In August, the Patent Trial and Appeal Board issued 37 IPR, CBM, and PGR Final Written Decisions including decisions following remands from the Federal Circuit, cancelling 166 (44.39%) instituted claims while upholding the patentability of 74 (19.79%) instituted claims. Patent owners conceded 134 (35.83%) instituted claims through motions to amend or disclaimer in cases reaching a final decision. While this is an unusually high number of claims conceded as unpatentable, the concessions occurred in a small number of total cases in which the patent owners moved to amend a large number of instituted claims. For comparison, the cumulative average rate of instituted claims cancelled in IPR, CBM, and PGR Final Written Decisions is about 73%.
On a per-case basis, no instituted or substitute claims survived in 20 (54.05%) decisions, all instituted claims survived in 10 (27.03%) decisions, and a mixed outcome occurred in 7 (18.92%) 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.
In September, the PTAB issued 49 IPR, CBM, and PGR Final Written Decisions, cancelling 408 (63.35%) instituted claims while upholding the patentability of 220 (34.16%) instituted claims. Patent owners conceded 16 (2.48%) claims through motions to amend or disclaimer in cases reaching a final decision.
On a per-case basis, no instituted or substitute claims survived in 27 (55.10%) decisions, all instituted claims survived in 9 (18.37%) decisions, and a mixed outcome occurred in 13 (26.53%) decisions.
In October, a relatively unfavorable month for patent owners, the PTAB issued 31 IPR, CBM, and PGR Final Written Decisions, cancelling 334 (88.83%) instituted claims while maintaining the patentability of 42 (11.17%) instituted claims. Patent owners did not concede any claims through motions to amend or disclaimer in cases reaching a final decision.
On a per-case basis, no instituted or substitute claims survived in 20 (64.52%) decisions, all instituted claims survived in 2 (6.45%) decisions, and a mixed outcome occurred in 9 (29.03%) decisions.
The overall cumulative instituted claim survival rate in IPRs, CBMs, and PGRs, broken down by technology center, is as follows:
More detailed cumulative statistics on the Board's IPR, CBM, and PGR decisions, updated through October 31, 2021, are available here on the At the PTAB 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.
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