All post-grant proceedings at the USPTO start with the filing of a petition and progress through two general phases—a pre-institution phase and a post-institution phase. The USPTO's Patent Trial and Appeal Board (PTAB) must decide if the petition raises sufficient grounds to institute trial in view of any arguments submitted by the patent owner in a preliminary response. While the rate of institution varies by technology, in general, the percentage of institution ranges between 55% and 75% on a per-claim basis. In the first half of 2016, institution rates declined compared to the lifetime average. In this article, Finnegan attorneys Joshua L. Goldberg, Daniel F. Klodowski, and David C. Seastrunk analyze institution and final written decisions at the PTAB in the first half of 2016.
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