By: Patrick T. Murray
For the first time in more than two years, we observed an eye-catching quarter-to-quarter dip in the number of new patents challenged at the PTAB. Slightly more than 200 patents were hit with their first PTAB petition between July and September 2017. This figure represents the fewest number of new patents challenged in a quarter in nearly 3 years.
By counting only the first petition filed against a patent, we are able to observe the number of patents that are newly subject to PTAB scrutiny. This method sets aside any joinder petitions, “second bite at the apple” petitions, or multiple petitions (beyond the first) filed simultaneously against the same patent.
The bars in the chart above count the number of patents each quarter that were never previously attacked via an IPR, CBM, or PGR petition. Through the end of September, there had been 7,558 total PTAB petitions. These petitions challenged 4,580 unique patents – an average of 1.65 petitions per patent. Two-thirds of the patents that have been filed against have been challenged by just one petition. Most patents named in multiple petitions have faced only two separate challenges, but there are three patents that have been challenged over 20 times.
Overall, 392 petitions were filed in the third quarter of 2017, making it the least active quarter for PTAB petition filings since the first quarter of 2016. While 2017 as a whole remains on pace to be the most active year for petition filings in the history of the PTAB, the quarter-to-quarter declines in both the raw number of petitions filed as well as the number of new patents challenged merit watching as we look to the future of PTAB activity levels in 2018 and beyond.
This article appeared in the November 2017 issue of PTAB Strategies and Insights. To view our past issues, as well as other firm newsletters, please click here.