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Has the PTAB peaked already?



Michael Loney


The Patent Trial and Appeal Board filing statistics reveal a drop for the second consecutive six-month period. According to Unified Patents, NPEs are the targets in 41% of petitions so far this year

PTAB half year chart July 2016 NEW
Source: USPTO/Docket Navigator

Managing IP has pulled together all the Patent Trial and Appeal Board (PTAB) filing data from 2016, and the headline is that the first half of 2016 is down on the pace set last year.

The overall figure of 826 cases in the first half of this year was down from the 844 petitions in the second half of 2015 and the 953 in the first half of last year. This means that PTAB filing is down for the second consecutive six-month period.

Filing in the first half of this year consisted of 751 inter partes review (90.9%), 61 covered business method (7.4%) and 14 post-grant review (1.7%) petitions.

We crunched data from the Docket Navigator database to rank the top petitioners, patent owners and law firms at the PTAB in the first six months of the year. 

Subscribers and triallists can view the data and our analysis here.

Apple remains the biggest filer of petitions. But, in a sign of the times, its 35 petitions in the first half of the year was down greatly on its 67 petitions in the first half of last year (it ended 2015 with 120 petitions filed).

Will filing recover?

Does this mean that early 2015 will go down in history as the high point of PTAB filing? It is reasonable to assume that many entities were still feeling their way at the PTAB in the past two years. The attraction of high institution rates made bringing challenges at the PTAB almost a no brainer. With institution rates lower than they were, some may now think twice about filing.

US patent litigation H1 chart
Source: Docket Navigator

However, perhaps a bigger driver of the lower filing is underlying patent litigation. 

The chart for lawsuit filing in district courts in the past three six-month periods is similar to that of the PTAB. 

According to figures pulled from Docket Navigator, some 2,261 suits were filed in the first six months of 2016, down from 2,672 in the second half of 2015 and a peak of 3,098 in the first half of 2015.  

Were litigation to pick up again, it is reasonable to assume that PTAB petition filing would follow it.

Muddying the waters further is that PTAB filing in the second quarter of the year was up on the first quarter, and the highest since the second quarter of last year. The 459 petitions filed make it the fourth-busiest quarter since PTAB reviews became available in September 2012, behind the second quarter of 2015 (513 petitions), the fourth quarter of 2014 (503) and the second quarter of 2014 (497).

The quarter was helped by June being comfortably the busiest month for filing of the year.

District court litigation also increased in the second quarter. The 1,296 cases filed was up from 965 in the first quarter. Both were still far below the 1,558 cases in the fourth quarter of 2014, driven by more than 800 cases filed in November ahead of new Federal Rules of Civil Procedure that became effective in December.

PTAB NPE figures in the first half

The view of depressed PTAB filing in 2016 so far was backed up a Unified Patents blog post. “The rate of PTAB filings remain high but filings and pending cases have stabilised,” summarised the company, which protects members against non-practicing entities (NPEs) in specific technology areas including through filing PTAB petitions.

Unified Patents said that 41.2% of PTAB petitions in 2016 so far were filed against NPEs, which it defines as companies that derive the majority of total revenue from patent licensing activities.

It added that 86.2% of 2016 PTAB petitions filed against NPEs were against patent assertion entities, which it defines as entities whose primary activity is licensing patents and that acquired most of its patents from another entity.

The blog post revealed that 55.3% of 2016 PTAB petitions were high-tech related. Some 84.7% of petitions filed against NPEs were in the high-tech sector, compared to 78.4% for the same period in 2015. 

Unified Patents July PTAB

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