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PTAB most active forum for US patent disputes

The Patent Trial and Appeal Board is the most popular venue for US patent disputes so far this year, overtaking the Eastern District of Texas. The turnaround is the result of a large drop in filing in Texas, but PTAB petition filing is also down on last year

The Patent Trial and Appeal Board (PTAB) has regained its status as the most favoured forum for US patent validity challenges, as noted by law firm Fish & Richardson in an alert.

As of October 7 some 1,299 petitions had been filed at the PTAB in 2016, putting it slightly ahead of the 1,249 cases filed in the Eastern District of Texas. These two were far ahead of the 317 cases in the District of Delaware and 246 cases in the Central District of California.

Most active courts by numbers of cases*
2016
(est)
2016
(YTD)
2015201420132012
PTAB1,6981,2991,8001,677792112
TXED1,6331,2492,5481,4281,4981,252
DED4143175449421,3351,001
CACD322246277320411506
*As of October 7 2016
Source: Fish & Richardson, based on Docket Navigator Analytics

Fish & Richardson noted that this means the PTAB is on course to be the most active court for the year, as it was in 2014 when it surpassed the Eastern District of Texas by 16%.

“While the PTAB and district courts continue to see a decrease in filings overall, Q3 statistics show that the PTAB is once again the most favoured forum for US patent validity challenges, and is currently on track to hold this title through the end of 2016,” said Fish & Richardson.

At the pace set so far this year, 2016 is on course to end with 1,698 PTAB petitions – 4.0% ahead of the projected 1,633 cases in the Eastern District of Texas.

However, the PTAB’s dominance is not a result of increased popularity. Petition filing in the first three quarters of the year is down 8% on the same period in 2015. (Subscribers and triallists can read our analysis of PTAB filing in the first nine months and rankings of the top petitioners and patent owners here.)

As Fish & Richardson’s analysis revealed, the PTAB is on course to end the year 5.7% down on the 1,800 petitions filed last year – the first time filing will have fallen since PTAB proceedings became available.

Rather, a drop off in filing in the Eastern District of Texas is responsible for the turnaround. Overall district court filing in the first nine months is down 19.4% (3,394 cases were filed in the first nine months of 2016 compared with 4,212 in the first nine months of 2015).

The drop is even more pronounced for the Eastern District of Texas, however. In the first nine months of this year 35.5% of all cases were filed in the district compared with 44.2% of cases in the whole of 2015 (subscribers and triallists can read our analysis of district court filing and the top plaintiffs and defendants here).

So not only is district court filing down, the Eastern District of Texas’s share of cases is down also. According to Fish & Richardson, the district is on course to have 1,633 cases filed this year, down 35.9% on the 2,548 cases in 2015. 

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