When it comes to Patent Trial and Appeal Board (PTAB) proceedings, the number of petitions challenging patents under post-grant review is no comparison to the 6,100 petitions filed under inter partes review (as of the beginning of April 2017). However, attorneys expect post-grant reviews to increase from the few dozen filed to date.
Post-grant reviews present challenges that inter partes reviews do not have. For example, post-grant reviews permit challengers to argue that a patent claims ineligible subject matter or lacks a required written description and they are available only for patents that have issued relatively recently. Under these guidelines, few patents qualify for review. But as more such patents issue in the years to come, post-grant reviews will become a significant part of many patent disputes, attorneys say. Finnegan attorney Jason E. Stach said, "In the future, every patent will be an AIA patent that is eligible for review, so we will see an uptick as there are more and more AIA patents."
