reversed on appeal 38.9% of the time and to have a decision within 15.2 months of the PTAB’s receipt date.

 

[1] The Patent Trial and Appeal Board is an administrative body of the USPTO comprised of the Director, the Deputy Director, the Commissioner for Patents, the Commissioner for Trademarks, and the administrative patent judges, who are persons of competent legal knowledge and scientific ability.  Their duties include hearing appeals and post-grant proceedings within the USPTO.

[2] The relevant trial types include Inter Partes Review (IPR), Post Grant Review (PGR), and Covered Business Method (CBM), which are all proceedings for reviewing a patent after issuance in the US Patent and Trademark Office.