St. Louis patent attorney Doug Robinson offered his insights in a new Law360 article that explores the changing trends at the PTAB in 2018. The key insight? A drop in PTAB proceedings should be welcomed news for patent owners.
The second key insight, as noted by reporter Matthew Bultman, is that a lower number of petitions for PTAB proceedings may have less to do with recent PTAB decisions and more to do with overall declines in infringement litigation.
The downward trend in district court litigation began years ago, while the PTAB’s trend began in the second quarter of 2017. Despite a bump in the number of PTAB petitions filed late last year, the total number of petitions is down 4% from 2017.
In district courts, however, they saw a 9% drop in filings from 2017 to 2018. It was the lowest number of patent cases since 2011, in fact.
Comparatively, a 4% drop at the PTAB is not a big surprise.
There is a rising percentage that patent attorneys and counsel should watch, however: the proportion of final written decisions that contain mixed results (where some patent claims are found invalid but others are upheld) increased to 18.6% in 2018.
This trend may also benefit patent owners, as district courts will refuse to hear invalidity arguments on any claim that the PTAB has already upheld.
Last November also brought about a change in claim construction standards that will see the PTAB adopt a more narrow view of interpreting patent claims. This is the same standard that district courts were already using, and it may lead some petitioners to simply keep their cases in district court.
Patent lawyers can expect to see a similar trend in filings in 2019, as petitioners take longer to strategize and may reconsider their chances for success. As Robinson states, “If the odds of success are going down, people are doing that mental calculation and filings go down as a result.”
While the net effect will be a lower number of petitions filed for AIA reviews, Robinson also points out that fewer cases held before the “patent death squad” means more patents will live to see another day — which is great news for patent owners.