By: Mark W. Rygiel and Patrick T. Murray

The statistics below reveal the current trends on proceeding breakdowns, institution rates, and outcomes of design patent PTO litigation. Since February 2017, with 13 additional design patent institution decisions the institution rate has remained relatively steady at 40% (from 37%), still significantly lower than the overall institution rate.

I. Proceeding Breakdown

Year IPR PGR Grand Total
2012 1 1
2013 5 5
2014 4 4
2015 3 3
2016 17 4 21
2017 7 1 8
Grand Total 37 5 42

II. Institution Rates/Case Statuses

The institution rate for design patents, for both claims and proceedings, is 40% (16/40).

For cases overall, the proceeding institution rate is 70%, and the claim institution rate is 62%.

Here is a breakdown of the current case statuses for all of the design cases:

Status Total
Final Written Decision 8
Instituted 8
Institution Denied 24
Pending 1
Settled Prior to Institution 1
Grand Total 42

III. Final Written Decision (FWD) Outcomes
A. Claim Cancellation Rate

The instituted claim has been cancelled in 6 of 8 design FWDs (75%). The overall claim cancellation rate is 79%.


B. FWD Ground Type

FWD Ground Type Grand Total
Claim Outcome 102/103 103
Not Unpatentable 2 0 2
Unpatentable 3 3 6
Grand Total 5 3 8

C. FWD Prior Art Type

Trial Number FWD Ground Type FWD Prior Art Type
IPR2016-00130 102/103 NPL
IPR2015-01453 102/103 NPL
IPR2015-00416 103 NPL/Patent
IPR2015-00306 103 Patent
IPR2013-00580 102/103 Patent
IPR2013-00501 102/103 Patent
IPR2013-00500 102/103 Patent
IPR2013-00072 103 Patent

FWD Prior Art Type

Claim Outcome Patent NPL Both Grand Total
Not Unpatentable 0 2 0 2
Unpatentable 5 0 1 6
Grand Total 5 2 1 8

IV. Technology Areas

Tech Area #
Footwear 15
Household Items 11
Construction 4
Retail Fixtures 4
Automotive 2
Apparel 1
Aviation 1
Electronics 1
Furniture 1
Gaming 1
Medical Devices 1


This article appeared in the July 2017 issue of The Goods on IP. To view our past issues, as well as other firm newsletters, please click here.