Introducing PTAB Statistics: Unique Insights Into Claim Disposition and Construction in Final Written Decisions

With over 2,000 petitions filed since AIA trials became available, filings have exceeded even the USPTO’s ambitious projections. As of October 6, 2014, the PTAB has issued more than 130 final written decisions on the merits in inter partes reviews (IPRs) and covered business method reviews (CBMs). While basic statistics on filings, institutions, settlements, and decisions are available, little is known regarding how the PTAB analyzes instituted cases. For many important trends—such as how the PTAB has handled claim disposition and claim construction issues—following the cases or machine-tracking the data is not sufficient to understand the PTAB’s methodology. To interpret the decisions and reliably identify trends, data analytics aided by experience with PTAB proceedings is needed.

Finnegan’s AIA Blog now offers statistics and graphics based on claim disposition and claim construction data from PTAB final written decisions. These unique statistics and graphics illuminate aspects of IPR and CBM final written decisions that are relevant to parties and practitioners.

Based on claim disposition data, we address claim survival, patent-holder claim concession, and cancellation rates. We approach these issues both on a per-claim and per-case basis to show different perspectives. We also differentiate between IPRs and CBMs, and will add claim disposition data in post-grant reviews (PGRs) when those final written decisions begin to issue.

Our claim construction statistics examine which sources of data (e.g., intrinsic evidence, expert testimony, dictionary definitions, litigation materials, etc.) the PTAB relied on in final written decisions. We also consider which standard of review (the “broadest reasonable interpretation” or the Phillips standard) the PTAB applied. Of course, while some of the data requires subjective interpretation, the identifiable trends are interesting and useful.

Beyond these issue-specific statistics, we also provide data regarding the time between the institution of a proceeding and a final written decision. Other statistics include a breakdown of technologies involved in PTAB proceedings, as well as a listing of PTAB judges who have authored or participated in the most final written decisions.

These statistics and graphics are intended to benefit practitioners and parties interested in better understanding outcomes and the PTAB’s decision-making in final written decisions. And there is more to come. Not only will we regularly update these statistics, we will also add new types of statistics as the PTAB issues more final written decisions. Visit the AIA Blog again soon for further insights into PTAB final written decisions.