By: Patrick Murray, Jae Bandeh, and Jason D. Eisenberg
Depending on the filing rate in the second half of the year, 2021 could end up being the least active year for petition filing since 2013.
Currently, the number of petitions is on pace to approach 1,400, which would narrowly edge the total from 2019.
Regardless of how 2021 ends up stacking up to 2019, it seems clear that the overall volume of PTAB petitions has dropped off from its 2015-2018 peak. No year since 2018 has seen more than 1,600 petitions filed, while petitions filed in each of the five years from 2014-18 eclipsed that mark.
Over the last five years, the proceeding institution rate has remained remarkably stable, and 2021 has been no exception – the Board continues to institute trial in about 60% of petitions.
Bucking recent stability trends, the Board’s claim cancellation rate at final written decision ticked up to around 80% in the first half of 2021. If this cancellation rate holds, it would be the cancellation rate most favorable to petitioners since 2015.
One word of caution – the Board has issued notably fewer FWDs in the first half of the year as compared to years past. There have been fewer than 200 FWDs that have addressed patentability of existing claims in 2021. This compares to nearly 300 such decisions a year ago. So we’ll watch to see if the claim cancellation rate comes closer into line with previous years as 2021 plays out.
* Stats through June 15, 2021