Although post-grant challenges of design patents have consistently made up a small percentage of the total number of patent challenges, these numbers have steadily increased to their highest level in 2017. The statistics below reveal the current trends on proceeding breakdowns, institution rates, and outcomes of design patent PTO litigation.

I. Proceeding Breakdown

II. Institution Rates/Case Statuses

The institution rate for design patents, for both claims and proceedings, is 37% (10/27).

For cases overall, the proceeding institution rate is 71%, and the claim institution rate is 62%.

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

III. Final Written Decision (FWD) Outcomes

A. Claim Cancellation Rate

The instituted claim has been cancelled in 6 of 7 design FWDs (86%). The overall PTO litigation claim cancellation rate is 81%.

B. FWD Ground Type

C. FWD Prior Art Type

IV. Technology Areas

This article appeared in the April 2017 issue of The Goods on IP® Newsletter.