On the Anniversary of the AIA, What is the Status of the PTAB?

September 16, 2014 marks the three year anniversary of the signing of the America Invents Act (AIA), and the two year anniversary of the creation of the Patent Trial and Appeal Board (PTAB). The AIA has been the most significant change to U.S. patent law in nearly 60 years, as its goal is to improve patent quality by allowing the validity of issued patents to be challenged. On this anniversary of the AIA, InsideCounsel looked to Finnegan attorney Erika H. Arner for their two-part article series for insight into the status of the PTAB and what we can expect in the future.

In part one, Arner notes that the majority of PTAB proceedings have been in the computer and electrical industries and suggests that it is due to the fact that those industries tend to have more patent infringement litigation. She also comments that earlier PTAB decisions were in favor of petitioners, as those patents challenged were already weak. The petitioners’ success has also been due to the structure of the law and the tight deadlines imposed on patent owners, leaving them at a disadvantage.

In part two, Arner discusses the future of the PTAB. While many of the initial petitions came from the computer and electrical industries, Arner predicts that it may be a while before the Board will see petitions from emerging technologies. This is mainly because newer technologies are less likely to have patents already granted, which is a requirement in PTAB proceedings. She also comments that many of the patents in PTAB proceedings have been design patents, and that we may see 3D printing patents before the PTAB in the future.