By John Marlott

PGR petition filings were up slightly over the prior USPTO fiscal year, but the long-term historical trend continues to show that PGR challenges remain relatively infrequent.

We recently reported on the PTAB’s release of its final statistics for Fiscal Year 2021 (October 1, 2020 through September 30, 2021).  The PTAB’s trial statistics for Post-Grant Reviews (PGRs) and Inter Partes Reviews (IPRs) are available here.

There were just 93 PGR petitions filed in all of FY2021, up from 64 PGR petitions in FY2020.  By comparison, in FY2021, patent challengers filed over 1,300 IPR petitions.  The FY2021 monthly average for IPR petitions (about 110 petitions per month) exceeded the entire annual total for PGR petitions.

The wide disparity in the number of PTAB filings has been consistent since AIA challenges first became available in September 2012.  Through FY2021, petitioners have filed over 12,000 IPR petitions, compared to just 339 PGR petitions.

One reason why PGRs may have been infrequently-used (and will remain so) is because of the time-limited window for PGR petitions: a PGR challenge can only be filed during the first nine months after a patent issues.  See 35 U.S.C. § 321(c).  Or perhaps petitioner concerns about the significantly broader scope of the statutory estoppel have depressed PGR filings, as we have previously discussed.

Whatever the reasons, the PTAB’s most recent annual statistics demonstrate once again that PGR challenges continue to trail far behind IPRs in popularity.

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John Marlott brings more than 30 years of intellectual property law experience to his role as lead counsel in IP disputes for Jones Day clients. He focuses on high-stakes district court and ITC patent litigation, post-grant patent proceedings before the PTAB, and appeals to the U.S. Court of Appeals for the Federal Circuit.