Last time I looked at the number of petitions for post-issue trials filed at the Patent Trial And Appeal Board (“PTAB” or the Board) (i.e., petitions for inter partes review (“IPR”) and petitions for covered business method patent (“CBM”) review) back in December, I noted that there had been more than 100 petitions filed that month. That was the largest number of filings in any month since these post-issue trials became available to the public. I had also been observing a trend in which the number of filings had increased month-to-month.
The trend noted during the second half of last year has not continued. The months of January and February have seen a decrease of almost 50% from the substantial number of petition filings in December. An analysis of petition filings for IPRs and CBM reviews is shown in the graph below.
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Why might such a significant drop in PTAB filings have occurred? One might conclude that because of the one-year filing requirement imposed by 35 U.S.C. 315(b) that the number of IPR filings would reflect a similar trend as the number of patent case filings, but delayed by 9-12 months. This is because the AIA’s joinder provision, 35 U.S.C. 299, first took effect on September 16, 2011. That led to an increase in the number of patent case filings because so many defendants could no longer be joined in a single suit. IPR and CBM review did not become available for another year. When it did, those that had been served with a complaint more than one year before September 16, 2012 were precluded from seeking IPR. However, those that had been served with a complaint after September 16, 2012 would have had the full year to determine whether to file a petition for IPR. If the number of patent case filings correlates to the number of IPR petitions, then one would expect to see an upward trend in patent case filings from, say June 2012 to December 2012 that would roughly track the number of IPR filings. This appears to hold true.
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This graph, obtained from the LexMachina (annotated to add the red lines) shows the uptick in cases between June 2012 and December 2012 that at least loosely correlates to the rise in filings at the PTAB between June 2013 and December 2013. Only time will tell whether this correlation continues to hold true, but if it does, we may expect that the number of PTAB filings has peaked (for now), and we should see some stabilization in the number of filings month-to-month for some time.