By David Anderson and Joe Sauer
As an update to the May 15, 2018 post, available here, some post-SAS trends appear to be taking shape. For the five-month period from May 2018 through September 2018, the PTAB issued 538 institution decisions. Of these, the PTAB instituted 304 cases and denied institution in 234 cases, resulting in a 56.5% institution rate. For the preceding five-month period from December 2017 through April 2018, the PTAB issued 611 institution decisions. Of these, the PTAB instituted 407 cases and denied 204 cases, resulting in a 66.61% institution rate. The PTAB’s institution rate dropped more than 10% in the five months following SAS as compared to the preceding five months.
A second interesting trend taking shape is the number of petitions filed post-SAS. Looking at the same five-month windows, petitioners filed an average of 140.2 petitions per month from May 2018 through September 2018, compared to 118.6 petitions per month from December 2017 through April 2018. This is an 18.21% increase in the number of petitions filed per month. One explanation for this drastic change is the constitutional challenge to IPRs addressed in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. ___ (2018), which issued in tandem with SAS Institute. Excluding the months of April and May from the dataset as outliers, the numbers are closer, but still statistically significant. From December 2017 through March 2018, petitioners filed an average of 126.25 petitions per month. From June 2018 through September 2018, petitioners filed an average of 135.35 petitioners per month, a 7.21% increase in the number of petitions filed per month.
Ascribing one particular causation for these trends is likely an oversimplification. Nonetheless, the trends are interesting and give practitioners reason to continue monitoring to see if new baselines are established.
The authors derived all statistics from the USPTO’s PTAB statistics page, available here.
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