Total PTAB petition filings dropped to their lowest level since 2014, but the 2018 figure was still in the same range as each of the previous four years. For the second straight year, more PGRs than CBMs were filed, a trend that is expected to persist.
Year-end totals were boosted by an active November, as petitioners rushed to get on file prior to the PTAB’s shift from broadest reasonable interpretation to Phillips claim construction.
After the Supreme Court’s SAS ruling in April requiring the Board to issue all-or-nothing institution decisions, proceeding institution rates dipped throughout the summer. The institution rate rebounded to pre-SAS levels in the fall, suggesting that SAS was more of a tremor than a landscape-altering earthquake.
The Board cancelled about 75% of instituted claims that it ruled on in 2018 – close to the long run average of 77%. Time will tell whether this rate declines as a consequence of SAS. With the Board prevented from instituting on a claim-by-claim basis, it’s conceivable that fewer instituted claims will be cancelled at final written decision.
This article appeared in the January 2019 issue of PTAB Strategies and Insights. To view our past issues, as well as other firm newsletters, please click here.
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