The Patent Trial and Appeal Board issued 27 IPR and CBM Final Written Decisions in December, including decisions following remands from the Federal Circuit, cancelling 292 (70.19%) instituted claims while declining to cancel 104 (25.00%) instituted claims. Patent owners conceded 20 (4.81%) instituted claims through motions to amend or disclaimer in cases reaching a final decision. For comparison, the cumulative average rate of instituted claims cancelled in IPR and CBM Final Written Decisions is about 74%.
On a per-case basis, no instituted or substitute claims survived in 12 (44.44%) decisions, all instituted claims survived in 10 (37.04%) decisions, and a mixed outcome occurred in 5 (18.52%) decisions. A mixed outcome occurs where at least one instituted or substitute claim remains patentable, and at least one is cancelled, in a Final Written Decision.
Interestingly, the Board in December granted 72 substitute claims in motions to amend out of the 117 proposed substitute claims it considered in IPRs and CBMs, a grant rate of 61.54%. The cumulative substitute claim grant rate remains relatively low at 12.79%.
The overall cumulative instituted claim survival rate, broken down by technology center, is as follows:
More detailed cumulative statistics on the Board's IPR and CBM decisions, updated through December 31, 2019, are available here on the AIA Blog.
Statistics regarding the outcome of appeals to the Federal Circuit are available here.
Numbers of final written decisions by technology center and instituted claim survival rates by technology center are available here.
Various other PTAB metrics collected and generated by Finnegan are reserved for the use of Finnegan and its clients. Stay tuned to the AIA Blog for the latest updates, analysis, and statistics on all aspects of PTAB and Federal Circuit practice. Subscribe to the AIA Blog at the bottom of the page to receive notifications of new posts via email.
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