patent public advisory committee · 2019-02-07 · * as a result of an internal audit the number of...

Patent Public Advisory Committee

Quarterly Meeting

PTAB Update

David P. Ruschke

Chief Administrative Patent Judge

August 18, 2016

PTAB MANAGEMENT

3

David P. Ruschke, Chief Judge

Scott R. Boalick, Deputy Chief Judge

Division 1

Vice Chief Judge

Division 1

Lead Judges

Board Operations Division

Adam Ramsey

Board Executive

IT Systems & Services

BranchCase Management Branch

Hearings Operations Paralegal Operations

Data Analysis & Process

Improvement Branch

Administrative

Management Branch

Division 2

Vice Chief Judge

Division 2

Lead Judges

PTAB Management

4

PTAB STATISTICS

Appeal, Interference, Reexamination, and Trial Statistics

5

APPEAL AND INTERFERENCE

STATISTICS

Ex Parte Appeal, Reexamination Appeal, Reissue Appeal, and Interference

6

This graph shows the total number of ex parte appeals pending at the end of each fiscal year, excluding

reexamination, reissue and supplemental examination appeals.

* As a result of an internal audit the number of pending appeals for 9/30/2015 has been updated from

21,293 to 21,372.

12,489

17,754

23,963

26,48425,308 25,404

21,372

16,996

0

5,000

10,000

15,000

20,000

25,000

30,000

FY2009 FY2010 FY2011 FY2012 FY2013 FY2014 FY2015 FY2016

Pending Ex Parte Appeals(excluding appeals from reexamination proceedings)

October 1, 2015

- July 31, 2016

Nu

mb

er o

f A

pp

eals

7

This graph shows the total number of ex parte appeals pending at the end of each month (for the

past 12 months), excluding reexamination, reissue and supplemental examination appeals.

* As a result of an internal audit the number of pending appeals for 9/30/2015 has been updated

from 21,293 to 21,372.

22,19821,372 21,297 21,192

20,431 20,233 19,79019,071 18,801 18,339

17,529 16,996

0

5,000

10,000

15,000

20,000

25,000

Aug Sep Oct Nov Dec Jan Feb Mar Apr May June July

2015 2015 2015 2015 2015 2016 2016 2016 2016 2016 2016 2016

Total Ex Parte Inventory for the Past 12 Months

(excluding appeals from reexamination proceedings)N

um

ber

of

Ap

pea

ls

8

9

This graph shows the total number of reexam and reissue appeals pending at the end of each

month (for the past 12 months). Excludes appeals originating from supplemental examinations.

*Note – Data does not include reissue appeals docketed prior to Oct 1, 2015.

Nu

mb

er o

f R

eexa

m/R

eiss

ue

Ap

pea

ls

This bar chart shows Average Pendency of Decided Appeals by Technology

Center for Appeals Decided in FY2016 to date (October 1, 2015 through July 31,

2016). Pendency is measured from date of PTAB docketing (assignment of appeal

number) to date of Decision.

10

Ave

rage

Pen

den

cy in

Mo

nth

s

These bar charts show Average Pendency of Decided Appeals by Technology Center for Appeals Decided in the past three fiscal

years (FY2013, FY2014, FY2015) as compared to the current fiscal year. Pendency is measured from date of PTAB docketing

(assignment of appeal number) to date of Decision.

11

Ave

rage

Pen

den

cy in

Mo

nth

s

This slide shows the number of appeals the Board has received from

each Tech Center for this fiscal year (through the end of July 2016).

Nu

mb

er o

f A

pp

eals

12

This slide shows the number of appeals the Board received from each Technology Center for the prior three fiscal years as compared to the current fiscal year.

541

956707 791

682456

31

1634

1301

115

0

500

1000

1500

2000

FY2016

Ex Parte Appeal Intake by Technology Center

Cumulative FY2016 through July 2016

1600 1700 2100 2400 2600 2800 2900 3600 3700 3900

Nu

mb

er o

f A

pp

eals

13

This graph shows the number of Interferences pending at the end

of each prior fiscal year and the current number in inventory this

fiscal year.

This graph shows July 2016

dashboard information about

pendency (number of cases in

each status of green, yellow, or

red).

5 15 25 35

Age of Interferences in Inventory

Less than 20 months (24 cases)

20 - 23 Months (2 cases)

24 Months or more (0 cases)

52

44 46

59

53 51

31

2227

0

10

20

30

40

50

60

70

FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY2016

Interference Inventory Over TimeN

um

ber

of

Inte

rfer

ence

s

15

TRIAL STATISTICS

Post Grant Proceedings

16

Narrative:This pie chart shows the total number of cumulative AIA

petitions filed to date broken out by trial type (i.e., IPR,

CBM, and PGR).

*Data current as of: 7/31/2016

485991%

4709%

300%

5359 Total AIA Petitions*

Total IPR Petitions Total CBM Petitions

Total PGR Petitions

Cumulative from 09/16/2012

17


Narrative:This bar graph depicts the

number of AIA petitions filed

each fiscal year, with each bar

showing the filings for that fiscal

year by trial type (i.e., IPR, CBM,

and PGR).

FY 2014 FY 2015 FY 2016*

1310

1737

1281

177 14988

2 11 17

Number of AIA Petitions Filed by Fiscal Year by Type

IPR CBM PGR

18

Narrative:These line graphs display the number of IPR, CBM, and PGR petitions filed each month and the total number of all

petitions filed each month from the effective date of the AIA trial provisions.


157150

190

126

176

142

195

116

192

115

180

145146174

193

123

177

141117

142144

99

150118

148135

0

40

80

120

160

200

240Number of TOTAL Petitions Filed by

Month*

184

116159

120

179

102

177

100

164131139145

182

117

165136

106131138

96132

107136

114

166155

0

100

200

300

Number of IPR Petitions Filed by Month*

610

1621

16 13 15 14 16 137

26

9 6 95

11 105 3

12 10 1017

9

1

05

101520253035404550

Number of CBM Petitions Filed by Month*

0 01 1

01

01

01

0

32

0

3

0 01 1

0

6

12

4

1 1

0

2

4

6

8

10

Number of PGR Petitions Filed by Month*190

126

176

142

195

116

192

115

180

145 146174

193

123

177

141117

142 144

99

150118

148 135

176157

0

40

80

120

160

200

240

Number of TOTAL Petitions Filed by Month*

19

Narrative:This pie chart shows the

total number of AIA

petitions filed in the current

fiscal year to date as well as

the number and percentage

of these petitions broken

down by technology.


1,193

63%

443

23% 90

5%

167

9%

4

0%

1897 Total AIA Petitions in FY 15*

(Technology Breakdown)

76855%

32924%

947%

18013%

151%

1386 Total AIA Petitions in FY 16* (Technology Breakdown)

Electrical/Computer - TCs 2100, 2400, 2600, 2800Mechanical/Business Method - TCs 3600, 3700Chemical - TC 1700Bio/Pharma - TC 1600Design - TC 2900

962

65%

318

21%114

8%

92

6%3

0%

1489 Total AIA Petitions in FY 14*

(Technology Breakdown)

20

Narrative:These three sets of bar graphs show the number of

patent owner preliminary responses filed and

waived/not filed each fiscal year in IPR, CBM, and PGR

proceedings.


FY 2014 FY 2015 FY 2016*

8291,326

843

202

223

159

IPR - Number of Patent Owner Preliminary Responses by Fiscal

Year

Filed Waived/Not FiledFY 2014 FY 2015 FY 2016*

8291,326

1,036

202

223199

IPR - Number of Patent Owner Preliminary Responses by Fiscal Year

Filed Waived/Not FiledFY 2014 FY 2015 FY 2016*

116154

74

18

12

4

CBM - Number of Patent Owner Preliminary Responses by Fiscal Year

Filed Waived/Not Filed

FY 2014 FY 2015 FY 2016*

0

6

14

0

1

1

PGR - Number of Patent Owner Preliminary Responses by Fiscal Year

Filed Waived/Not Filed21

Narrative:This chart shows the percentage

of petitions instituted of all

decisions on petition, by

technology area.


0% 10% 20% 30% 40% 50% 60% 70% 80%

Biotechnology/Pharma (203 of 323 petitions)

Chemical (183 of 254 petitions)

Design (8 of 14 petitions)

Electrical/Computer (1592 of 2250 petitions)

Mechanical/Business Methods (733 of 1009petitions)

Percent of Petitions Instituted, by Technology

22

Narrative:These three sets of bar graphs show the number of decisions

on institution by fiscal year broken out by trials instituted

(including joinders) and trials denied in IPR, CBM, and PGR

proceedings. A trial that is instituted in part is counted as an

institution in these bar graphs.


FY 2014 FY 2015 FY 2016*

557801 737

15

116 59

193426 379

IPR - Number of Decisions On Institution Per Fiscal Year by Outcome

Instituted Joinders Denials

FY 2014 FY 2015 FY2016*

91 91

33

1 10

6

30 43 39

CBM - Number of Decisions On Institution Per Fiscal Year by Outcome

Instituted Joinders Denials

FY 2014 FY 2015 FY 2016*

0 3

8

0 03

PGR - Number of Decisions On Institution Per Fiscal Year by Outcome

Instituted Joinders Denials23

Narrative:These three sets of bar graphs show settlements in AIA

trials broken down by settlements that occurred prior to

institution and settlements that occurred after institution

in IPR, CBM, and PGR proceedings.


FY 2014 FY 2015 FY 2016*

106

275

198

104

189163

IPR - Settlements

Settled Before Institution Settled After Institution

FY 2014 FY 2015 FY 2016*

21

1411

6

32

13

CBM - Settlements

Settled Before Institution Settled After Institution

FY2014 FY 2015 FY 2016*

0

2

00 0

1

PGR - Settlements

Settled Before Institution Settled After Institution24

Narrative:This graph shows a stepping

stone visual depicting the

outcomes for all IPR petitions filed

to-date that have reached a final

disposition.


Disposition of IPR Petitions Completed to Date*

652Terminated

After Institution

Decision:

474 Settled

19 Dismissed

159 Request for

Adverse Judgement

1010Petitions Denied

662Terminated Before

Institution Decision:

599 Settled

41 Dismissed

22 Request for

Adverse Judgement

1086Trials Completed

(Reached Final Written

Decision)

764 TrialsAll Instituted Claims

Unpatentable (22% of Total

Petitions, 44% of Trials

Instituted, 70% of Final

Written Decisions)

164 TrialsSome Instituted Claims




Written Decisions)

1672

Trials Not

Instituted

1738

Trials

Instituted

158 TrialsNo Instituted Claims




Written Decisions)

3410Total

Petitions

25


72Terminated

After Institution

Decision:

51 Settled

8 Dismissed

13 Request for Adverse

Judgement

115Petitions Denied

51Terminated Before

Institution Decision:

49 Settled

2 Dismissed

0 Request for Adverse

Judgement

134Trials Completed

(Reached Final Written

Decision)

108 TrialsAll Instituted Claims




Written Decisions)

23 TrialsSome Instituted Claims




Written Decisions)

166

Trials Not

Instituted

206

Trials

Instituted

3 TrialsNo Instituted Claims


Petitions 1% of Trials


Written Decisions)

372Total

Petitions

Disposition of CBM Petitions Completed to Date*

Narrative:This graph shows a stepping

stone visual depicting the

outcomes for all CBM petitions

filed to-date that have reached a

final disposition.

26

Narrative:This visual contains four cylinders. The

first cylinder shows the total number of

claims available to be challenged in the

IPR petitions filed. The second cylinder

shows the number of claims actually

challenged and not challenged. The third

cylinder shows the number of claims on

which trial was instituted and not

instituted. The fourth cylinder shows the

total number claims found unpatentable

in a final written decision, the number of

claims canceled or disclaimed by patent

owner after institution, the number of

claims remaining patentable (not subject

to a final written decision), and the

number of claims found patentable by

the PTAB.

Note: “Completed” petitions include

terminations (before or after a decision

on institution) due to settlement, request

for adverse judgment, or dismissal; final

written decisions; and decisions denying

institution.


112247

51759

2306211721

2737 Claims Found Patentable by PTAB in FinalWritten Decision

6481 Claims Remaining Patentable (Not Subjectto Final Written Decision)

2123 Claims Cancelled or Disclaimed by PatentOwner

28697 Claims Challenged but Not Instituted

60488 Claims Not Challenged

IPR Petitions Terminated to Date*

Claims Challenged

Claims Instituted

Claims Found Unpatentable by PTAB in Final Written Decision

Total Number of Claims Available to be Challenged within 3410 Petitions

27

Narrative:This visual contains four cylinders. The

first cylinder shows the total number of

claims available to be challenged in the

CBM petitions filed. The second cylinder

shows the number of claims actually

challenged and not challenged. The third

cylinder shows the number of claims on

which trial was instituted and not

instituted. The fourth cylinder shows the

total number claims found unpatentable

in a final written decision, the number of

claims canceled or disclaimed by patent

owner after institution, the number of

claims remaining patentable (not subject

to a final written decision), and the

number of claims found patentable by

the PTAB.

Note: “Completed” petitions include

terminations (before or after a decision

on institution) due to settlement, request

for adverse judgment, or dismissal; final

written decisions; and decisions denying

institution.


13369

7092

33201977

73 Claims Found Patentable by PTAB in Final WrittenDecision

969 Claims Remaining Patentable (Not Subject toFinal Written Decision)

301 Claims Cancelled or Disclaimed by Patent Owner

3722 Claims Challenged but Not Instituted

6277 Claims Not Challenged

CBM Petitions Terminated to Date*

Claims Challenged

Claims Instituted


Total Number of Claims Available to be Challenged within 372 Petitions

28


Narrative:This chart shows claim outcomes

for instituted trials, by technology

area.

Note: Claims involved in instituted

trials that settle or are dismissed are

not depicted. Accordingly, a bar

may not add up to 100%.

35%

67%

100%

54%

47%

11%

6%

9%

11%

30%

6%

11%

8%

0% 20% 40% 60% 80% 100%

Biotechnology/Pharma (1468 claims)

Chemical (2004 claims)

Design (6 claims)

Electrical/Computer (15193 claims)

Mechanical/Business Methods (7765 claims)

Trial Outcomes for Instituted Claims, by

Technology


Claims Cancelled or Disclaimed by Patent Owner

Claims Found Patentable by PTAB in Final Written Decision

29

PTAB AMENDMENT PRACTICE

30

Data current as of: 4/30/2016

2282

Trials

Number of Motions to Amend Filed

31


192 Trials

with MTA

Subsequent Developments of Motions to Amend

32


118 MTAs with

Substitute Claims

Decided

Outcomes of Motions to Amend Decided on the Merits

33


Reasons Provided for Denying Entry of Substitute Claims*Reason Given # of Cases Pct

Reasons Based on 35 U.S.C.:

101 Non-Statutory Subject Matter 7 6%

112(a) Written Description 9 8%

112(b) Definiteness 1 1%

102/103 Anticipated / Obvious Over Art of Record 41 35%

316(d)(3) Claims Enlarge Scope of Patent 6 5%

316(d)(1)(B) Unreasonable # Substitute Claims 3 3%

Multiple Statutory Reasons Given** 27 23%

Reasons Based on Procedure:

Cases Where Only Procedural Reasons Given 22 19%

Totals: 116 100%

* 116 MTAs requesting entry of substitute claims have been denied

in whole or in part.

** Of the "Multiple Statutory Reasons Given" trials,

24 of the 27 trials included "Anticipated/Obvious" as a reason.

34

Data for FY2016 are from October 1, 2015 – April 30, 2016.

Number of Motions to Amend Filed by FY

35

PTAB END TO END (PTAB E2E)

36

PTAB End to End (PTAB E2E)• PTAB E2E was opened to the public on 7/11 for Inter Partes Review (IPR), Post Grant Review (PGR), and Covered

Business Methods (CBM) AIA Trial types.

• Included interfacing with the USPTO Next Generation financial system (FPNG) for paying fees.

• Deployments:

– Four incremental deployments to address known defects for PTAB E2E were deployed into production on 7/17, 7/23, 7/27, and 8/6.

– Future deployments are targeted for 8/27 and monthly after that to continue and resolve known issues and address feedback from the users.

– Bulk access to PTAB data through the USPTO Open Data Portal is targeted for deployment on 9/9.

– Derivation AIA Trial types are targeted for migration in FY17 which will facilitate the decommissioning of the legacy Patent Review Processing System (PRPS).

– Appeals and Interferences are planned to start development in FY17 and have core capabilities deployed in FY18.

37

PTAB End to End (PTAB E2E)

• Since going live with PTAB E2E, over 140 petitions have been filed.

• PTAB E2E system link, user manual, FAQ, and quick reference guide

are available on the USPTO website PTAB Page

http://www.uspto.gov/ptab

• Customer support available Monday-Friday from 8 AM until 6 PM ET

at 571-272-7822.

• Send comments about the PTAB E2E system to

[email protected].

38

http://www.uspto.gov/ptab

mailto:[email protected]

Questions and Comments

David P. RuschkeChief Administrative Patent Judge

(571) 272-9797

[email protected]

39

mailto:[email protected]

patent public advisory committee · 2019-02-07 · * as a result of an internal audit the number of...

Documents