By Sue Gerber and Matt Johnson

The statistics from the PTAB for FY2021 are in, and the total PTAB petitions filed in FY2021 are down a bit from the previous year.  A total of 1,401 petitions were filed—IPR (1308) and PGR (93)—compared to 1513 in FY2020, 1464 in FY2019, 1613 in FY2018, and 1901 in FY2017.  In FY2021, the highest number of IPR petition filings were made in June and July, with 122 filings in each month.

The institution rate for post-grant challenges in FY2021 (Oct. 1, 20120 through September 30, 2021) finished at 59% (702 instituted, 498 denied) compared to 56% in the previous year.  This continued lower institution rate, and its effect on petition filings, are items that we continue to keep a close eye on.  We note that while the institution rate continues to trend down compared to historic levels, it remains more likely than not that if a petition is filed, an IPR will be instituted.

The breakdown of petitions filed by technology remains similar to that of previous years:  65% of petitions challenged patents in the electrical/computer arts (60% institution), 23% of petitions challenged patents in the mechanical and business method arena (57% institution), 6% of challenges were to chemical patents (51% institution), while 7% were directed to bio/pharma patents (58% institution).

Over the last twelve months, out of 395 Final Written Decisions, 235 cases (16% of 1,447 petitions filed) found all claims unpatentable, 76 cases (5%) found some claims unpatentable, and 84 cases (6%) found no claims unpatentable.

The PTAB’s statistics through the entirety of FY2020, and the PTAB’s statistics for prior months, including archived statistics, may be accessed here.

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Matt Johnson is one of the Firm's primary contacts on practice before the PTAB. Currently co-chairing the Firm's PTAB subpractice and involved in proceedings at the Board since the first day of their availability in September 2012, Matt regularly represents clients as both petitioners and patent owners at the Board. He further works as an advocate for clients in appeals from Board proceedings at the Federal Circuit.

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