By Doug Pearson
The institution rate for post-grant challenges in current FY 2019 (Oct. 1, 2018 through May 31, 2019) stands at 63% compared to 60% in the previous fiscal year. Through May FY 2019, 957 IPR petitions, 38 PGR petitions, and 22 CBM petitions have been filed. At that pace, 1435 IPR petitions would be expected in FY 2019, compared to 1521 in FY 2018. 516 IPR petitions were filed during January through May in 2019, compared to 624 IPR petitions filed during January through May in the prior year. While that represents a 17% decrease in IPR petitions filed in the first five months of 2019 compared to the prior year, that may be due to a flurry of petitions filed in November 2018 (212 IPR petitions compared the normal 100-ish monthly petitions) to beat the switch from the perceived petitioner-friendly BRI claim construction standard to the perceived patent-owner-friendly Phillips standard. Overall, the 957 IPR petitions filed in FY 2019 through May 2019 is only slightly lower than the 980 IPR petitions filed during the same time period of the prior fiscal year. It will be interesting to see how filing rates and institution rates track for the remainder of year in light of the PTAB’s evolving treatment and exercise of discretion in denying perceived redundant or overly burdensome petitions associated with multiple-petition filing strategies that have become more common since the Supreme Court’s SAS Institute decision, as discussed here.
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